1. Pursuant to section 9 of the DBCA, the Owners are entitled to rely on the Warranties as if they were a party to the building contract between the Builder and the previous owner. The Builder does not dispute the Owners are subsequent owners and may bring the proceeding for a breach of the Warranties.
2. The Owners have the burden of proof to satisfy the Tribunal on the balance of probabilities of the facts necessary to establish their claims. If the Owners are unable to prove their claims on the balance of probabilities, they must be dismissed.
3. The Owners claim the Builder breached the Warranties in respect of numerous items of defective or non-compliant work. For the Owners to succeed, in respect of each of the defects alleged, they must demonstrate, among other things, that the Builder did not carry out the building works in a proper and workmanlike manner or with reasonable care and skill or did not comply with all laws and legal requirements.
4. The Owners also claimed that the Builder warranted the building work was to be fit for purpose and the Builder breached that warranty. I note that before the hearing, the Owners moved away from this position and did not pursue this claim against the Builder.

1. The central issue for determination is whether the Builder breached the Warranties, as set out in section 8 of the DBCA.
2. If the Builder breached the Warranties, the Builder is liable for the Owners' loss and damage caused by the breach, including damages in the form of the cost to rectify the defective work.
3. As to what damages the Owners are entitled to recover, the 'ruling principle' is that, where a person suffers loss because of a breach of contract, that person is to be placed in the same position as if the building contract had been performed.[1]
4. In claims involving defective building work, this is usually assessed by determining the cost to rectify the defects, provided that the rectification work is: necessary to produce conformity with the terms of the contract; and a reasonable course to adopt in all the circumstances.[2]
5. In Clarendon Homes Vic Pty Ltd v Zalega,[3] Senior Member Walker summarised the principles that apply when considering whether proposed rectification work is reasonable:

In considering whether it would be unreasonable to award the cost of rectification, the Tribunal should consider all the circumstances of the case before it. The nature and significance of the breach should be looked at in terms of the bargain the parties had and the relative importance of the breach within the context of the contract as a whole. The decision in Ruxley[4] suggests that account can be taken of the following matters at least:

(i) Whether and to what extent the work, although not in conformity with the contract, is nonetheless serviceable;

(ii) Whether and to what extent the defect has affected the value of the work or the building as a whole;

(iii) The cost of rectification, the proportion that the breach bears to the cost of rectification and whether the cost of rectification would be wholly disproportionate to the real damage suffered by reason of it;

(iv) The likelihood that, if rectification cost is awarded, the sum so ordered will actually be spent on rectification. Obviously, a successful plaintiff can spend his damages as he sees fit but this may be a useful indicator of whether the amount sought is greater than the real loss suffered.

Quite obviously, this list is by no means exhaustive ...

1. In this case, the Builder has the burden of proving it would be unreasonable to award the cost of rectification claimed by the Owners. In Clarendon Homes Vic Pty Ltd v Zalega, the Senior Member held:

As stated in Bellgrove, the question of reasonableness is one of fact. Mr Sedal submitted, correctly I think, that the Builder bears the onus of proof that it would be unreasonable to award the full rectification cost. That was the view taken by Rares J of the Federal Court in Tabcorp and I respectfully agree.[5]

1. For this decision, the following timeline of events / documents is relevant:

6 December 2015 Soil and geotechnical investigation report

February 2016 Architectural drawings, engineering drawings and computations

September 2016 Engineering drawings and certification

13 September 2016 Building contract between Builder and previous owner / developer

October 2016 Town planning permit issued and endorsed drawings

11 October 2016 Building permit issued for 4 town houses on Property

3 February 2017 Building permit varied - change of slab design to waffle slab

April 2018 Rear deck at north side of Unit 3 constructed

25 May 2018 Occupancy permit issued for building work, including Unit 3

1. There are several alleged building defects for which the Owners seek damages from the Builder. The primary defect is the substantial movement in the garage slab. The engineering experts for the Owners and the Builder agree the slab is suffering from severe movement and requires rectification.[6]
2. The nature of the alleged defective building work falls into four categories:

(a) the Builder failed to construct the garage slab with a 600 mm edge beam as required by the engineering design ('edge beam defect');

(b) the Builder failed to ensure the edge beam of the garage slab was founded into the appropriate founding material required by the engineering design, being a minimum of 100 mm into clay and not fill ('foundation defect');

(c) the Builder failed to construct deepened footings along the northern boundary when the engineering design required this to be done due to the neighbouring apple tree being within the zone of influence ('deepened footing defect');

(d) other building defects to the northern deck, articulation joints to the garage door, articulation between the wall with Unit 4 and the garage brick piers ('other building defects').

1. The defects are identified in the Owners' Amended Points of Claim together with the expert reports of Patrick Irwin, engineer dated 23 December 2020 ('Irwin's First Report');[7] 5 June 2024 ('Irwin's Second Report');[8] and 23 September 2024 ('Irwin's Third Report').[9] Mr Irwin gave evidence at the hearing.
2. The Owners also rely on technical memoranda prepared by Intrax Consulting Engineers dated 31 May 2024 ('First Intrax Report')[10] and 10 September 2024[11] (together the 'Intrax Memoranda'), and an expert report of Joseph McPherson of Intrax, engineers, dated 26 March 2025.[12] Mr McPherson also gave evidence at the hearing.
3. In relation to the cost to rectify, the Owners rely on the expert evidence of Peter Schmiedel, builder and building consultant, and his reports dated 1 November 2021[13] and 14 December 2024.[14] Mr Schmiedel gave evidence at the hearing.
4. The Builder relies on expert reports of Mr Stanley Nyandowe, engineer, and Mr Trevor Jeffery, building consultant.[15] Mr Nyandowe produced reports dated 13 April 2024, 1 July 2024 and 7 March 2025. Mr Jeffery produced reports dated 31 January 2023, 5 July 2024 and 12 March 2025. Mr Nyandowe and Mr Jeffery gave evidence at the hearing.

1. The Owners rely on Mr Irwin's opinion that the Builder failed to construct the garage slab with a 600 mm edge beam, as required by the engineering design, and failed to ensure the edge beam was founded into the appropriate founding material required by the engineering design, being a minimum of 100 mm into clay and not fill. The Owners claim these failures have caused substantial movement to the garage slab and building damage.
2. One of the key issues in relation to this alleged defect is the interpretation of the 'min 600mm edge beam' design requirement.
3. The Owners submit the engineering drawings set out the slab design for Unit 3 (and Unit 4).[16] One of the drawings (Sheet 3) depicts a waffle pod slab with a typical edge beam of 410 mm in depth unless noted otherwise ('U.N.O'). The slab design for the garage of Unit 3 included a honeycomb hatch to the edge beam of the garage slab which noted a requirement for '...articulated full masonry over edge beams to be min. 600 deep with 3-N16 Top & Bottom.'
4. Mr Irwin gave evidence that this was a requirement for the garage slab edge beams to be deepened to a minimum of 600 mm - that is the minimum structural depth of the garage slab from its top to the bottom of the foundation.[17]
5. The Owners submit that this interpretation of the garage slab drawing was not disputed by the Builder's expert, Mr Nyandowe. Rather, the Owners submit Mr Nyandowe's opinion centred around a conflation of the bored piers design with the edge beam[18] and, even if the edge beams were constructed to 600 mm, the settlement would still have occurred.[19]
6. The Owners contend that Mr Nyandowe gave evidence that the reference in the drawings to a minimum 600 mm deep edge beam was a reference to a standard edge beam (410 mm), which was to be constructed not less than 600 mm under the ground.[20] The level of the ground was to be taken prior to construction. They further contend that Mr Nyandowe opined that, because the words '600mm deep' (instead of depth) were used, 'one can interpret this to mean' the depth under the ground.[21] The Owners submit his opinion neglected to note the words used in the legend for the honeycomb hatch describe the honeycomb as a reference to the 'increased rib depth.'[22]
7. The Owners submit that Mr Jeffery, the Builder's expert building consultant, agrees with Mr Irwin's interpretation - that the minimum 600 mm was a measurement of the minimum depth of the slab.[23]
8. The Owners further submit, if the Tribunal accepts Mr Irwin and Mr Jeffery's interpretation of the garage slab design, the expert engineers for both parties agree that the edge beam has been constructed as a standard 410 mm edge beam and not to a minimum of 600 mm, as required.
9. Mr Irwin opined the Builder constructed the garage edge beam with a standard 410 mm edge beam which had not been deepened to 600 mm, as required. If the edge beam had been deepened, the edge beam depth should have been at least 430 mm below the brickwork, to reach the minimum requirement of 600 mm.[24] The investigations by Intrax identified the edge beam to be approximately 200 mm[25] in depth below the brickwork (and 100 mm into fill). The profile was consistent with the slab being constructed with a typical 410 mm edge beam and not deepened as required.
10. The Owners further submit Mr Nyandowe agreed that the evidence established the as constructed edge beam was a typical 410 mm edge beam, but he considered it needed to be 600 mm below ground.

1. The Builder denies the allegations that it failed to construct the garage slab with a 600 mm edge beam, as required, and failed to ensure the edge beam was founded into the appropriate founding material required by the engineering design, being a minimum of 100 mm into clay and not fill. Accordingly, the alleged failures have not caused substantial movement to the garage slab and building damage.
2. In relation to the edge beam depth, the Builder relies on Mr Nyandowe's opinion that '600mm deep' meant how deep the edge beam went relative to the starting soil, and not the actual dimensions of the edge beam itself.[26]
3. Accordingly, Mr Nyandowe disagrees with Mr Irwin[27] and Mr Jeffery's[28] opinion that the edge beam was to be measured from the top of the slab.
4. In relation to the edge beam complying with the garage slab design, the Builder submits Mr Nyandowe gave evidence that it had been built in compliance with the design[29] (assuming his interpretation of measurement of the depth of the edge beam is accepted), with all works having been signed for by the inspector and building surveyor.[30]
5. Further, the Builder submits there is no evidence which establishes the edge beam was not founded at the correct depth, regardless of the approach taken as to how it was to be measured.[31] The Builder contends that Mr Irwin's opinion was premised on acceptance of what was contained in the Intrax Memoranda.[32] The Builder submits there are issues with the Intrax evidence in that Intrax's measurements did not measure from the top of the slab and, therefore, do not give evidence of the actual depth of the edge beam.

1. After considering and weighing up the expert evidence, I accept Mr Irwin's opinion and Mr McPherson's evidence and find the correct interpretation of the design requirement for the depth of edge beam is 600 mm measured from the top of the slab to the bottom of the foundation - that is the actual dimension of the edge beam itself.
2. I further find that the edge beam has been constructed with a depth of 410 mm and has not been deepened to 600 mm, as required by the slab design.

1. The Owners allege the Builder failed to construct the garage slab edge beam in the required founding material, which is a cause of the building movement and damage.
2. The engineering design required the garage edge beam to be founded 100 mm in clay, not fill.[33] The Owners submit Mr Irwin considered it would be prudent to ensure that the footing be founded a minimum of 300 mm below ground level given the recommendation contained in the soil report regarding a stiffened raft slab, which he considered was also sound guidance for the waffle pod construction.[34]
3. The Owners rely on Intrax's investigations underneath the garage slab which found that the garage edge beam was founded 100 mm below ground level, entirely in fill.[35] Clay did not commence until at least 200 mm below ground level (or at least 100 mm below the edge beam footing).
4. During the hearing, Mr McPherson of Intrax, engineers, confirmed that the edge beam was founded in fill. Mr Irwin opined that the findings of Intrax are consistent with the settlement pattern of the garage - that is, the edge beam has been founded on fill rather than into clay. The Owners further contend that Intrax's finding are consistent with Mr Nyandowe's hypothesis that the settlement was due to the edge beam being placed in uncontrolled fill (or 'soft spots'). Mr Nyandowe, the Builder's expert engineer, agreed that the footings to the garage slab had not been founded in clay.

1. The Builder confirms that all experts agreed that the edge beam was required to be founded into clay. The Builder submits the experts also agreed there was clay 300 mm below the original soil level before a scrape and cut by the Builder.[36]
2. The Builder contends Mr Irwin's evidence that the edge beam was not founded into clay as required, was based solely on Intrax's evidence being accepted.[37] The Builder further submits Mr Irwin refused to acknowledge or accept that there were any deficiencies in the Intrax Memoranda, in particular there was nothing in the memorandum that gave proper measurements of soil levels or demonstrated where the soil came from.[38] The Builder submits Mr Irwin's refusal to make these concessions significantly undermines his evidence on this issue.
3. The Builder also submits Mr Jeffery gave evidence that the soil report showed that, regardless of the depth of the edge beam (whether it was 400 mm or 600 mm), it would have been founded in natural clay, because of the effects of the site scrape.[39] He also placed weight on the fact that the relevant building surveyor had signed off on it. Mr Nyandowe agreed with Mr Jeffery.
4. The Builder further submits that, after extensive cross-examination, Mr Irwin conceded, based on the soil report, an edge beam of 410 mm would be founded 100 mm into clay after taking into account a site scrape by the builder, which would have reduced the ground level by 150 mm.[40] The Builder says that the evidence of Messrs Jeffery and Nyandowe should be preferred on this issue.

1. I accept the expert opinion of Messrs Irwin, McPherson, and Nyandowe and find that the garage slab was founded into fill rather than at least 100 mm into clay, as required.
2. Further, I accept the expert opinion of Mr Irwin and Mr McPherson and the Intrax evidence and find the garage slab has been constructed only 100 mm below ground level.
3. Based on my acceptance of Mr Irwin and Mr McPherson's evidence, I find that the combination of the edge beam not being deepened to 600 mm, as required, and the garage slab being founded into fill, is the main cause of the building movement and damage to the garage.
4. Further, I find the building movement has caused damage to the garage, which is manifested in the alteration in floor level of the garage, cracking and movement of the brick piers away from the garage walls.
5. Accordingly, I find that the Owners have proved on the balance of probabilities that the Builder caused the building movement and damage to the garage and breached the section 8 warranties.
6. I do not accept Mr Nyandowe's opinion that the primary cause of the garage slab movement is due to a nearby tree or trees being removed by the previous owner or deficiencies in the engineering design. This is discussed below.

1. The Owners allege the presence of a neighbouring tree at the time of construction in 2017 triggered the need for the northern boundary footings (on which the garage slab is constructed) to be deepened. Had the footing been deepened, the settlement of the garage slab at the northern end would not have occurred.
2. The Owners rely on Mr Irwin's opinion. In his first report dated 23 December 2020, Mr Irwin opined that the engineering design provided important directions to the Builder to mitigate against the impact of trees which were within the 'zone of influence' of the units to be constructed on the Property.[41]
3. Mr Irwin is of the view that the direction in the Founding Note required an assessment of the (a) mature height of any tree and (b) its proximity to the intended footing.[42] If the height of the tree was greater than its distance from the footing,[43] the tree was within the 'zone of influence' and the direction required the Builder to take one of three possible steps (deepened footings, removal of tree or tree root barrier) to mitigate against the impact of the tree upon the footing. In this case, Mr Irwin identified there was no room to install a root barrier between the garage slab and the northern boundary, nor could the Builder remove the neighbouring tree. Accordingly, if the direction was engaged, the Builder was required to deepen the northern boundary footings directly onto weather bedrock or, if bedrock was not present, 2.5 m below natural ground level.

1. Mr Irwin attended the Property on 22 December 2020. He observed the apple tree on the adjoining property was at least 7 m high. He further observed the tree was about 6 m from the northern side of the garage.[44] He used Nearmap to accurately calculate the distance of the apple tree from the garage at 5.5 m.[45] Accordingly, in his view, the apple tree was within the zone of influence and the Builder was required to follow the direction in the engineering design. This meant the Builder was required to deepen the northern boundary footings. Had the Builder deepened the footings, settlement of the garage slab at the northern end would not have occurred.
2. In his first report, Mr Irwin was of the view that the presence of the neighbouring apple tree was likely the predominant cause of the settlement to the northern boundary and garage slab. Due to the apple tree being removed in mid-2023 and the lack of recovery to the slab, Mr Irwin subsequently opined that the apple tree is not the sole cause of settlement of the garage slab, with the inadequate edge beam depth and inappropriate foundation material being contributing factors to the settlement.[46]

1. The Builder disputes the allegation that the neighbouring apple tree was a cause of the settlement of the garage slab because the Builder failed to deepen the northern boundary footings.
2. Specifically, the Builder submits the Owners have the burden of proving the neighbouring apple tree was in the 'zone of influence' at the time of construction in 2016 and 2017. This means the Owners must satisfy the Tribunal that the 'mature height' of the apple tree was 5.5 m or more at the relevant time.
3. The Builder submits the experts agreed that 'mature height' means likely maximum scale of a tree and they were not experts on trees and could not give evidence about its likely maximum scale. The Owners did not lead any evidence about what kind of tree it was or the 'mature height' of the tree. There is nothing upon which the Tribunal can make a finding that the 'mature height' was 5.5 m or more.
4. The Builder further submits:
   1. Mr Irwin's evidence was about the actual height of the tree, and not its mature height. He stated that 'I can't know what the tree's mature height is or could reasonably have been supposed to be at the time of the construction of the slab'.[47]

(b) More importantly, Mr Irwin's evidence as to the height of the tree should be treated with caution by the Tribunal because:

1. The estimate was based upon viewing from inside Unit 3;[48]

(ii) A photograph taken from that location and angled downward showed the majority of the tree;[49]

(iii) The height of Unit 3 meant that the highest the photograph could have been taken from was 4.7 m; and

(iv) Mr Jeffery disagreed with Mr Irwin's observations as to the height of the tree.

1. Having considered the evidence and conflicting expert opinion, I reject Mr Irwin's opinion regarding the impact of the neighbouring apple tree on the building work, particularly, the construction of the garage slab.
2. I find that the Owners have failed to prove on the balance of probabilities that the apple tree was in the 'zone of influence' and, therefore, engaged the direction in the engineering drawings to the Builder to deepen the northern boundary footings.

CAUSATION OF DAMAGE - REMOVAL OF TREES ON SITE AND/OR DEFECTIVE ENGINEERING DESIGN

1. In its Amended Points of Defence, the Builder alleges the Developer was responsible for the plans, engineering, soil report and other documentation, including an obligation to obtain a follow up geotechnical investigation report. Further, the Builder alleges the Developer warranted to the Builder the plans were correct and suitable for their intended purpose and it was reasonable for the Builder to rely on them in carrying out the Works.[50]
2. In their Reply to the Builder's Amended Points of Defence, the Owners deny the engineering design was not suitable and say the Builder failed to carry out the Works in accordance with the engineering design and recommendations. Further, the Owners allege the Builder breached the Warranties even if the engineering design was not suitable.[51]
3. In support of its position, the Builder relies on Mr Nyandowe's opinion. In his first report, Mr Nyandowe discusses the impact of the removal of a nearby tree before construction (i.e. a tree on site near the Unit 3 garage) and concludes the foundation in the area of concern was not adequately designed for. Consequently, the foundation design was structurally inadequate. He opines an adequate design would have considered the big soft spot created by the removal of the tree and either specified deepened foundation or some form of suspended slab or a combination of the two. He explains the area where the tree was removed formed what is called a 'soft spot' because the removal of the tree roots would have resulted in a big hole which, when filled up, was not compacted to the same extent as the surrounding area. Further, uncompacted fill would have gone deeper than the founding level of the rest of the building structure. As such, the foundation around the soft spot would behave and respond differently from the rest of the building structure. This is the reason for differential settlement and hence the defects around the garage area.
4. Mr Nyandowe further opines that the Builder carried out the Works correctly and in accordance with the project construction documentation.[52]
5. In his supplementary report, Mr Nyandowe further discusses the tree removal and the design documentation. He 'doubles down' on the opinions expressed in his first report and maintains his view that the cause of the garage defects is the soft spot caused by the tree removal. The only way to prevent the defects caused by the tree removal was the installation of bored piers. The removed tree was captured in the soil report. He considers the design engineer ignored or missed the tree removal effect to the foundation. If the engineer had allowed for the tree removal or the presence of the tree, the solution would have been to prescribe and install bored piers under the nearest wall of the garage. He notes the design engineer allowed for bored piers on the western boundary under Unit 4.[53]
6. In response, the Owners rely on Mr Irwin's opinion as to the primary cause of the garage defects being the Builder's failure to construct the footings of the garage 100 mm into clay, as required by the engineering design.
7. The Owners submit the Builder was responsible, pursuant to the design, to ensure that the footings were founded into the correct founding material. In this case, not less than 100 mm into clay. Further, the owners contend it is no defence to suggest that the Builder could not have been aware of the fill. The process of excavating the footing depth to clay makes the Builder aware of the founding material. The Builder was required to establish a founding depth below any fill. This was not done.
8. The Owners also submit the evidence established the Builder knew or ought to have known of the tree removal near the garage. The soil report provided to the Builder before the contract was signed identified the tree in question. When the Builder inspected the site, it knew or ought to have known the trees which had been removed. Mr Sagor confirmed in his evidence that someone from his company would have attended the site for a suitability inspection either one or two times prior to the contract being executed. That is, whilst the tree was still there.
9. Further, the Owners submit at the time of entry into the contract, being 13 September 2016, the Builder agreed it had assessed the suitability of the site for the proposed works and if tests were necessary, they had been carried out. Although the precise date of when the tree was removed is unknown, the Nearmap photos within Mr Nyandowe's first report establishes the tree was still present on the site as of 8 October 2016.
10. Moreover, as Mr Irwin stated in his evidence, the engineering design required the Builder to take a range of steps in response to any removed trees. They included: (a) where trees are removed, the need to compact any loose material and excavate to a firm working base if loose material does not respond to compaction; (b) the need for a second soil test to be done to confirm the soil profiles have returned to equilibrium; (c) the need to increase the depth of footings to 200 mm below any disturbed material and the recommendation an arborist of geotechnical engineer be engaged for advice; and (d) on Sheet 3 of the engineering plans, the need for the ground to be re-moisturised and compacted where trees have been removed. The Owners contend that the Builder failed to follow most of these recommendations.

1. I reject Mr Nyandowe's opinion that there is a design omission in relation to the nearby removed tree for the following reasons:

I do not accept that the engineering design should have called for bored piers under the nearby garage wall in the same way as that specified for the wall on the western side of Unit 4. The design of bored piers on the western side of the Property was in response to the proximity of Unit 4 to a water or sewage easement along the western boundary;

The engineering design contained recommendations for design and construction of the footings to the dwellings, including the garages to each unit, where on site trees were removed before construction; and

I find the Builder was aware or ought have been aware of the removed tree and its likely impact on the foundations of the garage and failed to follow the design recommendations in this regard.

1. I have found the evidence establishes agreement between Mr Irwin, Mr Nyandowe and Mr McPherson that the Builder founded the garage slab into fill rather than at least 100mm into clay, as required by the engineering design. Further, the Builder constructed the garage slab only 100mm below ground level. This was the primary cause of the garage movement and resulting damage.

1. The Owners claim damages against the Builder in respect of 4 other building defects.

1. The rear deck to the north of Unit 3 was designed and constructed by the Builder. The Owners claim the Builder designed or constructed the deck defectively. They rely on Mr Irwin's opinion that recent measurements show the deck has settled considerably since his first measurements (40 mm difference over the east end) which has caused the southeast corner to rise 20 mm.
2. Mr Irwin identified that the most likely cause was insufficient pad depth when the Builder constructed the footings for the deck.[54] Accordingly, the Builder did not construct the deck with adequate footings and/or into an appropriate foundation.
3. The Builder's expert, Mr Nyandowe agrees the deck is defective and requires repair. However, the Builder submits the evidence from the experts was that there had been movement to the deck but none of them was able to say with any certainty what the cause was.[55] Accordingly, the Builder contends the claim in relation to the deck must fail.
4. As to the scope of rectification work, Mr Nyandowe recommended an expansive scope of works requiring underpinning to the deck. Mr Irwin recommended a more modest scope of works. He considered the deck frame could be maintained but the decking should be removed. The bearers and joist then need to be re-set and the deck reinstated.
5. The Owners' expert, Mr Schmiedel, has costed the proposed rectification works according to Mr Irwin's scope of work at $3,641.[56] He has also provided a costing of $1,465 for the partial removal of the deck and to pack out the northeast corner to level. To these amounts, Mr Schmiedel adds on a builder's margin and contingency of 27.5%, plus 10% for GST.
   1. The Builder's expert, Mr Jeffrery, considers the appropriate remedial work is to remove and replace the decking after packing and relevelling the deck. He has costed this work at $2,613, based on a contingency of 5% and builder's margin of 20%, plus 10% for GST.[57]
   2. I prefer Mr Jeffrey's margin and contingency of $25% as a reasonable allowance for the rectification work in this case.

1. I accept Mr Irwin's opinion that, in the circumstances and given the soft or uncompacted soil in the area, the Builder has failed to construct the deck with sufficiently deep footings and this is the main cause of the deck movement.
2. Accordingly, I find the Owners have proved on the balance of probabilities that the Builder breached the statutory warranties in relation to the construction of the rear deck and is liable for the cost of rectification.
3. I prefer Mr Jeffery's scope of remedial work to Mr Irwin's scope of work and Mr Schmiedel's costing of Mr Irwin's scope of work and will allow $2,613 for the reasonable cost of rectification.

1. The Owners claims the garage brick piers have disengaged from the single skin brick wall. The Builder's expert, Mr Nyandowe, agrees the brick piers have disengaged. The brick piers are included in Mr Irwin's scope of rectification work of the garage slab. The Owners submit that, if the Builder's scope of works for the garage slab is accepted, the brick piers will be retained and need to be rectified. Mr Schmiedel has costed the rectification of the brick piers at $3,460, plus builders' margin and GST.[58] Mr Jeffery opines that minor repair work is required to tie the brick piers to the wall and has costed the rectification work at $454, including builder's margin and GST.[59]
2. As this building defect has been caused by or is related to the movement in the garage slab, I find the Builder breached the statutory warranties and is liable for the cost of rectification.
3. Mr Schmiedel has based his costing on Mr Irwin's scope of remedial work which involves the removal and rebuilding of the brick piers. This work will only be necessary if the garage is partially demolished and re-built. I have found below that demolition and re-building the garage is not a reasonable or necessary method of rectification of the movement and damage to the garage. I prefer Mr Jeffery's scope of remedial work and costing to Mr Irwin's scope and Mr Schmiedel's costing of Mr Irwin's scope and will allow $454 for the reasonable cost of rectification.

1. The Owners claim the garage articulation joint has opened considerably. All experts agree this is due to the movement of the garage slab. Mr Irwin considers the gap should be rectified by inserting a foam backing rod and then siliconed. Mr Schmiedel has costed Mr Irwin's scope of rectification work at $880.[60] Mr Jeffery opines that the joint can be caulked with a mastic compound and has costed the remedial work at $234.[61]
2. As this building defect has been caused by or is related to the movement in the garage slab, I find the Builder breached the statutory warranties and is liable for the cost of rectification.
3. I accept Mr Jeffrey's opinion that a mastic compound will satisfactorily address the gap. Accordingly, I prefer Mr Jeffery's scope of remedial work and costing to Mr Irwin's scope and Mr Schmiedel's costing of Mr Irwin's scope and will allow $234 for the reasonable cost of rectification.

1. The Owners claim a large gap has opened where Unit 3 and Unit 4 join.[62] Mr Irwin identified the gap has caused a breach of the weatherproofing which needs to be repaired. Mr Irwin gave evidence that he considers the problem relates to defective construction of the joint. He said the Builder had butted the two materials against each other and covered them with silicone. The silicone had breached upon movement and opened up the joint.[63] He described that the construction of the joint should have been designed to deal with the movement by using, as one example, a corner flashing which he detailed.[64]
2. The Builder disputes the Owners' claim that the Builder caused the gap in the joint by failing to construct the joint properly. Mr Nyandowe gave evidence that the construction of the joint complies with Australian Standard 3700.[65] Mr Jeffery agreed with that opinion and gave evidence that the gap had been caused by the slab in Unit 4 having rotated west more than expected, and so more than what the join could have been expected to deal with.[66] The Builder submits Mr Irwin later accepted that the movement of the slab in Unit 4 (and not Unit 3) had caused the gap, but said he hadn't taken proper measurements to say whether or not the movement of Unit 4 was abnormal or not.[67] In the circumstances, the Builder submits the Tribunal should dismiss the claim on the basis that it cannot be satisfied that the issue is caused by any breach of warranty by the Builder.
3. I accept Mr Nyandowe and Mr Jeffery's opinion that, in the circumstances, the construction of the joint is not a building defect. The cause of the gap to the joint between Units 3 and 4 appears to be building movement to the dwellings, but this is not alleged to be Builder's responsibility.
4. Accordingly, I find the Owners have not proved on the balance of probabilities that the Builder breached the statutory warranties in relation to the construction of the joint.

ISSUE 3 - SCOPE OF RECTIFICATION WORK AND COST - GARAGE DEFECTS

1. The Owners claim that the Builder's failure to properly construct the garage slab has resulted in garage movement, which has caused alterations to the floor level of the garage, cracking and other consequential damage.
2. The Owners submit that their claim in relation to the garage slab defects is to be assessed on the basis of the cost to bring the works into conformity with the building contract. Mr Irwin provided three options. Option 1 provided for the underpinning and jacking up of the garage slab to substantially level. He provided reasons why this option was not practical,[68] including the damage it was likely to cause to the adjoining Unit 2 garage. Option 3 was the demolition of the garages to Units 2 and 3. Although he opined this was the most straightforward method, it is inappropriate because it requires the consent of the Unit 2 owner.[69]
3. Mr Irwin recommended Option 2 as the most appropriate method. The scope of Option 2 involves the partial demolition of the garage but retaining the party wall between garages to Units 2 and 3. It provides for the propping of that much of the garage roof which is constituted by the first floor of the house. The garage roller door, west and northern walls, and remaining roof are to be removed. The slab is to be cut along the party wall boundary to isolate the Unit 3 garage from Unit 2, thereby avoiding any damage to the Unit 2 garage. The slab is to be removed and replaced with a slab which conforms with the engineering design. The west and north walls would be replaced, as well as the roof.
4. The scope of remedial works in Option 2 and the cost to such works are set out in the report of Mr Schmiedel.[70] Mr Schmiedel gave evidence that he calculated the fair and reasonable cost to complete the rectification works to be $145,174.00.[71] The costing was based on removing the slab and replacing the slab with one prescribed by the engineering design, that is with a 600 mm deepened edge beam. It did not include the cost of installing bored piers, which he costed separately.
5. The Owners submit that, if the Tribunal finds that the Builder ought to have constructed the slab with bored piers due to the presence of the apple tree, Mr Schmiedel has calculated the costs of installing the bored piers at $11,020. This amount comes from his costing of $16,718,[72] less the items which would have been completed by reason of the rectification work required for the edge beam.
6. I note that I have found the neighbouring apple tree was not within the 'zone of influence' and, therefore, the garage slab did not need to be constructed with bored piers.

1. The Builder disputes the Owners' claim that partial demolition and reconstruction of the garage is the appropriate rectification methodology of the garage defects. The Builder contends that partial demolition and re-build is an extreme remedy and the Tribunal cannot be satisfied that the demolition is reasonable, warranted or accurately reflects the measure of loss and damage, in circumstances where:

(a) it is significantly more costly than the alternative rectification methodology proposed by the Builder (i.e. resin injection or normal underpinning);

(b) assuming further movement is prevented, the only reason for demolition over underpinning is one of aesthetics and not performance or function;

(c) the Owners did not lead evidence that the current occupier of Unit 3 was unable to use the garage or insisted on its repair, or that the movement had disrupted keeping the property tenanted;

(d) the Owners did not lead any evidence about their intention to demolish and re-build the garage.[73]

1. The Builder submits that the reasonable and necessary method of rectification of the garage defects is by way of resin injection underpinning or traditional or normal underpinning using bored piers. The Builder relies on the expert opinion of Mr Jeffery and Mr Nyandowe.
2. Mr Jeffery's evidence was that the cost of underpinning (without resin injection) based on Mr Nyandowe's recommended scope of remedial work, together with rectifying the other related or unrelated defects, is $26,476 including GST.[74] This remedial scope of work includes rectifying the water tank slab, which has also moved. The cost of resin injection underpinning method and fixing the defects, including the other defects, is estimated to be $21,471 including GST.[75] The resin injection underpinning method was based on a quotation from a remedial underpinning contractor of $13,530, including GST.[76]
3. The Owners submit the Builder's rectification methodology is inappropriate because it has assessed the Owners' loss and damage by providing the cheapest method to purportedly stabilise the slab, rather than the cost to bring the garage into conformity.
4. The Owners further submit that neither underpinning method is appropriate because of the difficulties involved in underpinning the garage waffle slab using bored piers and the lack of efficacy in underpinning the slab by resin injection. Mr Irwin gave evidence that resin injection would almost certainly not rectify the garage defects and would likely cause ongoing issues with the Owners' garage and the Unit 2 garage.[77]
5. Mr Irwin also gave evidence regarding the difficulty and likely risk of attempting underpinning of the garage by installing bored piers. He opined that underpinning would leave the slab significantly out of level and it would be a bad solution to leave the doors, walls, roof and joints in such a state.[78]

1. After considering and weighing up the expert evidence, I do not accept the Owners' position that the appropriate method of rectification of the garage slab defects is the partial demolition and re-building of the garage, as proposed by the Owners' expert, Mr Irwin. In my view and in the circumstances of this case, such a remedy is unreasonable and disproportionate to the extent of the movement and damage to the garage slab and the garage itself. Further, Mr Irwin acknowledges that traditional underpinning of the slab is possible but is not the preferred method of rectification because of difficulties in carrying out the remedy.
2. I accept the Builder's position that the reasonable method of rectification is normal underpinning of the garage slab using bored piers, as proposed by the Builder's experts, Mr Nyandowe. I acknowledge this method of rectification is not without difficulty but consider it is feasible and a more cost-effective method of addressing the movement and damage to the garage slab, which is the subject of this claim.
3. As I have found that the traditional or normal underpinning methodology is the appropriate rectification method for this case, I make no finding about whether underpinning the garage slab by resin injection is also appropriate in the circumstances. I note there is conflicting expert opinion about the efficacy of this method of rectification.
4. The Owners have not provided a costing for the rectification of the garage slab by traditional underpinning. Accordingly, I will award damages for the cost of rectification based on Mr Jeffery's costing of $20,702.25 including builder's margin, contingency and GST.[79]
5. If the Owners choose to rectify the garage defects by resin injection underpinning, I have awarded sufficient damages to cover the cost of this method of rectification work, based on Mr Jeffrey's costing.

1. For the above reasons, I find the Builder is liable to the Owners in relation to the garage slab defects and some of the other building defects claimed.
2. I further find that the reasonable and appropriate method of rectification of the garage defects is traditional underpinning involving bored piers, the cost of which is assessed at $20,702.25. I have allowed $3,301 for the cost of rectification of the other defects for which I have found the Builder is liable.
3. Accordingly, I will make orders that the Builder must pay the Owners damages assessed in the amount of $24,003.25.
4. I will reserve the issues of interest and costs.

1. [1] Lu v Metricon Homes Pty Ltd (Building and Property) [2021] VCAT 1359, [33], citing Robinson v Harman [1848] EngR 135; (1848) 1 Exch 850, 850; [1848] EngR 135; 154 ER 363, 365, cited with approval in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272, [13].
2. [2] Ibid [34], citing Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613, 617-18.

[3] (Domestic Building) [2010] VCAT 1202, [165] (d).

[4] Ruxley Electronics and Construction Ltd v Forsyth [1994] 1 WLR 650.

[5] [2010] VCAT 1202, at [163].

1. [6] See the Builder's expert, Mr Nyandowe's supplementary report Tribunal Book ('TB'), 246 at [20]. The slab is suffering from substantial settlement at the northern end.
2. [7] TB 44-78.
3. [8] TB 198-226.
4. [9] TB 335-389.
5. [10] TB 189-197.
6. [11] TB 317-334.
7. [12] TB 485-527.
8. [13] The TB index lists the report at TB 79-110, however the TB contains the old version of the report. The updated costings version is at TB 956-990.
9. [14] TB 390-401.
10. [15] The TB index refers to Mr Jeffrey, where in fact it is spelt Jeffery.

1. [17] Irwin's Third Report TB 339 at [6], [56]-[57].
2. [18] TB 407-08.

1. [23] TB 268.16-17.
2. [24] Irwin's Third Report, TB 348-349 at [56]-[59].
3. [25] First Intrax Report, TB 198-226.
4. [26] Transcript, 15 April 2025, page 133.
5. [27] Transcript, 15 April 2025, page 134.
6. [28] Transcript, 15 April 2025, page 135.
7. [29] Transcript, 15 April 2025, page 128.
8. [30] TB 163.
9. [31] TB 406.
10. [32] Transcript, 15 April 2025, page 123.
11. [33] Sheet 5 of 18 at TB 692, top left corner of the typical section. See extract reproduced in Irwin's Third Report at TB 347.
12. [34] See TB 257.1- TB 258.12; See 5.1 second paragraph of the Geotech report at TB 530 for the requirement of the edge beam. Mr Irwin identified that the requirement would apply to the waffle slab as well.

1. [36] Transcript, 16 April 2025, page 111.

[37] Transcript, 16 April 2025, page 114.

1. [38] Transcript, 16 April 2025, pages 117 to 120.
2. [39] Transcript, 15 April 2025, page 135 to 136.
3. [40] Transcript, 16 April 2025, page 113 to 114.

[41] Engineering drawings - Founding Note Due To Trees, Sheets 2, 3, 4 & 8 of 18.

[42] Where existing or proposed trees are within the zone of influence of any footing (ie. Within 1.0 x their mature height, within 1.5 x their mature height for group of trees), then the footings are to be deepened and founded directly onto weathered bedrock if present or 2.5 m below natural ground level, whichever is shallower. Alternatively these trees could be removed and soil re-moisturised, or alternative tree root barriers placed, then tree root barrier details provided can be omitted. N.B. arborist advice and/or council permit may be required prior to placement of tree root barriers, cutting tree roots, or removing trees.

1. [43] Or if a group of trees, 1.5 x the distance.
2. [44] TB 51 at [34].
3. [45] TB 53.
4. [46] TB 339 at [5]-[6], [121].
5. [47] TB 62.
6. [48] Transcript, 16 April 2025, page 92.

1. [54] TB 290.24-25.
2. [55] Transcript, 16 April 2025, page 21.

[57] Jeffery supplementary report, TB 478 & 479.

1. [62] See photo at TB 343.
2. [63] TB 293.1-20.

1. [65] Transcript, 16 April 2025, page 25.
2. [66] Transcript, 16 April 2025, page 26.
3. [67] Transcript, 16 April 2025, page 132 to 133.
4. [68] Irwin's First Report at TB 64 at [97]-[99].

1. [70] Original costings dated 1.11.21 are at TB 97-99. The costings were updated on 27.05.24. The Tribunal Index incorrectly included the original costings at TB 79-110 instead of the updated costings. The updated costings are contained in the updated TB at 956 to 990.
2. [71] TB 977-979.

[73] The Builder submits the Courts have held that lack of evidence of intent to carry out the works is of significant importance to establishing reasonableness: see Ruxley Electronics and Construction Ltd v Forsyth [1995] All ER, in particular at 288.

[79] Jeffery costings at TB 288 - $26,476, less cost to rectify rear deck ($5,773.75).