Tamawood Ltd v Paans & Anor [2004] QDC 427

[2] One would expect the resolution of such a matter would be simple and uncomplicated. Unfortunately a host of complications have arisen, some because of the actions of the parties, or their legal advisers, some by the member of the Tribunal who was responsible for the decisions the subject of the appeal, some by the legislature in the formulation of the Commercial and Consumer Tribunal Act 2003 ("the Act"), and some through the ingenuity of counsel arguing the appeal. The result is that I am required, in order to resolve all the matters in issue before me, to deal with a large number of legal points. I hope I will be able to resolve them without complicating this matter even further.

[3] The first issue which was raised before the Tribunal was one of identifying who were the parties to the contract. This is somewhat surprising, since the Queensland Building Services Authority Act 1991 required such a contract to be in writing and clearly to state, among other things, the name and address of the building contractor: s 58(1)(a), (c). Despite this, there was an issue before the Tribunal as to whether Tamawood or Martyn or both was the party contracting with Ms Paans, but the Tribunal member concluded, for reasons which are set out and which neither party has sought to challenge, that the party with whom she had contracted was Martyn.

[4] Ms Paans however did not confine her claim to one in contract. The statement of claim on page 3 under the heading "Negligence" alleged "further or in the alternative" certain things which were directed to showing that Tamawood and Martyn were liable in negligence. In view of some of the issues which were raised before me, it is convenient to set out in full this part of the statement of claim:[1]

"12. The first and/or second respondents owed the applicant a duty of care.

13. The first and/or second respondents breached that duty.

(i) The first and/or second respondents ought to have been aware, given the topography of the site and the proposed location of the dwelling on the site, that stormwater runoff was likely to be a significant factor in determining the appropriate finished floor level of the dwelling.

(ii) The first and/or second respondents failed to supervise the works in so far as the finished floor level of the dwelling was not high enough to withstand flood waters and storm water runoff from Warran Road.

14. The applicant suffered loss and damage as a result of the first and second respondents' negligence.

(i) The applicant repeats and relies upon the facts pleaded in paragraphs 8 to 11 herein."

[5] This is a fairly sparse pleading, but it alleges the essential elements of a cause of action in negligence, namely a duty of care, a breach of that duty, and consequential loss or damage. Some regrettable ambiguity was introduced by the use of the "bastard conjunction"[2] which of course should never make an appearance in a pleading. Far from raising any objection however, the respondents in their defence admitted paragraph 12 of the statement of claim; paragraphs 13 and 14 were denied. The respondents went on to plead expressly (in paragraph 7) that the finished floor level was in part approximately a minimum of 225 millimetres above ground level, and that, while the finished floor level was "110 millimetres below design [sic; presumably the level specified in the design] this is within acceptable building standards, as the dimensions on the Australian Building Approvals approved plans and specifications are an approximate reference point only ..." They went on to allege that their construction of the property was not the reason for what the applicant states happened, for the applicant's actions, for the proposed drainage works and for the applicant's incurring the cost of those works. No point appears ever to have been taken on behalf of the respondents before the Tribunal as to any ambiguity or any difficulty in the pleading.

[6] At the hearing before the Tribunal, Tamawood was represented by Mr Goodwin, a solicitor in its employ. Ms Paans was represented by counsel, Mr Wallace, who also appeared before me, while Martyn was represented by Mr P Martyn, the man behind the corporate veil. Tamawood's case before the Tribunal was conducted on the basis that Martyn was the contracting party. Mr Goodwin also submitted that "the respondents also stated that they had not been negligent in their dealings with the applicant." (P.181). The member of the Tribunal then raised the question of whether Tamawood conceded that it had a duty of care to the applicant and, (on p.182) said:

"So their suggesting that [Tamawood] had a duty of care to the applicant. And I'm asking you whether or not [Tamawood] concedes the existence of the duty of care.

[8] This is significant for two reasons. First it indicates that the member understood the effect of the pleading to be that Ms Paans was alleging among other things that Tamawood owed her a duty of care. That is consistent with the strict interpretation of the expression "and/or", namely "one or the other or both." That certainly includes an allegation that Tamawood owed a duty of care. So long as it was clear that the pleading was properly to be interpreted in that way, the member's question was unnecessary, since that allegation in the statement of claim had been admitted; but the question was a wise precaution to confirm that there was no issue lurking in the ambiguity arising from the use of that expression. Second, the answer amounted to confirmation that there was no dispute as to the existence of a duty of care by Tamawood.

[9] In those circumstances, Tamawood cannot allege there was any error of law on the part of the Tribunal in proceeding on the basis that there was a duty of care owed by it to Ms Paans. That follows from the general rule that on appeal a party is ordinarily bound by the conduct of the proceedings at first instance,[3] and by the fact that the appeal is only on a question of law,[4] and there can be no error of law on the part of the Tribunal in not deciding an issue which was not raised for decision by it. Of course, if there is an error of law in the reasoning of the Tribunal in some respect, the point may well be one which can be raised on appeal; that depends on whether the issue is one which could have been met by evidence had it been raised at the trial. But in the present case in circumstances where Tamawood disputed the existence of a duty of care neither in its pleading nor in argument, it cannot establish that there was any error of law on the part of the tribunal member in finding that there was a duty of care.

[10] Counsel for Tamawood submitted that the concessions were ambiguous and tentative and were not such as to amount to an unequivocal admission of the existence of a duty of care. But there was no assertion, either in the pleading or before the Tribunal, of the absence of a duty of care. The proposition which was properly taken by the member from the applicant's pleading, that there was an allegation against Tamawood that it owed a duty of care to the applicant, was plainly not disputed before the Tribunal. In those circumstances Tamawood is in the same position as if it had been admitted with greater formal precision.

[11] Counsel for Tamawood then submitted that an admission as to the existence of a duty of care was of no significance in circumstances where there was no particular content as to the duty of care. But the pleading really gave content to the duty, by reference to the allegation of the breach. In circumstances where particulars were given of the breach of the duty of care, it is clear enough, at least for the purposes of a proceeding in the Tribunal,[5] that what was being alleged was a duty of care which had such a content that the matters alleged would amount to a breach of it.

[12] The idea that Tamawood might be involved in some way in this project, in a way which would give rise to legal liability, even though it was not a contracting party, is by no means fanciful. Tamawood was the party who had negotiated with the applicant, and had brought the matter to the point where a building contract would be signed, before handing the matter over to Martyn as the actual builder.[6] Tamawood was responsible for arranging for the plans to be drawn, for approval to be obtained from a private certification group, and for a soil test to be obtained. In these circumstances, Tamawood was no stranger to the relationship between Ms Paans and Martyn, and it is quite plausible that Ms Paans might have been relying in certain respects on Tamawood, as well as on Martyn, particularly in relation to the preparation of the design, and the determination of matters such as an appropriate level for the floor of the house. There is some authority that in similar circumstances a duty of care on the part of Tamawood does arise.[7]

[13] In addition, the issue would have otherwise arisen as to whether the Tribunal should vary the building contract so as to include Tamawood as a party to it. The Tribunal member said at paragraph 113 of the reasons: "Given the concession that [Tamawood] owes the applicant a duty of care, discussed below, there is no utility in me following the course adopted by Deputy Chairperson Mrs Roney in Dunne v Tamawood (above) and varying the contract to include [Tamawood] as a party." In that matter a member of the then Queensland Building Tribunal made an order that Tamawood be added as a party to a building contract between two other parties. That order was purportedly made under s 95(4) of the Queensland Building Services Authority Act 1991.

[14] That Act, as it then stood, provided in s 95(4) that the Tribunal in the exercise of its jurisdiction under that section might exercise various powers including: "(d) avoid any unjust contractual term, or otherwise vary a contract to avoid injustice." That section was omitted from that Act when the Queensland Building Tribunal Act 2000 was passed, but the latter Act included in s 93(2) a provision conferring a power on the Tribunal under that Act inter alia to: "(e) declare any misleading, deceptive or otherwise unjust contractual term to be of no effect, or otherwise vary a contract to avoid injustice." When that Act was in turn repealed by the Act, the Queensland Building Services Authority Act 1991 was also amended by inserting s 77 which provided in subsection (2)(e) that the Tribunal in resolving a dispute might "declare any misleading, deceptive or otherwise unjust contractual term to be of no effect, or otherwise vary a contract to avoid injustice."

[15] On appeal to this court,[8] Botting DCJ set aside the order made that Tamawood be added as a party, having concluded that it was unnecessary to make the order in circumstances where there was anyway a contractual relationship between the parties, and Tamawood was under a duty of care to ensure that the contractual documents were in accordance with the respondent's instructions, which duty had been breached. In those circumstances, it was unnecessary for his Honour to consider the precise limits of this power, or the circumstances under which it might properly be exercised.

[16] The fact that this issue was not considered by the member of the Tribunal in the present case because there was no issue as to the existence of a duty of care on the part of Tamawood means that, had the existence of that duty been disputed and the member not been persuaded that it existed, the member may well have proceeded to consider whether to exercise that power, and might have made an order similar to that made in the matter of Dunne. It is unnecessary for present purposes to consider whether such an order could properly be made in the present circumstances. The fact that the Tribunal had a power which it might have been disposed to interpret as being wide enough to allow such an order might well provide another reason why Tamawood might reasonably choose not to dispute before the Tribunal the existence of a duty of care, and why, if the point were to be taken, it had to be taken before the Tribunal.

[17] In these circumstances it was clearly open and indeed appropriate for the Tribunal member to proceed on the basis that there was a duty of care owed by Tamawood to Ms Paans, and that the only matters in issue were whether the duty had been breached, and what damages flowed. No error of law on her part is therefore shown in this respect.

[18] Both Tamawood and Martyn submitted that the rejection of the defence pleaded in paragraph 7 of the defence involved an error of law because in paragraph 115 of the reasons that conclusion was said to be "based on the requirements of the Australian Standard," in circumstances where the Tribunal member did not have the full Australian Standard before her, and had misinterpreted that part which was available. The only material before the Tribunal as to the Australian Standard was a one page extract Exhibit 7, which she said permitted a deviation of plus or minus ten millimetres.

[19] Exhibit 7 is a one page extract, numbered 147, apparently taken from AS 3600 SUPP 1-1994. It is also apparent from careful reading of this document that it is not the actual standard itself. For example the third paragraph under the heading C19.5 includes a sentence "Because surface tolerances are usually project specific, particularly unformed surfaces, it is essential that appropriate values are given in the project specification, as required by the second paragraph of clause 19.5.1." But there is no clause 19.5.1 on this page, where it would appear if it existed in this part of the document, and therefore this must be a reference to some other part of the document, and a part which requires something. It appears however that the matter was conducted before the Tribunal without this fact emerging.

[20] This paragraph continues: "When specifying tolerances, it is most important to ensure they are adequate and possible to achieve. In this regard it should be realised that errors in measurements may vary from plus or minus three millimetres if carried out by a licensed surveyor to plus or minus ten millimetres if carried out by a semi-skilled tradesman." This appears to have been the basis of the reference to plus or minus ten millimetres in paragraph 115; there is no other such reference on the page which was Exhibit 7. What this is saying is simply that it is to be expected that a measurement made by a semi-skilled tradesman will be up to ten millimetres out anyway, and that should be borne in mind when specifying tolerances. It certainly does not say what is an acceptable extent of deviation from a floor level specified on a plan.

[21] There was certainly a conflict of evidence including expert evidence before the Tribunal member as to how closely the level for the floor of the house specified in the plan had to be followed, in accordance with proper building practice. But it is unnecessary for me to review the evidence about this, because in my opinion it was a false issue anyway. The error of law made by the member in the reasoning in paragraph 115 was really subsumed in a more substantial error of law, in regarding this as a possible ground of defence.

[22] The obligation on the builder was to construct the house with reasonable care and skill and in a proper and tradesperson-like manner.[9] That must necessarily involve building the floor of the house to such a height that water does not run into it when there is heavy rain. It may well be unreasonable for a builder to foresee the extent of substantial flooding, particularly in circumstances where the flooding is not the result of immediate local conditions. In addition, water ingress into a house may be caused by other things that are done later, by someone else, either landscaping works or other construction work within the property concerned, or on other property which deflects rainwater onto this property, or prevents it from running away from it. There is certainly an issue of causation involved, one of identifying the real cause of the inundation of the property. Logically the first issue is whether the property is regularly inundated, but if it is then it is a matter of determining why that is so. But if the result of that investigation is that the floor was built too low, then the builder is liable, unless perhaps he can show that he was under a contractual obligation to build the floor as low as that.

[23] The Tribunal member considered evidence as to whether there was some other explanation for the inundation of the premises, and concluded in effect that the reason for the inundation was that the floor level was too low. Plainly if the house is built at such a height that water ponds in the yard and flows into it whenever there is heavy rain it has been built too low, and the building work was therefore defective. It may be that the builder could excuse himself, or at least place the principal responsibility for liability on whoever prepared the design (if not the builder), and by showing that he had constructed the house at the level specified in the plans.[10] But in circumstances where the house was 110 millimetres below the level specified in the plans, that line of defence was not open to this builder. Ms Paans' evidence, which was accepted generally, was that the problem arose because the builder had lowered the surface level of the block before he began to build, thus making it lower than adjoining land.

[24] In those circumstances, in my opinion it was really irrelevant to consider questions of tolerances in the context of the plan. This house was defective not because there was too great a deviation between the level of the floor and what was specified in the plan, but because the level of the floor was too low given the drainage characteristics of the site. That fundamental proposition appears to have escaped the parties and the Tribunal, who as a result did not appreciate that paragraph 7 of the defence could not give rise to a good ground of defence. In the course of submissions at p.179 the representative of Tamawood[11] submitted that Martyn's "responsibility, as far as drainage is concerned, is [to] slope the soil around the house, for a distance of one metre from the house, which is what is required by law and which is what the first respondent did in this situation." It may well be that that was required, in that at least that much had to be done, but if it is implicit in that submission that the builder had no other responsibility, and could simply ignore what happens beyond that metre, then that is utter nonsense. If all the other land slopes up and there is nowhere for water to drain away, so that in the event of heavy rain water will collect in this basin and may ultimately flow into the house, then the construction of the house is plainly defective. One of the most fundamental requirements of a dwelling is that it exclude the elements, and one that lets in water when there is heavy rain is plainly not one constructed in a proper and tradesperson-like manner.

[25] The real issue here was whether the house was flooding because the floor was too low, or whether other things had been done, for which the respondents before the Tribunal were not responsible, which were causing the water to come into the house. The Tribunal found that the former was the explanation, and that conclusion was not challenged before me. It appears to have been clearly open on the evidence.

[26] It also follows that the issue raised by one of the respondents' expert witnesses, Mr Williamson, to the effect that it was theoretically possible for the house pad to have settled by up to 100 millimetres since the time of construction, as a result of the compaction or bulking of the material under the slab, was equally irrelevant. If this had occurred, the house would initially have been at an acceptable level, but would then have sunk to a point where it was too low to keep water out during heavy rain. But plainly that would also reveal that the building work was defective.

[27] A house which is initially out of the water but fairly quickly sinks below water level after heavy rain is nearly as defective as one which was built below that level in the first place. The capacity of the material on which the slab was built to compact in this way and allow the slab to sink is a matter which ought to have been taken into account in determining the appropriate height at which to build the floor in the first place. If the floor has to be at least a certain height to stay above inundation after heavy rain, and the slab could settle up to 100 millimetres after construction, that simply means that a builder doing a proper job has to build the slab 100 millimetres higher than that level in the first place, to allow for that settling. Alternatively, the builder could ensure that the material on which the slab was constructed was properly compacted in order to prevent such settling, or perhaps use another foundation system which would not settle. But the idea that a builder can just build a house which is fine at the date of practical completion but fairly soon thereafter sinks to a level where it is going to be regularly inundated without being in breach of his obligation to build the house in a proper and tradesperson-like manner is I think plainly unsupportable.

[28] Accordingly Mr Williamson's evidence raised another false issue. If accepted it would not have established a good defence for the respondents. The error of law involved here was in failing to realise this, not in the interpretation of Mr Williamson's evidence. It follows that it is unnecessary for me to consider whether there was some error in paragraph 116 of the reasons.

[29] The important issue in this matter was whether the house was being on occasions inundated, and if so whether that was because the floor level was too low, or whether it was caused by something else for which the respondents were not responsible. Several alternative causes were suggested. Apparently the driveway to the garage slopes down from the road, and it was alleged by the respondents that water running down this driveway would run into the garage and from there into the house, because of a defect in the design and construction of the driveway for which the respondents were not responsible. It was also alleged that there had been mounds of earth placed in various positions on Ms Paans's land which had interfered with the ordinary drainage of the land, so as to cause water to pond around the house and hence flood it. These alternative explanations for the inundation of the house were rejected on the evidence by the Tribunal member, and the respondents did not seek to challenge that aspect of the case before me.

[30] The matters sought to be ventilated on behalf of Tamawood and Martyn are entirely without substance, and any appeal ought to be dismissed. It is therefore unnecessary in the context of their application for leave to appeal to consider whether leave ought to be granted.

Joinder of the second respondent as an appellant

[31] It is also in those circumstances really unnecessary to say anything about whether Martyn can be joined by amendment to the notice of appeal as an appellant. But in deference to the submissions addressed to the court, I shall say something about whether the application was invalid under the Legal Practitioners Act 2004, and whether there is power to join an appellant out of time in this situation.

[32] It was submitted on behalf of Ms Paans that the application on behalf of Martyn filed on 9 August 2004 was invalid, because at the time the corporate solicitor who filed it did not hold the appropriate professional indemnity insurance required under the Legal Profession Act 2004.[12] If that was the situation, it would appear that the solicitor may have committed an offence against s 51 of that Act. By subsection (3) a contravention of that section is capable of constituting unsatisfactory professional conduct or professional misconduct. I was not referred any section of the Act which provides expressly that if a solicitor does something which would amount to an offence under s 51 it is invalid or ineffective, or which would interfere with the relationship of principal and agent which would otherwise exist between a solicitor and client where the client had given instructions for something to be done by the solicitor on the client's behalf.

[33] Whether something done in breach of a statute is ineffectual depends on the construction of the statute, but there is nothing in the scheme of that Act which would suggest that the legislature had the intention that the client would suffer as a result of any breach by a solicitor of s 51. Following the approach laid down in Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1978] HCA 42; (1978) 139 CLR 410, in my opinion the action of the solicitor in filing the application was not invalid. In any case, even if the statute on its true construction prevented any relationship of principal and agent from coming into existence at the relevant time, the application was at worst an act of an unauthorised agent. It was open for the client, Martyn, subsequently to ratify and adopt that act, which Martyn has done by subsequently pursuing the application, after the solicitor took the appropriate steps[13] entitling him to act for persons other than the corporate employer.[14]

[34] Section 100(3) of the Act requires the appeal[15] to be filed within 28 days after the decision takes effect. Section 92 indicates the decision takes effect when it comes to the notice of all parties: those that are present when the decision is given, and in the case of those not present when it is served on them. In the present case the decision was apparently sent out by post: transcript p.195. The decision was dated 30 June 2004 and a stamp on the back suggests it was posted the same day. It follows that in the absence of evidence to the contrary the decision is taken to have been served on the parties at the time at which such a letter would be delivered in the ordinary course of post.[16] Two of the parties' addresses are on the Sunshine Coast, and accordingly I think that this would take the date to 2 July. Accordingly the last day for filing an appeal was 30 July 2004. The notice of appeal by Tamawood was in fact filed on 28 July 2004, within time.

[35] There is no doubt there is power to add a further appellant, because r 785(1) makes applicable r 750 which permits the joinder of a person as an appellant. But the crucial question, in circumstances where the relevant time limitation is one which appears in the statute rather than under the UCPR, is whether this power can be exercised to add a party as an appellant after the time for appealing in the statute has expired.

[36] It is well recognised that powers under the rules to extend time do not apply to a time limit fixed by statute. But there is a statutory power in s 81 of the Supreme Court of Queensland Act 1991 to amend an application or other document, even though the amendment will add a new party and "a relevant period of limitation, current when the proceeding was started, has ended." That section is by subsection (3) made subject to the rules of court, but in the present case there is no impediment in the relevant rule as I have indicated.

[37] In my opinion s 81 does not assist Martyn in the present case. That is because s 100(3) of the Act is a specific provision which operates to the exclusion of the general power conferred on the court pursuant to s 81. That in turn is because the subsection on its true construction in my opinion operates as a condition on the grant of the right of appeal by leave in subsection (1).[17] Reference may be made to the analysis, in a slightly different context, of Gummow J with whom the other members of the court agreed in David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265. In that case the court was concerned with a provision that "an application may only be made within 21 days after the demand is so served." His Honour said at p.277: "The force of the term 'may only' is to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G. An integer or element of the right created by s 459G is its exercise by application made within the time specified. To adapt what was said by Isaacs J in The Crown v McNeil [1922] HCA 33; (1922) 31 CLR 76 at 100-101, it is a condition of the gift in subs (1) of s 459G that subs (2) be observed and, unless this is so, the gift can never take effect. The same is true of subs (3)."[18]

[38] In the present case the section does not use the expression "may only", but uses the expression "must". Some might think that this is not an entirely appropriate usage of the term; the word appears more naturally in a provision to the effect that, when A occurs, B must do C, a provision meaning that in that event B is required to do C: Acts Interpretation Act 1954, s 32CA(2). Presumably the legislature was not contemplating that an appeal would be filed in respect of every decision of the Tribunal. In the present case there is not a power to appeal, but rather a right to appeal, with the court's leave, and in my opinion the use of the term "must" is analogous to the expression "may only" considered in David Grant & Co. Its true function is to indicate that this is a mandatory requirement of an effective appeal.[19] In circumstances where that is the case, there is no power under s 81 to amend in a way which would have the effect of overcoming the specific limitation contained in the Act: Greig and Duff v Australian Building Industries Pty Ltd [2003] QCA 298.

[39] In these circumstances there is in my opinion no power to amend the notice of appeal subject to leave so as to include Martyn as an appellant. However, in my opinion that really does not matter, because the notice of appeal subject to leave by Tamawood was filed within time. Martyn was made a respondent. A respondent who intends to contend that the decision under appeal should be varied does so by filing a cross-appeal: r 754. There are time limits and so on for that, but they are provided for in the rules, and are therefore subject to the control of the court. Rule 754 applies to an appeal of this nature: r 785(1). Accordingly, Martyn as a respondent can cross-appeal from the decision of the Tribunal. There is still the requirement for leave under s 100 of the Act, but if leave were given then both an appeal and a cross-appeal can go ahead. There is I think nothing in s 100 to exclude the operation of these rules, and the mechanism for cross-appeal recognises the fact that often a party dissatisfied with a decision may be unwilling to initiate an appeal, but would want the opportunity, if there is to be an appeal anyway by another party, of submitting that in some respect the order under appeal ought to be varied. There is no reason why that provision should not extend to appeals under the Act. If there were any substance in the matters sought to be raised on appeal by Martyn, then instead of allowing the relief sought in the application I would make appropriate orders to enable Martyn to cross-appeal. But in circumstances where the matters sought to be raised by Martyn are without substance, there is no point in taking that course. The application to join Martyn as an appellant should simply be dismissed.

[40] There is also an application for leave to appeal by Ms Paans in relation to the order for costs, or rather the refusal of the Tribunal to order that either or both of the respondents pay her any costs in respect of the proceedings. This was the subject of a separate decision by the Tribunal dated 17 August 2004 for which reasons were published.[20] Counsel for Tamawood and Martyn submitted that leave to appeal should be denied on the ground that the decision of the member was plainly correct. In order to determine whether that is so, it is necessary to embark on a consideration of the merits of the appeal.

[41] I was not referred to any authority in relation to the provisions of s 70 of the Act, and, unless the decision of the Tribunal member is plainly correct, the meaning and the correct approach to the operation of that section are plainly important questions of law of general application, and justify the grant of leave to appeal.[21]

[42] Section 70 of the Act introduces Division 7 of Part 5 by saying: "The main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise." The interpretation adopted by the Tribunal, and supported by the other parties before me, was that this meant that ordinarily no order for costs would be made in proceedings before the Tribunal. If that is correct, this section is something of a legislative oxymoron. The reason why there are a multitude of statutory provisions dealing with costs and empowering courts and tribunals to make orders for costs is that legislatures throughout Australia and in England have for centuries recognised that the interests of justice require that parties not be left in a situation where they are required to pay their own costs of proceedings in which they are involved, regardless of the outcome.[22] Unless some artificial conception of "the interests of justice" was contemplated by the legislature for the purposes of s 70, ordinarily it would lead to the conclusion that parties would not be just left to pay their own costs of proceedings before a tribunal.[23] Do the circumstances suggest that the legislature did perhaps have some unusual or artificial concept of justice in mind when formulating this particular statute?[24]

[43] Apart from s 70 however the costs provisions in s 71 are entirely unexceptional. The basic provision of subsection (1) is that "In a proceeding, the tribunal may award the costs it considers appropriate ..." This is a familiar approach to the conferring of a power to deal with the question of costs, which may be dated back to r 47 of the rules of procedure in the schedule of the Supreme Court of Judicature Act 1873: "... the costs of and incident to all proceedings in the High Court shall be in the discretion of the court ..."[25] Such formulations give the relevant body, here the Tribunal, a broad general discretion which, although absolute and unfettered, is to be exercised judicially, "that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation."[26]

[44] It came to be recognised in time that, in circumstances where a discretion as to costs was conferred on a court or tribunal in such terms, "a successful party in the absence of special circumstances had a reasonable expectation of obtaining an order for costs in its favour unless for some reason connected with the case a different order was specially warranted. Any departure from this expectation would require that there should be material upon which the adverse discretion could be properly exercised. It could not be exercised by reference to idiosyncratic notions or to facts and circumstances irrelevant to the case."[27] On the face of it therefore s 71(1) does not implement a purpose that the starting point of the discretion is that parties pay their own costs. Rather it implements a purpose that the Tribunal has a discretion in the awarding of costs to give effect in the interests of justice.

[45] Subsections (2) and (3) are of no particular consequence for present purposes, but are in no way exceptional; they are the equivalent of r 680 of the UCPR. Subsection (4) provides expressly that the Tribunal may have regard to a number of things, all of which are matters which on the authorities may properly be taken into account in relation to the exercise of a discretion as to costs in the absence of any specific provision to that effect. Notably the first of these is "the outcome of the proceeding". Far from there being any indication in subsection (4) that the ordinary principles in relation to costs which have been developed by courts over the centuries in response to provisions similar to subsection (1) are not to apply, the terms of subsection (4) are entirely consistent with those established principles.

[46] Subsection (5) provides that a party is not entitled to costs merely because that party was the beneficiary of an order of the Tribunal, or the party was legally represented at the proceeding. Oshlack stands as authority for precisely the same proposition in relation to a generally expressed discretion to deal with the question of costs. In the joint judgment of Gaudron and Gummow JJ their Honours said at [40]: "There is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 of the Court Act that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party." Their Honours however at [35] also recognised that there was an established principle in the exercise of the discretion that "a wholly successful defendant should receive his costs unless good reason is shown to the contrary."

[47] Subsection (6) is a saving provision, and subsection (7) is concerned with the mechanism for the assessment of costs.

[48] There was nothing in the explanatory note to the bill which serves to clarify this issue; the reference to s 70 merely repeats what the section says. The earlier part of the explanatory note makes particular reference to provisions designed to discourage parties from being legally represented in proceedings before the Tribunal, but does not express any intention to change any established practice in relation to the question of costs. In this context I think it is of some significance that s 71 of the Act is essentially in the same terms as s 61 of the Queensland Building Tribunal Act 2000, which also dealt with the question of costs. Under that Act, my impression was that the Building Tribunal generally adopted a conventional approach to the discretion in relation to costs which was conferred by that section. There was no specific mention in the second reading speech of any intention to alter the approach in relation to costs; by way of contrast there was express mention of an intention to narrow the grounds of appeal, and to discourage parties from having legal representatives in the Tribunal.

[49] This latter intention is reflected in Division 8, and in particular in s 76 which deals with the representation of a party at a proceeding other than a pre-hearing conference. By way of contrast with s 71, s 76 does not simply give a general discretion about the matter; it makes it clear that the starting point is that a party is not entitled to be represented by a lawyer, although a number of exceptions are then created in subsection (2), some depending on the nature of the proceeding, but including when all parties to the proceeding agree, or where the Tribunal directs that representation by the lawyer is appropriate having regard to all the circumstances. I note that in the present case the Tribunal on 26 November 2003 made a series of directions including "by consent, the parties are entitled to legal representation."

[50] Counsel for Tamawood and Martyn submitted that the Tribunal's approach was consistent with s 142 of the Act, and that that section assumed that ordinarily no costs would be ordered. But that section simply operates as a constraint on the discretion as to costs when it operates, and is consistent with any approach to the discretion when it does not operate. It does not say that a party who does not have the benefit of a relevant offer is not to be awarded costs.[28] There are different ways in which the discretion as to costs has been constrained because of offers to settle, not all of which are the same as the provisions in UCPR rr 360, 361. This section is in some ways more restrictive than the UCPR provisions, but does not in my opinion require any abnormal approach to the general discretion under s 71(1).

[51] If s 71 had appeared alone, there would have been nothing to indicate that the approach to costs in proceedings before the Tribunal would be any different from the approach to costs in any court or tribunal which has a discretion of the kind derived from the Judicature Act rules. The only question then is what modification to that general discretion is required by the terms of s 70. But there is nothing in that section which actually says that leaving the parties to pay their own costs is to be the ordinary or usual outcome, and that some sort of special or exceptional circumstances are to be required before any order for costs will be made.[29] Rather, it speaks of the situation where parties pay their own costs as a default position, one which applies "unless the interests of justice require otherwise." It is difficult to see how that requires a different approach from one where the jurisdiction to award costs is expressed as a discretion to make such order for costs as the interests of justice require. Commonly the interests of justice will require some order for costs, but that is not universally the case, and situations do arise from time to time where it is consistent with the interests of justice for the costs to be left to lie where they fall. But that is not in any way inconsistent with the general principles as to the exercise of a discretion as to costs which have been established over the centuries.

[52] Properly understood, in my opinion s 70 is not a qualified prohibition on the making of orders for costs; rather it is a statement that the legislative purpose, in enacting a broad general discretion as to costs in s 71, was to permit the Tribunal to make such orders as to costs as the interests of justice required, while recognising that there would be times when the interests of justice would not require any order as to costs. Read in this way, the terms of s 70 are unexceptionable, just and reasonable, and entirely consistent with the terms of s 71. In my opinion that is the correct approach. It is consistent with s 14A of the Acts Interpretation Act 1954. It is in my opinion consistent with the object stated in s 4(1)(b) "to have the Tribunal deal with matters in a way that is just, fair, informal, cost efficient and speedy." I will not quote the more detailed provisions in subsection (2), but it appears to me that it is entirely consistent with those provisions, particularly (in the context of the circumstances of this matter) the legislative endorsement of the proposition that it is fair that litigants have an equal opportunity regardless of resources to assert or defend their legal rights: s 4(2)(b)(i).

[53] That objective is clearly assisted in circumstances where a private individual homeowner of perhaps modest means receives the benefit of an order for costs if a successful claim is brought in the Tribunal. It would plainly be unfair and unjust for a person who had a good claim to be unable to pursue it in the Tribunal, or for it not to be worthwhile for such a person to pursue it in the Tribunal, because the costs of pursuing the claim would be greater than the amount recovered, or would so diminish the amount recovered as not to make the hazard of litigation worthwhile. It seems to me that s 4(2)(b)(i) is a clear indication of a legislative intent that successful applicants of modest means should not ordinarily be denied their costs of proceedings in the Tribunal. To read s 70 in the way contended for by Tamawood and Martyn, and adopted by the member of the Tribunal in the present case, would in my opinion be to frustrate and deny the objects of the Act set out in s 4.

[54] In the reasons for the costs decision, given on 17 August 2004, the Tribunal member addressed the specific factors identified in s 71(4), noting that the applicant was successful against the respondents although not to the extent of the quantum she had claimed. This raises the question of assessment of damages, to which I shall return. In relation to the question of conduct before and during the proceedings, the Tribunal member properly took the view that an earlier aborted hearing had been dealt with by a separate costs order and that did not justify any particular costs order at that stage. Submissions on behalf of Ms Paans pointed out that she gave her evidence honestly, and had limited the claim that she made, thus saving the parties, the Tribunal and ultimately the taxpayer, time and money. The Tribunal member said that the fact that the applicant was honest when giving her evidence was not relevant to the exercise of the discretion. Whether the applicant was honest would certainly have been relevant to the exercise of the discretion, in the sense that, had the Tribunal member concluded that a particular party was not being honest in giving evidence, that would have been a relevant consideration tending against an award of costs in favour of that party, and perhaps tending in favour of an award of costs against that party. These matters were not particularly reasons to make an order for costs in her favour, but rather showed that what might otherwise have been reasons not to exercise the discretion in her favour were absent.

[55] The Tribunal member also pointed out, appropriately, that the respondents were not to be subjected to a costs order merely because the witnesses called by them were not preferred. That in itself is reasonable enough, although not very helpful in determining whether a costs order is appropriate.

[56] Of more concern are the contents of paragraphs 19 and 20 of the member's reasons which I will quote:

"19. While it is the case that if the first respondent's representative had addressed the applicant's concerns when she first brought the problem to the attention of the first respondent during the course of construction by checking the set-out and excavation, it is more likely than not that none of the events which followed would have occurred, it can equally be said that if the applicant had given the $12,000 or $13,000 to the Council to carry out the works to alleviate the problems caused by the first respondent she could have avoided years of worry and expense. In my view hindsight is not a useful factor in deciding whether to award costs.

20. The fact that the applicant spent about the same amount as she claimed in prosecuting these proceedings is no reason to make an order for costs in her favour. All litigants in this Tribunal understand (or should understand) that in this Tribunal the usual rule in respect of costs does not apply, with the consequence that any money spent in prosecuting the claim is spent absent any certainty of a costs order in the event the party succeeds. Parties with limited funds should give careful consideration to how best they might spend their funds."

[57] The second paragraph reveals what I regard as a misinterpretation of s 70 and s 71 of the Act, to which I have already referred. Indeed it illustrates why the interpretation adopted by that Tribunal member would produce a Tribunal which was not fair and just in its operation. In effect, poor people with small claims are being told by the Tribunal to go away. That is not fair and just. It is not ensuring litigants have an equal opportunity, regardless of their resources, to assert or defend their legal rights. It is doing precisely the opposite. This is not implementation of the purpose of the legislation; it is defiance of it. And the fact that the claim was about the same amount as the amount spent by the applicant in pursuing the claim is not a feature which makes it unjust for her to receive an order for costs, but rather a feature which makes it unjust for her not to receive an order for costs. If Ms Paans has been wronged by Tamawood and Martyn, but needs to spend $40,000 in order to receive the compensation of $20,000 that she was entitled to, then the outcome is manifestly unjust, unless she receives an order for costs.

[58] The two factors referred to in paragraph 19 are not commensurable at all. The first point, that the matter was drawn to the attention of Martyn's representative during the course of construction but not fixed then, seems to me to be a compelling reason why an order for costs should be made against Martyn and in favour Ms Paans. On the other hand, the proposition that the problem could have been fixed by the applicant spending money on rectification work cannot rationally justify depriving Ms Paans of an order for costs. The problem here is that serious errors of law in relation to the assessment of damages have carried over and infected the decision in relation to the question of costs.

[59] No party sought to challenge the assessment of damages by the Tribunal against each respondent, but in my opinion it was plainly wrong and involved serious errors of law. This was a situation where, as a result of a breach of contract of Martyn and the negligence of Tamawood, the house was built in a way which was defective, namely, the floor was too low. Prima facie, the measure of damages is the cost of rectifying the defect, namely demolishing the house and starting again.[30] That is subject to the issue of whether that was a reasonable course to follow, but if there had been no other way of preventing the house being regularly inundated with rainwater then plainly that would have been a reasonable course. But in the present case the applicant was able to identify an alternative solution in the form of additional drainage works which the local authority would permit her to carry out, which would cost $12,000 to $13,000. Prima facie therefore that becomes the correct measure of her damages, although she ought still to get damages to compensate her for consequential loss associated with the flooding.[31]

[60] I considered these issues in some detail, with a reference to relevant authorities, in the matter of Bieto v Triline Australia Pty Ltd [2003] QDC 307, an appeal from the Queensland Building Tribunal. That was a case where the foundations were defective, although not because they were too low. There is a distinction from the present case in that there there was no particular rectification work which was available which would mitigate the problem, whereas here the drainage works did fall into that category. In principle Ms Paans was also entitled to any diminution in value of the premises as a result, but there may well have been no evidence of that and no basis upon which that could be assessed. If there has been no loss of value, then damages for loss of amenity can be awarded on the basis of the decision in Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344, a decision which has been followed in Australia.

[61] There is also the consideration that in the present case the damages against both respondents ought to have been the same. Both respondents were responsible for the same loss, that is the difference between a house built properly and what Ms Paans got. Martyn was liable in contract for that amount because she was entitled under the contract to receive a house built properly, and did not get it. Tamawood was liable for that amount in tort, because, had it not been for its breach of duty, she would have got a house built properly, but in the event she did not. This is a situation where two parties are liable in respect of separate wrongs for the same loss. There should have been one assessment of that loss, and judgment given against both respondents for that amount. And of course the starting point of the assessment of that loss was the rectification costs, that is the cost of doing the works approved by the Maroochy Shire Council, unless the evidence established some other form of rectification was more appropriate.

[62] That is so, whether or not the drainage work has been done. Her position is analogous to that of a person whose car is involved in an accident and is damaged. If it would cost X dollars to repair the vehicle, then the plaintiff's claim for damages is for X dollars, and it does not matter whether at the time of the hearing the plaintiff has or has not actually spent that money on repairing the vehicle.[32] The plaintiff's damages are either X dollars plus interest from the date of the accident, or Y dollars, the cost of repairing the vehicle as at the date of trial. If the plaintiff was not able to undertake repairs to the vehicle because of lack of funds, and as a result suffered consequential losses, it is not open to the other party, by way of an allegation of a failure to mitigate loss, to claim that the plaintiff ought to have undertaken the expense earlier.[33] I am completely unable to understand the reasoning process by which the failure to spend this money at that time, even assuming that Ms Paans actually had it available at that time,[34] can be seen as a reason not to make an order for costs in her favour. To put aside hindsight as a useful factor in deciding whether to award costs is directly contrary to s 71(4)(b). Hindsight is routinely applied in relation to costs orders, for example in assessing the significance of offers to settle.

[63] The Tribunal member appears to have missed the point of this entirely, and assessed damages, apparently in respect of separate matters, against each of the respondents. That approach was quite wrong and involved a serious error of law, but no one is challenging it in the proceedings before me. Its relevance is really only insofar as the reasoning in relation to costs suggests that that error has contributed to the inappropriate decision in relation to costs.

[64] With regard to the nature and complexity of the proceedings, the proceedings would have been more straightforward if the Tribunal had realised that two of the issues being run by the respondents were really non-issues. At paragraph 24 the Tribunal member seems to have found that the proceedings had at least some measure of complexity, although the fact that the decision was subject to an appeal to the District Court was plainly not a relevant consideration. There was a finding that there was a sufficient level of complexity to justify the engaging of lawyers. The Tribunal member referred to the provisions of s 71(5)(ii), but the key word in that subsection is the word "merely."

[65] With regard to the relevant strengths of the claims, it was submitted for the respondents that this criterion only became relevant if the parties' contentions were frivolous, vexatious or mala fides. That is not the correct approach, if only because s 71(4) treats those factors as examples of what may be taken into account under paragraph (g). That clearly indicates that the legislature had something else in mind in relation to paragraph (d). Having said that, however, it is not altogether clear just what significance the legislature intended this factor would have. Obviously the party with the greater relative strength is the successful party, almost by definition, and so this feature tends to reinforce paragraph (a), perhaps by justifying greater significance as the disparity between the strength of the claims made by each of the parties is seen to be larger.

[66] Presumably no contravention of the Act on the part of any party was alleged. In paragraph 30 the Tribunal member returned to the issue about the failure of Ms Paans to have the work undertaken by the Maroochy Shire Council, to which I have already referred. I cannot understand why it should be said that the respondents should not pay costs because she did not spend that money in that way. Apart from the fact that there is no reason why, if she had spent the money in that way, she should not have been able to pursue her claim in exactly the same way against the respondents anyway, it overlooks the fundamental proposition that costs are not awarded against a party as a punishment: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543; Oshlack (supra), at 122, [134] para. 6, per Kirby J.

[67] The member went on to add that costs should not be awarded on an indemnity basis, and that if there were any costs to be awarded they should be assessed on the Magistrates Court Scale rather than the District Court Scale, albeit "with an allowance by reference to the District Court Scale for work undertaken in the Tribunal which is not contemplated in the Magistrates Court Scale." I have no idea what that could cover, and that suggests that there has been some misapprehension as to the scope of those scales by the Tribunal member.

[68] Counsel for Ms Paans submitted firstly that the Tribunal member erred by dealing with the matter under s 71 of the Act at all. The submission was that, proceedings having been commenced under the Queensland Building Tribunal Act where the costs regime was different, Ms Paans had a right to have the question of costs determined under that Act in respect of those proceedings, which right was not taken away by the repeal of that Act by the Act. There are two problems with this argument. The first is that s 61 of the Queensland Building Tribunal Act 2000 is effectively in the same terms as s 71 of the Act, so it is difficult to see how this change should make any difference. But even apart from that, s 158(1) of the Act provides: "A proceeding that was started in a former tribunal, but not finished before the commencement of this section, must continue under this Act." That applied to the present proceeding, and accordingly it continued after commencement of the Act "under this Act". In my opinion even if the Acts Interpretation Act would otherwise have preserved a right to have the costs determined under the earlier Act,[35] the effect of these particular words is that from the commencement of the Act the proceeding continued under the Act, so that the jurisdiction in relation to costs was that provided by the Act, and not by the repealed Act.

[69] With regard to the question of whether costs should be on an indemnity basis, such an order is fairly rarely made, and usually involves a situation where there has been some misconduct on the part of the unsuccessful party to the litigation.[36] The Tribunal member referred to relevant authority and found that there had been no ulterior motive in pursuing the proceedings, and that it could not be said that the respondents' case had no chance of success. In relation to the question of causation, that was certainly correct. Overall I am not persuaded that there is any basis shown upon which the member's refusal to award costs on an indemnity basis involves any error of law.

[70] Accordingly in my opinion the discretion in the present case of the member of the Tribunal miscarried, in adopting the approach that the usual principles in respect of costs not apply, and, apparently, approaching the matter on the basis that there would be no order for costs unless there was special or exceptional circumstances to justify a departure from that ordinary situation. The member also erred in treating the failure of the applicant to have the remedial work done some time ago as a factor relevant to the question of costs. In my view it is plainly not relevant. In addition the discretion was apparently infected by a fundamental error in relation to the assessment of damages in respect of the principal claim. For all these reasons the discretion has entirely miscarried, and it is necessary to exercise it afresh. I should also say that the attitude of the member, in apparently punishing the applicant because of the failure of the parties to settle, is one that I have difficulty in understanding. This surfaces to some extent in the reasons in relation to costs, but perhaps most clearly in paragraph 1 of the reasons for the principal decision. Punishment is clearly not an appropriate consideration in relation to costs.

[71] Even if I were wrong about the interpretation of s 70 and s 71 of the Act, in my opinion the other matters referred to indicate that the approach of the member in relation to the discretion as to costs miscarried. In either case it is appropriate to exercise the discretion afresh.

[72] In my opinion the important considerations here are that the applicant was successful, and there is no material to indicate that there was some unreasonable attitude on the part of the applicant either in the way the claim was pursued or in failing to engage in proper negotiations. The applicant has pointed out the problem at an early stage, when it could easily have been remedied, but it was not. The respondents raised false issues, which made the matter more complicated than it otherwise needed to be. There is nothing to suggest that the applicant had unduly prolonged the hearing, or was conducting the proceedings unreasonably. If an order for costs were not made, it would in effect deprive the applicant of the compensation she is entitled to receive. In circumstances where the basis of the assessment of damages was wrong, it is not appropriate to have too much regard to the actual amount of damages awarded. In the circumstances I intend to accept the member's assessment that the matter was complex, although as I say to some extent the complexity arose because of the attitude of the respondents.

[73] In all the circumstances in my opinion this is a clear case justifying an order for costs in favour of the applicant, and they ought to be on the District Court Scale where the amount recovered is less than $50,000. I will order that, in the event of the parties failing to agree on the costs, the costs be assessed by a deputy registrar of the District Court. I will hear the parties in relation to the costs of the appeal.

[1] Ms Paans was the applicant, Martyn the first respondent and Tamawood the second respondent before the Tribunal.

[2] Bonitto v Fuerst Bros & Co Ltd [1944] AC 75 at 82 per Lord Simon LC.

[3] Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1; see also Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Aust) Pty Ltd [1978] HCA 8; (1978) 139 CLR 231 at 241; Walker v Davlyn Homes Pty Ltd [2003] QCA 565 at [10].

[5] Where a proceeding is to be conducted with relatively little formality and technicality: s 47(3); and see s 4(1)(b) of the Act.

[6] There was evidence about this before the Tribunal: see pp.123-4.

[7] Tamawood Pty Ltd v Dunne [2000] QDC 316.

[8] Tamawood Pty Ltd v Dunne [2000] QDC 316.

[10] See however Hudson on Building and Engineering Contracts (11th Ed 1995) p.542; Ownit Homes Pty Ltd v Batchelor [1983] 2 Qd R 124 at 132-3. Of course, the less significant the level shown on the plan, the greater the reliance of the owner on the builder.

[11] Preventing a joint submission on behalf of Tamawood and Martyn: p.177.

[12] Affidavit of Barrell filed 1 October 2004.

[13] Affidavit of Goodwin filed 23 September 2004.

[14] Alexander Ward & Co Ltd v Samyang Navigation Co Ltd [1975] 1 WLR 673; Re Manias ex parte Edsill Pty Ltd (1986) 15 FCR 1.

[15] This must mean the notice of appeal subject to leave, which is how such an appeal is instituted: UCPR r 786(5).

[16] Acts Interpretation Act 1954, s 39(1); s 39A(1)(b).

[17] Jacob v Roberts [2002] 2 Qd R 655 at [11].

[18] See also Hewitt v Property Agents and Motor Dealers Tribunal [2003] QSC 101; [2003] 2 Qd R 649, and specifically in relation to time limits for appeals, Mayne v Hoban [1964] SASR 195 and Howard v Secretary of State for the Environment [1975] QB 235.

[19] Wang v Minister for Immigration [1997] FCA 70; (1997) 151 ALR 717 at 721.

[20] This decision was sent out on 17 August 2004 and the notice of appeal subject to leave filed on 14 September 2004, so it is within time.

[21] Melville v Townsville City Council [2003] QCA 456 at [24] under the provisions analogous to s 100(1) in s 74 of the Land Court Act 2000.

[22] Cairns "Australian Civil Procedure" (5th Ed 2002) p.508.

[23] "It is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred." Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 567 per McHugh J.

[24] One may note for example the highly restrictive terms of s 100, and particularly the bizarre provision in subsection (8).

[25] See the discussion of this and other provisions in similar terms in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 84-6 per Gaudron and Gummow JJ.

[26] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 557 per Dawson J.

[27] Oshlack (supra) at 120-1, per Kirby J. Hence the modern formulation in UCPR r 689(1) that costs "follow the event, unless the court considers another order is more appropriate."

[28] Contrast WorkCover Queensland Act 1996 s 325.

[29] Contrast Integrated Planning Act 1997 s 4.1.23(1), which goes even further. There were special reasons for that provision: Mudie v Gainriver Pty Ltd [2002] QCA 546 at [34].

[30] Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613, where the cost of demolition was allowed, but which also dealt with the exception based on reasonableness.

[31] Including damages for inconvenience and mental distress directly related to the inconveniences caused by the breach of contract: Boncristiano v Lohmann [1998] 4 VR 82 at 94-5, a case where the damages were awarded for breach of contract. They are also available in tort: Tamawood Pty Ltd v Dunne (supra).

[32] Or indeed whether the plaintiff will spend the judgment moneys on repairing the vehicle: Director of War Service Homes v Harris [1968] Qd R 275.

[33] Fleming "Torts" (9th edition 1998) p.286 and the authority cited in note 274. See also Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351 at 355-6, 387; Dodd Properties Ltd v Canterbury City Council [1979] EWCA Civ 4; [1980] 1 WLR 433; Ownit Homes Pty Ltd v Batchelor [1983] 2 Qd R 124 at 136.

[34] Of course, if the reason she did not spend the money was that she did not have it, taking this into account against her is also acting in defiance of s 4(2)(b)(i); it is punishing her for being poor.

[35] Which may be doubted anyway: see Clyne v McDonald (1965) 82 WN(NSW) (Pt 1) 423; Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162.

[36] See Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 esp at 232-4; di Carlo v Dubois [2002] QCA 225.