RA Coastal Builders Pty Ltd v Tummon & Anor [2025] QCAT 208

Queensland Building and Construction Commission Regulation 2018 (Qld), s 54(1)(c)

Cochrane v Lees [2021] QCATA 74

Harrison v Meehan [2017] QCA 315

Mann v Paterson Constructions Pty Ltd [2019] HCA 32 Miller v Lida Build Pty Ltd [2015] QCATA 137

Mondel v Steel [1841] EngR 61; (1841) 8 M & W 858; 151 ER 1288

Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Ltd [2007] NSWCA 276

Worthington v Ryan; Ryan v Worthington [2021] QCATA 138

• [1] RA Coastal Builders Pty Ltd ('the builder') was engaged by the respondent homeowners ('the owners') through an insurance claims manager to re-roof their home after it suffered hale damage in a weather event on 21 April 2020. The repairs were approved by the home insurer.
• [2] The work commenced 23 September 2021 and was performed by a sub-contractor engaged by the builder. By 4 October 2021 the main roof had been removed and replaced and on 25 October 2021 the sub-contractor claimed completion of the work and provided a Form 43 Aspect Certificate for the work.
• [3] The builder identified various defects with the work and the builder engaged new sub-contractors to return and perform rectification work.
• [4] The builder engaged a structural engineer to inspect the work and performed rectification work following recommendations made by the engineer.
• [5] The builder issued invoices for Stages 2 and 3 of the work in the sum of $24,232.11 and $2,692.46 respectively.
• [6] A certifier supplied a Form 21 Final Inspection Certificate for the roofing work.
• [7] In course of the work the builder sought and obtained the insurer's approval to also pay for replacement rather than reinstatement of the existing solar system. That payment was made directly to the owners. The builder claimed $9,556.80 for that as a variation.
• [8] The owners have refused to pay the amounts claimed, maintaining the work remains defective and the work under the variation was already covered in the contract's scope of work.
• [9] The builder commenced the within proceedings on 25 August 2022 seeking recovery of outstanding monies totalling $36,481.37.

• [10] The parties signed a Master Builder's Basic Works Residential Contract on 21 May 2021. The scope of work required removal and replacement of Colorbond sheet roofing and supply and installation of new sheeting, hardware and flashing to match the existing and supply and installation of roof battens as per the National Code of Construction for Cyclonic Roof Requirements for Zone C1-W41C and C2-W50.
• [11] It provided for payment over 3 stages of work after the deposit. The deposit was 5% of the price. Stage 1 covered "First 45% materials delivered" and Stage 2 "Second 45% majority works". Each completed stage entitled the builder to a payment of $24,232.11. The third and final stage was practical completion and that entitled the builder to a payment of $2,692.46 representing the last 5% of the price.
• [12] The deposit and the Stage 1 payment were paid. Nothing more.

• [13] The builder claims payment for the stage 2 work, the practical completion stage payment and payment for the supply and installation of a new solar system as a variation, a total of $36,481.37.
• [14] The owners dispute payment of any money to the builder. In their Response to the initial application for building dispute the owners ask for orders that no further payments be made by them to the builder and that all monies already paid be recovered from the builder.
• [15] The owners did not pursue any counter-application in their Response, and at hearing Mr Broadfoot for the owners agreed they were not pursuing recovery of money already paid but were maintaining opposition to any further payment being made.
• [16] The entitlement of the builder to be paid is conditional on completion of the relevant stage work concerned. Clause 4.8 of the general conditions says that.
• [17] The scope of work constituting Stage 2 is unhelpfully broad brush, "45% majority works". The expression majority works is not defined. Stage 1 seems to exclude any physical construction work save purchase and supply of the necessary materials for the job. Stage 3, practical completion, is defined in the general conditions as:

... that stage when:

a) The works are complete in accordance with the contract and all relevant statutory requirements, apart from minor omissions or minor defects, the rectification or completion of which do not prevent the works from being used for the intended purpose; and

b) If the owner claims there are minor defects or minor omissions, the contractor gives the owner a defects document.

• [18] Defects document is also defined in the general conditions, but it appears it was not given here.
• [19] Stage 2 might reasonably be interpreted as performance of all the substantive roofing work. Item 8 of the schedule to the contract, entitled Description of the Works, states the work is to be performed in accordance with the contractor's scope of works/quotation. Attached to the contract is a two page untitled document with the following headings, Preliminaries, Main Roof, Metal Roofing, Solar Panels, Carpentry, Rear Patio and General Note. That appears to be the scope of work document referred to in the schedule.
• [20] The 5% deposit would usually cover the costs of preliminaries. It is not clear what the 5% Practical Completion stage work involved, although there would be final inspections and the Form 21 certification requirement at end of job.

• [21] Neither party provided complete statements of evidence giving a full chronological explanation of the interaction of the parties under the contract and in course of the build. In particular the owners failed to grasp the importance of this. As such it has been necessary to ascertain the chronology of events from limited information.
• [22] The builder engaged a sub-contractor to re-roof the house, and that sub-contractor claimed to have finished the work on 25 October 2021. The owners complained about the work. The builder's supervisor inspected the work and found poor scribing and workmanship, scratches and dents and 10 sheets of iron and 40 metres of ridge capping requiring replacement.
• [23] The sub-contractor returned and did rectification work, but the builder's supervisor found further issues with the work.
• [24] The parties agreed the builder would engage an engineer to confirm the structural integrity of the roof.
• [25] Mr Thomas, engineer, was engaged. Mr Thomas inspected the roof and provided an initial report on 1 December 2021. He noted his brief was to provide advice on the existing roof cladding supports from top plate up and the roof cladding fixings, any strengthening that was required and comment on the replacement of any decayed or split timbers.
• [26] In his report he made a number of recommendations about checking and replacing any decayed or split members or connectors; where removal and replacement could not be safely effected that new members be lapped onto existing members; and recommended screwing down roof battens into existing timber rafters and pre-drilling all holes. He did not suggest that any of the battens be replaced. He said in a caption accompanying a photograph of a re-used batten:

Some of the battens off the northern valley have been re-used. However, given the valley is a low load-width area and the spacing between the existing holes appears acceptable, in my opinion, these battens are sufficiently securing the sheeting and will not require replacement.

• [27] The builder then engaged two new sub-contractors to do further rectification work. They completed that work respectively in February 2022 and 26 and 28 April 2022.
• [28] The builder issued an invoice (598) for practical completion stage on 5 May 2022.[1]
• [29] The certifier issued a Form 21 Final Inspection Certificate for the roofing works on 24 May 2022.
• [30] In the meantime the owners complained to the Queensland Building and Construction Commission ('QBCC') about the re-roofing work. There were inspections of the roof by a QBCC inspector and directions to rectify contemplated (none concerning battens - that was not a complaint made by the owners) however the QBCC decided not to direct the builder to perform rectification work.
• [31] It is not made clear in any party's statement of evidence why the builder engaged the engineer to provide a further second report about the battens. In that report (dated 1 July 2022) the engineer described his scope of work as an engineering check and to provide advice on the use of "doubler battens" (a new batten cut to fit between trusses and fitted flush with the existing batten remaining in place, both fastened to the roofing sheets above with a new roofing screw) to negate the need to re-batten the entire roof with new battens.
• [32] The engineer said he was prepared to certify the re-use of battens if in screwing the roof down the new screws were more than 5 hole diameters from an existing hole. Where holes were within 20mm of each other, the doubler batten method was permitted to be used. He said that from his observations all timber trusses appeared sound.
• [33] On 7 July 2022 the builder's solicitors forwarded the without prejudice correspondence referred to in footnote 1 together with open correspondence[2] of that date demanding payment of an amount of $38,667.24 within 7 days or proceedings would be commenced to recover that amount.
• [34] The owners did not pay and clearly did not accept the compromise offered. Instead they engaged Mr Comino, a roofing contractor, who performed a roof inspection on 18 August 2022 and provided a report.
• [35] Mr Comino noted in his report seeing screws through battens with "multiple holes close to each other". He reported a lot of dents from foot traffic and what he described as an unacceptable amount of scratching and swarf rust. He said the workmanship was poor and in his opinion the only way to rectify the "damages" was a complete re-roof. He provided some photographs of what he described as swarf rust on roofing sheets.
• [36] In the course of the litigation the owners also sought a report from Mr Minogue, a building contractor. He inspected the building on 29 March 2023.
• [37] In his report he exhibited 14 photographs showing battens with holes too close, split timber caused by penetrating screws, battens without screws and timber with screws missing fixing . He agreed at hearing that he had been supplied with some photographs by the owners but maintained those photographs were captioned as such in his report, save for photographs of the ensuite.
• [38] The 14 photographs, purporting to show the poor work of the builder identified by Mr Minogue, I find were taken by the owners well before the two new sub-contractors were engaged to perform rectification work. The same photographs are to be found as attachments to an email dated 21 December 2021 from the owners to the builder, which was before the builder's rectification work was performed.
• [39] At hearing Mr Comino expressed doubt that double battens should ever be used. He admitted he had not had the opportunity of reading the engineer's report (or any of them) explaining it. He expressed general scepticism about engineering advice always being useful in any case.
• [40] Mr Minogue was also at odds with the recommendations of the engineer as far as it concerned battens. He also had not read the engineer's reports including the engineer's second report specifically addressing battening.
• [41] Mr Minogue referred to "HB39" in his report in support of his recommendation that all roof cladding, flashings and insulation should be removed and replaced and the frame repaired. His reference to HB39 is apparently a reference to HB39-2015, an installation code for metal roofing and wall cladding produced by Standards Australia.
• [42] Unfortunately the code is not in evidence and Mr Minogue's references to it are entirely too broad brush to be helpful.
• [43] He also mentions seeing heavy swarf damage (rather than swarf rust) during his inspection. He adds photographs of damage to the internal ensuite showing peeling paint on the ceiling and loose tiles, though there is no explanation offered how it is relevant to the roofing work.
• [44] Neither Mr Comino nor Mr Minogue provided details of their qualifications or experience. Mr Minogue made a report for the purpose of the litigation but did not complete the requisite expert witness information statement satisfying the requirements of rule 428 of the Uniform Civil Procedure Rules 1999 (Qld). Mr Thomas complied with that requirement with his third expert report.
• [45] The engineer's third expert report followed his attendance on site on 16 June 2023 for the purpose of preparing a final report. He noted in the report with respect to battens that replacement of metal battens requires all the roof to be removed to allow a new length to be installed which is not an economical solution where there is only a limited area requiring reworking.
• [46] He referred to his second batten report and said it had not been possible to inspect all the roof cavity but from his observations there was only one location where batten re-use was required and use of doubler battens would remedy any deficiency there. He referred to attached photograph 6 for the location requiring repair. The photograph caption identified the batten depicted as a ridge batten.
• [47] Mr Thomas also said in cross-examination:

... there's a few deciding factors about whether you need a doubler batten, and that's the spacing of the hole. Now, the issues with yours was the ridge cap. So given that the ridge cap and the spacing - it hasn't - it - it's not as overly loaded as a normal batten ....

...

Ms Tummon: ... So there must've been an area in ‑ ‑ ‑?‑‑‑Yep.

‑ ‑ ‑ the roof you said to do double battens - one you could definitely see - one or two?‑‑‑Yeah, and it was pretty well straight above your manhole, from what I remember, was the - the ‑ ‑ ‑

Yeah?‑‑‑The batten I asked to be done. Yes.[3]

• [48] A Form 21 was issued by the certifier. Indeed the certifier had issued a Form 21 Final Inspection Certificate for the roofing works on 24 May 2022, after the rectification work was performed by the second set of sub-contractors.
• [49] I accept the evidence of Mr Thomas the engineer concerning the commercial and practical effectiveness of re-use of existing battens, that the area concerned was limited to only one small area at the ridge cap above the manhole, and that the roof as constructed and rectified by the second sub-contractors in February and April 2022 was structurally sound.
• [50] In contrast I give little weight to the evidence of Mr Comino and Mr Minogue where it diverges from or conflicts with the evidence of the engineer. Indeed Mr Minogue sought to justify his opinion about battens by reference to old photographs that as at date of his involvement had been rectified in large part.
• [51] In so far as there were a small number of doubler battens proposed to be fitted as suggested by the engineer at the ridge capping where there were holes less than 20mm apart I find that was minor rectification work which did not detract from the builder's claim that it had completed the stage 2 work and was entitled to be paid for it.

• [52] Both Mr Comino and Mr Minogue commented on the amount of swarf (metal filings left after drilling through metal sheets) observed on the roof.
• [53] Mr Comino reported seeing "swarf rust" on the roof although he did not explain what that term meant. Mr Minogue referred to heavy "swarf damage" rather than swarf rust. The latter's photographs showed numerous marks on the roof sheets.
• [54] Mr Enriquez, the builder's operations manager, gave evidence at hearing that in his experience swarf did not cause rust on roofing sheets and did not reduce the longevity of roofing sheets. He said swarf did not penetrate the protective coating on the sheets. It might leave an imprint and mark but the sheets were not rusting. He said the marks were easily removed and there were products on the market to assist with that.
• [55] Mr Comino was also asked about swarf causing rust at hearing and in his opinion it did cause rust. He agreed however that it could be wiped off, adding "if you get onto it soon enough" adding "but after a couple of months, it's ... in the metal. There's no stopping it."
• [56] Mr Mann, a contractor licensed for carpentry, roof and wall cladding also provided a statement of evidence for the builder. He described his firm as specialist roofing contractors. He said he had been engaged by the builder to walk over the roof and prepare a report and to do some small items of work on downpipes. He also entered the ceiling cavity looking for water entry but found none. That was his second visit to the site. He had done some other work, adding or screwing off a batten to the patio roof and some scribing to the lefthand side of the garage.
• [57] He attended the house to do that on 26 and 28 April 2022. He said he did not recall any obvious issues with the condition of the roof sheeting. He had made no mention of dents in his report.
• [58] He gave evidence at hearing and was asked if he observed signs of rust, dents or scratches painted over. He said he didn't remember seeing rust and he didn't put it in his report. He was not challenged about those observations by the owners in cross-examination.
• [59] Mr Mann notes in his statement of evidence that he was provided with a copy of a roofing report, which would probably have been that of Mr Comino's. He could not recall the specifics of the report however he thought that the report went "too far in scrutinising the roof and it was not reflective of what I saw during my inspection of the roof at the property".
• [60] He provided photographs of the roof taken during his inspection. There are no obvious dents on sheets to be seen in the photographs. The photographs show broad areas of the roof and are obviously taken from on top of the roof. There is no very evident swarf markings to be observed.
• [61] He thought nothing required fixing. He said the roof did not need removal and replacement.
• [62] I am satisfied that there was swarf left on the roof after the builder's sub-contractors finished their work. Mr Comino's photographs confirm that. However I am not satisfied that the swarf has caused the sheets to rust or will cause the sheets to rust and amount to anything more than an aesthetic imperfection when viewed at close proximity. The parties have failed to address the subject of rust in roofing sheets in consequence of swarf adequately.
• [63] Similarly, I have no evidence as to whether the swarf marks are visible to someone standing below the roof line on the ground. It is doubtful.
• [64] The swarf issue was a defect appropriately the subject of complaint after practical completion during the defect liability period (clause 14.1 of the general conditions). It falls within the description minor defect which does not prevent a builder from claiming completion of a relevant stage of work.
• [65] By clause 14.1 of the general conditions a defects liability period arose for 12 months after practical completion when the builder was required to rectify notified minor defects and omissions. Clause 14.2 provided that owners must not withhold payment of any associated stage claim on the basis of such minor defects or omissions.

• [66] The solar system on the roof was also damaged in the hailstorm event the subject of the insurance claim.
• [67] Neither party addressed the issue with precision or adequate explanation. From the builder's perspective that is perhaps because Mr Enriquez was not the person who prepared the contract for the owners.
• [68] According to Mr Enriquez, the builder was introduced to the owners through an insurance assessment and claims manager, Rebuild Relief. He said another of the builder's officers had prepared and signed the contract for re-roofing with the owners. That person was no longer working for the builder, hence Mr Enriquez' involvement from on or about 11 November 2021.
• [69] Despite his significant involvement commencing only in November 2021, Mr Enriquez' said at hearing that he had however spoken to Mr Broadfoot on 27 September 2021 and advised Mr Broadfoot that the contract scope of works erroneously stipulated "remove and replace 5kw solar system" when what was intended was to remove and reinstate the 5kw solar system.
• [70] Mr Enriquez said he suggested the builder would request a variation for the replacement of the solar system and invoice Mr Broadfoot directly, and that Mr Broadfoot had agreed to that.
• [71] Mr Enriquez attaches to his statement of evidence a report by a company, Solarhart Energy Solutions, dated 25 February 2021, recommending replacement of the solar panels.
• [72] He also attaches to his statement of evidence an undated document which he describes as a written variation for replacement of the solar system in the amount of $9,556.80 and an email from the insurance manager stating solar replacement and sarking has been approved by the insurer.
• [73] But the report by Solarhart Energy Solutions dated 25 February 2021 does not, on my reading of it, limit its recommendation to replacement of solar panels only. It recommended replacement of the entire system where it concluded:

...replace the solar panels with current approved panels and install the system compliant with the current standards. Due to government renewable energy discounts for new systems it is more cost effective to replace the inverter at the same time and install a complete new system.

• [74] Indeed the scope of work document attached to the contract under a heading Solar Panels said just that "Remove and replace 5 kw system." The scope of work is silent as to the cost of that.
• [75] The variation document gives no relief to the confusion about the subject. It doesn't mention replacing the solar system but refers to "Solar Panels - Replace solar panels due to existing being damages (sic) and unwarrantable as per solar requirements."
• [76] Mr Broadfoot maintains the original contract provided for a full system replacement. That seems to be right. Mr Enriquez was not privy to the discussions between the owners and the officer of the builder who drew the building contract and I am not persuaded that the clear wording of the scope of work to the contract made any sort of error.
• [77] I determine that the scope of work of the contract required the builder to remove and replace the existing 5kw solar system with a new 5kw system, not just solar panels.
• [78] The work claimed as a variation was already work required to be done under the contract and therefore the builder cannot recover more for it than originally agreed as a variation.
• [79] Even assuming that the original scope of work only covered the cost of removing the old solar panels and replacing them with new, it is not clear that the purported variation of $9,556.80 does not purport to charge for that work again. The variation is not just opaque on the point but unintelligible in so far as it is submitted it is a variation to cover the replacement of an entire solar system.
• [80] I note the builder says the owners have been paid additional money for the variation by the insurer. That is of no consequence here in a building dispute between the parties. The builder's entitlement arises through the contract between the parties, not any arrangement between the builder and the insurer or the owners and the insurer.

• [81] The owner also complain about use of a Form 43 aspect certificate signed by the first sub-contractor. It is unclear how the complaint advances the case of the owners. There has been a Form 21 issued. That means that the certifier has accepted the relevant prior Forms 43 or it takes no issue with the work covered by the Forms 43 and the certifier has conducted a final inspection and accepts that the construction accords with the development approval and all statutory requirements.
• [82] The development approval was dated 29 June 2021 and provided at item 9 "Acceptability of certificates/documents is at the discretion of the building certifier...."
• [83] In so far as the owners also complain about the certifier's use of the services of a cadet at final inspection, by s 41(1) of the Building Regulation 2021 (Qld) that is permitted subject to the supervising certifier taking responsibility for certification. That occurred here with the certifier's issue of the Form 21.
• [84] Generally the owners lead no evidence challenging the integrity of the construction work as certified by the certifier.

• [85] I have found the builder is not entitled to claim a variation for work involving supply and installation of a solar system.
• [86] By clause 4.8 of the general conditions the builder was entitled to claim payment of the contract price progressively on completion of the stages of work set out at item 9 of the contract schedule. By the definition of progress claim that required the claim to be made in writing.
• [87] I determine the stage 2 work was effectively completed when the sub-contractor Mr Mann finished his work on site on 28 April 2022. The builder was therefore entitled to claim payment for it from that date.
• [88] I determine the practical completion stage work was completed when the Form 21 Certificate of Completion was issued on 24 May 2022. Which means the builder was entitled to claim payment for it from that date (and the builder also required to give the owners a defects document listing minor defects and omissions, which was not done).
• [89] The Form 21 certificate was a mandated necessity by the definition of practical completion in the general conditions (and the building approval) which required adherence to all relevant statutory requirements, the most significant of which was issue of the Form 21 document.[4]
• [90] Therefore a stage 2 progress claim could not be made prior to 28 April 2022, and the Practical Completion stage 3 claim not before 24 May 2022.
• [91] The progress claim made 2 November 2021 for stage 2 work was therefore precipitous and of no effect. Similarly the stage 3 progress claim for practical completion made 5 May 2022. The builder failed to comply with the contractual requirements entitling the builder to payment pursuant to the contract.
• [92] The builder demanded payment of the stage 2 and stage 3 work through a letter from its solicitors to the owners on 7 July 2022. The owners failed to pay any amount to the builder. I determine the failure to pay any amount evidenced a repudiation of the contract on the part of the owners and that repudiation was accepted by the builder by the commencement of the within proceedings in the Tribunal.
• [93] The builder has claimed payment of the stage 2 and 3 progress claims pursuant to the contract but has not taken the required steps under the contract to be entitled to do so.
• [94] The builder pursues an alternative claim in quantum meruit however.
• [95] A claim in quantum meruit is a claim for the fair and reasonable value of work performed. It is a claim for restitution or unjust enrichment arising independently of the contract between the parties. Where a contractual relationship exists between the parties the contract governs the relationship of the parties. Here however, I have found the owners repudiated the contract when they refused to pay for the stage 2 and stage 3 work.
• [96] In Mann v Paterson Constructions Pty Ltd [2019] HCA 32 the High Court majority held that a builder not in default and not entitled to a progress payment may elect to recover for the value of the work done for the benefit of the owners on restitutionary grounds for breach of contract in an action for quantum meruit or seek damages for breach of contract.
• [97] Here the builder elects to claim in quantum meruit. There is no claim for damages for breach of contract. The contractual terms and limitations that governed the parties obligations are not to be ignored however. Hence the builder cannot recover more in quantum meruit than the builder would have been entitled to under the contract. In Mann v Paterson Constructions Pty Ltd his Honour Justice Gageler (as His Honour then was) of the majority said:
  1. The preferable outcome, in my opinion, is accordingly that the Builder can recover from the Owners by way of restitution on a non-contractual quantum meruit an amount in respect of the work done by the Builder for which the Builder had accrued no contractual right to payment under the Contract at the time of its termination. The amount recoverable is a liquidated amount representing reasonable remuneration for the work. That amount cannot exceed the portion of the overall price set by the Contract that is attributable to the work.
• [98] I determine the builder has no contractual right to payment under the contract but is entitled to elect to make a claim in quantum meruit. Here the unpaid amount of the contract representing all the work done under the contract in stages 2 and 3 is respectively $24,232.11 and $2,692.46, a total of $26,924.57. Stages 2 and 3 comprised all the actual construction work performed in the re-roof.
• [99] Mr Enriquez sets out in a statement of evidence details of payments the builder made to sub-contractors performing the stage 2 work. The initial work done by the first sub-contractor was charged at $17,483.25 to the builder. The electrician's cost to the builder of installing a new solar system was $7,745. The cost of certification which would usually be paid after practical completion was $1,244.90. I note that Mr Mann also added downpipes and performed some other required final work and charged the builder $2,518.65. It is not clear whether that was rectification work or completion of work under the contract.
• [100] If Mr Mann's costs are excluded one may in any case add a reasonable builder's margin of say 10 percent to the abovementioned costs of sub-contractors' work and the certifier, and the cost of the work to the builder exceeded the total allowed for stages 2 and 3 combined.
• [101] I determine that the payments made by the builder to accomplish the stage 2 and stage 3 work can be regarded as a true value for the work concerned.
• [102] The builder is entitled to recover by way of quantum meruit $26,924.57 but no more.
• [103] That amount might arguably have been reduced by the cost of the doubler batten and swarf remedial work on the basis the value of the builder's work completing stage 2 work was not worth $24,232.11, applying the principal of Mondel v Steel (1841) 8 M & W 858, 151 ER 1288).[5] However I have no evidence concerning the cost of completing the recommended doubler batten work nor the cost of work removing (or painting over) swarf marks.

• [104] The builder claims interest. Section 77(3)(c) of the Queensland Building and Construction Commission Act 1991 (Qld) provides:

(3) Without limiting the tribunal's powers to resolve the dispute, the tribunal may exercise 1 or more of the following powers -

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

• [105] 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.

• [106] Where an owner sues for general damages for breach of contract, interest applies only from date of judgment. In Miller v Lida Build Pty Ltd [2015] QCATA 137 the Appeal Tribunal said at [35]-[37]:

Did the learned Member err in allowing interest from the date of the decision?

[35] The Millers contended that the learned Member erred in law in allowing interest on the awards of damages in their favour from the date of the decision rather than the date of the 'alleged date of practical completion' because Lida Build was awarded interest on amounts awarded to it from that date.

[36] We are not satisfied that this is a demonstrated error.

[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.

• [107] The same applies to an award pursuant to the restitutionary remedy of quantum meruit. Until the award is made no amount is payable. Interest agreed under the contract does not apply.
• [108] Section 34B Queensland Building and Construction Commission Regulations 2003 referred to in Miller was in identical terms to that currently found in s 54 Queensland Building and Construction Commission Regulation 2018.
• [109] The interpretation of the provision in Miller was confirmed in Worthington v Ryan; Ryan v Worthington [2021] QCATA 138, [73] and the Court of Appeal noted in Harrison v Meehan [2017] QCA 315:

[55] This being a claim for unliquidated damages, an amount became "payable" only when there was an amount which had been fixed by an assessment of damages. Regulation 34B is in different terms from s 58(3) of the Civil Proceedings Act 2011 (Qld), which provides that the court may order that there be included, in the amount for which judgment is given, interest at the rate the court considers appropriate for all or part of the period between the date when the cause of action arose and the date of judgment.

• [110] The owners must pay the builder the sum of $26,924.57, the value of work done by the builder for the benefit of the owners, together with interest on that sum, at the rate of 10% from the date of order until and including the date of payment.

[1] The builder objected to the owners' statement of evidence attaching without prejudice correspondence dated 7 July 2022 from the builder to the owners. A statement of evidence of Mr Enriquez, the builder's operations manager, attached the same without prejudice correspondence objected to however. The statement of evidence has been admitted into evidence in full. The builder's objection cannot be sustained. Privilege has been waived by implication. The correspondence is available for consideration. The correspondence proposes a settlement of the dispute and return of the builder to install doubler battens and also refers to the builder having issued invoice 598 claiming $2,962.46 for practical completion stage on 30 May 2022. The invoice itself, 598, is also attached to Mr Enriquez' statement of evidence. The invoice bears date 5 May 2022, not 30 May 2022, which latter date postdates the issue of the Form 21, but not the former.

[2] Not put in evidence through the statement of evidence of Mr Enriquez but included as part of the without prejudice material attached to the owner's statement of evidence the subject of objection at hearing.

[4] Cochrane v Lees [2021] QCATA 74, [45].

[5] And see Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Ltd [2007] NSWCA 276, [220] (McColl JA).