Rosecove Pty Ltd v Queensland Building and Construction Commission & Anor [2023] QCAT 101

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 17, s 19, s 20, s 21, s 24, s 28, s 29

Statutory Instruments Act 1992 (Qld), s 7

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Australand Corporation (Qld) Pty Ltd v Johnson [2007] QCA 302

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

CMG Homes Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 191

D'Arro v Queensland Building and Construction Commission [2018] 1 Qd R 204

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Garbutt Cuttiford v Queensland Building Services Authority [1999] QBT 80.

Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480.

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261

SZTAL v Minister for Immigration and Border Protection (2017) 91 ALR 936

Taouk v Queensland Building Services Authority [2013] QCAT 508, [39]

Garbutt Cuttiford v Queensland Building Services Authority [1999] QBT 80

McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2013] QSC 057

Queensland Building and Construction Commission v Buchanan [2020] QCATA 172

Rosecove Pty Ltd v Queensland Building and Construction Commission & Ors [2022] QCAT 235

Zhang v Queensland Building and Construction Commission [2015] QCAT 106

Ensby, R, Solicitor, Gadens Lawyers for the Queensland Building and Construction Commission

Campbell, L M instructed by King & Company Solicitors for the Diamantina Shire Council

[1] Located in Birdsville and sitting on the edge of the Simpson Desert is a lowset brick veneer dwelling (the house).

[2] Rosecove Pty Ltd built the house for the Diamantina Shire Council in late 2011. After construction, the house was used as a rental property by Council employees.

[3] On 12 March 2015, Council wrote to Rosecove about possible subsidence occurring to the house and later on 12 December 2016, lodged a complaint with the Queensland Building and Construction Commission (QBCC).

[4] The QBCC inspected the house and issued a direction to rectify (DTR) to Rosecove to rectify alleged defective work said to be carried out by it. The QBCC later upheld its decision on internal review on 14 December 2017. What followed after that decision was the issuing of a DTR (number 0102966) on 16 January 2018. Relevant to the QBCC's decision to issue a DTR is a rectification policy authored by the QBCC Board that is revised from time to time.

[5] Rosecove now applies to the Tribunal to review the Internal Review decision of the QBCC made on 14 December 2017 (and associated with DTR number 0102966) to issue a DTR to it pursuant to s 72 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).[1] Rosecove seeks an order from the Tribunal setting aside QBCC's decision to issue a DTR and a substituted decision not to issue a DTR.[2]

[6] The Tribunal on review is required to conduct a fresh hearing on the merits to arrive at the correct and preferable decision.[3] The Tribunal is required to decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and the enabling Act (the QBCC Act) under which the reviewable decision was made and, amongst other things, has all of the functions of the decision-maker (the QBCC) for the reviewable decision being reviewed.[4]

[7] There is no presumption that the original decision is correct. The Tribunal on review is not required to identify an error in either the process or the reasoning that led to the decision being made.[5] The Tribunal on review may confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter to the decision-maker for reconsideration.[6]

[8] In assessing the evidence, the Tribunal must be satisfied to the required civil standard on the balance of probabilities that certain factual matters are proven.[7] The QBCC, as the decision-maker, has a duty to assist the Tribunal so that it can make its decision and this may, where necessary, include cross-examination of witnesses to ensure that all relevant evidence is before the Tribunal.[8]

[9] In this particular review proceeding, the evidence before the Tribunal includes the material that was before the QBCC decision-maker commonly referred to as the 'section 21 material', expert reports, statements of evidence and oral evidence given in person and by remote conferencing at the oral hearing.[9]

[10] At the oral hearing before this Tribunal, evidence was given for Rosecove by Peter Holling, Director of Rosecove (in person) and for the QBCC by George Wright, building inspector (by Microsoft Teams). Evidence was also given for the Council by Barbara Mason (by Microsoft Teams) a former tenant who lived in the house. David Roberts, an employee of the Council gave evidence along with Leon Love, Chief Executive Officer for the Council. Concurrent evidence was given in person by expert witnesses, Lindsay Reid (for Rosecove), Adam Buckley (for the QBCC) and Peter Wright (for the Council).

[11] At the commencement of the oral hearing before this Tribunal, the following preliminary issues were identified as being relevant to the review proceeding:

(a) What is the reviewable decision;

(b) What was the complaint made to the QBCC at first instance;

(c) What are the final orders sought on review; and

(d) Which version of the QBCC Act should be applied by the Tribunal on review and which version of the QBCC rectification policy is to be applied, if at all.[10]

[12] Further, in determining the correct and preferable decision, standing in the shoes of the QBCC in exercising the power under s 72, it is necessary to answer the following:

(a) What is the work to be performed by Rosecove for the Council and is it building work;

(b) Is the building work performed by Rosecove defective;

(c) Is Rosecove responsible for any work found to be defective;

(d) What is the evidence relevant to the fall to the shower recess; and

(e) Would it be unfair in all of the circumstances, to require rectification.

[13] In addressing the questions identified in [12] above, it is also necessary to undertake an enquiry as to the cause of the movement or deflection to the house slab. The issues identified below may be contributing factors to the slab's failure and the discretion to direct rectification:

(a) When did Council became aware of any issues with the slab?

(b) What is the effect, if any, of leaking water, condensation from air conditioners and the establishment of a garden and lawn?

[14] In the present matter, the QBCC decided to exercise its power under s 72 of the QBCC Act to issue a DTR to Rosecove. The power to issue a DTR is discretionary and the QBCC is not required to give a direction if satisfied that, in the circumstances, 'it would be unfair to the person to give the direction'.[11]

[15] Council submits that that the correct and preferable decision should determine whether a DTR should have been issued as at 14 December 2017 (when the internal review decision was issued) or alternatively as at 16 January 2018 (when the second DTR was issued).[12]

[16] The decision to give a DTR is a 'reviewable decision' for the purposes of s 86 of the QBCC Act. What follows after the decision to give a DTR is the giving of a direction for rectification. In McNab Constructions Australia Pty Ltd v Queensland Building Services Authority Dalton J said, and I agree, that the decision to direct rectification is necessarily anterior to the giving of a direction for rectification.[13]

[17] In the present matter, the QBCC gave notice to Rosecove of the internal review decision to issue a DTR for complaint items 1, 2, 3 and 4.[14] What followed was the issuing of a DTR (number 0102966). The reviewable decision for the purposes of s 86 of the QBCC Act is the decision of 14 December 2017 being the decision to issue a DTR (associated with DTR number 0102966). The relevant DTR is set out below:

...

Ensure all works carried out pursuant to this Direction to Rectify are done so in compliance with the Building Act 1975. Provide all certificates in regard to all statutory requirements, copies to be provided to owners and [QBCC].

1. The slab and foundation system to the dwelling is not constructed to the requisite depth to accommodate reactivity to the soil profile in accordance with AS2870:1996. The foundations are not performing which is causing damage to the superstructure and loss of amenity to the occupants. (This pertains to complaint 1, 2, 3 & 4 of the QBCC complaint form).
2. The tiling to the main bathroom shower recess floor does not comply, in that insufficient fall provision to the drainage riser is resulting in water dispersing outside the bathroom. The fall to the shower recess does not comply in accordance with AS3740:2004 Clause 5.11.3. The waterproofing membrane installation to the main bathroom shower recess floor does not comply, in that no downward termination of the waterproofing has been installed in accordance with AS3740:2004 Clause 5.12.1. (This pertains to complaint item 4 of the QBCC complaint form).[15]

[18] In determining the correct and preferable decision, the Tribunal may consider all of the evidence that was before the QBCC at the time it made its decision and any fresh evidence given in the review proceeding relevant to the discretion to issue a DTR for the purposes of s 72 of the QBCC Act.

[19] Council's submission that the correct and preferable decision should determine whether a DTR should have been issued as at 14 December 2017 or alternatively as at 16 January 2018, fails to consider the Tribunal's power on review. Absent any modifying provisions contained within the QBCC Act, the Tribunal conducts a fresh hearing on the merits based on the material before the decision-maker and any fresh evidence relevant to the review. To confine the correct and preferable decision to only determine whether a DTR should have been issued as at 14 December 2017 or alternatively as at 16 January 2018, fetters the broad discretion conferred on the Tribunal standing in the shoes of the QBCC decision-maker.

[20] In my view, the Tribunal's role on review is to effectively stand in the shoes of the QBCC decision-maker exercising the same powers under the QBCC Act to arrive at the correct and preferable decision. This requires the Tribunal to consider all of the relevant material including any evidence that is obtained after the QBCC made the reviewable decision.

What was the complaint made to the QBCC at first instance?

[21] The complaint items, the subject of the DTR (number 0102966) and raised by the Council with the QBCC on 12 December 2016 are conveniently set out below:[16]

1: The house is a slab on ground design. The slab as designed and constructed is not sufficiently rigid and so is subject to deflection and edge heave caused by reactive clays. There are defects in both the design and construction of the slab and piers (which the builder was responsible for under the contract).

2: The construction of the slab is not deep enough or rigid enough.

3: The slab is therefore subject to heave.

4: The foundations have distorted and moved between 12 millimetres and 49 millimetres in various parts of the House. There is now a slope, to varying degrees, from east to west in the floor levels. The defects in the foundations are causing the following damage in the house:

1. Separation of skirting boards from walls and floor;

2. Separation of wall frames from the floor, damaging the walls and floor coverings;

3. Repairs to skirting also broken;

4. Numerous areas of cracking of internal plaster board walls;

5. Cracking of external brick walls;

6. Door architrave detached from floors;

7. Cornice separating from walls and ceiling and cracking;

8. Door and window fittings out of alignment and not closing properly; and

9. Bathroom wet seal failed, water leaking into lounge room with resulting water damage.

Such damage and defects are continuing to occur and becoming greater and more widespread throughout the house over time.[17]

[22] Rosecove submits that the decision to issue a DTR ought to be set aside in circumstances where the Council's complaint was made in excess of 12 months of the Council becoming aware of the alleged defects.[18] Further, Rosecove argues that the decision to direct rectification pursuant to s 72(1) of the QBCC Act is not enlivened because Council did not notify the QBCC within 12 months of becoming aware of the alleged defects as required by s 71J(4) and the rectification policy effective from 14 October 2014.

[23] Rosecove goes on to say that even if the Tribunal finds that defective work was carried out and the discretion in s 72(2) is enlivened, it would be unfair, in all of the circumstances, to direct rectification.[19]

[24] The QBCC submits that it is appropriate for Rosecove to be directed to rectify and therefore the appropriate decision is for the Tribunal to confirm the QBCC's decision to issue a DTR.[20]

[25] On the other hand, Council seeks orders that the Tribunal confirm the decision and require the builder (Rosecove) to comply with the DTR subject to the DTR being amended as set out below (emphasis added):

The slab and foundation system to the dwelling is not constructed to the requisite depth to accommodate reactivity to the soil profile or with internal beams continuous from edge to edge of the slab in accordance with AS2870:1996. The foundations are not performing which is causing damage to the superstructure and loss of amenity to the occupants. (This pertains to complaint item 1, 2, 3 & 4 of the QBCC complaint form).[21]

[26] In other cases before this Tribunal, of which I agree, the QBCC is said to have responsibilities under the QBCC Act to ensure proper standards in the industry and to achieve a reasonable balance between the interests of the building contractors and consumers, and to provide remedies for defective building work.[22] The power to issue a DTR is said to be a discharge of the QBCC's statutory responsibilities under the Act.[23]

[27] The QBCC Act has been the subject of a number of amendments by amending legislation over the years. Relevant to the present matter, is s 71J(4) that was inserted by amending legislation that came into effect on 10 November 2017, being a date after the Council's complaint to the QBCC (in December 2016) and the decision to issue the first DTR made on 5 October 2017, but prior to the internal review decision (the reviewable decision) of 14 December 2017.[24] The amending legislation is silent as to any transitional provisions.[25]

[28] Section 71J of the QBCC Act says that a consumer may ask the QBCC to give a DTR to rectify building work the consumer considers is defective or incomplete. Subsection (4) provides that a request must be made within 12 months after the person becomes aware the work is defective.

[29] Section 71J(4) and its application, if any, to the present matter is important because Rosecove contend that because Council complained about the work to the QBCC more than 12 months after it first became aware that the building work is defective, the discretion to direct under s 72 is not enlivened.[26] Even if s 71J(4) applies to the present matter on review, the Tribunal will need to determine the effect, if any, s 71J(4) has in the exercise of the broad discretion to issue a DTR under s 72. This raises a question of statutory construction as to the effect of s 71J(4) under the QBCC Act.

[30] Turning firstly to the question of which version of the QBCC Act should be applied by the Tribunal on review. It is settled law that in the absence of transitional provisions to the contrary, there is a presumption at common law that retrospectivity of legislation does not apply.[27] Legislation will have a retrospective effect if when applied, it affects an existing accrued right or liability.[28]

[31] Here, Rosecove and the QBCC submit that the QBCC Act as in force at the time the Tribunal makes its decision is the law to be applied.[29] On the other hand, the Council contend that the QBCC Act as in force when the decision below was firstly made is the relevant version of the QBCC Act that applies to this review.[30] The Council argue that the first DTR imposed a liability on Rosecove to comply and the relevant liability therefore had already accrued.[31] The Council submit that s 71J(4) did not have the effect of enforcing the right or liability that had already accrued.[32]

[32] Rosecove rely upon the decision in Queensland Building and Construction Commission v Buchanan[33] that said the Tribunal on review is to determine the matter afresh, applying the law as it is at the time of the Tribunal's decision. In Buchanan the Appeal Tribunal followed the Court of Appeal decision in D'Arro v Queensland Building and Construction Commission.[34] D'Arro rejected the argument that the application of certain amendments to the QBCC Act in the Tribunal would give the amending legislation retrospective effect. Although in D'Arro, the Court of Appeal considered different sections of the QBCC Act to the sections that are relevant in the present matter, the approach taken in D'Arro in answering the question in this matter about which version of the QBCC Act should be applied is instructive. D'Arro said that it is not necessary to consider whether or not the presumption against retrospectivity is rebutted in the way advocated by the applicant or otherwise.[35] Put simply, this is because the application of the amendments made by the amending legislation would not apply 'in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events'.[36]

[33] In the present matter, the decision the subject of review, is the decision to issue a DTR. In my view the QBCC's decision to issue a DTR is discretionary and requires a consideration of a number of matters. The decision to issue a DTR did not at any time give rise to an existing, accrued right or liability such that the application of s 71J(4) to the QBCC Act (as it applies now) will have a retrospective effect.[37] The submission that the first DTR imposed a liability on Rosecove to comply and the relevant liability therefore had already accrued is rejected. I find that the Tribunal is to determine this matter afresh, applying the law as it is at the time of the Tribunal's decision. The current version of the QBCC Act is to be applied by the Tribunal on review.

What is the effect of s 71J(4) of the QBCC Act?

[34] Turning now to the statutory construction question as to the effect of s 71J(4) of the QBCC Act. It is settled law that an interpretation that will best achieve the purpose of the Act is to be preferred.[38] The text itself and its context and purpose is the starting point.[39] The meaning of the text may require a consideration of the context including the general purpose and policy of a provision.[40]

[35] The starting point in the present matter is s 72 of the QBCC Act that permits the Tribunal, standing in the shoes of the QBCC decision-maker, to issue a DTR if satisfied as to the existence of certain matters including as follows:

(a) the work performed was "building work";

(b) the building work is "defective";

(c) the applicant carried out the building work; and

(d) it would not be unfair to the person, in all of the circumstances, to give a DTR.[41]

[36] As discussed above, the decision to issue a DTR involves the exercise of a broad discretion. This, in my view, involves a consideration of the relevant sections that fall within Division 2 including but not limited to s 71J.

[37] I do not consider that s 71J of the QBCC Act operates to the effect that a consumer is barred from making a complaint to the QBCC about work that the consumer considers is defective outside a period of 12 months from when the person becomes aware the building work is defective. Such an interpretation as to the effect of s 71J(4) would in my view fetter the broad discretion to issue a DTR under s 72. Section 71J together with other relevant provisions identify relevant matters to be considered in exercising the discretion under s 72. Whether the person asking the QBCC to give a DTR for the purposes of s 71J has done so 12 months after becoming aware of defective work, is one of a number of matters to be considered. Such an approach to the meaning and effect of s 71J aligns with the scope and purpose of the QBCC Act that is to, amongst other things, achieve a reasonable balance between the interests of building contractors and consumers.

[38] In my view, s 71J is to be considered together with other relevant provisions of the QBCC Act in exercising the discretion under s 72 to issue (or not issue) a DTR to a builder found to be responsible for defective building work.

Which version of the QBCC rectification policy applies?

[39] It is clear from reading the QBCC's reasons in the decision below to issue a DTR that it had regard to the Rectification of Building Work Policy as in force on 1 July 2010.[42] In the oral hearing before this Tribunal, Mr Ensby appearing for the QBCC submitted that the wrong policy was applied by the QBCC in the decision below and said that the policy effective from 10 October 2014 should have been applied and indeed should be applied by the Tribunal on review.

[40] Rosecove does not cavil with the QBCC's position in this current review proceeding.[43] Rosecove submits that the Tribunal is required to apply the relevant policy as in force at the time the Tribunal makes any decision and that is the Rectification of Building Work Policy effective from 10 October 2014.[44]

[41] Rosecove submits that the same principles for determining which version of the QBCC Act applies is to be considered by the Tribunal in determining which version of the relevant rectification of building work policy should be applied in the present matter.[45]

[42] The Council, on the other hand, disagrees with Rosecove and the QBCC. The Council submits that the relevant policy as in force at the time the contract is entered into between the parties (i.e. as at 12 December 2011), when the premium is paid, applies.[46]

[43] Turning now to the issue of which policy should be applied by the Tribunal on review. The QBCC Act makes clear that the commission consists of the QBCC Board and the commissioner and the organisational unit under the control of the commissioner and the Service Trades Council.[47] In carrying out the commissioner's responsibilities the commissioner must give effect to any policy or direction of the board relevant to the responsibility.[48] However, the commissioner must act independently of the board when making certain decisions as set out under s 20K(2) of the QBCC Act including, amongst other things, a decision about rectification or completion of building work.[49] The commissioner may make a policy to give guidance about various matters including making decisions under the Act.[50] However the policy does not take effect until approved by regulation.

[44] The QBCC Act confers review jurisdiction on the Tribunal.[51] In conducting a review, the Tribunal is required to conduct a fresh hearing on the merits to arrive at the correct and preferable decision.[52] The Tribunal is also required to apply the QCAT Act and the enabling Act, the QBCC Act.[53]

[45] It matters not whether the relevant policy to be applied in this matter is a statutory instrument for the purposes of s 7 of the Statutory Instruments Act 1992 (Qld). As discussed above, the QBCC Act empowers the commissioner to make a policy. Consistent with established authority, a policy must act as a guide and not control the making of decisions.[54]

[46] In my view the Tribunal should have regard to the QBCC policy and apply the policy as in force at the time the Tribunal makes its decision. The Tribunal, standing in the shoes of the QBCC decision-maker, is required to exercise its broad discretion to determine whether it would be unfair, in all of the circumstances, to issue a DTR. This requires the Tribunal to consider relevant sections of the QBCC Act and any relevant rectification policy but only to the extent that the policy does not 'create a fetter' on the broad discretionary power to issue a DTR.[55]

[47] I find that the rectification policy as in force at the time the Tribunal on review makes its decision should be applied. The relevant policy to be applied here is the QBCC policy effective from 10 October 2014.[56]

What is the effect of the 2014 QBCC rectification policy?

[48] The 2014 policy is clearly intended to help or guide in making decisions under the QBCC Act relevant to rectification of defective building work. In reviewing the decision to issue (or not to issue, as the case may be) a DTR, the policy should be applied. Consistent with established authority, however, the policy should not be construed in a way such that it is inconsistent with the QBCC Act.

[49] In Drake,[57] Brennan J said, amongst other things, that the Tribunal will ordinarily apply that policy unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. The relevant extract from Drake's case is set out below:

When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.[58]

[50] Put simply, the 2014 QBCC policy is relevant and should be applied by the Tribunal on review but only to the extent that it is not inconsistent with the relevant provisions of the QBCC Act.

What is the work to be performed by Rosecove and is it building work?

[51] The residential building contract signed by Rosecove and the Council dated 8 April 2010 describes the work to be performed by the builder under Item 3 as 'new 3 bedroom lowset brick veneer dwelling'.[59] Item 14 of the Schedule provides that the builder is responsible for obtaining building approval.[60]

[52] The contract clearly states that the contract documents include plans and specifications prepared by the builder as set out under Item 5.[61] Item 5 of the contract clearly provides that the 'Foundations Data' is to be prepared by Council. The Part J special conditions provide that 'services connections to house by [Council]'. Relevantly, the evidence shows that Council engaged contractors to install air conditioning units in early October 2011[62] and to supply and install the septic tank, house drainage to septic tank, connect town water, install various external taps and install downpipes.[63]

[53] I do not accept Mr Holling's evidence that other documents referred to by him as 'tender documents' formed part of the contract.[64] When questioned further about the documents that he said form part of the contract, Mr Holling accepted in the oral hearing, that he completed the schedule (Item 5) and special conditions of the contract without reference to any other documents such as handwritten notes on the tender.[65] Mr Holling also accepted when questioned that clause 3.2 of the contract conditions provides that the contract is complete in itself unless any other documents form part of it.[66]

[54] It is relevant for the purposes of background information, to highlight the fact that Council engaged Rosecove to build the house as part of a development of seven sites. Mr Holling had a soil report (obtained by Council) for the other sites. Mr Holling did not, however, have a soil report for the seventh site being the house the subject of the present proceeding.[67]

[55] Mr Holling accepted, when questioned in the oral hearing, that he went ahead and built the other six houses without seeing the soil tests for each of the respective sites. Further, Mr Holling did not raise with the certifier and the Council the fact that he did not have a soil test for the seventh site (for the construction of this house).[68]

[56] Mr Holling was questioned in the oral hearing about the contract and the work to be performed by Rosecove. His evidence, that I accept, is that it was only the day before the contract was signed that the location of the house was made known to him.[69]

[57] Although I accept Mr Holling's evidence that the Council is responsible for obtaining 'foundations data' and this includes obtaining a soil test for the site, Rosecove as the builder is, in my view, responsible under the contract for the construction of the house in accordance with the plans and specifications for the site. Further, Rosecove is required to construct the house as per the contract, including the concrete slab and footings, in accordance with the plans and specifications and all relevant laws and legal requirements.[70]

[58] Rosecove's submission that the Council knew or ought to have known that the Birdsville area soil conditions were generally highly reactive fails to consider the builder's contractual and legal obligations to construct the house in accordance with the plans and specifications.[71] When questioned in the oral hearing about the soil test, Mr Holling accepts that the soil test is important for the slab and footing design.[72] Mr Holling's evidence is that he proceeded with construction on the basis that the certifier had received the geotechnical soil test from Council.[73] Further, Mr Holling did not believe that there were any issues with the design of the house because it had been approved notwithstanding the fact that he (Mr Holling) had not seen a soil test report.[74]

[59] Mr Holling also accepted, when questioned in the oral hearing, that the information, meaning the soil test and contour plans, was needed for the footing design and the slab. Mr Holling said that he was not 'mindful' of the special building permit conditions (condition 9) issued by the certifier in relation to the proposed construction that requires the slab and footing to be constructed in accordance with the engineer's soil report.[75] Mr Holling said that the engineer 'doesn't do a soil report'.[76] Mr Holling, accepted when questioned, that engineers can provide a soil report.[77] Further, Mr Holling accepted that one of the obligations for a builder is to comply with the terms of the building approval issued in relation to the construction that includes compliance with special conditions for construction.[78]

[60] The evidence shows that when Mr Holling prepared the costings for the work in January 2010 he had assumed the soil conditions for the site to be 'S' or 'M' and he had discussions with the engineer (Mr Bell) prior to construction about the assumed soil conditions.[79] Mr Holling did not tell the engineer nor the Council about the assumption he had made with respect to the soil conditions.[80] Mr Holling accepted when questioned in the oral hearing that he did not tell the engineer about the change in his assumption about the soil condition.[81] Mr Holling accepted when questioned about this issue that the information about soil classification had to be obtained before entering in a contract.[82] Further, Mr Holling accepted for this particular construction, the engineer had prepared the slab and footing design without having the necessary information.[83] The relevant extracts from the transcript of the hearing is set out below:

Mr Campbell: So you knew, and asking the council to obtain foundations data, that that meant a soil test for the site?

Mr Holling: Yes.

Mr Campbell: And it also meant a contour plan for the site, if necessary?

Mr Holling: Yes

Mr Campbell: And you also knew that the reason why that was important, because it's information needed for the preparation of an appropriate footings design for the site, isn't it?

Mr Holling: That's correct.

Mr Campbell: And you also knew at this point that there wasn't any such test available for the site, didn't you?

Mr Holling: No, I didn't.

Mr Campbell: So why did you require a soil test to be carried out?

Mr Holling: I didn't request them to carry it out. I requested them to supply it.

Mr Campbell: So you knew that that information was necessary...in order for you to go and have the slab and footing design prepared by your engineer?

Mr Holling: Yes

Mr Campbell: And your position was, provide me with one in due course?

Mr Holling: That's correct.[84]

Mr Campbell: But you knew ... that this information had to be obtained before entering into the contract, didn't you?

Mr Holling: Yes, I did.[85]

[61] The evidence shows that after signing the contract, Mr Holling went to the site sometime between 8 and 12 April 2010. The reason for visiting the site was because Mr Holling had concerns about the possibility of fall and of the house being built up from around the surrounding parts of the site.[86] Further, because of the slope that was on the site, Mr Holling wanted to ensure that there was a building pad in place or that there was a pad sufficiently high and above the surrounding surface of the site.[87] Relevantly, Mr Holling had concerns about any water ponding at any part of the property. Arrangements were made (by Mr Holling) for fill and a pad to be placed on site. Mr Holling did not, however, tell the engineer that there was going to be a building pad or fill placed on site.[88] Mr Holling accepted, when questioned in the oral hearing, that the information about fill and a pad having been placed on site (and the location of the site) should have been given to the engineer given he prepared the slab and footing design.[89]

[62] Mr Holling was questioned at the hearing about the building approval application. Again Mr Holling accepted when questioned that he did not write anything to inform the certifier (Mr Burger) that he did not yet have a soil test for the site. Further, Mr Holling accepted this information should have been provided as part of the building application.[90] Mr Holling also accepted that he as the licensee for Rosecove was responsible for ensuring that the building application was complete.[91] Mr Holling also accepted that the soil test report needed to be provided to the engineer for the purpose of the slab and footing design.[92]

[63] Another feature of this case and relevant to the issues to be determined by me, is the fact that Mr Holling asked a representative from the Council to supply the concrete for the slab and footings.[93] Mr Holling was on site when the concrete was delivered and knew there was going to be a shed separately built on the same site. The building pad for the site was intended to accommodate both the house and the proposed shed.[94] The relevance of the evidence about the concrete supplied for the slab and footings is further discussed below.

[64] During the hearing, Mr Holling gave oral evidence about a telephone conversation between himself and Mr Bourne (GBA Associates) that was not referred to as part of his evidence given in his statement. Mr Holling's oral evidence is that on 4 May 2010, he emailed the footing and slab design and the form 15 for the house to GBA Associates because Mr Bourne had asked him to do it.[95] Mr Holling's evidence is that his discussion with Mr Bourne was about the size and type of the building pad.[96]

[65] Mr Hollings' evidence is that he did not inform Mr Bourne that there was controlled fill stating that the Council and Mr Bourne where 'constructing the pad without any of my input'.[97] It was 'obvious' to Mr Holling that controlled fill had been placed on site because he saw the Council putting the fill on site and building up the pad.[98]

[66] Mr Holling accepted, when questioned in the oral hearing, that it is important for the engineer to know if there is fill on the site as they are preparing the slab and footing design and he (Mr Holling) did not tell the engineer that there was fill.[99]

[67] The work to be performed by Rosecove for the Council is clearly 'building work', as defined under the QBCC Act. 'Building work' includes, amongst other things, erection or construction of a building; or site work; or the preparation of plans or specifications for the performance of building work.[100] Further to that, the work to be performed by Rosecove is 'residential construction work' as defined under the Act because the work to be performed is the erection or construction of a residence or related roofed building.[101]

[68] Council was responsible for the construction and placement of a shed and connections to the property after Rosecove (the builder) completed the work. Further, Council was responsible for connecting water and sewage services, the supply and installation of air conditioning units and/or connection of their drains to the storm water drainage. Council was also required to obtain soil tests, prepare the site and supply the concrete for the slab and footings.

[69] I am satisfied and find accordingly, that Rosecove is responsible for the construction of the house including complying with the building approval and special conditions for the site. Rosecove is required to construct the house including the concrete slab and footings, in accordance with the plans and specifications and all relevant laws and legal requirements.[102] Further, Rosecove is required to comply with the terms of the building approval issued in relation to the construction that includes compliance with special conditions. A special condition for the building approval was for the slab and footing to be constructed in accordance with the engineer's soil report.

When did Council became aware of any issues with the slab

[70] Rosecove completed the construction work in about December 2010.[103] Thereafter, services were connected to the house, air-conditioning units were installed in about October 2011,[104] and a tenant moved into the house in about 13 October 2011.[105]

[71] The first sign of potential issues with the slab appeared in October 2014. David Roberts, Council employee, notes 'a significant crack in the gyprock of the wall' in about July 2014, after the first tenant moved out and Council were asked to complete some maintenance.[106] Thereafter, in about October 2014, Mr Roberts inspects the house in preparation for the next tenancy and notices that some of the internal wall frames in the laundry and various other parts of the house had lifted, and separated, from the tiled floor.[107] Mr Roberts observes tiles lifting, internal walls pulling away from the ceiling, cracks had appeared in a number of the plasterboard internal walls and that several of the doors did not close properly.[108]

[72] Mr Roberts repairs the cracks and damage to the house, completes a maintenance report and submits it to Council in about October 2014.[109] In the report to Council, Mr Roberts reports as follows:

Most of these issues have now been rectified and we'll keep watch for any further subsidence'.[110]

[73] Leon Love, for the Council instructs Mr Roberts to 'keep an eye on the damage' and to investigate what the movement thresholds are in relation to QBCC insurance.[111]

[74] On 24 October 2014, Barbara Mason, employee of the Council, moves into the house. Ms Mason's evidence, that I accept, is 'the only grass on the property was on the north-western side of the yard'.[112]

[75] Ms Mason installs sprinklers, plants a garden and establishes a lawn.[113] Ms Mason also observes water to be leaking from the air conditioning units that requires repairs in early December 2014.

[76] Ms Mason's evidence about the leaking air conditioners is that condensate from the units would run back into the house on the floor into the kitchen area and on one occasion she had to empty an average size esky collecting the water twice. The relevant extract from Ms Mason's statement, that I accept, is set out below:

Sometime after I moved into the house I saw the air conditions in the kitchen area and bedrooms were all connected to drain back to one spot, on the south western corner on the outside of the house into an external drain. However, the air condensate from the air conditions would all run back into the house on the floor into the kitchen area. The air condensate would come out of the bottom of the actual units and run down the wall. It would come out of each unit but mostly noticeable out of the ones we used the most, which were on the southern side, being the family room and the main bedroom and the second bedroom. The unit in the third bedroom also leaked from time to time but it was rarely used. One summer night in about December 2014 I put an esky (of an average size) under the air conditioner in the living area with towels to catch the condensate and had to empty it twice. The volume of water this night was a rare event. I do not recall but it may have been raining or a particularly humid night. The small bedroom on the south western side of the house had carpet damage due [to] the weather from the leaking air conditioner.[114]

[77] Within a few months of beginning her tenancy, Ms Mason notices some issues with the house such as previously repaired cracks reappearing, the walls not connecting to the floor or ceiling and there is a bow in the floor of the main living area.[115] Ms Mason describes the house as 'sinking in the middle' and refers to an incident in about March 2015 with her son and a pool of water in the middle of the living room floor.[116] Ms Mason takes photographs of the damage in the house that she says 'had been progressively getting worse since she moved in' and reports the issue to Mr Roberts.[117]

[78] Mr Roberts is instructed by Mr Love to visit the house and take floor levels in or about January 2015.[118] Mr Roberts visits the house with Dominic Harrington, a builder recently employed by the Council, to take measurements of the levels.[119] Mr Roberts concludes that the levels are outside the tolerances specified in the Guide published by the QBCC and that there is a problem with the house.[120] In his maintenance department report to Council, Mr Robert says the following:

I took some levels and found that the highest point of the house is the south western corner of the house (main bedroom). From there the slab tilts in a general direction of north east with a big slump in the centre. The biggest deviation is 49 mm from the high corner to just outside the main bathroom which is over a distance of about 8 m.

This according to my interpretation of the QBCC Standards and tolerances code of practice, is a serious defect. (AS 2870). A letter will be sent to the contractor in due course.[121]

[79] Mr Roberts contacts the QBCC about the house and speaks to Mr Love about his discussion with the QBCC.[122]

[80] On 12 March 2015, Mr Love sends a letter to Rosecove referring to 'significant subsidence' in the slab/footing and amongst other things, giving Rosecove an 'opportunity' to inspect the property and respond as to how they might 'rectify the situation'.[123]

[81] On 19 March 2015, Mr Holling responds in writing effectively denying that the work is 'defective' and refers to, amongst other things, a combination of dry conditions over the last few years combined with a new tenant in the residence 'trying to establish a lawn and gardens' with 'some heavy rain' as causing the 'perimeter to swell'.[124] Rosecove also acknowledges Council's letter in an email dated 2 April 2015.

[82] Mr Love arranges for GBA Consulting Engineers (GBA) to investigate the issues and prepare a report after taking samples of the soil and concrete in November 2015. GBA identify issues with the concrete strength and report its strength as 'substandard'. GBA also report that foundation beams are not constructed in accordance with the design and appear to be missing the 'required trench reinforcement and stirrups'.[125]

[83] In about November 2016, GBA inspects the site again and prepares a report referring to the substandard concrete strength and identifying issues with the foundation beam.[126]

[84] On 12 December 2016, Council instructs its solicitors to lodge a complaint with the QBCC.[127] Following an inspection by the QBCC, Council direct Mr Wright on 5 October 2017 and again on 5 December 2017 to attend to some rectification work.

[85] Council knew about possible issues of subsidence to the house resulting in, amongst other things, cracking to the walls and lifting of tiles in or about October 2014. Council did not, however lodge a complaint with the QBCC about the issues of possible subsidence until 12 December 2016.

What is the effect, if any, of leaking water, condensation from air conditioners and the establishment of gardens and lawn?

[86] The evidence of leaking water and the existence of gardens and a lawn is relevant because they may be causative factors to the movement of the slab. This is clear from the evidence of the expert witnesses who gave their opinion about the cause of the movement in the slab.

[87] The experts agree, and I accept, that the cause of the movement in the slab is abnormal moisture influences on the founding soils.[128] I accept the expert evidence that watering of the garden was the primary factor contributing to the abnormal moisture content around the house.[129]

[88] In relation to leaking spigots (Hosecocks), Mr Buckley and Mr Reid both agree, and I accept, that the leaking spigots did have an impact on the performance of the slab.[130] Further, the run-off from the hot water system may have contributed to the abnormal moisture content around the foundations, but any contribution was likely minor.[131]

[89] The experts also agree that the dry garden beds and condensation from air conditioners contributed to the abnormal moisture content around the foundations.[132]

[90] I accept the expert evidence and find that the watering of the lawn and gardens was the primary abnormal moisture influence on the slab's performance.[133]

What is the evidence relevant to the fall to the shower recess?

[91] The experts did not review the shower base at the time of their inspection. Mr Buckley and Mr Wright agree that the available information indicates that no drainage flange was provided and the waterproof membrane did not extend into the drainage pipe as required by AS 3740.[134]

[92] Mr Reid considers that the volume of water passing into adjacent rooms could not have occurred as a result of leakages around the flange and that such leakages could only have occurred had the bottom plate of the wall lifted off the slab surface thus breaking the water membrane.[135] Mr Reid refers to other causal factors such as a lack of home owner maintenance, overwatering and leaking water as all contributing to circumstances well beyond reasonable or normal expectations and that such conditions led to a failure in the waterproof membrane.[136]

[93] I do not accept Rosecove's submission that there is no cogent evidence that the relevant building work carried out by it was either defective or incomplete.[137] Mr Wright, inspector for the QBCC, inspected the work and, as confirmed in the internal review decision, found there was no downward termination of the waterproofing membrane in accordance with AS 3740.[138]

[94] The issue about the waterproofing membrane was raised by Council with the QBCC. Mr Wright's report dated 30 March 2017 states the following:

The tiled shower base in the main bathroom was subjected to a static water test and began leaking and allowing water to run across the floor into the living room. An inspection of the construction of the base revealed that the mortar bed within the shower cubicle was not provided with adequate drainage provisions in that the riser pipe has not been trimmed to the floor level of the concrete and the waterproofing membrane does not extend down the inside of the waste drain pipe, no drainage flange has been used. Water escaping the shower base is penetrating into concealed spaces in the partition and causing a loss of amenity for the occupants.[139]

[95] I prefer and accept the evidence of Mr Buckley and Mr Wright about the shower recess. Even if moisture related ground movement and effects contributed to a failure of the bathroom wet seal, on balance, I am satisfied that the leaking water is attributed to the building work performed by Rosecove that I find is defective.

[96] I find the bathroom wet seal failed resulting in water leaking. The failure of the bathroom wet seal to keep water from leaking or ponding outside the wet area is defective work because the shower base is faulty or unsatisfactory. I am satisfied that Rosecove is responsible for the defective work to the shower recess.

Is the building work performed by Rosecove defective?

[97] Council identifies the following issues as being relevant to the issue of defective building work referable to the evidence of the expert witnesses:

(a) Articulation joints in the brickwork;

(b) Site classification under AS 2870;

(c) Deficiencies in slab and footing design;

(d) Requirement to support roof loads on edge and internal beams;

(e) Plumbing articulation;

(f) Construction deficiencies;

(g) Concrete strength;

(h) Lack of footing depth main cause of slab deflection;

(i) Whether the slab and footings are performing within AS 2870 limits;

(j) Floor level surveys; and

(k) Whether rectification work is required.

[98] In relation to the brickwork, Mr Holling accepts that he did not install articulated joints in 10 locations in the brickwork as required and identified in the approved plans (condition 5).[140] Mr Holling's evidence is that he saw the articulated joints on the approved plans but for 'aesthetic reasons' cut them in later.[141] Mr Holling, did not personally 'cut' the joints nor did he supervise the work nor check that the work was done.[142] Mr Holling did not tell the certifier that he had not checked the work.[143]

[99] It is open for me to find on the evidence that the house was constructed without any articulation joints. Rosecove did, however, cut joints in the house after completion and that work was not supervised by Mr Holling.[144]

[100] The experts agree, and I accept, that the articulation joints did not contribute to edge heave of the slab and the articulation joints are required to reduce the effect of movement and cracking in the inflexible brickwork.[145] Further, there were no articulation joints in the building as it presently stands.[146] The experts agree, and I accept, that the extent of cracking found in the brickwork would have been less had compliant articulation joints been installed.[147]

[101] I accept Council's submission that Rosecove assumed a soil classification of 'H' for the site and proceeded with the design and construction of the slab and footings without a soil test report.[148]

[102] I have found that Rosecove as the builder is responsible for the construction of the house including construction of the footing and slab in accordance with the design. Further, I found that Rosecove proceeded with construction without a soil test and based on an assumed soil classification of 'H' class for the site. I also found (on balance) that Rosecove did not inform the certifier at any time that the footing and slab had been prepared without a soil test report. Further, Rosecove did not tell the Council about the assumed soil classification.

[103] All experts agree that the soil test report eventually obtained which provided a 'P' site classification is incorrect.[149] The actual soil classification for the site is 'E/D'.[150] The experts agree that the soil reactivity is equivalent to a class E/D classification.[151] Further, all experts agree, and I accept, that it is prudent for an engineer to design with an increased depth of the footing/beams to make the slab more stiff and thereby able to withstand those anticipated extreme levels of movement in the soil.[152]

[104] Mr Holling accepts that he did not construct the slab and footings in accordance with the design and drawings. Although the plans show one continuous slab, Rosecove poured two separate slabs.[153] Mr Holling accepts there is an absence of tie-in or overlapping of the steel reinforcing between the balcony part of the slab and the upper slab.[154] Further, Mr Holling accepts that he failed to ensure that the reinforcing steel between the main slab and the balcony slab was tied together.[155] Further, Mr Holling accepts he did not follow the engineering detail required for the stepdown from the house to the balcony slab and did not follow the design by pouring two parts of the one slab.[156]

[105] I accept Council's submission that Rosecove did not comply with conditions of the building approval such that the slab was not constructed in accordance with the approved plans.[157] Rosecove did not obtain a soil test report prior to construction and proceeded on the basis of an assumed soil classification for the site. There were many items missing from the as constructed slab and footing including and amongst other things, no articulation joints were constructed in the brickwork despite a condition requiring the joints to be installed.[158] Further, the certifier did not inspect the work at the various stages as required by the building approval.[159]

[106] Mr Holling was cross-examined in the oral hearing about the building approval and inspection of the slab. Mr Holling accepted that he did not have the certifier carry out any inspections with respect to the frame and prior to the pouring of the concrete slab.[160] Mr Holling's evidence is that he took photographs of the steel reinforcing fixed in place before the slab was poured and provided the photographs to the engineer.[161]

[107] All experts agree that the depth of seasonal moisture change which would affect potential ground movement is something that can and should be known and taken into account when designing a footing system.[162]

[108] Mr Buckley and Mr Wright agree that the footing system design is not adequate for a masonry veneer dwelling on site with a Ys value of 85mm.[163] On the other hand, Mr Reid considers it unreasonable to assess the performance of this footing and slab system on the basis that it is supporting a masonry veneer building simply because control joints were not adequately constructed.[164] As reflected in the joint experts report, Mr Reid is of the opinion that when considered using engineering design principles, potential movements of 75 mm to 85 mm, and assessing the building as a brick veneer structure (in need of joint rectification) that the slab system should be considered as being compliant with AS 2870.[165]

[109] I prefer and accept the evidence of Mr Buckley and Mr Wright about the footing system design. In my view, Mr Reid's opinion is clearly based upon an assumption or expectation that further work will be done such as cutting in the joints so the building is an articulated brick veneer. Whereas, as reflected in the joint expert report, Mr Buckley and Mr Wright have assessed foundation requirements on the basis that they consider the structure to be a non-articulated masonry veneer building. As explained by Mr Buckley in the joint report, control joints were not included in the design, nor were they included in the construction of the dwelling. It is therefore considered that the design must be assessed on the basis that the structure in its current state is not articulated.[166]

[110] I accept the evidence of Mr Buckley and Mr Wright who agree that the footing system design has a number of deficiencies such as, amongst other things, the overall rigidity of the footing system is less than required for a site with a Ys of 85 mm in accordance with AS 2870 (section 4).[167] Further the depth of the footing beams is less than calculated in accordance with Section 4 of AS 2870.[168] The design does not include a provision for addressing the presence of uncontrolled fill on the site, however, there is no indication that the fill has subsided and impacted the performance of the dwelling.[169] All experts agree, and I accept, that the footing and slab were not constructed in accordance with the design.[170]

[111] In relation to the concrete used for the slab and footings, the experts agree, and I accept, that the concrete test results show that the strength of the concrete is lower than that specified in the design and within AS 2870.[171]

[112] The issue of concrete strength is relevant to the issues to be decided in this matter because the specified strength of concrete (25 MPa) that was ordered by Rosecove was not provided by Council. Mr Reid's evidence, as expressed in the joint experts report is that the insufficient concrete strength may have resulted in deflections.[172] On the other hand, Mr Wright says that the presence of water to an agitator truck on site can have a significant impact to the final strength of the concrete and goes on to query whether the required strength of concrete may well have been supplied to the site.[173] Mr Wright rejects Mr Reid's opinion about possible deflection due to concrete strength on the basis that it would only be the case if the slab was suspended free of the ground.[174]

[113] I prefer and accept Mr Buckley's evidence about concrete strength. Mr Buckley says there are other factors determining deflection. As reflected in the joint report, Mr Buckley refers to the stiffness and depth of the footing beams that is used in the calculation of deflection.[175] Mr Buckley says the footing beams constructed are in the order of 90% lower than the required stiffness for a non-articulated masonry veneer construction as it currently exists on the site and that this has a substantially greater impact on the bending in the slab than the reduction in concrete strength.[176]

[114] I prefer and accept the evidence of Mr Buckley and Mr Wright about the footing system design. I find that the footing system design for the house was not adequate for a Class E/D site.[177] I accept the experts evidence, as reflected in the joint report, that the footing system design lacks many items that would be necessary for a Class E/D site. Some of the missing items include, amongst other things:[178]

(a) Insufficient depth of the footing system in accordance with AS 2870,

(b) No reference to masonry/articulation which is considered good engineering practice for this particular site,

(c) No continuity in the footing system as required by AS 2870,

(d) The system does not support the concentrated loads from the roof on edge or internal beams as required by AS 2870,

(e) Missing specification or reference to the need for articulation of the plumbing as required by AS 2870.

Requirement to support roof loads on edge and internal beams

[115] I accept the evidence of the experts who agree that there is a requirement for the internal beams to extend from edge to edge of the slab as stated in AS 2870. In the present matter, the slab and footing design did not provide for the raft beams to extend to the perimeter of the slab to carry the load of the roof structure at the balcony and porch.[179]

[116] I accept the evidence of the experts who agree that the lack of plumbing articulation in the footing slab design was a fundamental design deficiency because the lack of plumbing articulation has a potential impact on the performance of the dwelling in the long-term.[180] I accept the expert evidence that absence of plumbing articulation in the slab design has affected the past performance of the slab.

[117] It is open for me to find that Rosecove did not construct the slab and footings in accordance with the design. Rosecove is responsible for the construction of separate slabs. In particular, the external slabs are separate from the main portion of the slab and this is different to what is required in the architectural slab plan and the engineer's slab plan.[181] Mr Holling did not tell the engineer that he intended to pour three separate slabs for the house.[182] Mr Holling accepts that the engineering plan requires the slabs to be poured at the same time so they actually form part of the one slab.[183]

[118] I accept Mr Buckley's evidence given in the oral hearing about the lack of continuity to the patio from the main slab to the external slab may be a contributing factor to the cause of internal damage.[184]

[119] The experts agree that the construction of the external slabs is different from the design.[185]The experts also agree that the overall stiffness of the slab and footings was insufficient to resist the forces imposed by the differential movement in the founding soils.[186] Further, as reflected in the joint experts report, there are a number of design deficiencies that includes the lack of continuity in the footing system as is required by AS2870:1996.[187] The experts' evidence about the design deficiencies, that I accept, is that while those items are design deficiencies, not all are causes of deflection in the slab. The balance of the design deficiencies are instead items that will amplify the distress in the dwelling once deflection has occurred.[188]

[120] I accept, as submitted by Council that the construction of two separate slabs rather than one monolithic slab as required by AS 2870, may impact upon differential movement to the extent that it may amplify the distress in the dwelling once deflection has occurred.[189]

[121] As discussed above, the strength of concrete supplied by Council for the slab and footings was lower than that specified in the design.[190] The strength of the concrete is important to the construction of the slab and footings as a lower strength concrete may be prone to failure under extreme load.[191] The extent to which the concrete strength has contributed to any failure in the performance of the slab is unknown. This is particularly so given that test samples were not taken from the beams.[192]

Lack of footing depth main cause of slab deflection

[122] As discussed above, I have found that there are a number of issues with the slab. The footings were insufficiently deep for a non-articulated masonry veneer construction and this impacts on the stiffness and deflection of the slab.[193]

[123] I accept the evidence of Mr Buckley and Mr Wright that stiffness in the slab is a cause of slab deflection and this may be caused by the beams not being sufficiently deep.[194]

Whether the slab and footings are performing within AS 2870 limits

[124] For reasons discussed above, I prefer and accept the evidence of Mr Buckley and Mr Wright about the performance of the slab that is based on the design of a non-articulated structure. I accept the expert evidence that the current deflection in the slab does not meet the design criteria in its current unarticulated state.[195]

[125] There is evidence of floor level surveys being taken at various times from November 2015 to July 2020. The evidence shows that during certain periods in November 2015, March 2017, July 2017 and November 2017, the slope was performing outside expectations contained in AS 2870 in terms of deflection to span ratios and the maximum slope limit.[196]

[126] As at November 2018, Mr Buckley and Mr Reid agree based on the survey information provided by the QBCC that the slab was performing within the expectations of AS 2870.[197] Mr Wright, on the other hand and as reflected in the joint experts report, considers that floor level surveys taken by the QBCC inspector show that the deflection to span ratio in a number of cross sections was more severe (assuming articulated masonry veneer).[198]

[127] As at July 2020, following a joint inspection, Mr Buckley and Mr Reid considers that the slab was performing within expectations contained within AS 2870. Mr Wright, however, does not agree and considers the slab was performing outside expectations of the standard.[199]

[128] The experts agree that the floor slope of the house is flatter than 1:100 and is acceptable.[200] The experts agree, and I accept, that the current deflection in the slab (as at July 2020) did not meet the design criteria in its current unarticulated state.

[129] I have found that the house should be assessed based on the evidence and the fact that the house is an unarticulated masonry veneer.[201] I prefer and accept the evidence of Mr Buckley and Mr Wright that the slab and footing system has not performed to date in accordance with the relevant requirements.[202]

[130] I accept the expert evidence and find that the house has suffered category 3 cracking and extensive category 1 and 2 cracking. Further, the slab movement has caused separation of the bottom plate from the slab and crushing and damage to the cornices.[203] Mr Reid and Mr Buckley agreed that the house is presently habitable.[204] Mr Wright, on the other hand, is of the opinion that the house is not habitable.[205] I prefer and accept the evidence of Mr Reid and Mr Buckley and find that the house is presently habitable.

[131] I accept the evidence of Mr Buckley and Mr Wright who both agree that the house requires rectification work and without it, additional cracking and distress to the building could be expected over its design life.[206] Further, for reasons explained above, I find that the footing system design was not adequate for this particular site.

[132] There is a body of evidence addressing what further work is required to address the issue of slab performance that has resulted in cracking and other consequential damage to the house. In my view, the evidence is relevant to the extent that it is open for me to find that there is damage to the house consistent with subsidence and non-performance of the slab. There are a number of issues identified and discussed above that I accept have contributed to the failing footing and slab system.

[133] It is open for me to find that the work performed by Rosecove is defective such that the slab and footing design is 'faulty or unsatisfactory'.[207] I accept the evidence of Mr Buckley and Mr Wright and find that the inadequate design, in combination with the changes made to the slab arrangement during construction, significantly increased the degree of distress occurring to the slab.[208] Further, it is open for me to find based on the expert evidence that in the absence of improvements to the site drainage and plumbing articulation, there remains the potential for future abnormal moisture influences to cause movement to the slab and foundations.[209]

Is Rosecove responsible for any work found to be defective?

[134] Rosecove is responsible for the construction of the house in accordance with the contract and the plans and specifications including the slab and footing design.

[135] The slab and footing design is defective because the design was not appropriate for the site and the house was built without regard to some of the building approval requirements. As discussed above, the footing system design lacks many items necessary for a class E/D site.

[136] Rosecove did not before construction, confirm the soil or site classification that was necessary for the slab and footing design. Rosecove did not inform the certifier that the slab and footing design had been prepared without a soil test. Rosecove did not tell the engineer that there was controlled fill on the site. Further Rosecove, did not tell Council that it had assumed a soil classification for the site. Mr Holling accepts that in making the building approval for the house he 'ticked a box' confirming that all of the information provided is true and correct.[210] Mr Holling did not, however, tell the certifier that he did not have a soil test for the site.[211] Mr Holling accepts that he is responsible as the licensee for Rosecove to ensure the building approval was complete.[212]

[137] I accept that Council was responsible under the contract for obtaining the soil classification. Rosecove was, however, the builder responsible for the building work that includes complying with the building approval and special conditions for the site. A special condition for the building approval was for the slab and footings to be constructed in accordance with the engineer's soil report.

[138] Rosecove was required to construct the house including the slab and footings in accordance with the plans and specifications and all relevant laws and legal requirements. As discussed above, Rosecove did not construct the slab and footings in accordance with the design and drawings. Rosecove did not construct one monolithic slab as required by AS2870 and this, I have found, may amplify the distress in the dwelling once deflection has occurred.

[139] I find that Rosecove is responsible for the construction of the slab and footings for the house that I have found is defective. Rosecove failed to ensure that the slab and footing design was based on relevant geotechnical information including the soil classification for the site.

Would it be unfair, in all of the circumstances, to require rectification?

[140] Rosecove submits that Council did not file statements from witnesses such as the certifier and the relevant representatives from George Bourne & Associates (GBA) that Rosecove says are relevant witnesses to this proceedings.[213] Rosecove submits that the inference to be drawn is that neither witness provided statements, nor were called, because their evidence would not have supported the position agitated and contended for by the Council and/or the QBCC.[214]

[141] Rosecove fails to appreciate the role of the Tribunal on review that is to arrive at the correct and preferable decision. The Tribunal in conducting a proceeding, must discharge its obligations under the QCAT Act such as, and amongst other things, to ensure, so far as practicable, that all relevant material is disclosed to enable the Tribunal to decide the matter with all the relevant facts.[215]

[142] At no stage throughout the proceeding did Rosecove seek an order from the Tribunal requiring any relevant witness to attend the hearing to produce a document and/or to give evidence. That said, I am satisfied that all of the parties have had an opportunity to present their evidence before the Tribunal on review, and that there is sufficient evidence before the Tribunal to make the necessary findings in determining the correct and preferable decision. Rosecove's invitation to draw an adverse inference because of any alleged failure by the Council to obtain statements from the certifier and representatives from GBA is rejected.

[143] Rosecove refers to a number of issues relevant to the discretion under s 72 of the QBCC Act such as the Council's failure to comply with the 2014 rectification policy and amongst other things, the contribution or blameworthiness of the Council.[216]

[144] As provided under s 72(5), a DTR should not issue if, in the circumstances, the Tribunal is satisfied that it would be unfair to the person to give the direction. The circumstances of unfairness identified by Rosecove are set out below:[217]

(a) Contribution by homeowner;

(b) Failure of the Council to take reasonable and timely remedial action;

(c) Council commenced the District Court proceedings prior to making its request;

(d) Delay in making the request to the QBCC;

(e) Serious consequences of failure to comply with a direction to rectify;

(f) Necessity to strike a reasonable balance between the interests of building contractors and consumers; and

(g) Desirability of making a decision consistent with similar cases.

[145] Rosecove submits that the evidence demonstrates that the acts or omissions of the Council was the primary cause of the movement or deflection of the dwelling slab. Rosecove refers me to the evidence about the contractual requirements for the Council to complete certain work associated with the construction and other relevant factors such as leaking water from the air conditioners and the watering of the lawn and garden.[218]

[146] I agree Council was responsible for obtaining foundations data for the site, providing service connections to the house and, amongst other things, to complete some work including completion of the external pathways, power, water and sewerage connections.[219] I have found, however, that Rosecove as the builder was responsible for the building work that includes complying with the building approval and special conditions for the site. Further, I have found that Rosecove failed to ensure that the slab and footing design was based on relevant geotechnical information including the soil classification for the site.

[147] I have found that watering of the lawn and gardens has contributed to the change in moisture content to the foundations and this is one of the reasons for the slab's non-performance. I also found, however, that the footing system design was not adequate for a Class E/D site. Further, the extent of cracking found in the brickwork would have been less had compliant articulation joints been installed.

[148] Rosecove submits that the Council owning in excess of 50 commercial and residential properties and being experienced in the proper maintenance of those properties failed to provide any advice to the tenants of the dwelling about proper garden and property maintenance.[220] Rosecove's submission needs to be considered in the context of all of the evidence. Rosecove submits and I accept that there is an absence of a statutory requirement for a builder to provide a warning or written material such as the CSIRO guidelines to a homeowner.[221] There is, however, expert evidence about home owner maintenance and the requirements of a builder to provide information to the home owner about the dwelling.

[149] The expert evidence that I accept about home owner maintenance, is that the builder would provide CSIRO 'Foundation Maintenance and Footing Performance: A Homeowner's Guide' information sheet ('the CSIRO guidelines') about watering and home maintenance to the home owner.[222]

[150] The experts, Mr Buckley and Mr Wright, agree and I accept that along with other parties, that builders have an obligation to make the owner aware of the requirements for appropriate homeowner management practices.[223] I accept Council's submission that had Rosecove ensured that a soil investigation had been undertaken, prior to construction, Rosecove would have been aware of the proper site classification for the house is a E/D site. I find that Rosecove should have made the Council aware of the highly reactive nature of the soil and provided the CSIRO guidelines to Council so that it could alert tenants of the property about the requirements for proper maintenance.[224]

[151] On balance, I am not satisfied that the evidence demonstrates that the acts or omissions of the Council was the primary cause of the movement or deflection of the dwelling site.

Failure of the Council to take reasonable and timely remedial action

[152] Rosecove submits that Council failed to address the issues which significantly caused or contributed to changes to the soil conditions resulting in movement of the footings and slab of the dwelling and other consequential damage within a reasonable time of it becoming aware of the issues of movement and deflection.[225]

[153] I have found that Council knew about possible issues of subsidence to the house resulting in, amongst other things, cracking to the walls and lifting of tiles in or about October 2014. Council did not, however lodge a complaint with the QBCC about the issues of possible subsidence until 12 December 2016.

[154] In my view, the evidence shows that Council did take some steps, however, to address the issues which caused damage to the dwelling as early as October 2014 when Mr Roberts completed some rectification work and prepared a maintenance report. Further, Council wrote to Rosecove about the issues with the house, on 12 March 2015, before lodging a complaint with the QBCC. Rosecove argues that Council's letter dated 12 March 2015 must be read in its entirety and Rosecove's response to Council's letter was in fact a 'request' for further information from Council that was left 'unanswered'.[226] Mr Holling accepted when questioned in the oral hearing about the letter dated 12 March 2015, that the Council gave him the opportunity to inspect the property.[227] Further, Mr Holling accepted that the Council were saying (in the letter) that there has been subsidence in the slab and footing.[228] Mr Holling's evidence given in the oral hearing is that he wanted more information.[229]

[155] On balance, I am satisfied that Council took steps to address the issues relating to the performance of the slab as early as October 2014 and gave Rosecove an opportunity to inspect the house in March 2015. On balance, I am satisfied that Rosecove knew about the possible issues with the slab and footings as early as March 2015. Any alleged failure by the Council to take reasonable and timely action, as asserted by Rosecove is in my view, on balance, not significant such that it would weigh against the exercise of discretion to issue a DTR in all of the circumstances of this matter.

Council commenced the District Court proceedings prior to making its request

[156] Rosecove submits that the fact that Council commenced proceedings in the District Court prior to making a complaint to the QBCC is a significant factor weighing against the issuing of a DTR in all of the circumstances. Rosecove refers to a number of factors such as, amongst other things, a failure by Council to provide details of the building work it considers to be defective to the QBCC, the outcome of the District Court proceedings was capable of resolving the issues, costs and any rectification work undertaken to rectify the existing dwelling was always potentially futile because of the District Court proceedings.[230]

[157] On balance, I am not satisfied that the commencement of District Court proceedings prior to making a request (or complaint) to the QBCC is a significant factor weighing against the exercise of the discretion to issue a DTR under s 72.

[158] As discussed above, the evidence shows that Council wrote to Rosecove on 12 March 2015, referring to the 'significant subsidence' in the slab/footing and gave Rosecove an 'opportunity' to inspect the property. On 19 March 2015, Mr Holling responded in writing effectively denying that the work was defective. On balance, I am satisfied Rosecove had notice of the possible issues with the slab as early as March 2015.

[159] Rosecove raises no further issues that are not already addressed above.[231] Council's complaint made to the QBCC identifies issues with the slab as designed and constructed. Further, Council raises issues about the slab not being sufficiently rigid and so is subjected to deflection and edge heave 'caused by reactive clays'.[232] As discussed above, Council wrote to Rosecove about possible issues with the house in 2015.

Serious consequences of failure to comply with a direction to rectify

[160] Rosecove submits and I accept that there are serious consequences of failure to comply with a DTR referring to the referral of the matter to the insurance of the QBCC for the work to be repaired under the statutory insurance scheme, recovery of the cost of the remedial work from the builder, a notation on the public record, a fine and the imposition of demerit points.[233]

[161] The factors identified above by Rosecove are relevant in my view to the exercise of discretion in being satisfied that certain factual matters are proven to the required standard and in making a decision that is consistent with the scope and purpose of the QBCC Act.

[162] The Tribunal on review, standing in the shoes of the QBCC decision-maker, has the responsibility to ensure proper standards in the industry and to achieve a reasonable balance between the interests of the building contractors and consumers and to provide remedies for defective building work. I accept that the issuing of a DTR and to confirm the QBCC's decision to issue a DTR on review is a serious matter and will have consequences for Rosecove as the builder.

Necessity to strike a reasonable balance between the interests of building contractors and consumers

[163] Rosecove submit that there is no evidence before me that it was being 'obstinate or recalcitrant' when the DTR was issued. Rosecove says it responded promptly to correspondence from Council, defended the District Court proceedings, co-operated with providing information to the QBCC, participated in inspections and engaged an expert in these proceedings.[234]

[164] Rosecove says that the Council acted unreasonably in refusing to agree to Rosecove's application for an extension of time to comply with the internal review decision and Council exercised its right to commence proceedings in the District Court. Further, Rosecove says that it cannot be 'extrapolated' from its conduct that Rosecove 'is a careless builder whom the public requires protection by having a [DTR] noted on [its] details'.[235]

[165] As discussed above, in conducting a review, it is not necessary to identify any error in the decision below. The Tribunal on review must arrive at the correct and preferable decision. In exercising the discretion under s 72, the Tribunal is required to balance the interests of the building contractors and consumers and, amongst other things, to provide remedies for defective building work.

[166] I draw no adverse inference about steps alleged to have been taken or not taken by Rosecove following the issuing of a DTR. I will consider the expert evidence and the evidence of relevant witnesses in determining the correct and preferable decision on review.

Desirability of making a decision consistent with similar cases

[167] Rosecove, submits, and I accept, that the objects of the QCAT Act include the promotion of the quality and consistency of Tribunal decisions.[236]

[168] Each matter will ultimately turn on its own facts. Further, each matter has its own particular circumstances to be considered in exercising the discretion under s 72. In exercising the discretion under the QBCC Act, the Tribunal is required to consider, amongst other things, all of the evidence, the relevant law and sections of the QBCC Act and QCAT Act, including the scope and purpose of the Act to arrive at the correct and preferable decision.

[169] I accept that Council's failure to notify the QBCC within 12 months of becoming aware of the alleged defects is a relevant circumstance in the exercise of discretion under s 72. The QBCC 2014 rectification policy identifies a requirement to notify the QBCC 'as soon as possible but not later than within 12 months' of becoming aware of the defects. Section 71J of the QBCC Act also requires a request for rectification of building work or remediation of consequential damage to be made 'within 12 months' after the person becomes aware of the building work the person considers to be defective.

[170] In my view, a failure to notify the QBCC within 12 months is one of a number of matters to be considered in exercising the broad discretionary power under s 72 of the QBCC Act.

[171] Council's delay here in notifying the QBCC certainly resulted in a delay in the inspection of the work. Rosecove was, however, made aware of the issues with the house in 2017 when Council wrote to Rosecove about possible subsidence. On balance, I am not satisfied that Council's delay in making a request or complaint to the QBCC outside the timeframe of 12 months is in all of the circumstances a reason for exercising the discretion in Rosecove's favour to not issue a DTR. Further, any unfairness to Rosecove by reason of any delay by Council in notifying the QBCC or making a request under s 71J is outweighed by other relevant factors in this matter and the findings made by me about the nature of the work that I have found is defective.

[172] I am satisfied and find accordingly that the house was not performing adequately prior to Ms Mason taking up her tenancy in or about October 2014. This is evident from the observations made by Mr Roberts, Council employee who in 2014 made some repairs to the cracks and damage to the house. I accept that moisture caused by watering to the lawn and gardens and other water run-off has further contributed to the slab's non-performance and consequential damage to the house. On balance, I find that there would have been less damage to the house had the footing system design been a compliant design for a class 'E/D' non-articulated masonry veneer structure.

[173] I have found that the footing system design is defective because it is missing necessary items including a relevant classification for the site. The depth of the footing system is inadequate, there is no reference to masonry articulation which is considered good engineering practice, there is no continuity in the footing system as required by AS 2870, and there is no support for the concentrated loads from the roof edge or internal beams as required by AS 2870. Further, the design lacks specifications or reference to the need for articulation of the plumbing as required by AS 2870.

[174] On balance, the evidence shows that there would have been less damage to the structure if it had been designed as a class 'E/D' non-articulated masonry veneer structure in accordance with the requirements of AS 2870.

[175] Rosecove as the builder is responsible for the building work including the construction of the footing and slab that must comply with the building approval and all relevant laws and legal requirements. I am satisfied Rosecove failed to ensure that the design was based on relevant geotechnical information including the soil classification. A special condition for the building approval was for the slab and footing to be constructed in accordance with the engineer's soil report.

[176] I am satisfied that the relevant fall to the shower recess is defective and that Rosecove is responsible for the work. The evidence shows that the shower base was not provided with adequate drainage provisions. Rosecove is responsible for the work to the shower recess. In all of the circumstances, Rosecove should rectify the work to the shower base that is defective. Further, Rosecove is responsible for the construction of the house. Rosecove has failed to convince me that it would be unfair in all of the circumstances to require rectification.

[177] The correct and preferable decision in this matter is to confirm the QBCC's decision of 14 December 2017 being the decision to issue a DTR (associated with DTR number 0102966).

[178] I am disinclined to make an order in the terms proposed by Council that the DTR be amended to include a reference to 'internal beams continuous from edge to edge of the slab'. As discussed above, Rosecove as the builder was required to complete the building work in accordance with the contract, all legal requirements and relevant standards. I am satisfied based on the information before me that the decision made by the QBCC to issue a DTR was made following an inspection of the work and having regard to relevant legal requirements and building standards.

[179] The correct and preferrable decision is that the decision to issue a DTR (associated with DTR number 0102966) is confirmed. I order accordingly.

[1] Application for review filed on 13 February 2018. See submissions filed on behalf of the applicant on 26 October 2022.

[2] See applicant's response to preliminary issues to be considered filed on 27 July 2022 and submissions filed on 26 October 2022.

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20.

[4] Ibid, s 19.

[5] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at [9].

[7] See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[10] See Preliminary issues to be considered prepared by the applicant on 26 July 2022, applicant's response to the preliminary issues filed on 27 July 2022, submissions as to applicable law filed by the applicant on 27 July 2022, submissions of the first respondent in response to the submissions of the applicant filed on 27 July 2022, submissions of second respondent (applicable legislation and rectification policy) filed by the second respondent on 27 July 2022, second respondent's response (preliminary issues to be considered) filed on 28 July 2022, first respondent's response to preliminary issues to be considered filed on 28 July 2022 and second respondent's list of issues to be determined filed on 29 July 2022. See further submissions filed on behalf of the applicant on 26 October 2022, submissions filed by the QBCC on 21 December 2022 and second respondent's closing submissions filed on 3 January 2023. See also reply submissions filed on behalf of applicant on 13 February 2023, and correction of typographical error in first respondent's submissions dated 21 December 2022 filed on 14 February 2023.

[12] Second respondent's submissions filed on 3 January 2023, p 56 and p 57 referring to the reasoning in Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480.

[13] [2013] QSC 057, [18].

[14] See QBCC letter dated 14 December 2017; see Exhibit 1, p 21.

[16] See applicant's submissions filed 26 October 2022, QBCC's submissions filed on 21 December 2022 and second respondent's submissions filed on 3 January 2023; see also Exhibit 1, pp 569 and 573. It became apparent in the Tribunal hearing that the Council's complaint form made online to the QBCC is missing.

[17] See Exhibit 1, pp 569, 571, 572 and 573.

[18] Applicant's submissions filed on 26 October 2022 and reply submissions filed on 13 February 2023.

[19] Applicant's submissions filed on 26 October 2022, p 34.

[20] QBCC's submissions filed on 21 December 2022, p 20.

[21] Council's submissions filed on 3 January 2023, [460].

[22] See Taouk v Queensland Building Services Authority [2013] QCAT 508, [39]; citing Garbutt Cuttiford v Queensland Building Services Authority [1999] QBT 80.

[24] Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld), s 37 inserted s 71J(1) to (3) effective from 27 October 2014. The Building Industry Fairness (Security of Payment) Act 2017 effective from 10 November 2017 amended the QBCC Act by inserting s 71J(4).

[25] The Queensland Building and Construction Commission & Other Legislation Amendment Act 2014 No 57 of 2014 effective from 27 October 2014 inserted s 71J(1) to (3). Subsection 71J(4) was inserted by amending legislation, Building Industry Fairness (Security of Payment) Act 2017 (Qld) that came into effect on 10 November 2017.

[26] Applicant's submissions filed on 26 October 2022, p 34.

[27] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261. See also s 20 of the Acts Interpretation Act 1954 (Qld).

[29] See submissions as to applicable law filed 27 July 2022 and submissions of the first respondent in response to the submissions of the applicant dated 27 July 2022.

[30] See second respondent's response (preliminary issues to be considered) filed 28 July 2022, [7].

[31] Submissions of second respondent (applicable legislation and rectification policy) filed 27 July 2022, p 2; see also closing submissions filed on 3 January 2023, p 19.

[33] [2020] QCATA 172.

[34] [2018] 1 Qd R 204.

[36] Ibid_,_ [31] citing Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 (Dixon CJ).

[37] See s 20 of the Acts Interpretation Act 1954 (Qld) and Australand Corporation (Qld) Pty Ltd v Johnson [2007] QCA 302 that considered (at [20]) Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 that said the amendment did not operate to revive the widow's right to maintain an action, which had expired or been barred by amending legislation.

[38] Acts Interpretation Act 1954 (Qld), s 14A(1).

[39] SZTAL v Minister for Immigration and Border Protection (2017) 91 ALR 936.

[40] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, [46]-[47].

[41] CMG Homes Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 191; see Rosecove Pty Ltd v Queensland Building and Construction Commission & Ors [2022] QCAT 235, [6].

[43] See submissions of the first respondent in response to the submissions of the applicant dated 27 July 2022 filed on 27 July 2022.

[44] Applicant's response to the preliminary issues to be considered filed on 27 July 2022.

[45] See submissions as to applicable law filed by the applicant on 27 July 2022.

[46] See Submissions of second respondent (applicable legislation and rectification policy) filed on 27 July 2022, p 5 and second respondent's response (preliminary issues to be considered) filed on 28 July 2022.

[52] QCAT Act, s 20 and subject to any modifying provisions in the QBCC Act.

[54] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 641; see also Zhang v Queensland Building and Construction Commission [2015] QCAT 106 at [35] that determined a policy to be a 'guideline policy' for the purposes of s 7(3) of the Statutory Instruments Act 1992 (Qld).

[55] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 641.

[57] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

[62] Ibid, statement of Leon Love, p 2274, attachment "LL-13".

[64] See p 855, 857 to p 897 of Exhibit 1.

[65] Transcript, day 4, 28 July 2022, T4-7.

[69] See statement of Peter Holling, Exhibit 1, p 799.

[70] See Clause 10 of the General Conditions and the implied warranties, Exhibit 1, p 890.

[71] See applicant's reply filed 13 February 2023.

[72] Transcript, day 4, 28 July 2022, T4-9.

[73] Transcript, day 1, 25 July 2022, T1-106.

[78] Transcript, day 4, 28 July 2022, T4-108.

[84] Transcript, day 4, 28 July 2022, T4-12.

[89] Transcript, day 4, 28 July 2022, T4-15.

[100] QBCC Act, Schedule 2. Work performed by a design engineer is not building work for the purposes of s 72.

[101] See Schedule 2 and s 67WA that defines 'residential construction work' to include primary insurable work and see s 67WC for the meaning of 'primary insurable work' that is building work.

[102] See Clause 10 of the General Conditions and the implied warranties, Exhibit 1, p 890.

[103] The final inspection certification for the dwelling issued on 12 December 2011, see Exhibit 1, p 986, Statement of Peter Holling, attachment "PH-29".

[104] Exhibit 1, p 2274, statement of Leon Love, attachment "LL-13".

[105] Ibid, p 2275-2278, statement of Leon Love, attachment "LL-14".

[106] Ibid, p 1921, statement of David Roberts, [5], [6].

[109] Ibid, p 1930, attachment "DR-2".

[110] Exhibit 1, statement of David Roberts, attachment 'DR-2', p 1932.

[111] Exhibit 1, p 2142, statement of Leon Love, [27].

[112] Ibid, p 2592, statement of Ms Mason, [18].

[115] Ibid, statement of Barbara Mason, p 2590, [8].

[118] Ibid, statement of Mr Roberts, p 1924, [17].

[119] Exhibit 1, statement of Mr Roberts, p 1924, [17].

[121] Ibid, p 1996, attachment "DR-6".

[123] Ibid, p 2312, attachment "LL-17".

[124] Ibid, p 2313, attachment "LL-18".

[125] Ibid, p 2324, attachment "LL-20".

[126] Ibid, p 2143 and p 2356, attachment "LL-21".

[137] Applicant's submissions filed on 26 October 2022, p 24.

[140] Transcript, day 4, 28 July 2022, T4-61 and T4-90.

[144] Transcript, day 7, 31 August 2022, T7-102 to L15, T7-103, L 2**.**

[147] Ibid, T7-120, L3-6, T7-122, L15-25.

[148] Council's submissions filed on 3 January 2023, p 43.

[149] Transcript, day 7, 31 August 2022, T7-74, L 38 to T7-77, L40.

[150] See QBCC's submissions filed 21 December 2022, [5(d)].

[151] Transcript, day 7, 31 August 2022, T7-64, L20-45, T7-65, L36, T7-66.

[152] Transcript, day 7, 31 August 2022, T7-64, L20-45, T7-65, L36, T7-66.

[153] Transcript, day 4, 28 July 2022, T4-45, T4-47, L 6.

[156] Ibid, T4-48, L 3, T4-49, L 20-40.

[157] Second respondent's closing submissions filed on 3 January 2023, p 49.

[158] See building approval, Exhibit 1, p 942.

[160] Transcript, day 4, 28 July 2022, T4-71.

[162] Transcript, day 7, 31 August 2022, T7-46, L40.

[163] Exhibit 1, joint expert report, p 2928.

[165] Exhibit 1, joint expert report, p 2928.

[175] Exhibit 1, joint expert report, p 2931.

[179] Transcript, day 7, 31 August 2022, T7-86, L 40 to T7-87, L 11.

[180] Transcript, day 8, 1 September 2022, 8-38, L 25, T8-39, L 12.

[182] Transcript day 4, 28 July 2022, T4-40.

[184] Transcript day 7, 31 August 2022, T7-128.

[185] Exhibit 1, joint experts report, p 2930.

[187] Ibid and see p 2929 and 'design deficiencies' identified in paragraph 11(c).

[189] Second respondent's submissions filed 3 January 2023, p 61, [277].

[190] Second respondent's submissions filed 3 January 2023, p 62, [280]; See Exhibit 1, p 2930.

[191] Transcript, day 8, 1 September 2022, T8-42, L 25.

[192] Ibid, T8-56, L 35 and T8-58, L 10 to T8-60, L 30.

[194] Transcript, day 8, 1 September 2022, T8-63, L 25.

[207] See meaning of 'defective', QBCC Act, Schedule 2.

[210] Transcript day 4, 28 July 2022, T4-16.

[213] Applicant's submissions filed 26 October 2022, p 12.

[216] Applicant's submissions filed 26 October 2022.

[218] Applicant's submissions filed 26 October 2022, p 31.

[224] First respondent's submissions filed 21 December 2022, p 18.

[225] Applicant's submissions dated 26 October 2022, pp 18-19.

[226] Applicant's submissions filed on 13 February 2023, p 5.

[227] Transcript day 4, 28 July 2022, T4-99.

[230] Applicant's submissions filed on 13 February 2023, p 21.

[231] Applicant's submissions dated 26 October 2022, p 32.

[232] See applicant's reply filed on 13 February 2023, p 10.

[233] Applicant's submissions dated 26 October 2022, p 32-33; See also submissions made in the applicant's reply filed on 13 February 2023, p 22.

[234] Applicant's submissions dated 26 October 2022, p 33.