Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Unique Building and Construction Services Pty Ltd v Gray [2024] NSWCATAP 16 Hearing dates: 29 January 2024 Date of orders: 05 February 2024 Decision date: 05 February 2024 Jurisdiction: Appeal Panel Before: D Robertson, Senior Member R C Titterton OAM, Senior Member Decision: 1. In so far as the appeal raises a question of law, the appeal is dismissed. 2. In so far as the appeal raises other errors, leave to appeal is refused. Catchwords: APPEALS – Australian Consumer Law – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 27, 80, cl 12 of Sch 4 Retail Leases Act 1994 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Bogoevski v Stricklands [2015] NSWCATAP 133 Chapman v McLaughin [2016] NSWCATAP 212 Collins v Urban [2014] NSWCATAP 17 Ebner v Official Trustee in Bankruptcy Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Saurine v Coral Homes Qld Pty Ltd [2015] NSWCATAP 147 Texts Cited: None cited Category: Principal judgment Parties: Unique Building and Construction Services Pty Ltd (Appellant) Claire Gray and Rodney Gray (Respondents) Representation: L Barbekuhl (Unique Building and Construction Services Pty Ltd) (Appellant) Respondent (Self-Represented) File Number(s): 2023/00320726 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 03 October 2023 Before: G Ellis SC, Senior Member File Number(s): HB 23/18492 and HB 23/30249 Decisions under appeal REASONS FOR DECISION Summary 1. The appellant appeals from the decision of the Consumer and Commercial Division of the Tribunal (Tribunal) in matters HB 23/19492 and HB 23/30249 of 3 October 2023 (Decision). 2. Application HB 23/18492, was brought by the respondents (Homeowners) against the appellant (Builder) (Homeowners' application) seeking orders that they did not have to pay the amount of $26,722.33 to Builder, and that the Builder pay them $12,555.00. 3. For the reasons given in the Decision, the Tribunal ordered: 1. the Homeowners pay the Builder $52,325.71 on or before 10 October 2023; and 2. within 24 hours of that amount being paid, the Builder provide the Homeowners with unrestricted access and possession of their property, including but not limited to the provision of all keys. 1. In application HB 23/30249, (the Builder's application) the Builder claimed that the "actual balance" due to it from the Homeowners was $623,996.74. 2. For the reasons given in the Decision, the appellant's application was dismissed. 3. For the following reasons: 1. in so far as the appeal raises a question of law, the appeal is dismissed; 2. in so far as the appeal raises other errors, leave to appeal is refused. Nature of an appeal 1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)). A question of law 1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right. These include, but are not limited to: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable. Leave to appeal 1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. Builder's materials 1. The Builder filed some four volumes of materials in support of his appeal. The documents included but were not limited to the following. Notice of Appeal 1. The Builder's Notice of Appeal is a rather individual document of some 64 pages in length, commencing with a page numbered 2 and finishing with a page numbered 65. It consists of the usual Notice of Appeal but is interspersed with various other documents. 2. On p 3, the Builder states its grounds of appeal as follows: A. ORDERS CHALLENGED ON APPEAL [1] Major accounting error made by Member. See attached pp 5-9. [2] Gross procedural breaches by Member. See attached pp 13-18. [3] Numerous errors in law. See attached pp 13-18. [4] Error in judgment by not applying [terms and conditions] of Home Building Contract signed by both parties. [See attached] pp 21-60. [5] Error in judgement by not applying the principles of quantum meruit. [See attached] pp 21-60. 1. Another version of the grounds of appeal appears at p 4. This basically repeats the grounds set out above, save that ground [5] of this version of the grounds states: Error in judgement by deliberately not applying the principles of quantum meruit. (emphasis added) 1. Page 5 sets out claimed accounting errors made by the Tribunal. These are set out in full below. 2. Page 6 is apparently p 4 of 28 of the subject contract between the parties. 3. It is not clear what p 7 is. It appears to be p 3 of 9 of an earlier version of the contract. 4. Pages 8 and 9 are pp 14 and 15 of the Decision. 5. Page 10 sets out the orders the Builder submits the Appeal Panel should make: Claire and Rodney's case be dismissed. The accounting error made by Member Ellis of money owing to [the Builder] being the sum of $52,325.71 + $935 + $14,126.95 = $67,387.66. NCAT to order that additional costs to UBCS for actual costs of PC items, PS items, additional labour & materials and other costs applicable to the Terms & conditions of Home Building Contract are valid as documented. Claire & Rodney to pay $500,000 to UBCS as partial compensation for expenses incurred for the benefit of [Claire and Rodney] by UBCS to get the home to OC status. No order as to cost. Please see attached for full detail. 1. Page 11 sets out another iteration of the orders sought by the Builder. This page states: ORDERS THE NCAT APPEAL PANEL. SHOULD MAKE. P3. C. 1 Claire and Rodney Gray's application be dismissed. 2 The accounting error shortfalls made by member Ellis of money owing to UBCS being the sum of $15,061.95 be paid to Unique Building and Construction Services. $14,126.95 shortfall at suspension of work, $935.00 building consultant charge. 3 The respondents repay $52,325.71 granted to Unique Building and Construction Services in the original orders. 4 NCAT to order that additional costs to UBCS for actual costs of PC items, PS items, additional labour and materials and other costs applicable to the terms and conditions of The Home Building Contract are valid as documented. 5 Claire and Rodney Gray pay an overall total of $500,000 to Unique Building and Construction Services as partial compensation for expenses incurred for the benefit of Claire and Rodney Gray by Unique Building and Construction Services to get the home to Occupation Certificate status. 6 That "Quantum Meruit" applies where costs have increased and/or the owners have benefitted from expensive upgraded assets but have refused to acknowledge variations and refused to pay for them. 7 No orders as to costs 1. On pages 12 and 18 of the Notice of Appeal the Builder states that it is seeking leave to appeal for two reasons. The first reason was that Decision was not fair and equitable. Here the Builder states: Refer to documents regarding procedural breaches and other misguided decisions. 1. The second reason was that Decision was against the weight of the evidence. Here the Builder states: Refer to [the appellant] (Reasons for Decision document 1-42. Folders 1 – 8 supplied containing all documentation relevant to our claim. 1. We pause to note that Mr Babekuhl explained to us during the appeal hearing that these 8 folders comprised the evidence he relied on at the Tribunal hearing. However, as we pointed out, he had not provided the Appeal Panel with that material. Mr Babekuhl thought, erroneously, that this would be provided to us by the Tribunal. That is not correct, as the Appeal Panel's orders made at a directions hearing make plain. It appears that Mr Babekuhl misunderstood some of his obligations pursuant to those directions. 2. Pages 13 to 17 then set out what we perceive to be a combination of the Builder's grounds of appeal and submissions in support of those grounds. These are thoroughly discussed below. 3. The Notice of Appeal then states at p 18: What evidence should the Tribunal given more weight to? Why? Additional costs to [the Builder] for actual costs of PC [that is, Prime Cost] & PS [that is, Provisional Sum] items. Additional labour and other costs accrued by [the appellant] applicable to the terms and conditions of the Home Building Contract are valid as and declared under Stat Dec. Why? This case is about paying for what you get. At the conclusion of this process due to limitations [the appellant] will have a large debt accrued for the benefit of [the Homeowners]. 1. That statement is further explained on p 19 of the Notice of Appeal which states: Dear Tribunal Members Every person who sets foot on this site is super impressed and complimentary about the beautiful home we have created for Claire and Rodney. During this process we have engaged the services of over 200 local hard working trades people and small businesses. We have personally put in countless hours on the tools including full time over Christmas and New Year for no pay to get this job to completion. 37 local trades people and businesses are currently still owed money due to refusal to pay by Claire and Rodney. Out of respect and integrity to all of these people we have negotiated payment plans and we are regularly making small payments that we can afford. This puts enormous pressure on us financially and on our mental health. These local trades and businesses and our small family company should not be put under this stress by belligerent clients. Claire and Rodney are happy to benefit from the efforts of these people but insult us all by refusing to pay. At the end of this process Claire and Rodney will have a beautiful new home. We will walk away with a huge accumulated debt. We humbly request that NCAT apply all the Terms and Conditions of The Home Building Act 1989 and make orders that will save another dedicated small family company from liquidation. 1. We will treat that statement as a submission. 2. Page 20 is a document which states: Page PAGE 5. 111.DECISION OF THE TRIBUNAL AGAINST THE WEIGHT OF EVIDENCE -see "REASONS FOR DECISION DOCUMENT" WHAT EVIDENCE DID THE OTHER PARTY GIVE -see "REASONS FOR DECISION DOCUMENT" WHAT EVIDENCE SHOULD THE TRIBUNAL HAVE GIVEN MORE WEIGHT TO? WHY? -that additional costs to UBCS for the ACTUAL COSTS of PC items, PS items, additional labour and other costs accrued by UBCS applicable to the Terms and Conditions of the Home Building Contract are valid as and declared under Statutory Declarations. WHY? This case is about paying for what you get. At the conclusion of this process due to limitations UBCS will have a large debt accrued for the benefit of Claire and Rodney Gray. Claire and Rodney will have a beautiful new home and an asset valued way above it's cost. That is to their credit.... we just need to be paid for our input. (see attached docs) 1. Page 21 is a copy of an internet-sourced and downloaded document titled "Investment Property Foresters Beach NSW 2260". The document states: Suburb Snapshot Forresters Beach is suburb in the Central Coast Region of New South Wales. Forresters Beach has a population of 2,895 people and 19.93% of its occupants live in rental accommodation. The median listing price for houses is $1,570,000 and this has changed 5.01% over the past year and changed 49.66% over 2 years. The median rent in Forresters Beach for houses is $740 per week and the median rental yield is 2.45% Stock on the market for houses/townhouses has changed -7.69% compared to last year and the average time to sell a house/townhouse Is 75 days. The median listing price for units is NA and this has changed NA over the past year. The average unit takes NA days to sell and the median rent for a unit in Forresters Beach is NA per week, producing a rental yield of NA. 1. The date of the document is not stated, and we do not know if this document was evidence before the Tribunal. Its relevance to the appeal is unclear. 2. Pages 21 to 62 of the Notice of Appeal consists of a copy of the Decision which is annotated with handwritten comments by the Builder. Most of these comments are irrelevant for the purpose of the appeal. For instance, par [3] of the Decision states: History of the proceedings 3 After the owners' application was lodged on 20 April 2023, a directions hearing was held on 9 June 2023. After the builder's cross-application was lodged on 2 July 2023, a further directions hearing was held on 21 July 2023. Notices dated 16 June 2023 (relating to the application) and 6 July 2023 (relating to the cross-application) advised the parties that their applications had been listed for hearing on 24 August 2023. 1. Here the Builder has written that it was "not notified till 27/6 after email was sent with queries". 2. Even if the comment is correct, and we have no reason to believe that it was not, the issue has no bearing on or implications in respect of the appeal. 3. By way of further example, par [54] of the Decision states: The question which arises is whether the legal effect of that payment schedule (ie the agreement) was to: (1) replace the contract, (2) be an agreement additional to the contract, or (3) vary that contract. 1. The Builder's annotation states "Seriously?" 2. Par [55] of the Decision states: Plainly, the payment schedule was insufficient to constitute a contract which replaced the very detailed, standard form contract which the parties agreed would govern the building work before that work commenced. Further, there is no wording in that page, dated 31 October 2022 and signed by the owners on 1 November 2022, that suggests that page was either intended or agreed to replace that contract. 1. The Builder's annotation states, "Refer to correspondence provided". 2. By way of further example, par [64] of the Decision states: There was no witness statement, statutory declaration, or affidavit from either of the owners. The directors of the builder each provided a statutory declaration which did no more than suggest that the documents provided in support of the builder's claims were accurate. As a result, the outcome of these applications is based on documents. Of course, the objective theory of contract means that it is not the subjective views or intentions of either the owner or the builder but the outward manifestation of those intentions which are relevant. Accordingly, the Tribunal considers the preferable approach is to give priority to contemporaneous documents, which carry greater weight than documents prepared for the purpose of litigation, and to base conclusions on contemporary materials, objectively established facts, and the apparent logic of events, consistent with what McHugh J said in Fox v Percy (2003] HCA 22 at [30]-[31]. 1. The Builder's annotation states "What a ridiculous statement. Stat Decs were declared with truth & honesty". 2. We do not know what was stated in the statutory declarations, as the Builder did not provide them to us. But if the Senior Member's description of the content of the statutory declarations are accurate, and we have no reason to suppose that it is not, then the Senior Member's comments in [64] of the Decision appear to be entirely appropriate. 3. Finally, at [123] the Decision states: Summary 123 The builder has failed to establish that it is entitled to any of the components of its invoice numbered 137 and dated 15 July with the result that that cross-application must be dismissed. 1. The Builder's annotation states, "Read the evidence in 8 folders". 2. As noted, those 8 folders were never provided to us. Even if they had been, the peremptory directive to "Read the evidence" is of no assistance to either the Builder or to us. 3. In summary, none of these comments are of any assistance to the Builder in prosecuting its appeal, or to us in assessing the merits of the appeal. 4. We have however read the entirety of the Builder's commentary and, if relevant, we will refer to comments in the Consideration section of our reasons. Transcript of the Tribunal hearing 1. Importantly, along with the sound recording of the Tribunal proceeding, the Builder filed a written transcript of the hearing. While the Homeowners had not checked the accuracy of the transcript by reference to the sound recording itself, they did not dispute, for the purposes of the appeal, that the transcript was a sufficiently accurate reproduction of what occurred at the Tribunal hearing. 2. Again, where relevant we will refer to the transcript in the Consideration section of these reasons. 3. That said, it appears that the transcript was not prepared by any professional agency. That is because while it reproduces the voices recorded, it does not attribute the speech to any particular speaker, as is usually the case. We understand that there were five people attending the Tribunal hearing, being the two Homeowners, the Babekuhls, father and son, and the Senior Member. Accordingly, the transcript as prepared can be difficult to follow, including who is saying what to whom. An example can be seen in part of the section of the transcript numbered "3" by the Builder which records: … now starting with the documents I gather dealing with the application for the moment the owners rely on the blue folder and documents we received 19th June correct, yes, do you have copy of those - yes - then they will be exhibit A and do we have page numbers on those... yes.... that is a relief, now the builders rely on 8 folders of docs we have page numbers on each of those folders - yes - and they will be exhibit B1- B8 and you have copies of those... yes ... and then in crossover application the first documents lodged were builder documents lodged 20 July - were tehy [sic – they] page numbered yes or no.... do you have those documents ....we only got a response to our cross application... we only received the initial 8 folders....did you receive a bundle of docs that looked like that.....oh yeh I think we did actually... has that just got the application and letters and things application and other documents following.... let me just number my pages firstly cos that wasn't done...yep.... 1. The transcript is 11 pages in length. Accompanying the transcript is a document titled "Response to Sound Recording and Written Transcript of Hearing". This document is 7 pages in length and provides a commentary on the transcript. The following examples will suffice: P1/p1 0:44 – 1:20 -Member Ellis engages Claire and Rodney in a private conversation questioning them about their dealings with Unique Building and Construction Services. -major breach of procedure -major breach of trust -prejudicial questioning assuming UBCS is a large corporate company -by discussing issues privately with Claire and Rodney we believe an impartial "us against them" relationship is initiated. P2/p5 08:30 - 13:00 -Member Ellis identifies that Claire and Rodney have no declaration documents. -Member Ellis does not request Claire and Rodney to take an oath. -at this early stage Member Ellis offers Claire and Rodney an opportunity to cross examine Matthew or Larry - Member Ellis at no stage ever offers Larry or Matt an opportunity to cross examine Claire and Rodney 1. Where relevant we will refer to statements in this document in the Consideration section of our reasons. Other documents 1. Included in the materials were documents filed by the Builder which were not in evidence before the Tribunal. As the Appeal Panel stated in Chapman v McLaughin [2016] NSWCATAP 212 at [37]: … The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply. 1. The test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]. 2. This material was clearly available to the Builder at the time of the Tribunal hearing. Therefore, we have had no regard to those materials for the purposes of the appeal. Homeowners' materials Reply to Appeal 1. The Homeowners filed their Reply to Appeal on 25 October 2023. Suffice it to say, they oppose the appeal and consider that the Decision was correct for the reasons stated. 2. The Homeowners state in the Reply to Appeal: 1. No accounting error made by Member Ellis. The final payment was not made under the original contract as UCBS could not meet their obligations under this contract. A further agreement was made to pay $150,000 in stage payments. Member Ellis was correct in relation to this. 2. Gross procedural breaches by Member Ellis - We do not agree with this statement Member Ellis left the room during the recess period. At the conclusion of the tribunal Member Ellis left as soon as practicably possible. We did not communicate with Member Ellis at any time outside of the tribunal duration. Recordings will confirm this. 3. Numerous errors in law - After reviewing UCBS pages 13-18 we are unsure what errors in law UCBS are questioning. We would need further clarity to respond to this. 4. Errors in judgement by not applying the T & C's of the Contract signed by both parties- if UBCS had followed the terms and conditions under the Home Building Contract we would not currently be in this position. We agree with the Tribunal's decision. 5. Error in judgement by deliberately not applying the principles of "Quantum Meruit" - we do not believe UBCS has a claim for quantum meruit. There was a contract in place that is now finalised, final payment made on 05/10/2023 as per Tribunal orders. UBCS acknowledged in the Tribunal hearing that there was a contract in place. Evidence before the Tribunal 1. The Homeowners filed the evidence they relied on before the Tribunal. The Decision 1. Before considering the grounds of appeal, it is appropriate to summarise the Decision. 2. The Decision commences with setting an "Outline" of the two applications before the Senior Member (Decision at [1]). The Tribunal then states that it is satisfied that it has jurisdiction to hear and determine the applications (Decision at [2]), and then sets out a short history of the proceedings (Decision at [3]). 3. At pars [4] to [12] the Decision records salient aspects of the hearing, such as the parties were self- represented (Decision at [4] and that there was no cross-examination (Decision at [12]). This we understand was because neither party had filed a statement of affidavit. 4. This section of the Decision also deals with the Builder's quantum meruit claim. At [5], the Decision records: 5 As the amount the owners claimed they had paid differed from the amount which the builder claimed had been received, the hearing was concluded on 24 August 2023, but the parties were granted leave to lodge, by email, copies of any bank statements upon which they wished to rely on that issue prior to 10 am the following day. It was indicated that, if the Tribunal had any questions arising from any documents so provided, it would reconvene the hearing, by telephone, within the following two hours, ie before 12 noon. 1. The Homeowners submitted copies of five pages of bank statements at 7.58 am on 25 August 2023, and the Builder did not contest that the amounts for which the Homeowners contended had been paid (Decision at [6]). The Builder did not send any bank statements, only an email at 9.30 am that day from Mr M Babekuhl, the body of which read as follows (Decision at [7]). Re Claire and Rodney Gray's payment of $47,009.06 A revision of our Bank Statements shows that payment for PC and PS items was made in March 2022 That was a clerical error on my behalf that needs to be adjusted. Unique's claim - $623,996.74 (sic - should have been .75) Payment deducted - $47,009.06 Adjusted payment claim - $576,987.06 (sic - should have been .69) We apologise for this error and request these costs be considered in Claire and Rodney Gray's claim. We also request that all other costs supported in our documents in Folders 1-8 detailing costs for the benefit of Claire and Rodney be considered on a Quantum Meruit basis and the terms and conditions of the "Home Building Contract for work over $20,000. 1. In relation to the quantum meruit claim, the Decision then records: 8. It is convenient to here note that the request for the builder's additional quantum meruit claim to be considered by the Tribunal is rejected as it was not made until after the conclusion of the hearing and it would be procedurally unfair to allow one party to add a claim after a hearing, after the opportunity to tender evidence and make submissions had passed, since that would deprive the other party of any opportunity to respond to that claim. 9. There was ample opportunity for the builder to add a quantum meruit claim at any time after the owners' application was lodged on 20 April 2023, and after the builder's cross-application was lodged on 2 July 2023. No explanation was provided for the lateness of the quantum meruit claim. 1. At [13] the Decision sets out the relevant law. 2. At [14] and [15] the evidence of both parties is summarised, and at [16] to [27] the parties submissions are outlined. 3. At pars [28] to [105] of the Decision, the Tribunal then considers the Homeowners' claims. Having prepared a chronology of events (set out in Appendix A), the Tribunal then sets out in considerable detail the relevant provisions of the subject home building contract dated 17 December 2020 entered into between the parties. 4. Relevantly, for the purposes of this appeal, these clauses included cl 12, which set out the required progress payments, cl 13 which deal with variations, cl 14 which was titled "Time for payments" and cl 15, which dealt with the final payment. 5. At [49]ff, the Tribunal observed that the Homeowners' case was that the Builder stopped work without being entitled to do so, while the Builder's case was that the work stopped due to a failure on the part of the owners to pay an invoice. The Tribunal states that it was not necessary to decide which of those contentions is correct because of the agreement that was reached, noting that the parties chose to negotiate a way for the work to continue. 6. Those negotiations led to a letter from the Builder to the Homeowners which relevantly stated: Additional construction costs to completion and issue of Occupation Certificate: Final increase of $150,000. There will be no further charges in the construction process as this stage has been completed The additional payment schedule has been set out to pay trades for outstanding work, actual costs for materials above allowances and actual cost of labour above allowances. All payments will be made in accordance with Industry Security of Payment Regulation 2020 (NSW) - Security of Payment Laws. The following are to be removed from the contract price as the cost of these items were used to cover construction costs: Concrete stairs Blinds Laundry tub Towel rails Widening of front driveway to be supped for concrete slab for water tanks under new addition 1. We pause to note a point taken by the Builder during the course of the appeal hearing, the Decision did not (expressly) record that at the foot of this letter there appeared the following statement: Note: Terms and Conditions of Building contract signed 17th December 2020 still apply regardless of the above. 1. On 31 October 2022, the builder provided a payment schedule (which the Homeowners signed on 1 November 2022) setting out the following: 1. initial payment, $25,000.00, being payment for variations completed and will ensure recommencement of the build 2. Payment 2, $40,000.00, which was to be once the following was completed: 1. Undercoat completed and garage door installed 2. Fix out and timber floor laid; 3. Kitchen installed; 4. Internal painting completed; 5. Plumbing, electrical and carpentry fit-out completed; 1. Payment 3, $35,000, which was to be once the following was completed: 1. Clients walk through and defects rectified; 2. Documents submitted to Certifier for Occupation Certificate; 1. Payment 4, $50,000, which was to be paid once the Occupation Certificate was approved by the Certifier. 1. The Decision then records: 54 The question which arises is whether the legal effect of that payment schedule (ie the agreement) was to: (1) replace the contract, (2) be an agreement additional to the contract, or (3) vary that contract. 55 Plainly, the payment schedule was insufficient to constitute a contract which replaced the very detailed, standard form contract which the parties agreed would govern the building work before that work commenced. Further, there is no wording in that page, dated 31 October 2022 and signed by the owners on 1 November 2022, that suggests that page was either intended or agreed to replace that contract. 56 The idea that the page containing a payment schedule was an additional contract, such that both the contract and the agreement operated from 1 November 2022, appears to be the contention of the builder because its letter dated 6 June 2023 to the owners (A136) suggested that the agreement was "cancelled, null and void, defunct and no longer acknowledged by us" and went on to say: "We now rely solely on the terms and conditions of that Home Building Contract signed by both of you on 17th December 2020". 57 That contention is rejected as there is nothing in either the letter dated 24 October 2022, which preceded the agreement, or in the agreement to suggest that agreement was to operate as a second, additional contract. Applying what is commonly referred to as the objective theory of contract, it is clear the agreement was an agreed variation of the contract, and not a separate contract that could be added on 1 November 2022 and cancelled on 6 June 2023. 1. Following this, the Decision records at [58] that it was therefore necessary to consider how the agreement altered the contract between the parties. The Tribunal considered that the agreement varied the contract in the following respects. 2. First, the agreement capped the remaining amount payable by the owners to the builder at $150,000. The Tribunal stated that that was clear from both the payment schedule and the letter dated 24 October 2022 which included the words: "There will be no further charges in the construction process as this stage has been completed": Decision at [59]. 3. Secondly, the agreement specified that the additional amount of $150,000 would be payable in four instalments and specified when each of those instalments would be payable, and that the final payment was not due when the work was complete in accordance with cl 8 of the contract but when the Occupation Certificate was approved by the Certifier: Decision at [62]. 4. Thirdly (Decision at [63]): the agreement operated to close off any claims for PC or PS items because (1) the letter dated 29 August 2022 (A46) records that PC and PS items were discussed at the site meeting held on 8 August 2022 and described an amount of $215,000 as the "Estimate of total costs to completion and issue of Occupation Certificate", (2) the letter dated 24 October 2022 (A51), after referring to the additional amount of $150,000, said "There will be no further charges in the construction process as this stage has been completed", (3) the agreement did not contain any suggestion that there would be any additional amount payable in respect of either PC or PS items. (emphasis added) 1. The Tribunal then turned to the actual claims of the Homeowners, which were 15 in number. After considering those claims over some 10 pages of the Decision, at [105] the Tribunal concluded that the Builder was entitled to $52,325.71. 2. The Tribunal then turned to the claims of the Builder, which sought payment of $623,996.74, later adjusted to $587,987.69. 3. The Tribunal noted at [110] that it appeared that the Builder's case was based on the proposition that the 1 November 2022 agreement had been cancelled and that the legal relationship between the parties was governed solely by the contract. 4. The Tribunal concluded: 111 Even if the suggestion that the 1 November 2022 agreement was no longer effective is correct, with the result that it is only necessary to consider the contract, the builder has not identified any basis upon which is can claim the amount now sought because: (1) the builder has not sought to terminate the contract, (2) crucially, the contract does not provide an entitlement for the builder to now claim all of its incurred costs, as was indicated in its 15 July 2023 letter (B5/83), less the amount paid, (3) the only breach to upon which the builder can rely is the failure to make the final payment, and (4) the remedy for that breach is interest on the unpaid amount. 112 The analysis which the Tribunal considers correct is as follows: (1) the 1 November 2022 agreement amended the contract, (2) the only breach of that contract by the owners is the failure to make the final payment of $50,000, (3) the remedy for such a breach is damages, and (4) the builder's damages are the interest on that unpaid amount, being an amount calculated and included under the hearing of the owner's application. However, for the sake of completeness, the Tribunal considers each of the components of the claim made in the builder's invoice numbered 179 and dated 15 July 2023 (B 2/137-142). 1. The Tribunal then turned to the components of the Builder's claim, which were 8 in number. After considering those claims over 5 pages of the Decision, at [123] the Tribunal concluded that the Builder had failed to establish that it was entitled to any of the components it sought. 2. The Tribunal then identified that matters it could not deal with (Decision at [124]) and at [126] to [134] dealt with the question of costs. For the reasons set out in those paragraphs, the Tribunal concluded that there should be no order as to costs in either application. Consideration – questions of law 1. We set out below what we see as the relevant and proper grounds of appeal. However, it is not necessary for us to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443. 2. In Prendergast the Appeal Panel stated at [12]: In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue 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. As the Builder is not legally represented, we have examined the materials relied on by the Builder in support of its appeal. We consider that the Builder has raised two questions of law. These are: 1. whether the Builder was denied procedural fairness; 2. whether the Senior Member constituting the Tribunal was biased. 1. As noted above, leave to appeal is not required in relation to questions of law. 2. We shall consider each ground in turn. The Builder was denied procedural fairness 1. There is sufficient material before us for us to form the view that the appellant is raising the procedural fairness of the Tribunal hearing. This raises a question of law: Prendergast at [13(4)]. 2. The claims of a lack of procedural fairness are explained by the Builder at pp 4 to 7 of the Notice of Appeal. We summarise those matters as follows. Senior Member alone with Homeowners 1. First, the Builder claims that the Senior Member spent time alone with the Homeowners in the hearing room. This, submits the Builder, "compromised the entire process" of the hearing, particularly in circumstances where the Senior Member "explained with vigour at the start of proceedings that he would never spend time alone with one party without the other being present". 2. This conduct is said to have occurred in the following ways: 1. at the commencement of the hearing; 2. in the course of the hearing; and 3. at the conclusion of the hearing 1. As to the conduct at the commencement of the hearing, the transcript records: [1] Shuffling of papers etc in the beginning. MEMBER: Mrs & Mrs Gray - grab a seat there. Who do you normally deal with at Unique Building & Construction Services? HOMEOWNER: Matthew Babekuhl MEMBER: Oh right. Have you seen him here today[?] HOMEOWNER: Larrys here - his Dad. We haven't seen Matt here yet. MEMBER: Who's Larry HOMEOWNER: His dad. He's also part of it. Oh right. Sit on this side thank you. [At this point Mr Larry Babekuhl entered the hearing room] MR L BABEKUHL: Thank you. 1. As to this conduct, what we ask rhetorically is a presiding member supposed to do when faced with the appearance of only one party? In our experience, it would be a routine enquiry of a Member to enquire of the party present whether they had heard from the other party and whether they expected that party to attend the hearing. We reject the Builder's claim made in oral submissions that some sinister connotation should be placed on the Senior Member's question "who you normally deal with?" 2. As to the conduct during the hearing, the Builder submits that: … we were asked to leave the room to consider questions. After approx 15 mins we were called back to the hearing room by Mr Gray (which we thought was very odd as we thought that was the role of the security guard). Upon our return we were shocked to find Member Ellis and Claire Gray comfortably sharing the hearing room alone together. Upon recommencement after this time alone together we noted a complete change in Claire Gray's demeanour. Her voice was much louder and she behaved with an increased confidence level. Member Ellis explained with vigour at the start of proceedings that he would never spend time alone with one party without the other being present. 1. As to this conduct, the transcript shows, and the sound recording supports, that: 1. at close to 2pm the Senior Member adjourned the hearing to allow the Babekuhls to gather their thoughts and to respond to the Homeowners' oral submissions; 2. the Senior Member then left the hearing room, followed by the Babekuhls; 3. the Senior Member re-entered the hearing room approximately 15 minutes later; and 4. the Homeowners being present, asked: Could someone – one of you go and ask the Babekuhls to come in – thank you. 1. The Babekuhls submit that they thought that it was "very odd" that Mr Gray came to collect them, as they thought that that was the role of the security guard. 2. The Babekuhls are mistaken, that is not the role of the security officer. The security officer is contracted to the NSW Sherriff's Office, which conducts law enforcement, security and support activities to ensure the safe and successful operation of state courts and tribunals: https://courts.nsw.gov.au/office-of-the-sheriff-of-nsw.html. Unlike Courts, the Tribunal does not have court officers to assist the members in conducting hearings. Accordingly, it is not unusual that a Tribunal member would request one party to find another party and request them to return to the hearing room. 3. While the Babekuhls say that, "Upon our return we were shocked to find Member Ellis and Claire Gray comfortably sharing the hearing room alone together" we can tell from the sound recording that the Senior Member and either Mr or Ms Gray were alone in the hearing room for about 45 seconds during which time no one spoke. 4. Given these matters, we find the Builder's concerns to be without substance. 5. As to the conduct at the end of the hearing, the Builder submits that: the Member remained in the hearing room at the conclusion of the hearing with Claire and Rodney Gray after we had departed. We remained outside for some time but neither party emerged meaning the member was again spending time alone with one party. When we departed they were still in the room alone together. 1. As to this conduct, the hearing concluded after 2 hours and 29 minutes of hearing time (including the break) the transcript recording: MEMBER … So I will let you go and then I will start packing up. Thanks you. BULDER So we are not coming back tomorrow? MEMBER Send those documents through by 10 o'clock. BUILDER Thank you for your time and patience. 1. Following that exchange, there is some further discussion between the Senior Member and Builder about packing up documents. The sound recording continues for another 2 minutes, with no further dialogue being recorded. 2. There is nothing appearing in the sound recording to support the Builder's submissions that the Senior Member remained in the hearing room at the conclusion of the hearing with the Homeowners after the Babekuhls departed or that the Senior Member was again spending time alone with them. 3. We find the Builder's concerns to be without substance. 4. In summary, none of these claims of the Builder are borne out by examination of the transcript or listening to the sound recording of the hearing. In the absence of any sworn evidence from the Babekuhls on this matter, the submissions are without substance. 5. We do not consider that any of this conduct of the Senior Member was inappropriate or improper, and we would not allow the appeal on this aspect of this ground of appeal. Failure of Senior Member to consider the quantum meruit claim 1. Secondly, the Builder claims that the Senior Member failed to consider its quantum meruit claim. Here the Builder submits that: 6 - the member has denied and ignored the validity of "Quantum Meruit" to this case. This case is a classic case of a "Quantum Meruit" scenario and it is gross error in judgement for the member not to consider this in his ruling and demonstrates an unnerving level of incompetence. 7 - in support of "Quantum Meruit" consideration the builders documents show that the builder has put considerable money and labour into the project for the benefit of the owner often at the request of the owner. See variation forms re actual costs PS items, PC items and additional works/materials. - the owners are happy to accept the benefits of these assets but refuse to pay for them. - as the owners will enjoy the benefits of the extras at the expense of the builder the onus is on NCAT to rule on the value of these on a "Quantum Meruit" basis. 1. The reasons why the Senior Member did not consider the quantum meruit claim are set out in the Decision at [8] and [9], set out above. In short, there was no such claim before the Member. 2. Apparently, at a directions hearing (we say apparently as there was no evidence before us of what did occur at any directions hearing), the Member conducting the directions hearing told the Builder's representatives of the availability or possibility of a quantum meruit claim. It would seem that the Builder's representatives misunderstood the observation and appeared to believe that this was some sort of undertaking or promise that the Tribunal would consider a quantum meruit claim. 3. Quantum meruit was a matter for the Builder to pursue. We see no error by the Tribunal in respect of this matter and we would not allow the appeal on this aspect of this ground of appeal. The Senior Member's conduct of the hearing and his demeanour 1. Thirdly, the Builder makes various claims about the Senior Member's conduct of the hearing and his demeanour. These are: 1. not offering the Builder the opportunity to ask questions or cross-examine the Homeowners; 2. accepting "all information from Claire and Rodney Gray without a Statutory Declaration or Oath"; 3. rejecting the Builder's claims for variations "despite seeing emails from the owners requesting upgrades and changes"; 4. demanding documents from the Builder "to substantiate all our information"; 5. frequently interrupting and certainly not affording the Builder "the opportunity to provide 'background information'"; 6. complaining "openly" about the number of documents the Builder submitted and how long "the presentation" would take; 7. "vigorously defending" Ms Gray's "invalid use of and falsified claims about the terms of the contract". Here the Builder submits that: By doing so the member demonstrated that he would defend falsification from Claire and Rodney Gray. Surely this is inexcusable from a supposed legal professional stand-point. 1. In conclusion, the Builder submits: the whole agenda of the hearing was nothing like the schedule sent to us prior and this combined with the conduct of the member denied us the opportunity to present our case. 1. These matters are also relied on in relation to the Builder's claim that the Senior member was biased. 2. Finally, the Builder also accuses the Senior Member of unconscionable conduct, in ordering the Builder to pay the Homeowners $52,325.71 within 7 days. 3. We will consider each matter briefly in turn. The Builder was not offered the opportunity to cross-examine the Homeowners 1. As to the claim that the Builder was not offered the opportunity to ask questions or cross-examine the Homeowners, we note that in opening remarks the Senior Member did state that: there are 3 stages firstly identifying the documents the parties rely on secondly the opportunity to question any witness or witnesses and thirdly the opportunity to make any closing submissions. 1. However, when the Senior Member summarises the evidence before him, in relation to the parties' documents the following relevant exchanges took place (as noted the transcript provided by the appellant appears as a continuous stream of words, without attribution to any speaker, the attribution of statements to particular speakers in the following reflects our construction of the exchanges, having listened to the sound recording): MEMBER so we have all the documents the parties wish to rely on. … Dealing with the owners firstly I couldn't see any witness statement or Statutory declaration or Affidavit is that right HOMEOWNER That's right MEMBER Is that the same with your documents? BUILDER [2] We have statutory declarations. … MEMBER Alright do you wish to ask either of them any questions in relation to their evidence HOMEOWNER the whole lot or - MEMBER well they have made statutory declarations so you are entitled to cross examine either Matthew or Larry or both. The question is it just a matter of considering and preparing the documents you both have lodged. HOMEOWNER Yep, just a matter of considering and preparing the documents we have both lodged Member Um alright, then what, taking notes as I go, what remains to be done is for you to each have an opportunity to make closing submissions - now closing submissions are not a chance to give evidence for the first time, closing submissions is where you say this is my case and you should make this order for these reasons and you can refer to the evidence in support of what you say the outcome should be and why. And the sequence that is adopted Mr & Mrs Gray were the first applicants so the owners get to speak first in support of their case and then the Builder gets to do 2 things, firstly respond to what the owners say and then say what they wish to say and the owners get to speak in response to what the Builder says. And the reason for that 3 step process is that it gives you each a chance to speak in support of your own case and to respond to the case of the other party. So I don't know if you came here today prepared to make those submissions, did you Mr & Mrs Gray HOMEOWNER Not really but we have summarised it in our application... We are happy to – MEMBER Alright and are you ready to proceed this afternoon or tomorrow morning Mr Babekuhl BUILDER Yes … 1. This exchange shows, and we understand that it is common ground, that the Homeowners did not swear or affirm any statutory declaration or affidavit, or file any statement in the proceedings. Therefore, the Homeowners were simply relying on their documents, and the Builder was given the opportunity to address those documents in their oral submissions. 2. In our view, this submission reflects the Builder's unfamiliarity with hearing processes. We see no error and we would not allow the appeal on this aspect of this ground of appeal. The Senior Member made his decision based on unchallenged hearsay and undocumented evidence 1. As to the Builder's claim that the Senior Member made his decision based on unchallenged hearsay and undocumented evidence, it is apparent that the Tribunal based the Decision on the documents before it. This could hardly be described as "undocumented evidence". We think that what the Builder is principally concerned about is that the Homeowners were not sworn or affirmed. But, as explained, this was because they did not provide a statement or affidavit. 2. Again, this submission reflects the Builder's unfamiliarity with hearing processes. We see no error and we would not allow the appeal on this aspect of this ground of appeal. The Senior Member rejected the Builder's claims for variations 1. As to the claim that the Senior Member rejected the Builder's claims for variations, the Builder submits that in doing so the Senior Member validated "the Homeowners' habit of requesting extras and then refusing to pay for them whilst choosing to ignore our valid documents". We disagree with that somewhat confusing assertion. 2. The Builder claimed $328,152.94 for additional work that was not originally quoted on. This was claimed as (item numbers added for ease of reference): [1] Contract carpenters $98931.63 [2] Ancillaries $38199.13 [3] Re level first floor of existing house 2/trades 4 days $10200 labour only [4] Install VJ panel to front entry 1/trade 4 days $5100 [5] Minimum charge for 2 trades after gas delivery had to be rescheduled $1800 [6] Weekly charge for unnecessary cancellation of progress payment $8147.00 [7] Prospa business loan taken out to recover clients (sic) final selection. Payout figure $60286.17 [8] Accrued taxes and super $138,304.00 1. We pause to note that some of these items appear to be ambit claims. We see no basis on which items [6], [7] and [8] could possibly succeed. 2. That issue aside, the Tribunal rejected the Builder's claims for variations (which were referred to in the Decision as "Component 8") for the reasons set out at [120] and [121] of the Decision, namely: 120 The claim for almost $100,000 for contract carpenters appears to be an amount for which the builder, not the owners, bears responsibility. The amount of almost $40,000 claimed for "Ancillaries" is not particularised. The third and fourth items have an implicit hourly rate of almost $160. Any suggestion that the owners should be found liable to pay $1,800 because a "gas delivery" had to be rescheduled cannot be considered reasonable even if there was a basis for such a claim. Further, a charge of more than $8,000 for overheads is plainly not recoverable. No basis has been established for the owners to be responsible to repay the builder's business loan of more than $60,000. The claim for "Accrued taxes and super" is an amount which is the builder's responsibility unless there is a tax increase which creates an entitlement to increase the contract price under Clause 3. 121 Even assuming, in favour of the builder, that there were supporting documents in the eight folders for each of the above amounts, no entitlement to make such claims has been established. The listed amounts are costs which the builder was required to bear under the contract (which was a lump sum contract) unless and until the builder, who bears the onus of proof in relation to its claims, can point to a provision in the contract which permits the amount to be claimed to be passed on to the owners. The claims made under Component 8 are rejected. 1. We see no error and we would not allow the appeal on this aspect of this ground of appeal. The Senior Member demanded documents from the Builder 1. As to the claim that the Senior Member demanded documents from the Builder, we would not characterise the Senior Member's conduct that way. The transcript shows that, not unreasonably, the Senior Member was asking the Builder to identify particular documents from the 8 folders of material filed to support its various claims. 2. There was no error in doing so and we would not allow the appeal on this aspect of this ground of appeal. The Senior Member interrupted the Builder 1. As to the claim that the Senior Member interrupted the Builder, did not allow it the opportunity to present its case and applied different standards those applied to the Homeowners, we would not characterise the Senior Member's conduct that way. 2. The Senior Member asked questions from time to time, by way of clarification and also to have identified to him the documents which were relevant to the Builder's claims. In fact, there were interruptions on both sides. 3. We see no error and we would not allow the appeal on this aspect of this ground of appeal. The Senior Member complained about the volume of documents 1. The Builder claims the Senior Member complaining about the number of documents the Builder submitted and how long "the presentation" would take. True it is the Senior Member commented on the large amount of material filed by the Builder, but nothing follows in terms of establishing an error. The Senior Member vigorously defended false claims of the Homeowners 1. As to the claim that the Senior Member vigorously defended false claims of the Homeowners, we consider this to be another mischaracterisation of the Senior Member's conduct by the Builder. And the description of the Homeowners' claims as being false is an exaggeration or overstatement. We see no error and we would not allow the appeal on this aspect of this ground of appeal. The hearing was "nothing like the schedule" 1. As to the claim that the hearing was "nothing like the schedule", we have to confess that we have no idea what the Builder was referring to. We are not familiar with parties being issued with "schedules" prior to hearing. Parties do of course receive directions which include timetables for the filing of evidence. Conclusion 1. In summary, it appears to us that most of these claims misunderstand the Senior Member's role and mischaracterise his conduct. They are also generalised claims for which no concrete or specific examples were given in support. 2. We see no error by the Tribunal in respect of these matters and we would not allow the appeal on this aspect of this ground of appeal. Unconscionable conduct 1. Fourthly, the Senior Member: ordered a measley [sic – measly] 7 days to enact his orders. Thus allowing only 4 business days to respond. This is not in keeping with NCAT policy to allow 28 days for appeal. this is unconscionable conduct by member Ellis. 1. There is no requirement under the NCAT Act that monies be ordered to be paid no earlier than the 28 days the NCAT allows for an appeal to be filed in these types of proceedings. If payment is ordered at an earlier point in time, a stay can be sought from the Appeal Panel. 2. We reject this submission. It shows another misunderstanding by the Builder of the Tribunal's rules and processes. Constitution of the Tribunal 1. Fifthly and finally, the Builder submits there was only one member presiding at the hearing, not two "which was at odds with information we received prior to hearing". 2. This submission was not addressed at the appeal hearing. But the submission is misconceived. 3. Section 27 of the NCAT Act provides for the constitution of the Tribunal and states: Division 6 Constitution of Tribunal 27 Constitution of Tribunal (1) The Tribunal is to be constituted as follows— (a) in the case of an internal appeal or designated external appeal—by an Appeal Panel of the Tribunal consisting of— (i) one member who is an Australian lawyer, or (ii) 2 or more members (at least one of whom must be an Australian lawyer), (b) in the case of proceedings for contempt of the Tribunal—by one or more of the following members— (i) the President, (ii) any other member who is a current or former NSW judicial officer, (c) in the case of proceedings for a contravention of a civil penalty provision of this Act—by one or more of the following— (i) the President, (ii) a Deputy President, (iii) a principal member who is an Australian lawyer of at least 7 years' standing, (d) in the case of any other proceedings—by one or more Division members of the Division to which the function of dealing with the proceedings is allocated. … (Emphasis added) 1. There is no requirement that the Tribunal be constituted by more than one member for proceedings in the Consumer and Commercial Division. 2. Secondly, Sch 4 of the NCAT Act sets out special provisions for proceedings in the Consumer and Commercial Division of the Tribunal. Part 4 of Sch 4 sets out "Special Constitution Requirements", but these are only for proceedings involving the Retail Leases Act 1994 (NSW). 3. In short, we do not know what information the Builder was referring to in this submission. It appears that either the information provided to it was incorrect, or was perhaps misunderstood by the Builder. We would not allow the appeal in respect of this matter. Conclusion 1. It appears to us that many of the matters raised by the Builder arose from unfamiliarity, if not confusion, with the role played by Tribunal Members in conducting hearings and determining applications. 2. We would not allow the appeal in relation to any of the matters submitted to be a denial of procedural fairness either individually, or when considered as a whole. The Senior Member constituting the Tribunal was biased 1. Bias can be actual or apprehended: Bogoevski v Stricklands [2015] NSWCATAP 133 at [110]. The Builder did not state in its papers which type of bias was claimed. We note that claims of actual bias are rarely made, and even more rarely upheld. Actual bias usually, but not universally, contemplates an "interest" (whether financial or otherwise) by the judicial officer (in this case the Tribunal member) in the outcome of the proceedings: Saurine v Coral Homes Qld Pty Ltd [2015] NSWCATAP 147 at [16]. 2. We enquired of Mr Barbekuhl whether he was alleging actual bias or apprehended bias. He confirmed that it was the latter. 3. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 237 the High Court of Australia stated at [6] that: Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. (footnotes omitted; emphasis added) 1. The Builder relied on those aspects of the Senior Member's conduct set out above as establishing apprehended bias. As we have rejected any claim of improper or inappropriate conduct by the Senior Member, and these are the matters relied on to support the claim of apprehended bias, we would not allow the appeal in relation to the bias claim. To be clear, we do not accept that any of the matters raised by the Builder could cause a fair minded lay observer to apprehend that the Senior Member might not bring an impartial mind to the determination of the Homeowners' and the Builder's respective claims. Conclusion re questions of law 1. For the above reasons, while the Builder has raised two questions of law, we see no error on the part of the Senior Member. Errors requiring leave 1. We see the following other grounds of appeal being raised, for which the Builder requires a grant of leave: 1. the Decision was not fair and equitable. There are a number of aspects to this ground of appeal most of which were relied on as a failure of the Senior Member to provide procedural fairness to the Builder, including but not limited to the claimed accounting error; 2. the Decision was against the weight of the evidence. 1. We shall consider each in turn. The Decision was not fair and equitable. 1. As noted, in the Notice of Appeal (despite the direction that "it is simply not enough to say the decision was not fair and equitable. You must describe in detail why the decision was not fair and equitable"), the Builder stated: Refer to documents regarding procedural breaches and other misguided decisions. 1. We have considered the procedural breaches above. 2. But one matter not yet considered was the claim that the Senior Member had made an accounting error. The Builder submits: ACCOUNTING ERROR MADE BY MEMBER ELLIS - in the beginning a price of $483,179.98 was discussed as a figure that would expedite HBCF insurance and allow commencement of work as soon as possible. - this figure has no relevance to the actual contract price of $555,489.96 that is subject to these proceedings. The figure of $483,179.98 has not been brought up by either party and should not be factored into any calculations or orders. - the member has considered this invalid figure in his calculations which creates confusion with actual costs. Intertwining this irrelevant number creates confusion and impacts on decision making. - ref REASONS FOR DECISION Page 14 para 39 - his presumption that the balance of $72,309.98 would have been payable upon completion is incorrect. This amount was for listed PC, PS items and additional materials and labour documented in the variations in the actual contract. Page 20 para 60 - again the irrelevant balance of $72,309.98 is listed in his calculations. He does note that $541,363.01 was paid off the total owing in the actual contract price of $555,489.96. Hence the shortfall in payments to this stage was $14,126.95 The member has not factored this shortfall in payment due to UBCS in his ongoing figures. We request this be dealt with on appeal along with other issues. 1. We asked the Builder's representative on a number of occasions, assuming that this was indeed an accounting error, how the error affected the Decision and what order should be made, noting that at p 10 of the Notice of Appeal the Builder stated that: The accounting error made by Member Ellis of money owing to [the Builder] being the sum of $52,325.71 + $935 + $14,126.95 = $67,387.66. 1. In other words, in the Notice of Appeal the Builder claimed that the error led to an underpayment to it of $15,061.95, while at the appeal hearing the Builder claimed that the Homeowners should have been ordered to pay an extra $72,309.98. 2. The Builder's representative was not able to provide any comprehensible explanation how the alleged accounting error affected the orders made by the Tribunal. There was simply no satisfactory, let alone persuasive, reason for this submission. 3. It follows that we do not grant leave in respect of this ground. The Decision was against the weight of the evidence 1. As noted, in the Notice of Appeal (despite the direction that "dissatisfaction with the Tribunal Member's findings does not mean that there has been a substantial miscarriage of justice. You must say why some evidence should have been given more weight than other evidence") the Builder stated: Refer to [the Builder] to (Reasons for decision document 1- 42) folders 1 – 8 supplied contain all documentation relevant to our case. 1. As noted above, those 8 folders were not before us. But even if they were, the words of the Senior Member at [65] of the Decision are apposite: metaphorically speaking, a party cannot expect the Tribunal to find the needles in their proverbial haystack. The party bearing the onus of proof is required to establish its case … 1. Those words apply by analogy to appeals. 2. We would not allow the appeal on this aspect of this ground of appeal. Conclusion 1. As to any error for which leave is required, we would not grant leave, as we do not consider that any ground advanced warrants a grant of leave. Leave is only usually granted where these matters involve an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its factfinding process in such an unorthodox manner that it is likely to have produced an unfair result. We are not satisfied that any of these factors are established. Costs 1. Both parties represented themselves at the appeal hearing. We make no order as to costs. Orders 1. The Appeal Panel orders: 1. In so far as the appeal raises a question of law, the appeal is dismissed. 2. In so far as the appeal raises other errors, leave to appeal is refused. ********** Endnotes 1. To assist in understanding we have added references to the speakers such as we understand the transcript and having listed to the sound recording. An attribution of speech "Homeowner" should be understood as a reference to one of the two Homeowners. Sometimes, such as in the sentences "Larrys here - his Dad. We haven't seen Matt here yet" Ms Gray says the first sentence, while Mr Gray says the second. We will adopt the same approach when it comes to reproducing comments of either Mr Larry Babekuhl or Mr Matthew Babekuhl, both of whom we will refer to as "Builder". 2. Being a reference to either Mr Larry Babekuhl or Mr Matthew Babekuhl 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: 05 February 2024