Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rauf v Vartanian; Vartanian v Rauf [2023] NSWCATAP 238 Hearing dates: 4 July 2023 Date of orders: 23 August 2023 Decision date: 23 August 2023 Jurisdiction: Appeal Panel Before: S Thode, Principal Member J S Currie, Senior Member Decision: 2023/00115571: 1. The appeal is allowed. 2. Order 1 made in HB 22/53342 on 29 March 2023 is set aside. 3. In lieu thereof the Appeal Panel makes the following order. Anmar Rauf is to pay Emil Vartanian the sum of $8,450 immediately. 2023/00139085: 1. Leave to appeal is refused. 2. The appeal is dismissed. Catchwords: APPEALS- BUILDING AND CONSTRUCTION – contract not in writing –need to prove loss or damage arises - new decision substituted. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW); sections 36 (1), (2),(4), 38 (2), (5), 80, Schedule 4 clause 12 (1), Cases Cited: Café Great v Oh [2019] NSWCATAP 30 Cominos v Di Rico [2016] NSWCATAP 5 Eadie v Harvey [2017] NSWCATAP 201 Ikimdzhieva trading as C & L Upholstery Services v Fudala [2017] NSWCATAP 196 Italiano v Carbone [2005] NSWCA 177 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Mifsud v Campbell (1991) 21 NSWLR 725; Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 ZAG v NSW Trustee and Guardian [2016] NSWCATAP 19 ZAN v The Public Guardian [2016] NSWCATAP 20 Texts Cited: Aronson, Groves and Weeks, Judicial Review of Administrative Action, (Thomson Reuters 7th ed, 2022) at paragraphs [8.50]- [8.90] Robinson and Lucy, NCAT Practice and Procedure, 2nd edition 2020, at [NCATA80.30] Category: Principal judgment Parties: 2023/00115571 Ahmad Mohand Rauf (Appellant) Emil Vartanian (Respondent) 2023/00139085 Emil Vartanian (Appellant) Ahmad Mohand Rauf (Respondent) Representation: Ahmad Mohand Rauf (Self represented) and in part by Ms Nori (lay representative) Emil Vartanian (Self represented) File Number(s): 2023/00139085; 2023/00115571 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: (Unreported) Date of Decision: 29 March 2023 Before: S F Smith, General Member File Number(s): HB 22/53342 reasons for decision What was this appeal about? 1. These two appeals arise from a decision of the Consumer and Commercial Division of the Tribunal concerning the supply of building goods and services by Mr Anmar Rauf (the Builder) at a home unit in Macquarie Park for the owner of that home unit Mr Emil Vartanian (the Homeowner). 2. In the Notice of Order dated 29 March 2023, the Tribunal Member stated that that the Homeowner had been: ...unable to quantify his loss satisfactorily on the evidence before the Tribunal. The Tribunal was satisfied that loss suffered by (the Homeowner) due to the unsatisfactory and incomplete work of (the Builder) was not less than $10,000. 1. The Tribunal ordered that the Builder pay the Homeowner $10,000 on or before 30 April 2023. 2. Both parties appealed the decision. 3. The two appeals raise issues of whether the Tribunal Member in so determining the matter had erred on a question of law by failing to afford procedural fairness to the Builder or by making that determination on the basis of findings for which there was no evidence. 4. Both the Builder and the Homeowner seek leave to appeal. The Builder seeks leave on the ground that the decision was against the weight of the evidence and the Homeowner seeks leave on the same ground, but also on the basis of his assertion that there is significant new evidence which was not reasonably available at the time of the hearing. 5. For the reasons which follow we have concluded as follows. 1. Although there is some imprecision in the Tribunal Member's assessment of damages (as explained further below at [43]- [58]), and it would have been preferable for the Tribunal Member to have explained in greater detail the forensic process which he adopted, there was no procedural unfairness. 2. The Builder should be granted leave to appeal because the Tribunal Member's decision to order payment by the Builder of $10,000 was against the weight of the evidence and the evidence establishes that the Homeowner's loss was limited to $8,450. 3. The Builder has not established his claim to payment of $6,000. 4. The Homeowner has not demonstrated any error of law and should not be granted leave to appeal in respect of his attempt to adduce "new evidence", because he has not demonstrated that that new evidence on which he seeks to rely in his appeal is evidence that was not reasonably available at the time of the hearing. However, the Homeowner should be granted leave to appeal on the ground that the decision was against the weight of the evidence. 5. A new decision should be substituted for that of the Tribunal below, being that the Builder must pay the Homeowner the amount of the Homeowner's loss, being the sum of $8,450. The Tribunal proceedings and decision 1. The proceedings involved a claim by the Homeowner for compensation for defective and incomplete work on the part of the Builder. The Tribunal Member found that the Homeowner contracted with the Builder in June 2022 and that initially the scope of work was small, involving the replacement of toilet seats. An initial quote of $2,800 was provided for the replacement of blinds, a benchtop and toilet seats, but over time the scope of work expanded, to include the re-tiling the bathroom and then other works. There was no dispute between the parties the work under contract exceeded $5,000 and the Homeowner paid approximately $10,000 to the Builder. There was no dispute between the parties as to the scope of work. 2. At all relevant times the Builder was unlicensed. The Builder did not make a claim seeking payment for outstanding monies. 3. The Homeowner complained of slow progress, the Builder's lack of application to the job, his apparent lack of tiling expertise and mess. The Homeowner contended that the Builder had removed all bathroom tiles when this was not agreed. It was said that dust generated by the work had damaged the interior of the premises. The disputes as to these matters culminated in the Homeowner excluding the Builder from the site and retaining other tradesmen to remedy the alleged defects and to complete the works. 4. The Homeowner commenced proceedings HB 22/53342 seeking an order for $15,000. 5. By the date of the hearing the Homeowner had amended his claim seeking $26,000 in compensation, in support of which he produced invoices alleged to have covered the work necessary to complete to a proper standard the work contracted for but not done and to make good. 6. The Builder's defence was that many of the defects complained of involved pre-existing faults and in the case of carpeting alleged to have been damaged by him, that the carpet was old and of no value. The Builder also asserted that that the Homeowner knew from the start that he, the Builder, had no expertise to complete some of the required works. 7. The Tribunal noted that there was no document which contained the scope of works or assessed precisely the work performed by the Builder and that the parties' evidence was generally unsatisfactory in assisting the Tribunal to assess what work was contracted for, which work was not done or done in a defective way and the quantum of the cost to make good. The Tribunal Member observed in his reasons for decision (Reasons): [14] It would be difficult or impossible to distil from the material on file and put to me just what the (Builder) had to do and assess if and why it was faulty. The evidence relied on just does not deal with the relevant issues appropriately. [15] On the other hand it seems to be conceded even by the (Builder) that in general the work was not of a tradesman like standard. 1. The Tribunal Member noted that despite the difficulty of fairly evaluating the claim in the above circumstances, he was obliged to try to do so. He considered but rejected the possibility of an adjournment in order to remedy the evidentiary difficulty, because more work had been done at the premises and it appeared that neither party was equipped to undertake the necessary level of further investigation necessary to make the claim and the defence to it any clearer. 2. As recorded in the Reasons at [21], the Member found that the claim exceeded $20,000, but that it was not possible to assess precisely the quotes and invoices, the scope of works or to assess the value of the Homeowner's claim based on the photographs tendered. The Tribunal went on at Reasons [22] to indicate that he was satisfied that the proper cost to make good was not less than $10,000, "though it might well be more" and in the next paragraph of the Reasons concluded as follows: I conclude that in the interests of justice an award should be made in favour of (the Homeowner) and the quantum should be $10000." 1. The written reasons for decision published by the Tribunal are reasonably short, and for ease of reference we have set out most of the decision: 8 At the directions hearing the applicant amended his claim to seek $26000 in compensation. In support of the claim Mr Vartanian produced a variety of invoices said to be for things done on the premises to finish and make good what had been done or not done by the respondent. 9 The total of the invoices was many thousands of dollars. To put it briefly the respondent's defence was that many items said to be faults by the applicant were pre-existing defects. He also maintained that the applicant knew that he was not expert in many of the jobs to be undertaken but retained him anyway. The replacement of a carpet was part of the claim but the respondent complained that it was quite old and of little or no value. 10 It should be noted that there did not seem to be any document which assessed the scope of works applying to the respondent, assessed what he had done and omitted, evaluated the quality of the work actually done by the respondent and referred to the cost to complete or make good what the respondent had done. 11 For the applicant his chief evidence was an assortment of invoices or quotes which in many cases referred to individual items of work, and cited a dollar figure. The Tribunal was left to decide what work the respondent had done, whether or not it was defective, why it was defective and what was the proper cost to make good. 12 This is not really how a claim in this tribunal should be dealt with. It is for the applicant to make his case and to present cogent evidence in support of it. 13 Nonetheless the respondent cannot rely on knowledge by the applicant that he was not skilled. The Home Building Act governs work of this nature and the statute imposes obligations on contractors which cannot easily be avoided. 14 It would be difficult or impossible to distil from the material on file and put to me at the hearing just what the respondent had to do and assess if and why it was faulty. The evidence relied on just does not deal with the relevant issues appropriately. 15 On the other hand it seems to be conceded even by the respondent that in general the work was not of a tradesman like standard. 16 The courts had consistently directed that the difficulty of fairly evaluating compensation in cases like this is not a reason for the Tribunal of fact to refuse to try. 17 During the hearing I considered adjourning the hearing to permit the parties to bolster their cases by further evidence so that a more complete appraisal could be made of the compensation to be awarded. 18 However, on reflection this seemed inappropriate, firstly because so much more work had now been done or had been done on the premises and secondly because it seemed to me that neither of the parties was really equipped to undertake the kind of investigation that would significantly advance the case of either applicant or respondent. 19 Clearly the efforts of the respondent were inadequate and I am satisfied that the work he did do created further problems which now have to be made good. The damage done by the dust is but one example. 20 It is easy to arrive at the conclusion that the applicant is entitled to some compensation for the damage done by the respondent, the question is how much. 21 As noted above the claim exceeds $20,000. The photos make clear the poor quality of the work done by the respondent. It is not possible to harmonise precisely the quotes/invoices, the scope of works of the respondent and the photos. 22 Nevertheless I am satisfied that the proper cost to make good is not less than $10,000 though it might well be more. Conclusion 23 I conclude that in the interests of justice an award should be made in favour of the applicant and the quantum should be $10000. Relevant Law: The nature and scope of internal appeals 1. Internal appeals in this Tribunal may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act). 2. As has been noted in Robinson and Lucy's "NCAT Practice and Procedure", Second Edition 2020, at [NCATA80.30] at page182, there is no satisfactory test of universal application to define the concept of an error of law. However, in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out at [13] a non-exclusive list of errors of law. 1. a failure to provide proper reasons; 2. identification of the wrong issue or asking the wrong question; 3. the application of a wrong principle of law; 4. a failure to afford procedural fairness; 5. a failure to take into account relevant (i.e., mandatory) considerations; 6. the taking into account of an irrelevant consideration; 7. the absence of evidence to support a finding of fact; and 8. the decision was so unreasonable that no reasonable decision-maker would have made it. Leave to appeal 1. The principles governing an application for leave to appeal against a decision of this Tribunal are well-established and are repeated in many decisions of the Appeal Panel, often citing Collins v Urban [2014] NSWCATAP 17 (Collins v Urban). They are the same principles applied by the courts. 2. It is clear from Collins v Urban at [84] that in order to be granted leave to appeal the appellant must demonstrate something more than that the decision was arguably wrong or that there is some bona fide challenge available to an issue of fact; and that even if the appellant does demonstrate that "something more", ordinarily, it is appropriate to grant leave only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. In Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206), the Court of Appeal 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. Additionally, these proceedings were conducted in the Consumer and Commercial Division of the Tribunal. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in that Division are limited to those set out in the paragraphs of clause 12 (1) of Schedule 4 of the NCAT Act, under which leave may be granted only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice by reason of the Tribunal's decision under appeal being not fair and equitable or against the weight of evidence, or where significant new evidence has arisen, being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with. 2. It is clear from Collins v Urban at [76], that a finding of a substantial miscarriage of justice should not be made unless: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." Documentary material and submissions made 1. The documentary material which we considered was as follows: 1. In respect of the Appeal by the Builder (Rauf v Vartanian 2023/115571), a Notice of Appeal, with annexed documentation and photos, the Homeowner's Reply, three substantial bundles of documentation provided by the Homeowner on 6 June 2023 (179 pages), the Homeowner's Reply to Appeal, written submissions (incorporating transcript of part of the proceedings), a bundle of documentation provided by the Homeowner on 23 April 2023; the Tribunal orders and written reasons for decision. 2. In respect of the Appeal by the Homeowner (Vartanian v Rauf 2023/139085), a Notice of Appeal and annexures (81 pages), the Appellant's written submissions, a further bundle of documentation received on 6 June 2023 (64 pages), the Builder's Reply to Appeal, the Builder's bundle of documents received 22 June 2023 (approximately 60 pages), a further bundle (31 pages) and a bundle of colour photographs. 1. We heard the oral submissions of each party. Identification of grounds of appeal 1. Neither party is legally qualified. The Homeowner was unrepresented at the hearing and the Builder was represented, at least for part of the hearing, by his wife, who we understood not to be legally qualified. There is no indication that either of the parties obtained legal assistance to prepare their case on appeal. As is often the case where that is so, the legal grounds on which the parties seek to appeal and cross-appeal are not stated precisely and are unclear. 2. In Prendergast it was said at [12] that where the appellant is unrepresented, it is appropriate for the Tribunal to approach the issue of whether there is a legitimate question of law in the appeal and the nature of any legal error: "…by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent." 1. But the Appeal Panel also issued a cautionary note that it is not the Panel's role to draft grounds of appeal for the appellant which have not been raised unless the issues go to the jurisdiction of the Tribunal or are otherwise necessarily considered to resolve the appeal. 2. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos) at [13], the Appeal Panel acknowledged that it can be difficult for self-represented appellants to express their grounds of appeal clearly or to achieve the even more challenging task of identifying an error of law. The Panel stated that in those circumstances it is appropriate for the Panel to review an appellant's stated grounds of appeal, the material provided and the decision of the Tribunal at first instance, to ascertain whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal; provided that this is balanced against its obligation to act fairly and impartially. The Appeal Panel noted that section 38 (2) of the NCAT Act allows the Tribunal to inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. 3. In order to discern the grounds of appeal we have adopted the approach suggested in Cominos and we have applied a liberal and facilitative reading to the "grounds of appeal" documentation lodged by each party. The Builder's Appeal (2023/00115571) The Builder's grounds of appeal and grounds for leave 1. We have identified the following grounds of appeal and grounds for leave to appeal in the Builder's appeal. 2. The Builder appears to assert that the Tribunal erred on a question of law by failing to afford him procedural fairness. In the Builder's typed Grounds of Appeal at paragraphs (2) and (3), he asserts as follows: (2)…I believe that if the Tribunal Member had afforded me a better opportunity at the hearing I would have shown/ expressed via the evidence…that I have in fact completed the work (3) …(the Homeowner) still owes me …$6000.00 for completed work that he has still not paid. This issue was brushed off at the hearing and I believe strongly that it would have effected (sic.) the Tribunal member's decision had this been taken more into consideration. 1. We identified no other errors of law relied upon by the Builder. 2. As to grounds for leave to appeal both parties seek leave on the basis that the decision was against the weight of the evidence; and the Homeowner also seeks leave to appeal on the basis of his assertion that there is significant new evidence which was not reasonably available at the time of the hearing. Consideration- Builder's appeal Denial of procedural fairness 1. It is clear that the issue of denial of procedural fairness raises a question of law: Italiano v Carbone [2005] NSWCA 177. 2. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (Kioa) at 584, the High Court observed: The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. 1. Procedural fairness is not concerned with the substance or content of the decision made by the Tribunal but is directed at ensuring that a proper process is followed in arriving at that decision. 2. There are two principles of procedural fairness. The one which is relevant here, the so-called "fair hearing" rule, is reflected in the NCAT Act, section 38 (5) of which requires that: The Tribunal is to take such measures as are reasonably practicable …(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. 1. We have concluded that the Tribunal did afford such an opportunity to each party here and that the proceedings were not tainted by procedural unfairness, for the following reasons. 2. Significantly, the Tribunal is required only to give that opportunity only to the extent which is reasonably practicable. It also seems clear at law that the obligation to afford a party a reasonable opportunity to be heard requires consideration as to whether a party was given an adequate opportunity to answer the case against them and it has been confirmed by the Appeal Panel in many cases, including ZAG v NSW Trustee and Guardian [2016] NSWCATAP 19 at [25] and ZAN v The Public Guardian [2016] NSWCATAP 20 at [29] that an essential element of the rule is that that a party whose rights or interests are likely to be affected by a decision must be provided with the substance of the information on which that decision is to be based. 3. The content and application of the procedural fairness rule is a matter of ongoing judicial and academic debate, a learned summary of which is provided by Professors Aronson, Groves and Weeks in Judicial Review of Administrative Action, (Thomson Reuters 7th ed, 2022) at paragraphs [8.50]-[8.90], with particular reference to the approaches taken by the Justices of the High Court of Australia in the seminal case of Kioa and the more recent trend to focus on the effect of the decision-maker's actions. That approach seeks to ascertain whether, as a practical matter, the decision-maker's actions (rather than the result which flowed from them) was fair. That approach, namely the need to focus on the fairness of the proceedings rather than on the decision itself was confirmed in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1, where Gleeson CJ, in concluding that no practical injustice had been established, observed that: [37] Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. 1. We have listened to the recording of the proceedings in full. It is clear that the Builder was given a somewhat limited time to present his case, although he was asked to comment on the evidence and upon the Homeowner's assertions on a few occasions. 2. It is also clear that there are some aspects of the Tribunal's conduct of the hearing and the process by which it arrived at its orders which may be regarded as questionable. The issue of course is whether that conduct and process gave rise to procedural unfairness. 3. At certain stages, in particular, commencing at Recording 56:30 and continuing over about the next 10 minutes, the recording indicates the Tribunal firmly encouraging the parties to agree a settlement, and in the course of further discussion, especially at Recording 1:05:13, the Tribunal suggests the quantum of the settlement amount, being $10,000. 4. It is apparent from Recording 1:05:32 that at the conclusion of a conversation between the Tribunal and the Homeowner concerning the quantum of payment (to which the Builder did not seem to be invited to contribute), the Tribunal Member asks the Homeowner: What do you think about 10? 1. It is clear from the context that that is a reference to a settlement of the claim for payment of $10,000. The Homeowner replies: Oh, I think anything below 15 is just...ah…I mean below 15 is so grossly unfair... 1. But shortly thereafter, at Recording 1:07:54, the Homeowner appears to relent. He says: I'll go with 15 thousand dollars... 1. The Tribunal Member responds: I understand your predicament, Mr (Homeowner). The problem is proving that (the Builder) is responsible and secondly proving that the amounts are claimable. 1. The Tribunal Member then seeks to explain to the parties, reasonably briefly, that the persuasiveness of the evidence in respect of at least some elements of the claim is weak. There follows discussion of that assessment of the evidence over the ensuing 3 to 4 minutes, in which the Homeowner is the main speaker but the Tribunal Member tests some of the Homeowner's claims regarding certain elements of the Builder's work. 2. Shortly thereafter, at Recording 1:12:30, the Homeowner addresses the Tribunal Member as follows: Look, if you think 10 thousand is adequate, I'll go with 10 thousand. 1. The substance of the Tribunal Member's response is as follows: Let me put it like this, I think your loss is not less than 10 thousand. How much more, that becomes much more difficult. 1. Significantly however, the next thing the Tribunal Member does is to seek the views of the Builder, reminding him that the case concerns an "unlicenced contract" and that he, the Builder will have problems enforcing payment of many items of his claim because they involved "unlicenced contracts". The Builder then (at about Recording 1:13:50) appears to concede that he may be prepared to compromise in order to be in a position: .. to do work. I'd like more jobs. 1. The Tribunal Member then proceeds, at Recording 1:14:15, to announce his decision in these terms: Anyway, that's what I've got to do. With the consent of the Applicant, I'm going to make an order for him for 10 thousand dollars payable within a month. 1. Of course, attempting to persuade the parties to reach a settlement and thereby to compromise a claim is reasonably common and usually unobjectionable. It can be seen as consistent with facilitating the just, quick and cheap resolution of the real issues in proceedings in compliance with the Guiding Principle in section 36 (1) of the NCAT Act and consistent with the obligation in section 36 (4), which requires that: …the practice and procedure of the Tribunal… be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. 1. Questions of procedural fairness will arise whenever the Tribunal is perceived to have abandoned impartiality or to have unduly pressured one or more parties into accepting a compromise without having adequately and fairly heard and considered their case. 2. The Tribunal Member clearly adopted a guided and practical, one might even say a "result-focussed", approach to the hearing, in which he interrupted the parties as they spoke and encouraged settlement; as opposed to adopting a more structured and formal approach which would involve, for example, allowing each party to present their case as they saw fit, in full, with minimal interruption; subject to complying with proper procedure and any time limits. 3. However, we have concluded that: 1. the Member had familiarised himself with the basic facts and that justified his relatively early intervention to explore whether a compromise was possible; and 2. throughout that process, including the Member's exploration of possible avenues of settlement, the Member maintained a proper degree of impartiality and did not pressure either party into accepting a compromise. 1. It does appear somewhat unorthodox that, the Member's attempts to achieve a compromise having been unsuccessful, he proceeded almost immediately to a conclusion that payment should be made by the Builder in a particular amount: $10,000. That is, it might be perceived that, a "settlement negotiation" of sorts within the hearing having been unsuccessful, the Member proceeded to announce his decision and to makes orders. 2. However, although that sequence and timing might be regarded as somewhat unorthodox, neither party indicated to us that they had misunderstood the hearing process or had been under any misapprehension that they were engaging in settlement discussions. 3. We are satisfied that in this instance the Tribunal Member's methodology did not result in procedural unfairness. He exhibited reasonable familiarity with and understanding of the respective cases of the parties. Given the time limit of 90 minutes placed on this hearing, he fairly allowed each party a reasonable time in the circumstances to explain their case, or at least their position on key aspects, and to address particular issues. He took steps to seek to understand the views of each party and to resolve the real issues in the proceedings. 4. As there was no procedural unfairness, this ground fails. Leave to appeal: Decision against the weight of the evidence 1. The Builder seeks leave to appeal on the ground that the Tribunal's decision was against the weight of the evidence. 2. We think that there is merit to this ground. 3. In the closing stages of the hearing, as indicated by the recording and referred to at [46]-[54] above, the Tribunal Member asks the Homeowner, in effect, whether he would accept a payment of $10,000 as finalising the matter and after some further discussion the Homeowner indicates: "...if you think $10,000 is adequate, I'll go with $10,000". 1. The Member consults the Builder and then announces: …with the consent of the Applicant I'm going to make an order for him for $10,000, payment within a month. 1. We have considered the evidence available to the Tribunal and have concluded that the Tribunal Member's decision that the Builder's loss was $10,000 was not supported by the available evidence and was clearly inconsistent with the Homeowner's document at pages C550-55; being a tax invoice dated 15 September 2022 (invoice no. 01001685) from Freddy's Project Group for their completed work to rectify the alleged damage at the unit. 2. The total of the invoice, including GST, was $8,450. That invoice appears clearly to supersede a previous quote (as opposed to invoice) from Freddy's Project Group issued on 1 August 2022 (document 5.104, quote no. 01001679), showing a total of $20,300. 3. The amount of $8,450, and not the $10,000 as ordered by the Tribunal Member, seems to reflect the proper measure of the Homeowner's loss, particularly as the remedial work undertaken by Freddy's Project Group seems to be consistent with the scope of the work tendered by the Homeowner at pages 51 to 52 of the appellant's bundle. The scope of work was not disputed by the parties at either appeal. 4. The Tribunal Member's finding that $10,000 should be paid was made against the weight of the evidence and it must follow that the Builder should be granted leave to appeal. Builder's claim for $6,000 1. The Builder's Grounds for Appeal includes the following claim: The (Homeowner) still owes me the amount of $6,000 for completed work that he has still not paid… 1. That claim was not expressly part of the Reasons of the Tribunal's order, but was raised on appeal as a "final payment due" to the Builder. We have considered whether the Tribunal failed to consider the Builder's claim for defence or set off. 2. The Builder did not dispute that he was not appropriately licensed to perform the scope of work between the parties, in particular the builder is not licensed to perform tiling or waterproofing work or work the value of which exceeds $20,000. Nor did the Builder provide a contract that conforms with the writing requirements of the Home Building Act 1989. Any debt outstanding to the builder can only be claimed by way of quantum meruit. No such claim was brought by the Builder at the hearing in the Tribunal below, nor before the Appeal Panel. 3. The Builder did not expressly address his claim for $6,000 in the appeal hearing and has not drawn to our attention documentation which verifies or clarifies the claim. The recording of the Tribunal hearing includes one brief statement by the Builder that $6,000 is still owed by the Homeowner, but nothing by way of explanation or justification of it. There is nothing in the Tribunal Member's reasons for decision about this claim. 4. We refer to the comments of the Appeal Panel in Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 at [51]: 5. In Amann, Mason CJ and Dawson J at page 83 stated: 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. And uncertainty as to profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages. 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 (see Gerrard v Slamar [2004] WASCA 253 at [32] and [33]). In that case Heenan J with whom Steytler and Le Miere JJ agreed said at [33] – "To my mind, this is not a case where evidence attempting to quantify the loss from the vehicle being unavailable for that three month period was impossible to obtain nor inherently uncertain or incapable of reasonably precise calculation … ." At [34] his Honour continued: "In those circumstances I consider that this is a case where the respondent has failed to establish damages and that the court cannot estimate or guess in an endeavour to make good that omission.". 1. The builder has provided no evidence to support the reasonableness of his assessment or that the reasonable value of the labour and material provided by the builder exceeds the $10,000 already paid by the Homeowner. The builder provided no signed agreement as to the rates to be applied for further work, or why he is entitled to payment of an additional $6,000. The builder had provided an invoice but the invoice does not detail the materials purchased nor a detailed contemporaneous record of the time incurred in performing the work. 2. We refer to the Appeal Panel in Suecha Pty Ltd v VSD Glass & Timber Pty Ltd [2020] NSWCATAP 170. In that case an Appeal Panel upheld the award of a quantum meruit in respect of the provision of kitchens and other items, where the evidence before the Tribunal included invoices which recorded the number of items provided and a quote provided by the builder which was evidence of the agreed value of those items. The Appeal Panel overturned the award of a quantum meruit in respect of other items because, although there were invoices recording the number of items provided, there was no evidence of any agreed contract price which might provide evidence of the value of those items. 3. No such evidence is before this Appeal Panel, nor was evidence tendered before the Tribunal. We are of the view that the Builder's claim in respect of the $6000 is not established and that there was no evidence before the Tribunal which would support a finding that $6000 was due and payable to the Builder. The claim for payment is not established and there is no basis for leave to appeal in respect of the Builder's claim for payment. 4. This ground of appeal is dismissed. The Homeowner's appeal (2023/00139085) The Homeowner's grounds of appeal 1. It is difficult to ascertain the Homeowner's precise grounds of appeal from his documentation. We have attempted to do so fairly by reading the first section on page 8 of his Notice of Appeal with the first paragraph on page 9. 2. The Homeowner claims as follows: I believe that there has been an obvious error in that the minimum loss and damages suffered by (me) adds up to a figure which is significantly more than $10,000. The minimum loss suffered by (me) is at least $22,311.60. The accidental slip and omission of reviewing some of the invoices and evidence have resulted in an error significantly undervaluing the loss and damages to (me). 1. The page 9 wording of the Notice of Appeal is as follows: The applicant (which we must read as a reference to Homeowner himself) was unable to quantify his loss satisfactorily on the evidence before the Tribunal. The $26,996.10 I was claiming was quantified in the documents I had submitted. The summary page was referenced as C.540. The …Member mentioned that there were other cases waiting to be heard. I believe that there was insufficient time during the hearing for the …Member to fully absorb how the $26,996.10 was calculated. I don't think he reviewed the page referenced as C.540. I didn't have the opportunity to explain in detail and felt rushed. Consideration 1. Nothing put to us by the Homeowner in the course of the hearing provided any greater clarity as to his grounds of appeal. 2. To the extent that the Homeowner intended to raise a failure to afford procedural fairness as a ground of appeal, we have dealt with that issue above at [39]–[61] and that ground fails. 3. To the extent that the Homeowner intended to raise the Tribunal's failure to consider evidence or to make findings against the weight of evidence, this ground must also fail. We have had regard to the document particularly referenced by the Homeowner "C.540". While the document provides a submission setting out the Homeowners' belief that he is "owed" at least $26,996 by way of restitution, for the reasons set out above, we are of the view that the failure by the Tribunal to refer to this document does not give rise to an error of law or an error for which the leave of the Appeal Panel is required. 4. C.540 describes in some detail the losses the Homeowner says he has incurred by reason of the defective work by the Builder. However, upon analysis of the invoices and quotes tendered to the Tribunal at first instance, it is apparent that only one document constituted an invoice paid for work completed, Freddy's Project Group C555 in the sum of $8,450. The document is headed with the words "we completed the following work at xxxx Macquarie Park on 1/8/22 and 25/8/22." All other documents tendered by the Homeowner consisted of quotes, no proof of further work performed or payment rendered has been provided to the Appeal Panel. 5. We are not satisfied that the Homeowner's grounds of appeal raise an error on a question of law, nor an error for which the leave of the Appeal Panel is required. Consideration: "New evidence" 1. In the Homeowner's Notice of Appeal, in answer to the question: "What evidence/documents do you now seek to produce to the Tribunal?", the Homeowner indicates the bundle of documents attached to the Notice of Appeal, which comprise approximately 40 pages. In answer to the next question, which is "Why was this evidence…not available at the time of the hearing?", his response commences as follows: The attached was submitted for the initial hearing, however the…Member was pressed with time and I believe he didn't have sufficient time to analyse all of the documents… 1. It is clear that the only documents on which the Homeowner relies in his appeal were "submitted for the initial hearing". That is, the Homeowner has produced again the documents which were before the Tribunal at the hearing on 29 March 2023, or at the very least were available at the time of that hearing. We have carefully considered the numbered pages from 3.100 onwards and conclude they consist of the same quotes (and singular invoice) previously provided to the Tribunal. 2. In short, by seeking leave on this ground it appears that the Homeowner is asking the Appeal Panel to reconsider documents that were tendered at first instance. 3. It must follow that none of the documents asserted by the Homeowner to comprise "new evidence" are in fact new. 4. We are not satisfied that leave to admit fresh evidence should be granted and the application for leave is refused. Disposition of the appeals 1. It is convenient to deal with these appeals by assessing the value of the claim and by reconsidering the amounts payable to the Homeowner by considering the evidence tendered before the Tribunal at first instance, and again on appeal. 2. Prior to dealing with the claim for compensation, there are some general matters to be considered. 3. Having regard to the lack of precision in the Homeowner's evidence concerning the quotes and as to the Tribunal's reasons concerning the assessment of damages we consider that the amount should be reassessed. 4. Based on the Freddy's Project Group Invoice which was accepted by the Tribunal, the Builder was found to have performed defective building work and is liable for damages to rectify defective work in respect of "damage to doors, blinds, bathroom tiles, bathroom walls, kitchen and laundry flooring, stove elements, kitchen benchtop, kitchen tiling, and carpet replacement". 5. It follows from the description in the invoice and quotes that the Builder is liable for defective work. 6. The cost to rectify this work was carried out and paid for as is apparent from the face of the invoice in the sum of $8450. 7. In light of the Tribunal's preference for the Homeowners' evidence and our reasoning based on the documents above we see no reason why the order made against the Builder should not reflect the invoices issued for work actually performed. 8. We have granted leave to appeal to the Builder on this aspect as there is "an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand": Collins at [84(2)(c)]. The appeal on this item is allowed. 9. The payment due to the Homeowner should be decreased and the order made on 29 March 2023 is set aside and in lieu therefore we order the Builder to pay $8,450 to the Homeowner immediately. Orders 1. In 2023/00115571 we make the following orders: 1. The appeal is allowed. 2. Order 1 made in HB 22/53342 on 29 March 2023 is set aside. 3. In lieu thereof the Appeal Panel makes the following order. Anmar Rauf is to pay Emil Vartanian the sum of $8,450 immediately. 1. In 2023/00139085 we make the following orders. 1. Leave to appeal is refused. 2. The appeal is dismissed. ********** 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: 24 August 2023