Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bell Solar Pty Limited T/as Sunboost v Anderson [2021] NSWCATAP 278 Hearing dates: 7 September 2021 Date of orders: 16 September 2021 Decision date: 16 September 2021 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member E Bishop, Senior Member Decision: The Appeal is dismissed Catchwords: APPEALS – home building – exercise of discretion under s 48MA of the Home Building Act 1989 (NSW) – adequacy of evidence of damages Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 3(d)-(e), 80(2), 80(3), 80(3)(a) Home Building Act 1989 (NSW), cl 2 of Sch 1, ss 48MA, 48O Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Baak v Concrete Services Group Pty Ltd [2016] NSWCATAP 42 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Collins v Urban [2014] NSWCATAP 17 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 Fink v Fink [1946] HCA 54; (1946) 74 CLR 127 Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 Garofali v Moshkovich [2021] NSWCATAP 242 House v The King (1936) 55 CLR 499 JLW (Vic) Pty Ltd v Tsiloglou and Others [1994] VicRp 16; [1994] 1 VR 237 Khan v Kang [2014] NSWCATAP 48 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 Ortiz v Minister for Immigration and Citizenship [2011] FCA 1498 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 Tuck v White [2016] NSWCATAP 132 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; 60 ALR 68, [1985] HCA 28 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: None cited Category: Principal judgment Parties: Bell Solar Pty Limited T/as Sunboost ( Appellant) Trevor Anderson (Respondent) Gillian Anderson (Respondent) Representation: Solicitors: YS Law (Appellant) Self-represented (Respondents) File Number(s): 2021/118180 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 25 March 2021 Before: K Ross, Senior Member File Number(s): HB 20/44893 REASONS FOR DECISION Summary 1. The appellant contracted with the respondent Homeowners to sell and install solar panels and associated equipment at the respondent's new home. 2. The appellant then subcontracted the installation to one of its preferred installers, AAA Solar Pty Ltd. The work was undertaken poorly, apparently due to a lack of care by the installer and the installer's contractors not having appropriate licences to allow the work to be done in a proper and workmanlike manner. 3. As a result, cabling which should have been internally routed was routed externally and over the guttering of the home; the inverter system, which was to have been installed in the home was mounted two meters high on an external wall; and the installers did damage to various other aspects of the roof and walls to the home, which need repair or replacement. 4. The Homeowners were unsuccessful in obtaining redress from the appellant, even with the assistance of NSW Fair Trading. 5. As a result, they sought redress through an application to the Consumer and Commercial Division. The Homeowners sought an order for damages in the sum of $30,000.00. 6. The appellant accepted liability, but sought an order that it be allowed to rectify the damage to the home and remedy the installation of the solar system (the damages). 7. The Tribunal rejected the appellant's case and awarded the Homeowners the sum of $25,850.00, being the amount of a lump sum quotation provided by East Maitland Building, a contractor proposed by the Homeowners to remedy the damages. 8. The appellant says the Tribunal erred in not allowing it to perform remediation; that the sum awarded was unreasonable in the circumstances; and that the Tribunal gave insufficient reasons for its decision. 9. For the reasons set out below, we have decided to dismiss the appeal. Tribunal's reasons for decision 1. The Tribunal's consideration of the issues relevant to the appeal were set out in its reasons: "5 The applicants gave evidence that the quotation from East Maitland Building reflects the work which is required to rectify the damage to their home, and I accept that is the case. I accept that the invertors and switches have not been placed internally as required by the agreement between the parties. Relocation will mean that the damaged bricks will need replacement. The damaged cladding will need to be removed, replaced and repainted. The roof sheets, metal fascia and flashings require replacement because the spilled paint voids the manufacturer's warranty. There is evidence from Bluescope Steel that that is the case. I accept the applicants' evidence that the spilled paint has damaged the glass surface of the skylight. I accept that it will be necessary for the solar panels to be removed and reinstalled to enable replacement of the roof sheets. 6 Whilst the making of a work order is a preferred option in the resolution of home building disputes, I note that neither the respondent nor the respondent's installer is licensed to carry out the rectification work required. The respondent proposed that it would send a licensed installer to undertake the work, and said that if there was any damage caused they would "fix it from the insurance company". The respondent did not seem to appreciate that the existing damage already caused cannot be rectified by the installers (or any of the respondent's other installers) because it is work which needs to be undertaken by properly licensed contractors. 7 I take into account that the applicants have lost faith in the respondent and its contractors, and their ability to carry out the work in a proper and workmanlike manner. I have considered whether the respondent should be given an opportunity to engage a licensed contractor, but I do not think that it is just and equitable for the applicants to be required to have work carried out on their home by an unnamed third party with whom they have no contract and over whom they have no control. 8 In all the circumstances I am satisfied that I should make a money order. 9 The only evidence before the Tribunal of the cost of rectification is the quotation from East Maitland Building. I accept that it represents the cost of the rectification work required and allow the amount claimed. The respondent's estimate that their installer would charge $4510 to remove and reinstall the panels does not reflect the cost to carry out the work required to rectify the damage. The respondent did not provide any independent evidence of the cost of that repair work." 1. There is no dispute that the work performed by the appellant engaged the provisions of the Home Building Act 1989 (NSW) ("HBA"), nor is it in dispute that the Tribunal had jurisdiction to make the orders sought by either party below. Scope and nature of internal appeals 1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), s 80(2). 2. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to the Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong." 1. We may decide to conduct a new hearing if we are satisfied that the grounds for appeal warrant it: NCAT Act, s 80(3)(a). A new hearing under s 80(3) of the NCAT Act is a hearing de novo, or "from the beginning": Yuen v Thom [2016] NSWCATAP 243 at [17]. 2. The Notice of Appeal raised nine actual grounds of appeal, which were said to constitute errors on a question of law, as follows: 1. The Tribunal erred in law by failing to identify that the work required also included electrical wiring work which is "specialist work" as defined in the HBA; 2. The Tribunal erred in law in finding that the preferred outcome set out in s 48MA of the HBA should not be applied and that a work order should not be made; 3. The Tribunal erred in law by failing to take into account ss 3(d) and 3(e) of the NCAT Act; 4. The Tribunal erred in law by making a money order under s 48O of the HBA; 5. The Tribunal erred in law in that it made findings of fact for which there was no evidence; 6. The Tribunal erred by failing to conduct the hearing in a way which was procedurally fair to the appellant; 7. The decision was so unreasonable that no reasonable decision maker would have made it; 8. The Tribunal erred by not addressing the question of proof of quantum; and 9. The Tribunal gave inadequate reasons. 1. The appellant also challenged some other factual findings of the Tribunal but had not sought leave to appeal. 2. Whilst we may decide to conduct a new hearing, the parties did not ask us to do so here and we were not satisfied that the grounds for appeal warranted it. Consideration of the Grounds of Appeal Ground (1) – The Tribunal erred in law by failing to identify that the work required also included electrical wiring work which is "specialist work" as defined in the HBA. 1. We do not comprehend this ground of appeal, nor was the appellant able to assist us as to how it identified a question of law. It is based on the contention that some of the work required to remedy the defects in the work meets the definition of "specialist work" in the HBA. The appellant's attention has been enlivened by the Tribunal making a record, at [1] of its reasons, that it was "…satisfied that the work the subject of the claim is residential building work to which the provisions of the Home Building Act 1989 apply," together with a similar comment during the hearing. There was and is, though, no dispute that the Tribunal had jurisdiction under the HBA to make the orders sought. The work required to repair the damages involved residential building work, some of which was, and some of which was not, specialist work. Clause 2 of Sch 1 to the HBA defines residential building work as including, relevantly: "(b) specialist work done in connection with a dwelling" 1. The ground, as best we can understand it, relates to the sufficiency of the East Maitland Building quotation and the appellant's assertion that, as East Maitland Building is not certified to conduct the relevant specialist work, its quotation should not have been accepted and a remediation order should have been made. Whilst we deal with those issues below, this ground does not raise a question of law. Ground (2) – The Tribunal erred in law in finding that the preferred outcome set out in s 48MA of the HBA should not be applied and that a work order should not be made. 1. It is clear from its reasons that the Tribunal was aware of, and cognisant of the effect of s 48MA of the HBA, which provides: 48MA Rectification of defective work is preferred outcome in proceedings A court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the responsible party) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome. 1. It is not an error on a question of law for the Tribunal, having correctly identified the relevant legislation to be applied and made relevant findings, to exercise its statutory discretion in a way contrary to that sought by one party to proceedings. The Tribunal did not "[find] that the preferred outcome set out in s 48MA of the HBA should not be applied." It recognised that s 48MA of the HBA provided for rectification to be the preferred outcome but exercised its discretion differently, for reasons it gave. It is not argued, or apparent, that the Tribunal asked itself the wrong question, took irrelevant considerations into account, or that there were mandatory considerations in its decision that it failed to engage with: House v The King (1936) 55 CLR 499. This ground is not made out. Ground (3) – The Tribunal erred in law by failing to take into account ss 3(d) and 3(e) of the NCAT Act. 1. This ground is, in our view, misconceived by the appellant, but was pressed and so we will address it briefly. It is argued on this basis: 1. The Tribunal is obliged to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible: NCAT Act, s 3(d); and 2. To ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality: NCAT Act, s 3(e); 3. Because the Homeowners only paid about $10,000.00 in total for the solar system and its installation; and 4. Where AAA Solar have insurance against defects in their work with a $10,000.00 excess payable; and 5. Where the Tribunal has made orders for remediation in other matters the appellant has been involved in; then 6. The decision to award an amount of damages much higher than $10,000.00 means that the decision was contrary to the Tribunal's obligations under ss 3(d) and 3(e) NCAT Act. 1. The Tribunal below was not addressed by the appellant on the suggestion that this approach should be adopted, making the appellant's right to raise it now, for the first time, questionable: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; 60 ALR 68, [1985] HCA 28, at [7]. 2. In any event, the obligation to resolve matters in a manner which is cheap does not absolve the Tribunal from making the award which is appropriate in any given matter. Nor does it oblige the Tribunal to make the award which is cheapest to one party at the expense of doing justice to another, or as between the parties. The obligation to make decisions which are consistent goes to the application of the principles to be applied, not the result decided upon. Only where the legal issues and factual matrix are the same, or sufficiently similar, will the application of consistent principles lead to the same outcomes. This ground has no merit. Ground (4) – The Tribunal erred in law by making a money order under s 48O of the HBA. 1. This ground relates to Ground (2), and was argued on the same basis. It fails for the same reasons Ground (2) did. Ground (5) – The Tribunal erred in law in that it made findings of fact for which there was no evidence. 1. This ground relates to the Tribunal's finding, at [5] of its reasons, that "[t]he applicants gave evidence that the quotation from East Maitland Building reflects the work which is required to rectify the damage to their home, and I accept that is the case". 2. The appellant points to the transcript, where the member records that the quotation from East Maitland Building does not specifically nominate the works identified in the quotation as necessary to remediate the issues of concern to the Homeowners. However, that ignores the other evidence led by the Homeowners, including in statements lodged prior to the hearing below. In two undated statements of the Homeowners, at pp 219 to 220 of the agreed bundle, read with correspondence from the Homeowners to the appellants dated 17 September 2020 and 30 September 2020, the Homeowners identify the damage they claim to have been occasioned. They also provided photographs to substantiate their assertions. Read with the quotation from East Maitland Building, which itemises the work contemplated by the quotation, there was evidence before the Tribunal upon which its finding was based. This ground fails. Ground (6) – The Tribunal erred by failing to conduct the hearing in a way which was procedurally fair to the appellant. 1. In support of this ground of appeal, the appellant makes three assertions: 1. That the Tribunal made no reference to the appellant's witness statements during the hearing; 2. That the appellant's witnesses were not cross examined; and 3. That the Tribunal gave too much weight to the Homeowners' evidence, and not enough to the appellant's. 1. Clearly, the third assertion does not raise an issue of procedural fairness. 2. Nor is the Tribunal required, as a matter of fairness, to refer during the hearing to evidence on which its decision does not turn, or which has not been put in dispute. Similarly, the Tribunal does not err by not requiring cross-examination of a witness, although it may do so if it subsequently makes findings which are contrary to that evidence and where the potential findings are not put to the witness, if reasonably practicable, for comment. 3. The evidence relied upon by the appellant, relevantly, went to its willingness to arrange for its subcontractors to return to the property to remedy the works or have it remedied by recourse to insurance. That issue was not seriously in question in the proceedings. No findings adverse to that evidence were made. No error is demonstrated. 4. Before we go on to deal with the balance of the appellant's Grounds of Appeal, we should note that we have not sought to elaborate to any greater extent on our decision in respect of Grounds (1) to (6) in an effort to focus the parties, and the resources of the Appeal Panel, on the real issues in dispute in this appeal. Grounds (1) to (6) were presented, and argued, without proper regard having been given by the appellant to its obligation as a party legally represented by leave to assist the Tribunal to achieve the just, quick and cheap resolution of the real issues in dispute. 5. We endorse what was recently said by a differently constituted Appeal Panel in similar circumstances, in Garofali v Moshkovich [2021] NSWCATAP 242, at [50]–[55] , that: "50 The grounds of appeal and the submissions of the builder did not clearly identify errors of law; or clearly articulate errors other than errors of law that would justify leave to appeal being granted. 51 Parties and practitioners have a duty to assist the Tribunal to achieve the just, quick and cheap resolution of the real issues in dispute (Section 36 (3) of the NCAT Act). Some latitude is appropriate to self-represented parties who often struggle to clearly identify what their grounds of appeal are and relate their submissions to each identified ground… 52 However, it is of no assistance to the Appeal Panel when a legally represented party cannot clearly identify and articulate what errors of law have purportedly occurred; nor clearly identify and articulate the distinction between purported errors of law (which do not require leave of the Tribunal) and errors other than errors of law to which leave to appeal is required. 53 This is not a new issue. The NSW Court of Appeal has been critical of practitioners who do not file and serve clearly articulated grounds of appeal and timely written submissions that engage with the grounds of appeal in Whyte v Broch (1998) 45 NSWLR 354 ('Whyte'); Lorbergs v State of New South Wales (1999) NSWCA 54 and Lake Macquarie City Council v McKellar [2002] NSWCA 90 at [88]-[94]. In Whyte, Spigelman CJ referred to a pervasive "climate of complacency" regarding the failure of practitioners to file and serve timely outlines of submissions that engage with clearly articulated grounds of appeal. … 55 However, all legally represented parties who appear in the Appeal Panel should, as a minimum standard, be able to clearly identify and articulate what are the purported errors of law or errors that require leave to appeal rather than merely provide a narrative as to why their client disagrees with the decision." Grounds (7) to (9) 1. These grounds relate to the real substance of the appellant's concerns, and can conveniently be dealt with together. 2. In substance, the appellant says that where it was ready and willing to do so, it was unreasonable for the Tribunal not to order rectification in respect of the deficient works; that the order for payment to the Homeowners was unreasonable in those circumstances; and the amount awarded was not supported by the evidence before the Tribunal. 3. The appellant says that the Tribunal's acceptance of the East Maitland Building quotation did not adequately consider the burden of proof borne by the Homeowners nor meet the required burden to establish the quantum of loss claimed. 4. The appellant also alleges that the Tribunal's reasons were insufficient. 5. In the case of Khan v Kang [2014] NSWCATAP 48 at [50] the Tribunal said: "A quotation from a supplier willing to rectify defects or complete incomplete work can, depending on the circumstances and the nature and content of the quotation, constitute evidence of the defects or incomplete work and of the amount required to remedy the defective work or complete any incomplete work. For example, if the person providing the quotation was suitably qualified or experienced, inspected the work, identified defects or incomplete work on that inspection, recorded his or her observations in the quotation and gave a price to rectify or complete the work, it is difficult to understand why that quotation would not provide evidence in support of a claim for defective or incomplete work. The weight to be given to the evidence would, of course, depend upon many factors. Nonetheless, it would be wrong to conclude that simply because an applicant relied only upon a quotation or quotations for the rectification or completion of work that there was no evidence to support the claim that the work was defective or incomplete." 1. What amounts to sufficient proof depends on the individual circumstances in each case. There is no rule of universal application, so that in some circumstances a quotation may provide sufficient proof. 2. In this case, the Tribunal had a quotation from East Maitland Building referring to numerous steps accepted by the Tribunal as necessary to remedy the alleged building defects which were referred to in the Homeowners' evidence. There was no comparable quotation in evidence from the appellant. 3. True it is that there was no specific evidence that the author of the quotation had visited the property and inspected the residence, or of East Maitland Building's capacity to perform the necessary work. 4. We also accept the appellant's submission that there is no reference in the Tribunal's reasons to any process of reasoning in regard to weighing the probity of the quotation. 5. However, the appellant specifically requested the respondent obtain a quote from a builder of its choice (email at p 235 of the agreed bundle) and did not provide a quote of its own despite the appellant requesting that a senior manager of Bell Solar come to the property to inspect the damage (as opposed to rectify the damage): p 219 of the agreed bundle at [6]. 6. The submission made at the hearing by the appellant about the quote was that it was excessive for removing and reinstalling solar panels. The appellant did not engage with the fact that the quote was to fix damage caused by the installers, not just to remove and replace the solar panels (Transcript pp 84A-85A, see also p 86 at line 247). When the appellant was asked about this during the hearing (at Transcript p 86A), the appellant indicated that it would fix the solar panels and if there is other damage it will get a quote (at Transcript p 87 line 266 and again at p 88 line 286), saying– "give us a fair chance … we have to compare the quote with ... if it's reasonable or not so it's better to give us a chance, and that, we fix the thing". Legally unreasonable 1. We infer that the appellant asserts that both the decision to award the damages instead of rectification, as well as the related decision to accept the quotation of East Maitland Building was legally unreasonable. That is, it lacks an evident and intelligible justification: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230. 2. A court or tribunal should not readily leap to a conclusion that a decision is irrational or illogical. The test is "necessarily stringent": Minister for Immigration and Citizenship v SZMDS [2010] HCA 16. If logical and rational minds might differ in their opinion of or conclusion on the same evidence, the decision cannot be properly said to be illogical, irrational or unreasonable. 3. Critically, we need to consider whether the impugned aspects of the decision were open to the Tribunal on the evidence, or had any evidentiary basis: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [355–6]; Ortiz v Minister for Immigration and Citizenship [2011] FCA 1498 at [53]. 4. We deal with those issues below, and, given our conclusions, we are not satisfied the impugned aspects of the decision were unreasonable in the relevant sense. The decision to order damages, as opposed to rectification 1. As submitted by the appellant, in favour of an order of rectification were the following significant factors: 1. The willingness of the appellant to arrange rectification; 2. The fact that its preferred installer had insurance to cover its default, and that the excess on the relevant policy was significantly less than the damages claimed; 3. The fact that the East Maitland Building could not, without recourse to suitable licenced subcontractors to carry out the specialist work, complete all aspects of the rectification, and that this put them in the same position as the appellants, who would need to use building subcontractors; and 4. The presumption that rectification was the preferred option, pursuant to s 48MA of the HBA. 1. However, there were significant counterbalancing factors which the Tribunal had to properly weigh, including: 1. Unchallenged evidence that the original installers worked on the roof at the Homeowners' premises without any form of harnessing or other fall restraint; 2. That the appellant asked the Homeowners to obtain a quotation from a builder for the rectification, rather than seeking to send someone to obtain a quotation itself: email, appellant to the Homeowners, 30 September 2020 at 12:30pm; 3. That the appellant at no time agreed to conduct all of the work the Tribunal found was required in respect of the damages, but rather focused throughout on a willingness to remedy only a lesser list of items initially raised by the Homeowners, and to do so in a piecemeal fashion: see, for example, the offer to "first try to remove the paint from the roof and from the outside of the skylight"; and that if that was insufficient that the appellant's representative would "…not require removing the skylight as the paint is spilled on the roof and sprinkled on the skylight. After inspection of the roof, if it requires hiring the specialist to remove the paint or to paint that area of the roof, we will hire and repaint it": email of the appellant, 9 October 2020 at 12:44pm; 4. Unchallenged evidence that the installer had behaved aggressively to the appellants when confronted about the defects in the installation, and that the Homeowners had lost faith in the appellant's capacity to conduct or arrange the work appropriately: statements of the Homeowners at pp 219 and 220 of the agreed bundle; 5. That the Homeowners had requested rectification prior to commencing proceedings, but those proposals failed after the appellant failed to provide details such as the scope of the works the appellant agreed to undertake, a guarantee that damaged products would be replaced with new materials and confirmation that all relevant workplace health and safety laws would be complied with in respect of working at heights: email from Homeowners to the appellant, 29 September 2021 at 3:54pm; 6. A lack of any concrete proposal from the appellant, which persists in the appeal, as to who would do the works if rectification was ordered, what would be done, and when. 1. In weighing those counterbalanced considerations, the Tribunal's decision not to order rectification cannot be said to be lacking evident and intelligible justification. The award of damages 1. Having determined to award damages, the decision to accept the East Maitland Building quotation, where that was the only quotation encompassing all of the damages, is similarly one with an intelligible justification, but that does not mean that it was the correct decision at law. Did the East Maitland Building quotation provide the Tribunal with a proper basis to assess the damages? 1. The appellant asserts that the East Maitland Building quotation did not provide the Tribunal with a proper basis to assess damages. As a result, it says, the Tribunal erred in not adjourning the hearing to allow the Homeowners to obtain evidence which properly did so. 2. As we indicated earlier at [41], we accept that the quotation is deficient in terms of what ought be preferred as evidence to assess damages in applications such as this. 3. However, each matter must be considered in context, having regard to the nature of the dispute, the available evidence, and how the parties elect to conduct the proceedings. 4. Here, the appellant asked the Homeowners to obtain the quotation and, whist it advised the Tribunal that it asserted the quotation was un-particularised in that it was a lump sum quote for all of the relevant aspects of the work identified, and excessive (Statements Nisha Chavda, 24 March 2021 and Mitesh Patel, undated), it did not provide any evidence of a probative nature to challenge the reasonableness of the quotation. The only evidence lodged by the appellant in this regard was limited to the cost to remove and re-install the solar panels and inverters only, and not the other related remediation works. 5. For completeness, we should record that the appellant asserted through its legal representative at the hearing before us, for the first time, that the Homeowners had refused to allow the appellant to attend the premises to obtain its own evidence as to the assessment of the damages. We reject that assertion. Not only was it raised without direct evidence or notice to the Homeowners, but it was contrary to direct and unchallenged evidence of the Homeowners that they had asked that a representative of the appellant (preferably in the person of its senior manager) inspect the damages on several occasions but the appellant declined the opportunity: statement of the Homeowners, p 219 of the agreed bundle. The Homeowners had refused the appellant access to carry out remediation works, for the reasons set out above, but that is not the same thing. 6. We accept that it would have been open to the Tribunal to adjourn the hearing with a direction for the Homeowners to obtain clearer evidence as to the quantum of the damages. However, neither party asked the Tribunal to do so. 7. In Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 at [31], Mason CJ and Dawson J noted the following: "The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann Menzies J. went so far as to say that the 'assessment of damages ... does sometimes, of necessity involve what is guess work rather than estimation." Where precise evidence is not available the court must do the best it can..." 1. The Appeal Panel has accepted that this 'settled rule' applies in the Tribunal: Baak v Concrete Services Group Pty Ltd [2016] NSWCATAP 42, at [17]; Tuck v White [2016] NSWCATAP 132, at [44]. 2. In Fink v Fink [1946] HCA 54; (1946) 74 CLR 127, at 143, their Honours, Dixon and McTiernan JJ (with whom Latham CJ and Williams J agreed) said: "Where there has been an actual loss of some sort, the Common Law does not permit difficulties of estimating the loss in money to defeat the only remedy it provided for breach of contract, an award of damages." 1. However, in JLW (Vic) Pty Ltd v Tsiloglou and Others [1994] VicRp 16; [1994] 1 VR 237, at 241, Brooking J said (omitting citations): "A plaintiff cannot recover substantial as opposed to nominal damages unless he proves both the fact and the amount of damage: .... If he proves the fact of the loss but does not call the necessary evidence as to its amount he cannot be awarded substantial damages ...: he must put the tribunal in the position of being able to quantify in money the damage he has suffered: ... It is often said that the amount of the damage must be proved with certainty, but this only means as much "certainty" as is reasonable in the circumstances: .... Where precise evidence is obtainable, the court naturally expects to have it; where it is not, the court must do the best it can. (italics added)" 1. As was stated in Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117, at [51]: "The settled rule is subject to the proviso that the difficulty must not arise from the fact that the plaintiff has produced no evidence of loss or damage, or because the court has rejected the evidence which was put forward on loss caused by the breach. In either case the plaintiff will be restricted to a nominal sum (Carter on Contract [41-180]). The settled rule only applies where the facts and circumstances which the court is considering make it difficult for the court to estimate the damages suffered by a particular litigant. It does not apply where the party who has the onus of proof does not call evidence which is readily available to be placed before the Court, but the party does not do so…" 1. The Homeowners did not fail to provide evidence of their damages. Whilst the quality of the evidence was not what it could have been, it was, in our view, sufficient for the Tribunal to do the best it could to assess damages on the material before it. The relevant evidence is not only the East Maitland Building quotation but also the unchallenged evidence of the Homeowners as to the nature of the work required to remedy all of the defects and evidence contained in the photographs before the Tribunal showing that the solar system was installed in the wrong place, in the wrong way, and that the installers had caused consequent damage. The Tribunal also had evidence that, for example, the warranty on their roof sheeting would be voided by over-painting, as opposed to replacement. 2. We are satisfied that the evidence was sufficient to require the Tribunal to award more that nominal damages. The appellant's estimate of the cost of only some of the remediation was $4,510.00. 3. In the absence of probative evidence challenging the accuracy of the East Maitland Building quotation, we consider that the combined evidence relied on by the Homeowners supports the decision reached by the Tribunal to accept the East Maitland Building quotation in its entirety. Did the Tribunal fail to give sufficient reasons? 1. The Tribunal's reasons are minimal, particularly as regards the decision to order damages as opposed to rectification, and as to why it accepted the quotation of East Maitland Building. 2. In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, Meagher JA said at 444: "It does not automatically follow that because reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there is an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered. … Lastly, it is noted that an appealable error arising from inadequate reasons does not necessarily mean that a new trial is required. An appeal court is entitled to consider the matter and, if appropriate reasons are given, may itself decide the matter. Thus, if the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial: NSW Insurance Ministerial Corporation (formerly GIO of New South Wales) v Mesiti (Court of Appeal, 1 December 1994, unreported)." 1. On balance, given the way the proceedings were conducted by the parties and their respective cases, we think that the reasons were adequate, although the relevant issues to be considered could have been more thoroughly exposed. In any event, though, we have the benefit of the material before the Tribunal and the transcript of the hearing below. There were no relevant issues of credit. We see no error in the impugned aspects of the Tribunal's decision. Having regard to the issues to be balanced at [48]–[49] above, we would not exercise the discretion to award damages differently to the Tribunal, and the proper result was for the Tribunal to accept the quotation of East Maitland Building, for the reasons we have set out at [58]–[65]. In our view there has been no miscarriage of justice occasioned which requires intervention. 2. Finally, whilst the appellant did not seek leave to appeal, it sought to challenge some other factual findings of the Tribunal, and to demonstrate that the decision was not fair and equitable. In the absence of an application for leave, and where the essential substance of the appeal has been dealt with above, we are satisfied that there was no other issue of general or public importance raised that would have attracted a grant of leave in any event. Orders 1. Our Order is as follows: 1. The appeal is dismissed. Notation 1. In preparation for the appeal, the Homeowners agreed not to use the funds paid to them by the appellant in rectification of the damages, nor to have the works which were the subject of the dispute remedied, pending the hearing of the appeal. At the hearing, they extended that agreement until they had our decision. To the extent that their agreement could be considered an undertaking to the Tribunal, they are now released from it. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 September 2021