In the event agreement cannot be reached in relation to the matters set out in Order number 8, Graeme Knox must notify the Tribunal in writing that agreement cannot be reached, whereupon the parties will attend a Directions Hearing on a date and time to be advised, and the matter will be listed for determination by the Tribunal.

Knox v Bellamy [2021] QCAT 192 | Case summary | Zoe

QLDQCAT

Knox v Bellamy [2021] QCAT 192

[2021] QCAT 192

Queensland Civil and Administrative Tribunal|2021-05-26

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Court

Queensland Civil and Administrative Tribunal

Decision date

2021-05-26

Source

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Judgment (107 paragraphs)

[1]

A copy of these Orders and Reasons are to be given to the Queensland Building and Construction Commission (QBCC) marked to the attention of the Assistant Commissioner (Services and Trades) by the Principal Registrar of the Tribunal.
The Assistant Commissioner (Services and Trades) must appoint a senior plumbing inspector to liaise with Graeme Knox and Derek Bellamy in relation to rectification of the wastewater system at the Knox property at Brookfield (the land).
Graeme Knox, Derek Bellamy and the inspector appointed by the QBCC must attend at the land within 21 days of the date of this Order for the purpose of determining the scope of works necessary to rectify and complete the installation of an operational wastewater system on the land.
Graeme Knox and Derek Bellamy must co-operate with the QBCC inspector by provision of relevant documents and granting access to any experts engaged by the QBCC.
Graeme Knox must obtain engineering evidence as to the fitness for purpose of the current evaporation trenches, if rectified, and the rectification works required. Alternatively, Graeme Knox must obtain engineering evidence as to the location of new trenches, the style of new trenches and the cost of installing those trenches. That evidence must be provided to Derek Bellamy and to the QBCC plumbing inspector as part of the parties' collaboration in determining the scope of rectification work.
Derek Bellamy must attend to rectification of the wastewater tanks, pipework and evaporation trenches necessary to repair and complete installation of the wastewater system on the land, so that it is fully operational.
Derek Bellamy must obtain certification of the wastewater system by the Brisbane City Council.
In the event of disagreement as to whether rectification work falls within the ambit of the original agreement for installation of a wastewater system on the land, for example, the re-siting of the evaporation trenches and/or the supply of materials; and if the parties cannot resolve the matter themselves, the parties will participate in a dispute resolution process as administered by the QBCC.

[20]

[1] I order that Derek Bellamy be substituted as respondent in this proceeding in the place of Bellamy Plumbing Pty Ltd t/as Wastewater Systems. The order is made pursuant to section 42(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) on the Tribunal's own initiative.
[2] I make this order as a result of the matters set out in my decision made 24 August 2020. Pursuant to the orders made in that decision, I was provided with submissions by the applicant Mr Knox, and Mr Bellamy who at that time was purporting to defend the matter as a representative of Bellamy Plumbing Pty Ltd trading as Wastewater Systems.
[3] Neither party raised with the Tribunal the fact that Bellamy Plumbing Pty Ltd ACN 106681341 was de-registered on 11 August 2017 prior to commencement of proceedings against the company. That fact only emerged after the hearing once I was giving consideration to my decision in the matter and conducted searches from the Queensland Building and Construction Commission website and the Australian Securities and Investment Commission website.
[4] The current and historical company extract of Bellamy Plumbing Pty Ltd filed by Mr Bellamy records that Mr Bellamy was the sole Director and Secretary of the company from 15 October 2013 until the company was deregistered.
[5] Mr Knox submits that Mr Bellamy should be joined as respondent to the proceedings because he held the relevant trade licence and personally performed the work the subject of the proceeding.
[6] Mr Bellamy says that he should not be joined as a respondent because the contract to perform the work was entered into with Bellamy Plumbing Pty Ltd. Mr Bellamy submits that any obligations of the company were extinguished on its de-registration and that as the company no longer exists and no application has been made by Mr Knox for reinstatement of the company the proceeding should be dismissed.
[7] I reject Mr Bellamy's submissions. For reasons set out later in this decision, the proceeding was cast as a claim for damages for negligence at the commencement of the hearing. In brief, any contract between the company and Mr Knox is ineffective. Mr Bellamy has conducted the matter to date, he has defended the claim, filed evidence and conducted the hearing. Furthermore, Mr Bellamy held the appropriate plumbing and drainage contractor licence at the time the work the subject of the proceeding was undertaken. Mr Bellamy personally undertook the work in question.
[8] In all these circumstances, I do not consider it to be in the interests of justice that any further resources of the Tribunal and the parties should be wasted by requiring Mr Knox to discontinue these proceedings and to commence fresh proceedings against Mr Bellamy, when all relevant evidence has been filed and presented in a hearing and Mr Bellamy has been fully engaged in the matter.
[9] Although it was dismissed earlier in the proceeding Mr Bellamy filed a counter-application in the matter in his own name claiming moneys owing from Mr Knox for plumbing work and extra excavation costs on the job in question. Mr Bellamy has treated the proceeding as personal to him.
[10] I can discern no procedural unfairness to Mr Bellamy, which arises from substituting Mr Bellamy as respondent in the proceedings.

[22]

[12] The applicant Mr Knox entered into a contract with Bellamy Plumbing Pty Ltd trading as Wastewater Systems to supply and install an H2O Pure Plus Wastewater System.
[13] Work was commenced on 13 June 2016 by Mr Bellamy. Mr Knox asserts the works have never been completed, that Mr Bellamy has refused to return to site and that the works are defective. Mr Bellamy left the site on 19 July 2016. Mr Knox has incurred costs in attempting to rectify the works, however further work remains to be done.
[14] The quoted price for the works was $24,450.00. Mr Knox paid the sum of $23,933.00 but refused to pay $2,850.00 for decommissioning and pump out of septic tanks and plumbing labour, because no final certificate from the Brisbane City Council was received. Mr Bellamy also seeksa further $4,400.00 in excavation and rock breaking costs.
[15] The contract is comprised of a quotation dated 29 May 2016 which Mr Knox said was accepted by email on 29 May 2016. No copy of the email was able to be provided in evidence.
[16] The contract is a level 2 regulated contact within the terms of Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). However, the contract does not conform with the requirements of section 14(2) of Schedule 1B of the QBCC Act, in that it could not be established that the contract is in written form, dated and signed by or on behalf of each of the parties to it. The result is that by section 14 (10) of Schedule 1B of the QBCC Act the contract has no effect, and Mr Knox does not have available to him a claim for damages for breach of contract.
[17] Mr Knox advised the Tribunal at the hearing that he wished to proceed with his claim as a claim for damages for negligently performed work.
[18] I consider that a claim for relief as a consequence of negligently performed work is available in terms of the description of the complaint in the application, and the statements of evidence filed in the matter.[1]
[19] I am satisfied that the Tribunal has jurisdiction to determine the dispute between the parties.[2]

[49]

[37] It was concluded that the system was pumping the water to the effluent beds but the gravelly clay layer on top of the geotextile was impervious, preventing evaporation, and was greater than 300mm thick, preventing the beds performing as designed. It was recommended that the gravelly clay be removed from above the geotextile, the profile below the geotextile be determined the distribution pipes checked, and if that is in order to then backfill to a maximum of 300mm with sandy loam and grass. It was also recommended that bunding around the beds should be completed to prevent overland flow across the beds. Finally, it was recommended to landscape the surrounds and allow the system to stabilise.
[38] Mr Hackworth prepared a further undated report filed in the Tribunal on 5 March 2020[7] which records his observations following an inspection on 16 November 2019 which revealed 40% of the lower bed surface was saturated with water sitting on the surface. The upper bed was, by comparison, dry with grass cover along the separation bund. It was observed that a patch of grass between the two beds may be a point of leakage between the beds.
[39] In the later report Mr Hackworth noted that during an inspection whilst the beds were being rectified in 2016 the base of the bed was extremely weathered rock which may affect the rate of absorption.
[40] In evidence Mr Hackworth stressed the lack of conformity of the trenches as constructed with the design which required tiered benches and a sufficiently spaced bund. The design is intended to ensure an even flow top to bottom Mr Hackworth said that as constructed rain washes over and fills the beds with water. That overloads the bed which cannot then evaporate the effluent.
[41] Mr Hackworth emphasised that on the uphill side of the trenches as constructed by Mr Bellamy, the overlay material was thicker on one side than the other which prevented evaporation and the overlay was not the required loamy soil. The clay which had been used was said to act as a cap or sealant over the top of the benches.
[42] Mr Hackworth said that another possible contributing problem might be that the floor of the trenches and the pipes are not level. He said that water heads to the lowest level and then floods. He thought that was an explanation for the problems with the lower bed on the fence side of the property. Despite expressing this opinion Mr Hackworth had undertaken no measurements to determine if his hypothesis was correct.
[43] Mr Hackworth was also unable to say why there appeared to be a break in the separation between the two beds which was causing water in the upper bed to disperse to the lower bed, overloading its capacity.
[44] In cross-examination Mr Hackworth acknowledged that he did not but should have done a percolation test on site. He instead relied on the soil test results done for the building work being undertaken on the land.
[45] In an exchange between Mr Bellamy and Mr Hackworth, Mr Bellamy put it to Mr Hackworth that when he hit rock digging the trenches, he told the owner and asked for a site inspection with Mr Hackworth. Mr Hackworth said it was unusual for him not to attend. He agreed that no site investigation was a major issue, that hitting rock at 350mm is not what he would expect to see, and that no permeability test was done on the site. Mr Hackworth's evidence is that once Mr Bellamy hit rock he should have stopped work because no trench is meant to sit on exposed rock.
[46] Mr Bellamy said that he proceeded because the Brisbane City Council approved the work, however he says that he told Mr Knox the system would fail because of the rock.
[47] In cross-examination Mr Hackworth said that three quarters of the beds were now functioning as expected but he thought there may be a group of problems causing water to transfer from one bed to another. He could not say with certainty what the problem was. He acknowledged that rock could be causing the problem but that until someone does permeability testing, it is not possible to say.
[48] Mr Hackworth acknowledged that despite replacing the clay on top of the beds, there is still leaking although it is currently saturating rather than leaking between beds. He could not give a definitive cause for that problem.
[49] Mr Hackworth also agreed that if the system is not serviced the trenches will be affected. He said that if untreated product is sent to the trenches it will cause a blockage over time. I note from Mr Mohr's evidence, referred to later in this decision, that untreated wastewater was going into the trenches.

[50]

[50] Mr Bellamy's evidence in relation to the trenches is that he struck rock and the work took an extra two days to complete. The rock was shale and it was necessary to remove boulders. He said that he had to use an auger with teeth to do the job. His evidence is that after clearing the rock he used a laser level on each trench. He also said that the Brisbane City Council inspector inspected the trench and confirmed it was level before passing the trench.
[51] Mr Bellamy's evidence is that rock will cause ponding because water is not absorbed. He said that he notified Mrs Knox straight away and told the builder on site about the problems caused by striking rock. The builder told him to "get on with it" because he was holding up the job. Mr Bellamy said that he told the builder the system would fail, but the builder said that was nonsense because the design plan was passed by the Brisbane City Council.
[52] In cross-examination Mr Knox acknowledged that his wife may have instructed Mr Bellamy to continue construction of trenches despite hitting rock, however, he said that his wife was not qualified to say how a septic tank trench should work.
[53] Mr Bellamy said that he contacted The Soil Testers, but no-one came to site and he contacted the Brisbane City Council. The Brisbane City Council inspected and told Mr Bellamy to go by the soil report and that the work looked fine. For these reasons he continued with the construction of the trenches.
[54] Mr Bellamy said that no borehole logs were supplied to the Council and that the soil test Mr Hackworth relied upon was from a different part of the site. The Brisbane City Council Inspector did not know where the soil test came from.
[55] As to why the trenches slope rather than being constructed in tiers Mr Bellamy said that Mrs Knox wanted a slope for the children to use as a slide and that she had said he would not be paid if the trenches did not slope. Mr Bellamy said that on the last day there was an argument over payment for rock breaking and payment of the final invoice. On the last day he was backfilling the tank so he backfilled the slope over the trenches with the clay on site in order to complete the work and leave the site as soon as he could.
[56] In cross-examination Mr Bellamy said that he took instruction from Mrs Knox to create a slope over the trenches although he told her the trenches would not work. Mr Bellamy said that he put whatever was left from the excavation work on top of the trenches. He said that Mrs Knox refused to pay for extra soil. He said that he just did what he was told but he knew it was wrong.
[57] Mr Knox put it to Mr Bellamy that he was a professional plumber, that he was not engaged by the builder on site and he should not have taken instructions on how to do the work from a housewife. Mr Bellamy gave no answer.
[58] Mr Bellamy's final statement in cross-examination was that he challenged the engineer who did not do a proper design with appropriate borehole information so that a minimum .3m set back distance from bed rock could be achieved, in accordance with the design plan He also challenged the groundwork performed as it was done without Brisbane City Council involvement.
[59] In his written statement of evidence Mr Bellamy says that he only received the soil report from Mr Hackworth on 13 February 2020. The report revealed that the soil profile was determined from a soil test provided by the client for the site. He said it was evident the bore holes were not drilled on the proposed application area. Bore Hole number 2 shows rock encountered at 0.4m below ground level. On providing that report to the Brisbane City Council he says he was told that if the report was provided to the Council from the beginning the design for the land application area would have been redesigned due to the rock. Mr Bellamy did not call any representative of the Brisbane City Council.
[60] In cross-examination Mr Knox was asked why there was no soil testing in the location of the trenches. Mr Knox said that was a matter for the engineer.

[60]

[72] During his investigations in August 2018 Mr Mohr found that the system was not draining into the sump. Mr Mohr observed the media in the filter had blocked with muck and wasn't allowing water to drain through. Mr Mohr's opinion is that the broken manifold which connects the septic tank to the media filter has significantly contributed to the failing of the system. When it was put to Mr Mohr that servicing would have fixed that problem Mr Mohr responded that he did not know how much wastewater could have passed through given the broken pipes and manifold. Mr Mohr also gave evidence that it was unusual for filter media to block so early in the life of a system.
[73] Mr Mohr expressed the opinion that broken pipes would have allowed silt and sediment from the surrounding soil into the media filter and this could have been avoided if the pipework had been bedded correctly with the correct gravel.
[74] Mr Mohr did not conduct a full investigation of the filter media, beyond observation of the surface, but expressed the opinion that the wrong filter material may be present in the relevant tank. He describes uncovering the top of the media filter and finding gravel. There is no evidence to support Mr Mohr's opinion.
[75] Mr Mohr also describes finding the system's floats were disconnected and that the leads were loose. It is my understanding that the floats engage the pump once the effluent reaches a certain level.
[76] Mr Bellamy suggests that there was no problem with the treatment system installed by him, but that Mr Mohr's work has modified the system and that it is his work which is the problem. There was no evidence by Mr Bellamy as to how the repairs done by Mr Mohr have caused the problems evident in the system.
[77] Other factors have been raised as contributing to the blocked media filter.
[78] The plumber engaged by the QBCC concluded that the cause of the system failure is a lack of maintenance to the system which has allowed solids to enter the second stage media part of the system, likely blocking the media. The system was said to require annual inspection maintenance and/or servicing.
[79] Mr Knox acknowledges that a period of two years passed before he contacted the manufacturer and learned that annual servicing was required.
[80] At the hearing I requested a copy of the Installation, Operation and Maintenance Manual which should have been provided to Mr Knox upon installation of the system.[8] Mr Bellamy provided the Booklet. I note that the Manual provides that purification modules are sealed and require no ongoing maintenance.[9] The filter media tank is the purification module in this system. The Manual goes on to provide that sludge does build up in the primary treatment module. That is the first concrete tank in this system. It is said that the tank should be pumped out and disposed of once every five years. As to servicing, the Manual provides that each installation must be serviced once every 12 months by an authorised agent of the manufacturer. The Manual provides that: "H2O Pure Plus will notify property owner/tenant of due date and complete an official Service Report, which must be provided to the local authority."
[81] The Service Report is said to include:
- Check and test well pump
- Check for odour
- Check sludge thickness in primary separator tank
- Check operation of monitoring system and service if necessary
- Check readings of monitoring system: PH, ORP, Conductivity, Turbidity.
- Report on weather conditions and wastewater temperature
- Clean Monitoring system probes in well
- Check and test alarm system
- Check, clean or change UV lamp globe
- Check surface pop-up irrigation sprinklers
[82] Mr Venville's evidence is that a failure to service the system every 12 months will cause clogging. Despite it not being mentioned in the Manual Mr Venville said that the Council requires an annual backwash to rejuvenate the filter. Despite it not being mentioned in the Manual Mr Bellamy says that the filter media must be aerated from below to reduce clogging.
[83] I accept Mr Knox's evidence that he was not provided with a copy of the Manual by Mr Bellamy. Furthermore, there is no evidence that Mr Knox was told by Mr Bellamy what steps he would have to take to maintain the system nor the nature of the annual servicing required. I note that even if he had been provided with the Manual it does not make explicit the nature of the servicing required. There is no evidence of the manufacturer writing to Mr Knox to remind him of the need for servicing. Neither has the Council done so. That is probably because the system was not commissioned by Mr Bellamy and certified bythe Council upon completion of the work.
[84] Mr Venville also gave evidence which attributed clogging to the evaporation trenches not working. He said that when the irrigation area is not working because of water not getting away quickly enough, it puts pressure on the sand filter and causes clogging.

[85]

[94] I conclude that the risk of failure of the tanks and trenches forming the wastewater system and the need for rectification and completion of the system was reasonably foreseeable.
[95] I find that the risk of failure of the trenches, broken pipework, overflow of the primary tank and clogging of the filter tank was likely to occur if care was not taken and that the risk was not insignificant. The wastewater system is a major piece of sanitation infrastructure on a home-site and its failure affects the health and safety of the people who rely on the system. If the system fails it is a necessity that it is rectified.
[96] In the circumstances a reasonable person in Mr Bellamy's position would have taken precautions against defects occurring. He did not do so.
[97] Apart from the failings set out earlier, I find that it was unreasonable and not the actions of a tradesman taking reasonable care and exercising skill to construct evaporation trenches knowing they would fail. I accept Mr Hackworth's evidence that Mr Bellamy should have stopped work and insisted on a meeting with Mr Hackworth, as the designer and an engineer, to enable a solution to be developed. I do not consider it a defence for Mr Bellamy to say that he took direction in relation to the work from Mrs Knox. Mr Bellamy is the qualified tradesman, not Mrs Knox. Mr Bellamy admitted that he knew he was wrong. Mr Bellamy knew the consequences of failing to install the tanks correctly and to construct trenches which would operate as intended.
[98] I find that it was unreasonable and not the actions of a tradesman taking reasonable care and exercising skill, not to take the precaution of using appropriate bedding and fill around the tanks and pipes; and that he should have done so, even if the work could not proceed until a variation to the contract had been agreed with Mr Knox or the contractual dispute otherwise resolved.
[99] I find that it was unreasonable of Mr Bellamy not to have taken the precaution of providing information about maintenance and servicing to Mr Knox on completion of the work, and that he should have done so.
[100] Given the probability that Mr Knox would be put to considerable cost in addressing the defective work, the seriousness of a failure of the wastewater system and the relatively straightforward precautions which should have been taken, it was not reasonable for Mr Bellamy not to take precautions against failure of the system.
[101] For these reasons, I find that Mr Bellamy has breached his duty of care to Mr Knox.
[102] I find that Mr Bellamy's failures were a necessary condition of the occurrence of the harm suffered by Mr Knox as contemplated by s 11(1)(a) of the CLA. The harm is the failure of the wastewater system, the cost of rectification and the need for further rectification.
[103] Section 11(1)(b) and (4) of the CLA require me to consider whether it is appropriate for the scope of liability of Mr Bellamy to extend to the harm caused to Mr Knox. I must consider whether or not and why responsibility for the harm should be imposed on Mr Bellamy.
[104] The questions usually explored with respect to scope of liability go to the remoteness of damage and a break in the chain of causation.[13]
[105] The costs of rectification were reasonably foreseeable as flowing from Mr Bellamy's work, performed without the reasonable care and skill expected of a licensed plumber and drainer. Accordingly, the scope of Mr Bellamy's liability is not reduced on this basis.
[106] Mr Bellamy raises that the work carried out by Mr Mohr voided the warranty on the system and that Mr Mohr has modified the system so that untreated water is now leaking from it. He says that it is Mr Mohr's work, not his installation of the treatment system which is causing the failure.
[107] Mr Mohr's work involved repairing and re-bedding broken pipework and an attempt to achieve flow of water into the pump well by drilling a hole in the plastic wall of the pump well to allow water to flow in.
[108] By the time Mr Mohr attended to investigate the problems with the wastewater system in August 2018, the pipes were broken, the primary tank was full and overflowing and the filter media tank was full of sludge and not draining to the pump well. Mr Mohr's actions did not cause any of these problems. Mr Mohr undertook such rectification work as seemed reasonable at the time. There is no evidence that the work performed by Mr Mohr has caused any failure of the system.
[109] It is true that the Warranty[14]given by the manufacturer would appear not to respond to Mr Knox's claims for a number of reasons. That however is a separate question to the question of Mr Bellamy's liability for his own negligence. In any event, I note that Mr Bellamy's own conduct is likely to have voided the warranty, relating as it does to installation without appropriate fill, resulting in "soil subsidence ... plumbing fault, or other matter outside H2O Pure Plus Pty Ltd's control".
[110] Mr Bellamy raises that the work performed stripping away the clay overlay from the evaporation beds and replacing it with sandy loam should not have been done without Council approval. I do not think a lack of Council approval for the work impacts on the performance of the trenches. The question is whether the work has caused the current problems of non-performance. There is no evidence that is the case. The work was performed upon the direction of the designer of the trenches and was rectification work intended to improve the performance of the trenches, which has occurred to a degree. I find that it was reasonable for Mr Knox to do remedial work on the advice of the engineer and designer.The primary problem remains that the trenches are not functioning as intended. As discussed earlier that problem relates to the trenches having been constructed on a rock base and not in conformance with the design. Those issues are not changed by the rectification work.
[111] In all, I consider that there is no reason to limit the scope of Mr Bellamy's liability for the harm he has caused.
[112] It is however appropriate to consider if there has been any contributory negligence on the part of Mr Knox which may reduce any damages awarded to Mr Knox and to consider whether Hackworth and Associates Pty Ltd should bear a proportion of liability for Mr Knox's damages.

[86]

[113] Section 23 of the CLA provides that the principles as to whether a person has breached a duty also apply in deciding whether the person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of that harm. The standard of care is that of a reasonable person in the position of the person and the matter is decided on the basis of what that person knew or ought reasonably to have known at the time.
[114] Mr Bellamy alleges that Mr Knox is responsible for the filter tank filling with sludge and not operating, because he did not service the system. That is also the view of the QBCC. The question is whether Mr Knox should have known that servicing was required and that if he did not service the filter tank, the system was likely to fail by filling with sludge.
[115] There were a number of matters not investigated by the QBCC. For that reason, I place no weight on the opinions expressed in the QBCC report as to the cause of the problems.
[116] The job was never finished by Mr Bellamy. He was responsible for final commissioning and obtaining council certification. He did not do so. I accept that Mr Knoxwas given no service material or information as to how to maintain the system. The Manual in any event does not say that servicing of the filter tank is required. Mr Knox received no communications from the supplier H2O Pure Plus Pty Ltd as to servicing, nor from the Council.
[117] Servicing the system requires specialist knowledge and tools beyond an ordinary householder. Mr Bellamy ought to have known that without information as to servicing requirements Mr Knox would not take the maintenance and servicing steps required.
[118] I have found that lack of a backwash in the filter tank contributed to the sludge in that tank. However, I cannot find that without knowledge of the maintenance requirements of the system Mr Knox could reasonably foresee the likelihood of blockage in the filter tank from that cause. I find that he had no reason to know and no means of knowing that if the media filter was not serviced within 12 months of installation it would create a blockage in the tank or make the existing problems worse, if indeed it did. Given the extent of failure evident only approximately 18 months after installation, it is possible that servicing the filter tank within 12 months would not have corrected the problems caused by broken pipes and non-performing trenches. I find that a reasonable person in Mr Knox's place would have acted as Mr Knox did in attempting to address the problems with the system and that a reasonable person would not have attended to a backwash of the filter media.
[119] I note that Mr Knox called on Mr Bellamy in August 2018 to assist with the problems in the system. He was ignored.[15] He called on Mr Hackworth from 2016 to assist with problems with the trenches. He contacted Mr Venville in late 2018. He later unsuccessfully attempted to find contractors who would service the system, but it became apparent he could get no help from any quarter, other than from Mr Mohr who revealed the extent of the problems and made limited repairs.
[120] For these reasons I find that there was no contributory negligence on the part of Mr Knox.

[87]

[121] Mr Bellamy alleges that the cause of the problems with the evaporation trenches is a poor design combined with a failure to drill boreholes to test the soil in the location of the trenches. He asserts that at the location of the trenches, it was impossible to achieve a minimum 300 mm set back distance[16] from bed rock and that would have been apparent if proper testing had been carried out.
[122] The evidence reveals that Mr Hackworth did not soil test the location of the trenches. In fact, he did not perform soil testing; he relied on testing provided by Mr Knox with respect to other areas of the land undertaken for the building work on site.
[123] It is possible that if Mr Hackworth had undertaken soil testing at the trench location, the trenches may have been located elsewhere on the site or designed differently. If that had occurred Mr Bellamy would not have encountered the difficulties with the site that he did. It is also possible that if, as part of rectification, it is necessary to move the location of the trenches and to build new trenches, Mr Hackworth's failures will have been causative of some of that cost. There is limited evidence available to me on these issues.
[124] The matter is further complicated by the fact that Mr Hackworth's failings were not the immediate cause of the non-performing trenches and their impact on the wastewater tanks. The proximate cause was Mr Bellamy recognising the problem of bedrock, ignoring it and pressing on to complete trenches with a clay overlay, which did not accord with the design and which he knew would fail.
[125] The question of the liability Mr Bellamy must bear and the liability Hackworth and Associates Pty Ltd may bear is resolved by either the proportionate liability provisions of the CLA[17] or common law principles of solidary liability.
[126] In this case I decline to make any apportionment of liability against Hackworth and Associates Pty Ltd under the proportionate liability provisions of the CLA, because no claim has been brought against Hackworth and Associates Pty Ltd, even though it might have been. [18]The parties may pursue such other rights as they may have, taking note of the relevant period of limitation.

[93]

[130] I find that these costs would not have been incurred if Mr Bellamy's work in installing the tanks and constructing the trenches had been performed with reasonable care and skill. Given that the object of damages is to put the claimant in the position he would have been in if the negligence had not occurred, account must be given for what Mr Knox would have been bound to pay for the value of the work performed. In other words, he may recover his net loss. [20]
[131] Neither party has put into evidence a copy of the final invoices from Mr Bellamy. The schedule of moneys paid by Mr Knox[21] does not reconcile with the quotation for work. I intend to undertake a calculation of Mr Knox's net position, for the purpose of making final orders, and will require submissions once there has been compliance with the orders next dealt with by me.
[132] At the hearing Mr Knox raised the prospect of Mr Bellamy being directed to rectify the wastewater system so that the Brisbane City Council will certify the system.
[133] Mr Bellamy was reluctant to return to the site.
[134] I am empowered under s 77(3)(g) of the QBCC Act to order rectification or completion of incomplete work. I am also empowered by s 82(2) of the QBCC Act, before finally deciding a building dispute, to make an order requiring a building contractor such as Mr Bellamy to rectify or complete work by a process identified in the order.
[135] The QBCC in its report recommended with respect to the tanks that the manufacturers be engaged to bring the system back to normal operating conditions and that the trenches be replaced or repaired.
[136] I consider Mr Bellamy should be required to rectify the wastewater system including the evaporation trenches, to provide an operational system fit for certification and to obtain certification. I hold this view because of the uncertainty as to the cost of future rectification work and according to Mr Knox, the lack of qualified tradesmen, familiar with the H2O system able to install and service the system.
[137] Given the uncertainty as to the extent of work required to make the system operational and to obtain certification, I consider it necessary that a senior plumbing inspector employed by the QBCC attend at the site with Mr Bellamy and Mr Knox, to determine the scope of rectification work and to subsequently inspect the work performed. I am empowered to make that order by s 97(1)(b) of the QBCC Act, whereby I may authorise a person in writing to enter and inspect land relevant to the proceeding and to report to the tribunal on the action taken.
[138] It is possible that the rectification work will involve re-siting and/or re-design of the evaporation trenches, with construction work which was not within the ambit of the original agreement for the performance of work. That may involve the engagement of other contractors and further cost. That is not a cost which should fall to Mr Bellamy. Mr Knox may of course have other rights of recovery upon which he should take advice.
[139] It is obvious to me that the wastewater system will not function as it should without operational evaporation trenches or another style of trench. Mr Knox is required to obtain engineering evidence as to the fitness for purpose of the current trenches if rectified and the rectification works required. Alternatively, Mr Knox is required to obtain engineering evidence as to the location of new trenches, the style of new trenches and the cost of installing those trenches. That evidence must be provided to Mr Bellamy and to the QBCC plumbing inspector as part of the parties' collaboration in determining the scope of rectification work.
[140] If a question arises as to whether rectification work falls within the ambit of the original agreement, and the parties cannot resolve the matter themselves, the dispute resolution processes of the QBCC should be engaged or failing agreement returned to this Tribunal for further determination as part of the finalisation of the proceeding.
[141] Given the disastrous outcome of the work performed to date, which the Tribunal observes has been brought about by a failure to document the works and a breakdown in communication, the Tribunal expects that the parties will mitigate the cost and risks associated with the dispute and will co-operate fully in order to bring the wastewater system to full operation and certification as soon as possible.
[142] Accordingly, on an interim basis, I make the following orders:
1. A copy of these Orders and Reasons are to be given to the Queensland Building and Construction Commission (QBCC) marked to the attention of the Assistant Commissioner (Services and Trades) by the Principal Registrar of the Tribunal.
2. The Assistant Commissioner (Services and Trades) must appoint a senior plumbing inspector to liaise with Graeme Knox and Derek Bellamy in relation to rectification of the wastewater system at the Knox property at Brookfield (the land).
3. Graeme Knox, Derek Bellamy and the inspector appointed by the QBCC must attend at the land within 21 days of the date of this Order for the purpose of determining the scope of works necessary to rectify and complete the installation of an operational wastewater system on the land.
4. Graeme Knox and Derek Bellamy must co-operate with the QBCC inspector by provision of relevant documents and granting access to any experts engaged by the QBCC.
5. Graeme Knox must obtain engineering evidence as to the fitness for purpose of the current trenches, if rectified, and the rectification works required. Alternatively, Graeme Knox must obtain engineering evidence as to the location of new trenches, the style of new trenches and the cost of installing those trenches. That evidence must be provided to Mr Bellamy and to the QBCC plumbing inspector as part of the parties' collaboration in determining the scope of rectification work.
6. Derek Bellamy must attend to rectification of the wastewater tanks, pipework and evaporation trenches necessary to repair and complete installation of the wastewater system on the land, so that it is fully operational.
7. Derek Bellamy must obtain certification for the wastewater system by the Brisbane City Council.
8. In the event of disagreement as to whether the rectification work falls within the ambit of the original agreement for the installation of a wastewater system on the land, for example, the re-siting of the evaporation trenches and/or the supply of materials; and if the parties cannot resolve the matter themselves, the parties will participate in a dispute resolution process as administered by the QBCC.
9. In the event agreement cannot be reached in relation to the matters set out in Order number (viii), Graeme Knox must notify the Tribunal in writing that agreement cannot be reached, whereupon the parties will attend a Directions Hearing on a date and time to be advised, and the matter will be progressed for determination by the Tribunal.
10. Graeme Knox must co-operate with Derek Bellamy in the completion of the works and must ensure extra work outside the ambit of the original agreement for the installation of a wastewater system on the land is either contracted to Derek Bellamy or another appropriate contractor, to enable completion of the rectification work.
11. The QBCC inspector must file two copies in the Tribunal and give to the parties one copy of a report confirming satisfactory completion of the works the subject of these Orders.