Temujain Movva v Hallmark Homes Pty Ltd [2025] QCATA 81

Cachia v Grech [2009] NSWCA 232

Ericson v Queensland Building Services Authority [2013] QCA 391

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41

• [1] This is an appeal from a decision of the Tribunal about a building dispute.
• [2] Hallmark built a home for Mr Movva. The building work included an exposed aggregate concrete driveway and pathways. Mr Movva said that the concreting work undertaken by Hallmark is defective and does not conform with the building contract. Mr Movva says that the exposed concrete aggregate cannot be walked upon with bare feet as the aggregate particles are too sharp and exposed.
• [3] Mr Movva commenced a proceeding in the Tribunal claiming damages for breach of contract. The Tribunal dismissed Mr Movva's application. Mr Movva appeals the decision.

The grounds of appeal and the statutory framework relevant to appeals

• [4] The grounds of appeal are expressed very broadly in the application for leave to appeal or appeal. The grounds are expanded upon considerably in Mr Movva's appeal submissions. The grounds of appeal were further clarified at the appeal hearing and may be grouped as follows:

(a) Error by the learned member in construing the contract;

(b) Error by the learned member in making findings of fact;

(c) Error by the learned member in failing to afford Mr Movva procedural fairness.

• [5] The grounds of appeal relating to (a) and (c) involve questions of law. The grounds of appeal relating to (b) involve questions of fact.
• [6] A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding.[1] Leave is required if the appeal involves a question of fact or mixed law and fact.[2] The principles to be applied in considering whether leave to appeal should be granted are:

(a) Is there a reasonably arguable case of error in the primary decision?[3]

(b) Is there a reasonable prospect that the applicant will obtain substantive relief?[4]

(c) Is leave necessary to correct a substantial injustice to the applicant caused by some error?[5]

(d) Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[6]

• [7] If leave to appeal is granted, in deciding the appeal on a question of law the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.[7] The Appeal Tribunal may set aside the decision and substitute its own decision only if this results in the disposition of the appeal entirely in the appellant's favour.[8] An appeal on a question of fact or mixed law and fact must be conducted by way of rehearing.[9] The Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.[10]

• [8] Mr Movva says that the learned member erred in construing the contract and in particular by not excluding from consideration clause 27.4 of the document called 'Building Schedule'.
• [9] It was common ground between the parties below that the contract documents included the 'Building Schedule' and a document called 'Trend Specification and Schedule of Fittings'. It is not contentious that both documents form part of the contract specifications.
• [10] The scope of the building works is found in item 9 of Schedule 1 of the contract. Item 9 includes the following in parentheses: 'describe generally ie low set brick veneer house, and state the plans and specifications including version number or date, that set out the detail of the works and form part of the contract'. The works are described as: 'new low set brick dwelling, Edge 208 with Trend specification building schedule dated 27/03/2020 and plans.' The 'contract documents' forming the contract include the general conditions, the specification, the plans and other documents specified in item 16 of the schedule 1 of the contract. No additional documents are referred to in item 16.
• [11] The Trend Specification and Schedule of Fittings formed part of the contract. The Trend Specification provided detail of the concrete slab but was otherwise silent on the concrete finish to the driveway and pathways.
• [12] The Building Schedule comprises 28 clauses with a number of sub-clauses. The schedule details a number of items of building work under various headings including, for example, earthworks, frame, appliances and landscaping. For each sub-clause is a corresponding dollar amount, or alternatively the words 'Note', 'N/C' or 'Included'.
• [13] Clause 27 of the Building Schedule is titled 'Landscaping'. Clauses 27.3 and 27.4 provide:

27.3 Provide an 800 mm wide exposed aggregate concrete path to remaining perimeter of the dwelling including Alfresco but not including Elevation "B" of Garage.

27.4 Exposed aggregate driveway/paths are constructed using Builder selected aggregates. Aggregate colours will vary between geographical areas due to factors including the subcontractor assigned to the driveway subcontract, the company and plant where the aggregate is dispatched from (this is dependent upon the subcontractor assigned) and the availability of aggregates that are within the allowances assigned to the subcontractor for the subcontract. Should specific aggregate colours be required "seeded aggregates" the Owner should contact head office immediately to organise the deletion of the driveway/paths from contracted works.

• [14] Beside clause 27.3 is an amount of $4,090. Beside clause 27.4 the word 'Note' appears.
• [15] Returning to the contract, clause 38.3 is an interpretation clause and provides at 38.3(e) that 'the general notes, clause headings and side notes do not form part of this contract and cannot be used in its interpretation'.
• [16] Clause 13.6 of the contract provides that the order of precedence is: any special conditions; the general conditions; the specifications; the plans; any documents in the order listed in item 16 of schedule 1. As has been observed, item 16 did not list any documents.
• [17] Clause 36 of the general conditions sets out the builder's warranties which include that the builder will carry out the work in accordance with all laws and legal requirements and in accordance with the plans and specifications.
• [18] 'Practical completion' is defined as meaning the day the subject work is completed, inter alia, in compliance with the contract, including all plans and specifications for the work and all statutory requirements applying to the work.
• [19] In the proceeding below, and in this appeal, Mr Movva says that clause 27.4 of the Building Schedule does not form part of the contract by operation of clause 38.3(e) of the general conditions. He places reliance upon the reference to the word 'Note' in clause 27.4. He says that this is a general note for the purposes of clause 38.3(e) of the contract and therefore clause 27.4 does not form part of the contract and cannot be used in its interpretation.
• [20] The word 'contract' is defined in clause 38.1 of the general conditions as meaning 'the agreement between the parties set out in the contract documents'. The terms 'general notes' and 'side notes' are not defined however their meaning may be ascertained by reference to the general conditions and the special conditions. The general conditions include side notes appearing in the margins. The side notes summarise the effect of particular clauses of the general conditions. The effect of clause 38.3(e) is that it is the words of the particular clause that form part of the contract, and the summary of the effect of the clause contained in the side note cannot be used to interpret the clause or the contract generally. The contract schedules also contain a number of 'notes'. Each 'note' is followed by words of instruction or explanation. These 'notes' are the 'general notes' referred to in clause 38.3(e).
• [21] The contract document (not including the specifications etc) was a pre-printed form. As I have observed the document contained both side notes and general notes. A 'note' may be a short comment on, or explanation of, a part of a document. 'Note' may also mean to notice or record something. The terms 'general notes' and 'side notes' should be construed according to their usual meaning in the context of the contract. The meaning of 'side notes' is self-evident from the contract document. The 'general notes' contain comment or explanation and it is in this sense that the word 'note' is used. The terms are confined in their meaning to the schedules and the general conditions. The terms 'general notes' and 'side notes' do not apply to the other contractual documents and, specifically relevant to this appeal, the Building Schedule. Where the word 'note' appears in the building schedule it is used in the sense of noting or recording the words of the corresponding clause rather than providing comment or explanation.
• [22] It follows from the foregoing that it was open to the learned member to have reference to clause 27.4 of the Building Schedule in construing the contract.
• [23] The building work
• [24] The complaint by Mr Movva was confined to the construction by Hallmark of a stone aggregate driveway and pathways. Mr Movva's complaints fell into two categories:

(a) The concrete aggregate did not comply with the contract specifications;

(b) The surface of the aggregate was exposed leaving sharp edges and an improper finish.

1. The specifications

• [25] Mr Movva argued below that Hallmark was required to use 'Macleay' aggregate and that 'Cherry Blossom' aggregate had instead been used. Mr Movva relied upon the Trend Specification which referred to 'Macleay' aggregate. It was not contentious below that:

(a) Aggregate with the nomenclature 'Macleay' was only supplied by Holcim Geostone;

(b) The aggregate laid by Hallmark was not 'Macleay' from Holcim but was in fact 'Cherry Blossom' from a different supplier.

(a) The Trend Specification was a 'Colour Specification Sheet' and did not provide any details about the supplier or manufacturer of any external materials used in the building;[11]

(b) The Trend Specification did not specify that the aggregate was to be supplied by Holcim Geostone;[12]

(c) The various aggregate options in the Trend Specification were 'Driveway Colours' and the Specification did not specify the supplier, manufacturer or source from which the particular colour was to be supplied for the driveway;[13]

(d) On a proper construction of the contract:

(i) the Trend Specification related to the colour of the aggregate to be supplied;

(ii) the specification required the colour of the driveway to be 'Macleay';

(e) The only evidence before the Tribunal was that 'Macleay' was a mixture of 50% brown and 50% white stones;

(f) 'Cherry Blossom' aggregate contained the same aggregate mixture as 'Macleay' and was therefore the same colour;

(g) The supply of exposed aggregate under the name "Macleay" or the name "Cherry Blossom" was in effect the same colour and was compliant with the Colour Selection Sheet in the Trend Specification;[14]

(h) The supply of "Cherry Blossom" met the same colour description as required for "Macleay" and Hallmark, in supplying either of those brand names of exposed aggregate, complied with the terms of the contract and the Specifications;[15]

(i) The supply and installation of the driveway and pathways was carried out by Hallmark in accordance with the contract and the Specifications.[16]

• [27] It is necessary at this juncture to further consider the Trend Specification. As I have observed, the contract documents included the Trend Specification. The Trend Specification was silent on the details of the aggregate to be used in the construction of the driveway and pathways. The contract was signed by the parties on 28 March 2020. The learned member referred in the reasons to the Trend Specification as being a 'Colour Specification Sheet'. This reference appears to be a conflation of two separate documents - the Trend Specification which formed part of the contract documents and a document titled 'Colour Selection Sheet: Trend'. The latter document did not form part of the contract documents. It is dated 20 May 2020, some time after the contract was signed. The evidence is not clear as to how the document came into existence, however it seems that at or about the time the building work commenced the Colour Selection Sheet was signed by Mr Movva. Neither party gave evidence about whether, for example, the Colour Selection Sheet was a contractual variation, nor did the learned member make any finding to this effect. The issue was not addressed by the parties in the appeal.
• [28] It seems that the parties proceeded both during the build and in the proceeding below on the basis that the Colour Selection Sheet operated as a contractual variation. There were in fact six Colour Selection Sheets. Each Sheet identified a particular aspect of the building work: external, kitchen, laundry, bathroom, ensuite and painting. The Sheet headed 'External' referred to, inter alia, bricks, roof tiles, windows, doors, letterbox and driveway. In respect of some items, a particular supplier was referred to as well as a specific colour. In respect of other items, a more general description of the item was included. For example, the garage door was to be 'Sectional' and 'Ranch' and 'Surfmist' and the driveway was to be 'Exposed Aggregate' and 'Macleay'. The Sheet makes no reference to concrete pathways. Other Colour Selection Sheets contain similar detail. In respect of some items, a specific supplier or manufacturer is referred to with a corresponding colour (and in some instances additional detail including sizing), while in respect of others a more general description is included. For example, the painting Sheet refers to the type of paint to be used (matt acrylic, gloss acrylic etc) and a corresponding colour however there is no reference to a specific paint manufacturer.
• [29] On a proper construction of the 'Colour Selection Sheet' documents, where an item referred to a particular supplier or manufacturer then this was the item to be supplied. Where the item was more generally described without reference to a particular supplier or manufacturer, the variation operated to require Hallmark to supply the specified item and comply with the colour specification. Hallmark was required to supply exposed aggregate meeting the colour description 'Macleay'. Hallmark was not required to supply exposed aggregate from a specific supplier. This construction is consistent with the plain words of clause 27.4 of the Building Specification. Hallmark was contractually entitled to select the particular aggregate supplier provided the colour of the aggregate accorded with the Colour Selection Sheet.
• [30] It is not in dispute that Macleay aggregate comprised 50% brown stones and 50% white stones. The evidence of Mr Ford for Hallmark was that reference in the Colour Selection Sheet to 'Macleay' aggregate was a reference to the colour of the aggregate. Mr Ford's evidence was that every concrete supplier has a different name for the same mix. Mr Ford's evidence was that the mixtures of 'Macleay' aggregate and 'Cherry Blossom' aggregate were 'exactly the same'.[17]
• [31] It was open to the learned member to accept the evidence of Mr Ford.
• [32] On a proper construction of the contract, the reference to 'Macleay' in the Colour Selection Sheet was a reference to the composition and colour of the aggregate and not to an aggregate with the same composition and colour from a specific supplier.
• [33] There was no error by the learned member in his approach to the construction of the contract.
  1. The composition of the aggregate
• [34] Mr Movva says that the learned member erred in not accepting the evidence he adduced about the composition of the aggregate and defects in the composition, or in failing to give insufficient weight to the evidence.
• [35] The evidence relied upon by Mr Movva was:

(a) A report by Dr Shengjun Zhou;

(b) A report by Paul Clisdell.

• [36] Dr Zhou is a civil engineer. Mr Clisdell's qualifications are not apparent from his report. Neither gave evidence at the hearing below. Both witnesses referred in their reports to documents published by the CCAA. CCAA is an acronym for Cement Concrete & Aggregates. It seems from the available material that CCAA is an industry membership body.
• [37] Dr Zhou referred in his report to 'CCAA Briefing 02: Exposed-aggregate finishes for Flatwork'. The briefing document was not appended to Dr Zhou's report. Dr Zhou referred to the document as 'an available industrial guideline'. Mr Clisdell referred in his report to a recommendation by CCAA about exposure of coarse aggregate without specifying further in what document or documents such recommendation was contained. No document published by CCAA was attached to Mr Clisdell's report.
• [38] Attached to Mr Movva's statement of evidence in chief were extracts from a document titled 'Guide to Concrete for Housing' published by CCAA. The complete document was not in evidence. Also in evidence was a document published by CCAA titled 'Residential Concrete Driveways and Paths'. There was no document in evidence meeting the description 'CCAA Briefing 02' as referred to in Dr Zhou's report.
• [39] In relation to the report of Dr Zhou the learned member found:

(a) the report adopted and applied industrial guidelines published by CCAA;

(b) the report did not establish any relevance between the CCAA guidelines, or how the guidelines might be applied, to a suburban domestic construction such as Mr Movva's;

(c) the report made no mention of having considered the terms of the building contract and whether there were any relevant provisions in the contract relating to the recommendations in the report;

(d) there was no evidence of industry acceptance, or otherwise, of the CCAA guidelines in the domestic building construction industry.

• [40] The learned member found in relation to Mr Clisdell's report:

(a) the qualifications and experience of Mr Clisdall were not detailed;

(b) no details were provided about the basis upon which Mr Clisdell had been engaged by Mr Movva;

(c) the report established no link between the industrial guidelines, the recommendations contained in the report and the terms of the contract between the parties.

• [41] There was no evidence before the Tribunal about the status of the various CCAA documents. Mr Movva does not submit, for example, that the CCAA publications have the status of Australian Standards or the National Construction Code. As the learned member observed, the CCAA guidelines were not contractual documents.
• [42] Also in evidence was a report by a QBCC building inspector, Mr Rendall. Mr Rendall inspected the driveway and pathways after Mr Movva made a complaint to the QBCC. Mr Rendall opined in his report that, when assessed against AS 3727, no defects were identified and the stone embedment in the aggregate was satisfactory. Mr Rendall did not give evidence at the hearing.
• [43] Despite Mr Movva's arguments below and in this appeal, the various CCAA documents to which reference has been made do not have the status of an Australian standard. The CCAA guidelines are, at best, recommendations by an industry body. As the learned member observed, there was no evidence before him about industry acceptance or otherwise of the CCAA guidelines in the domestic building industry.
• [44] It is not contentious that the Australian Standard relevant to the concrete aggregate is AS 3727. The standard was not in evidence below. The correctness of Mr Rendall's opinion that the concrete aggregate complied with AS 3727 is not challenged by Mr Movva in this appeal. What Mr Movva says is that the CCAA guidelines go further than AS 3272 which, as was acknowledged by Mr Rendall, does not make reference to the ability to walk barefooted on an aggregate surface as a criteria for assessing compliance with the standard. Perhaps had Dr Zhou or Mr Clisdall given evidence the uncertainties surrounding the status and application of the various CCAA documents may have been clarified. However, it seems unlikely that this would have changed the outcome below. Hallmark was contractually obligated to undertake the building work in an appropriate and skilful way and with reasonable care and skill. The evidence of Mr Rendall was that he could not find any obvious defective construction practices by Hallmark. The learned member was entitled to accept the evidence of Mr Rendall in preference to the evidence of Dr Zhou and Mr Clisdall. It could not be said that in preferring Mr Rendall's evidence the learned member's conclusion regarding the building work was perverse, illogical or marred by patent error. There was no error by the learned member.
• [45] Mr Movva says that the learned member erred in failing to give sufficient evidence to Mr Movva's evidence about the size of the stones contained in the aggregate. Mr Movva says that his evidence was that stones contained in the aggregate exceeded 10mm in diameter. He argued below that AS 2758 specifies that aggregate must not exceed 10mm in size. Mr Movva relied upon various photographs said to depict aggregate exceeding 10mm in size. The learned member found that 10mm aggregate, whether in length or width, was used by Hallmark.[18]
• [46] The evidence before the learned member relating to the size of the aggregate may be summarised as follows:

(a) The contract did not provide for a specific size of aggregate;

(b) Mr Rendall opined that:

(i) assessed against AS 3727, no defects in the concrete aggregate were identified;

(ii) stone embedment in the aggregate was satisfactory;

(iii) AS 3727 does not make reference to the ability to work barefoot on the surface as a criteria for assessing suitability;

(c) The sub-contractor engaged by Hallmark to lay the aggregate stated they always order and use a 10mm aggregate and this was the size of the aggregate used in the building work at Mr Movva's residence;

(d) The supplier of the aggregate grades the product through a grate which will accept 10mm aggregate either by length or by width with the result that particles of aggregate can exceed 10mm in length but which may be 10mm or less in width and which would pass through the grate and be sold by the supplier as 10mm aggregate.

• [47] A partial extract from AS 2758.1 was in evidence below and is concerned with concrete aggregates. Apart from Mr Movva's evidence, there was no evidence before the Tribunal regarding the application of AS 2758.1. Part of the extract refers to AS 2758.0 as containing 'definitions and classification'. AS 2758.0 was not in evidence below. AS 2758.1 refers to 'aggregates of nominal sizes'. It is not clear what 'nominal sizes' refers to. AS 2758.1 also refers to 'misshapen particles' and provides that such particles shall not exceed 10%. There is no explanation provided about what a 'misshapen particle' is. It may, for example, be a particle which is 10mm in one dimension and more than 10mm in another dimension. The reference to '10%' is presumably reference to the total volume of aggregate supplied. There was no evidence about any of these matters nor any evidence about whether, for example, AS 2758.1 is a guide only. Neither Dr Zhou nor Mr Clisdall referred to AS 2758.1 in their reports.
• [48] The learned member did not discount Mr Movva's evidence about the size of the pieces of aggregate he measured in the sense that he did not consider it. He specifically referred to such evidence.[19] The learned member however preferred the evidence to which I have referred about the grading of the aggregate particles and the size of aggregate applied. It was open to the learned member to do so particularly in circumstances where Mr Movva failed to place before the Tribunal any cogent evidence about the application of AS 2758.1.
• [49] There was no error by the learned member.

• [50] Mr Movva says that procedural fairness was not adequately observed during the proceeding leading to an unjust outcome. This submission is not further particularised and appears to arise out of what Mr Movva asserts were the errors by the learned member referred to in his other grounds of appeal.
• [51] There is no evidence from the transcript that Mr Movva was not afforded procedural fairness. The parties were given the opportunity to present their case and the evidence they relied upon.
• [52] There was no error by the learned member.

• [53] Mr Movva has failed to establish error by the learned member. Leave to appeal is refused. The appeal is dismissed.

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1) ('QCAT Act').

[3] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[4] Cachia v Grech [2009] NSWCA 232 (30 July 2009), [13].

[5] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[6] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.

[8] Ericson v Queensland Building Services Authority [2013] QCA 391.