Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dick v Buildingwise Constructions Pty Ltd (No 2) [2023] NSWCATAP 292 Hearing dates: On the papers Date of orders: 2 November 2023 Decision date: 02 November 2023 Jurisdiction: Appeal Panel Before: R C Titterton OAM, Senior Member P H Molony, Senior Member Decision: 1. In proceedings HB 21/50499, order (1) made on 29 March 2023 is set aside and in lieu thereof the appellants are to pay the respondent $50,196.32. 2. In relation to costs: (a) each party is to file and serve submissions on or before 16 November 2023, (b) the other party may respond on or before 28 November 2023. Catchwords: BUILDING AND CONSTRUCTION – quantification of a quantum meruit claim Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 36(1) Home Building Act 1989 (NSW), s 48O Cases Cited: Boiwell Fibreglass Pty Ltd v Foley [1984] VR 97 Hoenig v lssacs [1952] 2 All ER 176 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Steele v Tardini (1946) 72 CLR 386 Dick v Buildingwise Constructions Pty Ltd [2023] NSWCATAP 214 Texts Cited: None cited Category: Principal judgment Parties: First Appellant: Brian William Dick Second Appellant: Catherine Maree Dick Respondent: Buildingwise Construction Pty Ltd Representation: Counsel: Appellants: A Justice Respondent: P Folino-Gallo Solicitors: Appellants: Bartier Perry Lawyers Respondent: MRM Lawyers File Number(s): 2023/00134050 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 29 March 2023 Before: G Ellis SC, Senior Member File Number(s): HB 21/50499 Decisions under appeal REASONS FOR DECISION Summary 1. These reasons assume a knowledge of our earlier decision in this appeal: Dick v Buildingwise Constructions Pty Ltd [2023] NSWCATAP 214 (Appeal Decision), including any defined terms. 2. For the reasons set out in the Appeal Decision, the appeal was dismissed, save for ground of appeal 4.2. 3. Appeal Ground 4.2 was in the following terms: 4 The learned Senior Member has erred in finding that there was an amount owing in respect of variation 5 of $36,723.47 …: … 4.2 relying on evidence of the costs of the Unit 1 pool on a quantum meruit basis that was against the weight of the evidence. 1. In relation to that ground, we directed the parties to file submissions as to: 1. whether the matters the subject of Ground 4.2 should be re-considered by the Appeal Panel or the Tribunal and the reasons why; 2. if the matters the subject of Ground 4.2 are to be re-considered by the Appeal Panel, which would require that the Appeal Panel calculate the costs of Pool 1 on a quantum meruit basis, submissions: 1. quantifying the amount of the quantum meruit and the reasons in support. These submissions must include references to the evidence before the Tribunal; and 2. setting proposed final orders of the Appeal Panel in substitution for the decision of the Tribunal of 29 March 2023. Submissions of the parties 1. In summary, the appellants submit that: 1. there is no proper evidence for the quantification of the Unit 1 pool on a quantum meruit basis. The issues highlighted by the appellants include the following: 1. there is no evidence of the costs for each of the pools separately; 2. there is no evidence of the fair and reasonable costs for the Unit 1 pool; and/or 3. there is no ability to assess the value of the Unit 1 pool in light of the finding that the Unit 1 pool is defective. 1. the measure of the quantum of a quantum meruit claim may be measured by reference to: 1. so much money as is reasonably deserved to be had: Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 251; 2. the fair and reasonable value of what was provided: Boiwell Fibreglass Pty Ltd v Foley [1984] VR 97 at 114; 3. such sum as the court considers just: Hoenig v lssacs [1952] 2 All ER 176 at 182; and 4. fair and reasonable remuneration: Steele v Tardini (1946) 72 CLR 386 at 402; Pavey & Matthews Pty Ltd v Paul (1987)162 CLR 221 at 257, 259 and 262; 5. in answer to the question, "What then does a builder reasonably deserve for a defective pool in circumstances where the quantum of rectification is unknown?", the answer is straightforward - there is no evidence. 1. In summary, the builder's position is that: 1. the total for both pools was $77,647.60 (plus a margin) which the Tribunal at first instance found that $12,519.00 related to the costs of the Unit 1 pool, $17,834.14 related to the costs of the Unit 2 pool, and of which $47,294.55 was unallocated; 2. in the absence of evidence to the contrary, it can be "readily inferred" that the $47,294.55 was incurred equally between both pools; 3. the appellants fail to appreciate that Pavey & Matthews v Paul (1985) 162 CLR 221 existed before the statutory building regime contained provisions including s 48O of the Home Building Act 1989 (NSW) (HB Act) and that and that the orders made by the Tribunal required the respondent to rectify both pools by way of a work order under s 48O of the HB Act; 4. if the appellants' submissions are accepted, the outcome would see the appellants in a superior position than that which they conceded at first instance, where they accepted that they would be required to pay $12,500.00 in respect of the pool. 1. In submissions in reply the appellants submit, in summary: 1. while the Builder's submission on the costs of each pool are determined by inference, purportedly in the absence of direct evidence, the Builder fails to take into account its own direct evidence (CB:0870) that the Unit 1 pool was far more complex in construction, with no existing structure in place, so consideration should have been given to it costing more than the until 2 pool; 2. this means that that it should not be assumed that the unallocated costs for each pool are equal; 3. it is inappropriate to infer otherwise; 4. the Builder bears the onus, and its position is "little more than guesswork". Consideration 1. As a preliminary matter, we note that both parties submitted that the Appeal Panel should determine the quantum meruit question, rather than returning that issue to the Tribunal. 2. We accept that we should do so. This is consistent with the guiding principle for the just, quick and cheap resolution of the real issues in the proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 36(1). 3. Turning now to the substantive issue, we prefer the appellant's submissions. We consider that there is substance in their submissions variously put that: * there is no proper evidence for the quantification of the Unit 1 pool on a quantum meruit basis; * there is no evidence of the costs for each of the pools separately; * there is no evidence of the fair and reasonable costs for the Unit 1 pool; and * it is not possible to assess the value of the Unit 1 pool in light of the finding that the Unit 1 pool is defective. 1. While their description of the Builder's calculation as a "mashed up amalgam" may be somewhat over blown, it is simply unknown whether the total cost stated applies to Unit 1 or Unit 2 or to both and if so in what proportion, with the labour costs not being dissected at all. And we agree that it is not possible to use a date as a demarcation as no clear basis to do so arises. 2. In our view, the appellants' reliance on Pavey v Matthews is understandable and appropriate, and the Builder's criticism (based on s 48O of the HB Act) misplaced. 3. We consider that the evidence supports a conclusion that there were significant differences between the two pools (and here we refer to the expert reports and photographs that were in evidence) such that there are real issues in any division of unspecified costs, including all labour costs, between the two pools. And the lack of evidence of rectification costs, underscores the complexity of assessing the quantum. 4. In short, there is no expert evidence of what a fair and reasonable cost for the Unit 1 pool is. Given the failure of the Builder to lead evidence on the issue, the appellants rightly submit that the Builder has failed to establish its case. What evidence there is suggests that that the two pools were of different sizes and configuration. Accordingly, it is not appropriate to infer that the unallocated costs should be divided between the two equally. 5. As to the Builder's submission based on s 48Oof the HB Act, we accept the appellants' arguments that the Tribunal found that there had been no quantification of rectification work, and to avoid this issue by reliance on s 48O does not justify the amount sought by the respondent. 6. As the Appeal Panel observed in Kora v Ian's Roofing Pty Ltd [2023] NSWCATAP 42 at [111], there is a difference between having "a good case" and having the evidence to prove that one has "a good case". The Builder's claim for damages on a quantum meruit basis fails for lack of probative evidence. Conclusion 1. In proceedings HB 21/50499, we will set aside order (1) made on 29 March 2023 and in lieu thereof order that the appellants pay the respondent $50,196.32. 2. However, we decline to set aside order (2) made on 22 May 2023. That was an order relevantly ordering the Builder to pay the appellant's costs on the indemnity basis. 3. We decline to set that order aside as: 1. while we have reduced the amount the appellants are to pay the Builder from $86,919.79 to $50,196.32, we do not see why the costs order made by the Tribunal should not stand; 2. in any event, this matter was not argued before us or raised in the papers. 1. We will set a timetable for the costs of the appeal. We propose to deal with costs on the papers and without a hearing. If either party opposes that course they should address that issue in their submissions, which are to be limited to five pages. 2. As each party achieved a measure of success in the appeal, we will direct the simultaneous exchange of submissions, with each party having the opportunity to respond. Orders 1. The Appeal Panel orders: 1. In proceedings HB 21/50499, order (1) made on 29 March 2023 is set aside and in lieu thereof the appellants pay the respondent $50,196.32. 2. In relation to costs: 1. each party is to file and serve submissions on or before 16 November 2023, 2. the other party may respond on or before 28 November 2023. ********** 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: 02 November 2023