Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jones v Mega Awesome Kapow Constructions Pty Ltd [2024] NSWCATAP 86 Hearing dates: 19 February 2024 Date of orders: 17 May 2024 Decision date: 17 May 2024 Jurisdiction: Appeal Panel Before: L Wilson, Senior Member P H Molony, Senior Member Decision: (1) Insofar as it is necessary, leave to appeal against an interlocutory decision is granted. (2) Appeal allowed. (3) The order made by the Tribunal under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (in paragraph [13] of the decision dated 29 September 2023) is set aside. (4) Order 1 made by the Tribunal on 29 September 2023 is set aside and the following order substituted for it: Peter Jones must pay Mega Awesome Kapow Constructions Pty Ltd $19,005.40 immediately. (5) With respect to the cost issues arising from both appeals (2023/337063 and 2023/347930): (i) The costs order made by the Tribunal on 19 December 2023 is stayed pending further order of the Appeal Panel. (ii) The appellant shall file and serve any submissions it wishes to make with respect to the costs of these appeals and of the proceedings below, and whether those issues should be determined without a hearing, within 21 days of the date of this order. (iii) The respondent shall file and serve any submissions it wishes to make with respect to the costs of these appeals and of the proceedings below, and whether those issues should be determined without a hearing, within 42 days of the date of this order. (iv) The appellant shall file and serve any submissions it wishes to make in reply within 49 days of the date of this order. Catchwords: APPEALS – Particular Bodies – NCAT – power to correct decisions under s 63 of the Civil and Administrative Tribunal Act 2013 – whether own motion decision to amend previous order by increasing amount claimed is the correction of an obvious error. APPEALS – leave to appeal – whether decision under s 63 of the decision Civil and Administrative Tribunal Act 2013 is an ancillary or interlocutory decision – whether leave to appeal required - leave to appeal granted. BUILDING AND CONSTRUCTION –uninsured building work – builder given leave to recover on a quantum meruit for identified work – s 94 Home Building Act 1989 – whether part-payments made by homeowner to be taken into account and credited to homeowner when calculating amount owning on quantum meruit – whether part-payment for work can be set-off against amount claimed for work on quantum meruit - equitable set-off - onus on builder to prove work done. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) s 4, 38, 63, 80, 81 and cl 12(1) of Sch 4 Home Building Act 1989 (NSW) s 7, 94 Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 AQO v Minister for Finance and Services [2016] NSWCA 248 CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 Collins v Urban [2014] NSWCATAP 17 Cumming v Deadman [2022] NSWCATAP 43 Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24 Commonwealth v Amman Aviation (1991) 174 CLR 64 Craig v The State of South Australia (1995) 184 CLR 163 Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 Elsayed v Tassone [2022] NSWCATAP 69 Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 Hawes v Dean [2014] NSWCA 380 HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 479 James v Commonwealth Bank of Australia (1992) 37 FCR 445 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Palaniappan v Westpac Banking Corporation [2016] WASCA 72 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Riverside Motors Pty Ltd v Abrahams [1945] VLR 45 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Star City Pty Ltd v Hurst (EOD) [2009] NSWADTAP 35 Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners – Strata Plan No 64807 [2023] NSWCA 188 Wollongong Coal Ltd v Gujarat NRE India Pty Ltd [2019] NSWCA 135 Texts Cited: None Category: Principal judgment Parties: Peter Jones (Appellant) Mega Awesome Kapow Constructions Pty Ltd (Respondent) Representation: Counsel: C A Hamilton-Jewel (Appellant) D Hand (Respondent) Solicitors: Wight & Strickland (Appellant) Dive Lawyers (Respondent) File Number(s): 2023/00337063 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Date of Decision: 29 September 2023 Before: D Goldstein, Senior Member File Number(s): HB 21/41447 reasons for decision Introduction 1. These reasons relate to appeals which were listed before us for hearing on 19 February 2024, concerning a decision made by the Consumer and Commercial Division of the Tribunal (the CCD) on 29 September 2023 in a building dispute. 2. Mr Jones (the homeowner) filed his notice of appeal within time on 24 October 2023. Mega Awesome Kapow Constructions Pty Ltd (the builder) filed its notice of appeal on 2 November 2023, 5 days late. An extension of time was therefore required for that appeal to succeed. 3. An order was made on 3 November 2024 that the two appeals be listed for hearing together. 4. At the commencement of the hearing on 19 February 2024 the builder withdrew its appeal, for which the homeowner sought costs. That left the homeowner's appeal to consider. Summary background 1. In 2020 the builder and homeowner agreed to undertake construction works on the homeowner's home. The builder was licensed to undertake that work. There was no "written, signed and dated" contract relating to the proposed works between the parties as required by s 7 of the Home Building Act 1989 (NSW) (the HBA). The builder did not take out Homeowners Warranty Insurance (HOWI) as required by s 92 of the HBA with respect to the works. 2. As the works neared completion the builder and the homeowner fell into dispute regarding the costs of the works. Ultimately, this resulted in the builder bringing an application to the Tribunal, on 4 October 2021, seeking payment from the homeowner of $160,764.81 that the builder claimed was due. In order to make that claim the builder sought leave under s 94(1A) of the HBA to recover for the work on a quantum meruit basis because of the absence of HOWI. 3. Section 94 of the HBA relevantly provides: (1) If a contract of insurance required by section 92 is not in force, in the name of the person who contracted to do the work, in relation to any residential building work done under a contract (the uninsured work), the contractor who did the work— (a) is not entitled to damages, or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, in relation to that work, and (b) is not entitled to recover money in respect of that work under any other right of action (including a quantum meruit). (1A) Despite section 92(2) and subsection (1), if a court or tribunal considers it just and equitable, the contractor, despite the absence of the required contract of insurance, is entitled to recover money in respect of that work on a quantum meruit basis. (1B) A contractor who applies to a court or tribunal for a remedy under this section, or who is awarded money under this section, is not guilty of an offence under section 92(2) by virtue only of that fact. (1C) Without limiting the factors that a court or tribunal may consider in deciding what is just and equitable under subsection (1A)— (a) in relation to any contract—the court or tribunal may have regard to the impact on the resale price of the property if no contract of insurance is provided, and (b) in relation only to a contract entered into before 30 July 1999—the court or tribunal is not to be limited by the fact that the required contract of insurance was not obtained until after the date of the contract. (2) However, the contractor remains liable for damages and subject to any other remedy in respect of any breach of the contract committed by the contractor. 1. The builder's application to the Tribunal was first heard by Senior Member Goldstein on 17 and 18 May 2022. The Tribunal published its decision on 5 October 2022 (the 2022 reasons). The Tribunal: 1. Allowed the builder "to claim on a quantum meruit in relation to its unpaid invoices as identified in schedule 1 of its final submissions:" see order 1. These the Tribunal identified in par [122] of the reasons: "122. I have found that the builder should be limited to the unpaid invoices which are according to the schedule 1 of the owner's submissions: (a) Invoice 249b, $49,288.40; (b) Binovec Interiors, $14,315.00; (c) 13/7/20 additional labour and materials, $15,634.60; (d) Invoice 256, $20,000.00; (e) Invoice 258, $20,000.00; and (f) Gerry's Glass Services, $40,269.90;" 1. Dismissed the builder's claim for a 20% margin on client supplied items, builder's work, and that of subcontractors and suppliers. These the builder had, "expressly agreed not to charge": see order 2 and pars [90]-[91], [102] and [108] of the 2022 decision. 2. Refused to allow the builder to reassess, on a quantum meruit basis, the amount due for work for which it had already been paid, see par [71]. 3. Found that the parties had agreed that the builder would be paid $75 per hour + GST for his time and that a reference in an email between them dated 25 February 2020 to "labour and materials for 1 month $46,500" was, "in the nature of an estimate or projection": see par [107]. 4. Found that the evidence was insufficient to enable the Tribunal to calculate the amount of the quantum meruit relating to the unpaid invoices and made directions for the filing of further evidence and submissions to facilitate the final determination of that issue: orders 3 to 9, and pars [123] – [125]. 1. No appeal is made with respect to the 2022 decision. 2. The proceedings were re-listed before the Senior Member on 12 January 2023, at the homeowner's request. The homeowner claimed that the builder had filed evidence in support of its quantum meruit claim that went beyond that allowed to be claimed by order 1 of the 2022 decision. The Tribunal agreed to make a preliminary ruling resolving that dispute (the preliminary ruling). The Tribunal found at pars [12-14] of the preliminary ruling that: 12. I have come to the conclusion that the Reasons for Decision do not permit the inclusion of invoices and claims which were never referred to or presented until after the decision was given, to be included in the quantum meruit claim which is referred to at [122] of the reasons. I find that it is not to the point that the work the subject of the unclaimed work and the EG Painting and Decorating Pty Limited and Opus Tesserae Pty Ltd work may have been referred to in the evidence. That formed part of the wider quantum meruit valuation that I found was not permissible. As I stated in [63] of the Reasons the builder was: 'not entitled to damages, or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, in relation to that work,' 13. The builder's right to a quantum meruit with the leave of the Tribunal is to recover money in respect of 'that' work. I interpret 'that work' to be the work that the builder did which is related to the owner's breach of contract, which in this case was the non-payment of the builder's invoices, as finally identified and distilled in the schedule to the builder's counsel's closing submissions. 14. For the reasons provided I find that the builder's right to claim a quantum meruit as referred to in order 1, through the process referred to in orders 3, 4 and 5 should not include: (a) work that was never invoiced by the builder as referred to at paragraph 16(b) of Mr Bloch Jorgensen's report; or (b) work carried out by EG Painting and Decorating Pty Limited or Opus Tesserae Pty Ltd. 1. No appeal is made with respect to the preliminary ruling. 2. The Tribunal then heard evidence on 14 April 2023, following which the Senior Member reserved his decision. 3. The decision was published on 29 September 2023 (the 2023 decision). In that decision the Tribunal, of its own motion and without notice to the parties, revisited the preliminary decision and amended par 14(b) of the preliminary decision (the amendment) to read: 14. For the reasons provided I find that the builder's right to claim a quantum meruit as referred to in order 1, through the process referred to in orders 3, 4 and 5 should not include: (a) …; or (b) work carried out by EG Painting and Decorating Pty Limited or Opus Tesserae Pty Ltd except to the extent that the work carried out by such sub-contractors is referrable to an invoice referred to in [112] (sic [122]) of the Principal judgement (sic). 1. In making the amendment the Tribunal relied on the power to correct errors in decisions found in s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and explained that: 13. In the course of preparing these reasons I have considered the 12 January 2023 orders in greater detail, in conjunction with s63 of the Civil and Administrative Tribunal Act 2013 (the 'Tribunal Act') and the decision of the Court of Appeal in Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners – Strata Plan No 64807 [2023] NSWCA 188. I have come to the conclusion that there is an error in the 12 January 2023 orders that should be corrected under s63(1) of the Tribunal Act. The error is a misapprehension on my part that the builder's claim in connection with work carried out by sub-contractors painter EG Painting and Decorating Pty Limited and tiler Opus Tesserae Pty Ltd was made on a basis that went beyond [112] of the Principal judgement. To the extent that the builder asserts that the invoices in [112] refer or relate to work carried out by EG Painting and Decorating Pty Limited and Opus Tesserae Pty Ltd, it should be permitted to refer to invoices and other relevant documents from those companies. As a result I will direct the Registrar of the Consumer and Commercial Division of the Tribunal to alter the 12 January 2023 orders to add the following words to 14(b): 'except to the extent that the work carried out by such sub-contractors is referrable to an invoice referred to in [112] of the Principal judgement.' 14 I have come to the conclusion that the alteration referred to may be justified on the basis of what was stated in Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners – Strata Plan No 64807 in particular at [54], [55] and [70] which are: 'Section 63 of the Tribunal Act must therefore be construed having regard to the Tribunal Act as a whole, including the objects in s 3, the guiding principle in s 36 that the Tribunal Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings and the direction in s 38(4) that the Tribunal should act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to legal technicalities or legal forms. Further, as a matter of statutory construction, s 63(3)(b) makes it clear that, for the purposes of s 63(1), an error arising from an accidental slip or omission can be an obvious error enlivening jurisdiction under s 63. As the OC submitted, once that is appreciated, there is little substance between the language of UCPR, r 36.17 and s 63(1) (read with s 63(3)(b)) of the Tribunal Act). The significance of these three decisions is that they clearly show that jurisdiction under a rule such as that in s 63 of the Tribunal Act can be engaged where an order is deliberately and regularly made but by reason of some matter that should have been but was not considered by the Court, or that was misapprehended by the Court, an error was made by the Court. That is precisely the circumstance in the present case, as before remitting the matter to the Tribunal the Appeal Panel should have, but did not, consider whether or not grounds 1 or 2 of the notice of appeal before it meant that on remittal the Tribunal would have had no jurisdiction to consider the OC's application under s 72 of the 2015 Act.' 1. Having amended the order, the Tribunal then allowed the builder the sum of $8,075 in respect of invoice No 256, for work done by EG Painting, on a quantum meruit basis. 2. After considering the whole of the builder's amended quantum meruit claim the Tribunal made the following orders: 1. Peter Jones must pay Mega Awesome Kapow Constructions Pty Ltd $78,588.51 immediately. 2. The costs orders made in the Principal judgement apply to this aspect of the proceedings. 3. The time for the costs submissions are now for order 6, within 28 days of the date of this decision. For order 7 within 14 days. 1. It is that decision, together with the amendment, which are the subject of this appeal, which was lodged within time on 10 October 2023. 2. With the appeal the homeowner applied for, and was subsequently granted, a conditional stay of order 1: In respect of the decision made on 29 September 2023 in matter number HB 21/41447 the operation of order 1 is stayed until further order of the Tribunal or finalisation of the appeal, whichever is the earlier in time. The preceding order is conditional upon Peter Jones (APPELLANT): (i) paying the sum of $19,971.51 to the respondent in partial satisfaction of the judgment debt; and (i) depositing the sum of $58,617 into his solicitor's trust account or a controlled monies account, with irrevocable instructions to his solicitor to hold those monies and to disburse them only in accordance with a signed written agreement between the parties, or otherwise to give effect to the decision in the appeal or further order of the Tribunal; within five days. 1. The Tribunal subsequently, on 19 December 2023, determined the issue of costs with respect to the proceedings before the Tribunal (the costs decision). It ordered that: 1. A hearing on costs is dispensed with pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013. 2. Peter Jones must pay Mega Awesome Kapow Constructions Pty Ltd's costs of the proceedings on the ordinary basis such costs, if not agreed to be assessed on the basis set out in the legal costs legislation as defined in section 3A of the Legal Profession Uniform Law Application Act 2014. 1. While the homeowner has not yet lodged a separate appeal against the costs decision, Counsel indicated the homeowner would do so if we did not set aside that decision, having considered the appeal. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, or with the leave (that is, the permission) of the Appeal Panel with respect to interlocutory decisions or where the appeal is grounded on a basis other than a question of law: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). 2. A question of law may include not only an error in ascertaining the legal principle, or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not having regard to a relevant consideration. This includes not making a finding on an element or central issue that is required to be made out in order to claim an entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v The State of South Australia (1995) 184 CLR 163 at 179. 3. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel, at [13], set out a series of common questions of law: 1. Whether there has been a failure to provide proper reasons. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which an Appeal Panel may grant leave to appeal from decisions made in the CCD are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) 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 test of whether evidence is reasonably available is not considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test which asks whether the evidence in question was unavailable because no person could have reasonably obtained it: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]; see too Elsayed v Tassone [2022] NSWCATAP 69 at [18]. 2. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel said at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … 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. 1. Even if an appellant from a decision of the CCD has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). In Collins, at [84], the Appeal Panel said 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. In the NCAT Act, s 81 deals with the determination of internal appeals. (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following— (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance. 1. Importantly, in Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal. Material before the Appeal Panel 1. In considering the homeowners appeal we had regard to the following material. 1. The 2022 decision. 2. The preliminary orders. 3. The 2023 decision. 4. The costs decision. 5. Homeowners notice of appeal filed 24 October 2023 with annexures. 6. Reply to appeal filed 31 October 2023. 7. Builder's original application to the tribunal received 4 October 2021. 8. Decision under appeal dated 29 September 2023. 9. Builder's points of claim dated "9 December 2020." This date may be a typographical error. The more likely year is 2021. 10. Homeowners' submissions on appeal filed 15 December 2023. 11. Appeal book filed on 15 December 2023. 12. Builder's submissions filed on 13 February 2024. 13. Preliminary orders and directions made by the Appeal Panel on 24 October 2023 (including the stay order) and 3 November 2023. 14. Homeowner's bundle of authorities. 15. Email dated 19 August 2020 from the builder to the homeowner attaching a quote numbered 1 from E G Painting and Decorating Pty Ltd (E G Painting), dated 10 February 2020, in the sum of $43,600.00. 1. We have not included in this list, materials, submissions and evidence relating to the stay application, which were not relevant to the issues before us. Grounds of appeal 1. The homeowner relied on grounds of appeal, relating to: 1. the amendment, including the Tribunal's power to make such an amendment and whether the homeowner was denied procedural fairness by the amendment and subsequent orders; and, 2. the Tribunal's conclusions reached in the 2023 decision with respect to a number of invoices relied on by the builder in the quantum meruit claim and the adequacy of the Tribunal's reasons. We consider them by invoice below. The homeowner also took issue with: 1. the adequacy of the Tribunal's reasons; and, 2. the Tribunal's conclusions with respect to a number of the invoices relied on by the builder, alleging that it had failed to take into account relevant considerations and evidence. 1. Alternately, the homeowner sought leave to appeal under cl 12(1) of Sch 4 of the NCAT on leave grounds that reflected similar reasoning, claiming that the Tribunal's decision resulted in a substantial injustice to the homeowner because it was not fair and equitable and was against the weight of the evidence. 2. The homeowner submitted that if we allowed the appeal, we should redetermine the quantum meruit assessment on the evidence that was before the Tribunal below. The builder opposed this, arguing that the assessment should be remitted to the Tribunal for reassessment. Consideration - Invoice 256 The Tribunal's own motion amendment of the claim under s 63 of the NCAT Act to include certain works done by EG Painting as part of Invoice 256. 1. Unpaid invoices from EG Painting were not mentioned in the list of allowed, unpaid invoices which the builder could rely on in the quantum meruit claim at par [122] of the 2022 decision (quoted at par [8] above). However, the builder was allowed to rely on its invoice No 256, dated 3 August 2020 of $20,000 for, "Fourteenth progress payment for painter and tiler." This invoice was unpaid. 2. One of the issues which the Tribunal determined in the preliminary decision, about the scope of par [122], was whether the builder was entitled to claim for work done by EG Painting, or for unpaid work, never invoiced by the builder as part of the quantum meruit claim. The Tribunal specifically found and ordered that it was not (at [14] of the preliminary decision). This was intended to clarify any uncertainty arising from par [122] of the 2022 decision. However, it did not address the fact that, on the builder's evidence, unpaid invoice 256 included work done by EG Painting, thereby creating an inconsistency. 3. Then, in the 2023 decision, the Tribunal revisited the preliminary decision with respect to work done by EG Painting and allowed the builder the sum of $8,075 in respect of invoice No 256, for work done by EG Painting. It first amended par 14(b) of the preliminary decision to read: 14. For the reasons provided I find that the builder's right to claim a quantum meruit as referred to in order 1, through the process referred to in orders 3, 4 and 5 should not include: (a) …; or (b) work carried out by EG Painting and Decorating Pty Limited or … except to the extent that the work carried out by such sub-contractors is referrable to an invoice referred to in [112] (sic [122]) of the Principal judgement (sic). 1. In doing so the Tribunal explained that: 13. In the course of preparing these reasons I have considered the 12 January 2023 orders in greater detail, in conjunction with s63 of the Civil and Administrative Tribunal Act 2013 (the 'Tribunal Act') and the decision of the Court of Appeal in Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners – Strata Plan No 64807 [2023] NSWCA 188. I have come to the conclusion that there is an error in the 12 January 2023 orders that should be corrected under s63(1) of the Tribunal Act. The error is a misapprehension on my part that the builder's claim in connection with work carried out by sub-contractors painter EG Painting and Decorating Pty Limited and tiler Opus Tesserae Pty Ltd was made on a basis that went beyond [112] of the Principal judgement. To the extent that the builder asserts that the invoices in [112] refer or relate to work carried out by EG Painting and Decorating Pty Limited and Opus Tesserae Pty Ltd, it should be permitted to refer to invoices and other relevant documents from those companies. As a result I will direct the Registrar of the Consumer and Commercial Division of the Tribunal to alter the 12 January 2023 orders to add the following words to 14(b): 'except to the extent that the work carried out by such sub-contractors is referrable to an invoice referred to in [112] of the Principal judgement.' 14. I have come to the conclusion that the alteration referred to may be justified on the basis of what was stated in Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners – Strata Plan No 64807 in particular at [54], [55] and [70] which are: 'Section 63 of the Tribunal Act must therefore be construed having regard to the Tribunal Act as a whole, including the objects in s 3, the guiding principle in s 36 that the Tribunal Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings and the direction in s 38(4) that the Tribunal should act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to legal technicalities or legal forms. Further, as a matter of statutory construction, s 63(3)(b) makes it clear that, for the purposes of s 63(1), an error arising from an accidental slip or omission can be an obvious error enlivening jurisdiction under s 63. As the OC submitted, once that is appreciated, there is little of substance between the language of UCPR, r 36.17 and s 63(1) (read with s 63(3)(b)) of the Tribunal Act). The significance of these three decisions is that they clearly show that jurisdiction under a rule such as that in s 63 of the Tribunal Act can be engaged where an order is deliberately and regularly made but by reason of some matter that should have been but was not considered by the Court, or that was misapprehended by the Court, an error was made by the Court. That is precisely the circumstance in the present case, as before remitting the matter to the Tribunal the Appeal Panel should have, but did not, consider whether or not grounds 1 or 2 of the notice of appeal before it meant that on remittal the Tribunal would have had no jurisdiction to consider the OC's application under s 72 of the 2015 Act.' 1. The homeowner says that the Tribunal did not have power under s 63 of the NCAT Act to make that order and denied him procedural fairness by not giving him a right to be heard with respect to: 1. whether the amending order under s 63 should be made; and 2. whether the builder should be able to recover any money related to the costs of EG Painting. 1. These grounds of appeal raise questions of law. 2. An issue that arises, which the parties did not address us on, is whether leave is required to appeal against the s 63 decision or not. This depends on whether it is an interlocutory decision. 3. Decisions to amend a claim or pleadings are interlocutory decisions by nature: Pye v Renshaw [1951] HCA 8; (1951) 84 CLR 58. Here an amendment is in issue, but so too is the Tribunal's decision, of its own motion, to amend its previous order because it contained an error under s 63 of the NCAT Act. We think such a decision, which is not obviously in the nature of an interlocutory order, is better regarded as being an ancillary decision as defined in s 4 of the NCAT Act: ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including— (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings. 1. The decision to make the amendment was made in the Tribunal's final determination and occurred after the hearing had concluded. 2. In AQO v Minister for Finance and Services [2016] NSWCA 248 Basten J, at [128] highlighted the confusing nature of the distinction between interlocutory and ancillary decisions: It is unfortunate that members of the public, in seeking to resolve disputes before a Tribunal which is meant to facilitate the just, quick and cheap resolution of the real issues in proceedings, and which is required to dispense with formality, are faced with such potentially confusing provisions. 1. While we are inclined to think that the amendment decision made under s 63 is an ancillary decision (and that leave is therefore not required), we will nonetheless grant the homeowner leave to appeal with respect to it because of that uncertainty and the reality that amendment orders are interlocutory in nature. 2. As we discuss in detail below, we think it clear that the amendment, made as it was without notice to the parties, was made contrary to principle. It denied the owner procedural fairness and resulted in a clear injustice to the homeowner. If the amendment had not been made, a different, more favorable outcome of the whole proceedings to the homeowner would have followed, because the builder would not have been able to recover for work done by EG Painting. We, therefore, will grant the homeowner leave to appeal the amendment as the injustice it has caused him is clear, real and substantial: Star City Pty Ltd v Hurst (EOD) [2009] NSWADTAP 35 at [29] and Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24. 3. Section 63 of the NCAT provides: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where— (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons, or (e) there is an inconsistency between the name of a person stated in the text of the notice or statement and the name stated on the person's birth certificate or other form of identification. 1. In amending the preliminary decision, the Tribunal relied on s 63(3)(b), "an error arising from an accidental slip or omission." As the Tribunal noted, that sub-section was considered by the Court of Appeal in Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners – Strata Plan No 64807 [2023] NSWCA 188 (Sunaust). There the ultimate outcome reached by the Court of Appeal (allowing the appeal) was unanimous, but for differing reasons. Justice Stern's reasoning with respect to the power to reconsider under s 63 differed materially from that of Basten AJA, with whom Meagher JA agreed. Justice Stern was therefore in the minority. The paragraphs from Sunaust which the Tribunal relied on when making the amendment order under s 63(3)(b) were from that minority decision. 2. Sunaust was an appeal against a decision by a NCAT Appeal Panel under the Strata Schemes Management Act 2015 (NSW) (the SSMA Act). The internal appeal to the Appeal Panel relied on two grounds. First, that the Tribunal did not have power to make one of the orders it had made. Secondly, that the Tribunal did not have jurisdiction to determine the application, pursuant to cl 5(7) of Sch 4 of the NCAT Act, because it included issues which were the subject of existing proceedings in the Supreme Court. 3. The Appeal Panel decided that it did not have jurisdiction to hear the appeal on account of concurrent proceedings in the Supreme Court. It remitted the matter to the Tribunal to determine jurisdiction otherwise. In doing so, the Appeal Panel stated it was not making a decision with respect to the Tribunal's power to make the orders concerned. 4. The Appeal Panel decision was immediately met with an application for reconsideration under s 63 of the NCAT Act, from the respondent, because of the Appeal Panel's failure to deal with the grounds of appeal that went to the Tribunal's jurisdiction. The application was made on the basis that there was an obvious error in the remittal decision, by virtue of a slip or omission in failing to consider the jurisdictional ground of appeal. The Appeal Panel sought submissions from the appellant on the s 63 application and then reconsidered the decision. In doing so, it considered the jurisdictional grounds of appeal and rejected them. As a result, the Appeal Panel decided not to amend the remittal order. 5. Acting Justice Basten addressed the question of whether s 63 permits reconsideration of an issue not previously considered by the Tribunal: 154 A number of factors suggest that it should not be treated as wide enough to permit the reopening of a decision in order to address substantive issues which had not previously been addressed. First, there is the language of s 63(1) itself. The fact that, a member presiding at proceedings may direct a registrar to alter the statement of reasons in accordance with his or her directions, suggests that it was not intended to apply to substantive issues. If there were a failure to deal with a substantive issue, it is quite unlikely that (i) the existence of the error would depend upon the satisfaction of the member presiding; (ii) the error would be corrected by a direction to a registrar to alter the text; and (iii) there would be no provision for a further hearing. 155 Further, a substantive error would not readily be described as an obvious clerical or typographical error (subs (3)(a)) or a defect in form (subs (3)(c)). It is also, in that context, unlikely to constitute an error of some undisclosed kind, but arising from an accidental slip or omission (subs (3)(b)). On the other hand, it is true that a broader range of errors could arise from an accidental slip or omission, and that an inconsistency between the decision and the reasons (subs (3)(d)) may have a substantive flavour. 156 Some support for a broader interpretation was derived from judgments dealing with the provision in the Uniform Civil Procedure Rules 2005 (NSW) for the correction of a judgment or order and referred to as the "slip rule". That rule provides: 36.17 Correction of judgment or order ("slip rule") If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error." 157 A review of the older cases is no longer appropriate: as stated by Spigelman CJ (with the agreement of Santow JA and Handley AJA) in Newmont Yandal Operations Pty Limited v The J Aron Corporation & The Goldman Sachs Group Inc, in courts bound by s 56 of the Civil Procedure Act 2005 (NSW) the "overriding purpose" requires that such rules be construed so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings. A similar obligation, described as the "guiding principle", is to be found in s 36 of the Tribunal Act. Further, and importantly, s 38 relevantly provides: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. … (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 158 While the criteria of engagement in s 63 and r 36.17 are similar, their mode of operation is not. Rule 36.17 is authority for the court to correct a mistake or error; s 63(1) provides a different mechanism of operation, namely by the Tribunal, or a single member of a multimember panel, directing the registrar to alter the text of a statement of reasons. Section 63 is not consistent with the exercise of discretion on the part of a member potentially changing the outcome of a determination. Yet it is clear that the course undertaken by the Tribunal following its July decision was to exercise the substantive powers conferred upon it in order to determine an appeal. The October decision did not purport to be an alteration to the text of the July decision; it was a new decision. It involved the determination of grounds of appeal going to the question of jurisdiction, which had not been addressed in the earlier decision. It was 70 paragraphs in length. 159 Accordingly, to the extent that the Appeal Panel considered that it was exercising a power under s 63 of the Tribunal Act, it was, as the applicant submitted, in error. However, though in error as to the source of its powers, it was not in error in thinking that it had the relevant powers. 160 In the absence of any indication in the Tribunal Act that the Appeal Panel is not able to reopen a decision once pronounced, there will be circumstances in which it may do so and, indeed, circumstances where it should do so. Such a power will fall within the breadth of the procedural powers conferred on it under s 38. Where the Tribunal is satisfied that it has failed to address one of the real issues in the proceedings before it, it may (and perhaps should) reopen the proceedings in order to give effect to the guiding principle set out in s 36 of the Tribunal Act. 161 Failure to deal with issues raised by an appeal may be described, in terms relevant to the exercise of the supervisory jurisdiction of the Supreme Court, as a constructive failure to exercise the Tribunal's jurisdiction. The relevant principle was stated, at least in part, by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj, in the following terms: "7. In Chandler v Alberta Association of Architects Sopinka J, speaking for the majority in the Supreme Court of Canada, pointed out that, as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision because it has changed its mind, or recognises that it has made an error within jurisdiction, or because there has been a change of circumstances. However, the Court held that the principle of functus officio should not be strictly applied if the tribunal has failed to discharge its statutory function and 'there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation.' 8. The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid [in Ridge v Baldwin], reconsider the whole matter afresh?" 162 The conclusion that the power to reopen the earlier decision was not only available, but was also the appropriate course in the present case, flows from the obligation imposed by the guiding principle in s 36(1) to facilitate the just, quick and cheap resolution of the real issues in the proceedings, applied to the exercise of the power to reopen. It is true that in the present case the issue of jurisdiction was squarely raised by the applicant in its appeal to the Appeal Panel, and that it was the owner's corporation which sought to have the question of jurisdiction resolved. However, as explained above, had the Appeal Panel failed to resolve that question, it would simply have delayed, at greater expense to the parties and the Tribunal, the final resolution of an issue which was undoubtedly central to the application before the Tribunal and was then unresolved. 163 Accordingly, although not based on the power under s 63, the reopening decision made by the Appeal Panel was clearly correct. Reliance on s 63 of the Tribunal Act was an immaterial error which warranted a grant of leave to appeal, but not upholding ground 1. The applicant's contention to the contrary must be rejected. 1. Justice Stern's opinion was that the Appeal Panel was able to reconsider the decision under s 63 as an obvious error arising from an accidental omission. 2. The Court agreed that the Appeal Panel's decision to reopen was one it could make, albeit under different powers, and agreed that the appeal should be dismissed. 3. In the present case the Senior Member said that the preliminary decision was in error due to, "a misapprehension on my part that the builder's claim in connection with work carried out by sub-contractors' painter EG Painting and Decorating Pty Limited … was made on a basis that went beyond" par [122] of the 2022 decision. The homeowner relied on the Tribunal's acknowledgement of that error, to demonstrate that the Tribunal had failed to previously determine the issue of the interaction between its orders in the preliminary decision that (1) the builder could not recover for work done by EG Painting on a quantum meruit basis, but (2) could seek to recover unpaid invoice 256, which included work done by EG Painting. 4. The builder takes issue with that, arguing that no correction to the preliminary decision under s 63 was necessary. The builder submits that on a fair reading of the orders and reasons for the 2022 decision, with the preliminary decision, there was no conflict in the orders made by the Tribunal regarding whether the builder could recover for EG Painting's work. The builder was always entitled to recover for EG Paintings' work in invoice No 256. 5. We reject that submission. A plain reading of the 2022 decision and orders says that the builder is entitled to rely on the items set out at [122] of that decision, which included, "Invoice 256, $20,000" that related in part to painting work carried out by EG Painting. Yet, par 14(b) of the subsequent, preliminary decision purported to clarify that the builder's right to claim a quantum meruit should "not include" work by EG Painting. Given that the builder was then allowed to recover for work done by EG Painting, in reliance on invoice 256, the inconsistency is patent. 6. The builder goes on to submit that there was no need for the Tribunal to reconsider par 14(b) of the preliminary decision and that the Tribunal did not either reconsider or reopen the preliminary decision, and that there was not a resulting substantial change in outcome. 7. This is fanciful. The Tribunal: 1. reconsidered the preliminary decision by directing an amendment to it, which allowed the builder to claim for work done by EG Painting in the builder's unpaid, invoice 256; 2. purported to do so pursuant to s 63 of the NCAT Act; and 3. then immediately considered the builder's quantum meruit on the amended basis. 1. The omission which the Tribunal sought to remedy by making the s 63 order was one it had not previously considered because of a "misapprehension". It was one which raised a substantive issue and had the effect of increasing the potential liability of the homeowner, over and above that which he had previously been exposed to by the Tribunal's earlier decisions. 2. Section 63 did not empower the Tribunal to make that decision. The builder should not have recovered $8.075.00 for invoice 256 as a consequence. 3. In accordance with the majority decision of the Court of Appeal in Sunaust and that of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597, the decision to reopen an issue it had not dealt with, and that was necessarily before it, was one the Tribunal could have made under the guiding principle in s 36 of the NCAT Act, to facilitate the just, quick and cheap resolution of the real issues in the proceeding. The fact that the Tribunal made the error of relying on s 63 does not mean that it did not have the power to reopen under s 36. It was an error to do so under s 63. Did the Tribunal accord the homeowner procedural fairness?? 1. The Tribunal did not give the parties any notice of its decision to amend the preliminary decision, or to consider the work done by EG Painting as part its consideration of invoice 256. It simply proceeded to do so of its own motion. 2. The homeowner submits, in ground 2, that in doing so the Tribunal denied him procedural fairness, which is an error of law. He was not given an opportunity to be heard on the reconsideration question, or on the amount recoverable by the builder for the work done by EG Painting in invoice 256. Under the terms of the unamended order, in the preliminary decision, the builder was unable to claim for work done by EG Painting and could not rely on the evidence it had sought to lead regarding that work. It was irrelevant to the quantum meruit claim allowed by the Tribunal. The homeowner says the parties approached the final hearing on that basis. 3. In reply the builder submitted that there was no reconsideration undertaken by the Tribunal; the issue of the builder recovering for work done by EG Painting included in invoice 256 was always before the Tribunal and was addressed in the evidence and submissions before it. The builder pointed to the homeowner's submission on the quantum meruit assessment (CB167 -168) where invoice 256 and the work said to be done by EG Painting was specifically addressed, as well as its own evidence and submissions. 4. This, however, does not support the builder's position. The homeowner's primary submission with respect to that work was that the EG Painting invoice – which was included in the builder's material - was "not an invoice in respect of which leave to seek quantum meruit has been given": see par [37(a)]. This was correct. The builder's submissions to the contrary are untenable given the clear wording of the reconsideration order in the preliminary decision and the builder's conduct of the hearing on 14 April 2023 (discussed below). In this regard it must be remembered that the preliminary decision was accepted by the parties and not appealed. 5. In Cumming v Deadman [2022] NSWCATAP 43 the Appeal Panel, when allowing an appeal against an order made under s 63 of the NCAT Act, where the parties were not notified of the reconsideration or given an opportunity to be heard, said: 17. It is a basal right of parties to litigation (specific statutory exceptions aside) that they receive all of their opponent's evidence, all of their opponent's submissions, copies of all communications between their opponent and the court or tribunal hearing their case including notice of any application the opposing party is making. 18. It is not in doubt that the Tribunal is obliged to afford the parties before it procedural fairness – Makowska v St George Community Housing Ltd [2021] NSWCATAP 198 ("Makowska") at [54]. An appeal from this decision was dismissed – Makowska v St George Community Housing Ltd [2022] NSWCA 5. 19. Part of procedural fairness concerns notice and the opportunity to be heard. 20. As is said in Halsbury's Laws of Australia, online edition, at [10-12760] (footnotes omitted): "Notice that a decision will be made that may adversely affect an individual's interests is a minimum requirement of procedural fairness. On a proper construction of a statute empowering an administrator to make a decision affecting a person's interest, procedural fairness may require the administrator to notify the person of his or her right to make representations in opposition to the proposed exercise of power." 21. The NCAT Act also provides that, whilst the Tribunal is not bound by the rules of evidence, it may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (natural justice being a synonym for procedural fairness in this context)– see s 38(2) of the NCAT Act. 22. The NCAT Act also says that the Tribunal is to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings – s 38(5)(b) of the NCAT Act. 23. In Makowska the Appeal Panel noted at [57]: "In Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, the Full Federal Court, comprising Northrop, Miles and French JJ said at 590–591: 'It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.' … 24. By proceeding to amend the orders without notice being given to the appellants of the respondent's application to vary the orders, and by failing to give the appellants an opportunity to be heard on that application, the Tribunal denied the appellants procedural fairness. 1. We agree with that statement of principle. It is equally applicable in the present case where the homeowner was not given an opportunity to be heard with respect to the purported correction. We think it clear that the homeowner suffered a practical injustice as a result of the correction, in that he was exposed to and then found liable for work done by EG Painting which had been ruled to be outside the scope the quantum meruit claim. 2. The appeal will therefore be allowed on this ground. Was there evidence before the Tribunal upon which it could find $8,075 recoverable on a quantum meruit with respect to work done by EG Painting 1. There was a significant contest before us as to whether or not there was any evidence properly before the Tribunal upon which it could conclude that the builder was entitled to recover for work done by EG Painting as part of its quantum meruit claim. This included issues relating to whether or not certain evidence was relied on or read by the Tribunal. 2. We do not think it necessary to determine those issues. This is because the Tribunal in its preliminary decision clearly excluded work done by EG Painting, and evidence relating it, from its consideration of the quantum meruit claim. The parties did not appeal that determination and were bound by it -issue estoppel – as was the Tribunal. 3. The Tribunal erred when it purported to amend the claim to include work done by EG Painting as part of invoice 256, and then allowing $8,075 for that work. The Email Invoice – Consideration 1. This refers to an email, dated 13 July 2020, from the builder to the homeowner. Relevantly, it said: … please see attached a materials list and weekly hours since the beginning of April. Also note that from 15/6/2020 Janne and I worked a total of 199.5hrs and there was $966.11 in materials. I will also send an up to date list of all trades prices, As far as what you have paid MAK Constructions up to date the total is $247,515.66 (Then there was $18077.34 that I paid to Sublime Kitchens) The current total sum for all works is currently $336,713.90 (please note I'm still waiting on extras from some trades) After deducting what you have already paid ($247,515.66) that leaves $89,198.24 owing. I would appreciate at least 2 more progress payments of $20,000 being paid as I'm needing to pay my trades their invoices and I'm happy to discuss with you how you would like to pay the remaining balance between now and completion. As mentioned above, I will also send the up to date list of all trades Current prices in the next email. 1. In schedule 1 of his 5 April 2022 affidavit Mr Duker, from the builder (CB p448), put a value on this additional work and materials of $15,634.60, but did not identify what work it related to. This reflected the amount he had claimed for it in that affidavit. Whether that amount includes GST is unclear. In his affidavit of 7 November 2022, Mr Dukker explained that: The invoice relates to additional work (199.5) that the Applicant (and subcontractor [name]) worked at the Respondent's property in the month 15 June to 13 July 2020 …. The Respondent has not made any payments towards this invoice. …this unpaid work is itemised in Schedule 2. The materials consumed in the works from 15 June to 13 July are $988.11 are set out in the materials list. 1. This was accompanied by a spreadsheet showing "Total Hours" form the week beginning 6 April 2020 to that beginning 6 July 2020 of 874.5 hours. There was also a list of materials. 2. Schedule 2 to that affidavit is a 40-page spreadsheet containing details of unpaid work. In its decision the Tribunal accepted a submission from the homeowner that, at [19] (emphasis in the original): Schedule 2 to the November Affidavit sets out the works the subject of Invoice 249b, the works the subject of the Email Invoice, and all additional works carried out on site except demolition works and un-invoiced works. 1. The schedule did not indicate which work was the subject of which invoice and did not, "limit itself to an itemization of the work the subject of the unpaid invoices" [at [21]). The Tribunal therefore rejected Mr Bloch-Jorgensen's calculation of the builder's quantum meruit claim which was based on that schedule. The Tribunal expressly reserved the right to accept "relevant" elements of that quantum meruit claim. 2. On the other hand, the Tribunal accepted the evidence of Mr Madden, a quantity surveyor called by the homeowner, with respect to his valuation of the work allowed to be claimed on the quantum meruit assessment, as set out in [122] of the 2022 decision, not just the Email invoice. With respect to the Email invoice Mr Madden concluded (CB p 308): The Email Invoice has an assessed value of $14,962.50 excluding GST. The assessment is based on the assumption that the hours stated in the email are valid and reasonable for works completed over that timeframe. I am unable to accurately assess and verify the validity of the hours due to the progress payment not having a defined scope of works to which the hours correspond. I am also assuming that the two people mentioned in the email for completing the works are both carpenters who would have a charge out rate of $75/hour. 1. The Tribunal ultimately allowed the builder to recover $15,928.61 (more than was claimed) on a quantum meruit basis with respect to the Email invoice. The 2023 decision relevantly said: 36 In his affidavit of 7 November Mr Duker states that the invoice relates to additional work of 199.5 hours worked in the month 15 June [to] 13 July and materials of $966.11, all of which it is stated amounts to $15,634.60. The builder's 13/7/20 email did not provide the information that $15,634.60 was claimed. 37. In his affidavit Mr Duker does not provide any information that specifically identifies the work that the 199.5 hours referred to, or even the areas in which the work that was carried out. Schedule 2 to Mr Duker's affidavit does not identify the 199.5 hours of work referred to in the email invoice. 38 It follows that Mr Bloch Jorgensen'[s] report does not identify what work was done in the 199.5 hours of work as referred to in the email invoice given that Mr Duker has not done so. 39 Mr Madden in his report at 6.1.2 has valued the email invoice at $14,962.50 which, although he does not make it plain is valuing 199.5 hours work at $75.00 per hour. Mr Madden does not value the materials claimed because he states: 'the invoice doesn't breakdown quantities for each item and only lump sums are claimed for each material type.' 40 The email invoice claims $966.11 for materials in the period from 15 June … 41 The above items total $966.11, the amount claimed for materials. From their descriptions, it is not clear that all items claimed were priced on a lineal metre or square meter basis making it relevant what the unit price was. I will allow these items on the basis that the materials were recorded in an efficient and detailed manner giving rise to an inference that the list is accurate. It seems clear that some materials would have been purchased on a unit rate basis while other materials were purchased on a product price basis such as non-shrink grout, glue and expandafoam. 42 The total allowed is therefore $14,962.50 + $966.11 = $15,928.61 which is greater than the amount claimed. The only explanation for this must be a mathematical error by Mr Duker. 1. The homeowner appeals that decision with respect to the work, but not the charges for materials, on the grounds that, in summary: 1. there was no evidence before the Tribunal on which it could conclude that the work claimed in the email invoice was recoverable on a quantum meruit basis (ground 6) because there was no evidence of the work done or the reasonableness of the work done; 2. that the Tribunal was wrong in law to allow the builder to recover for the Email invoice in the absence of evidence of the work being charged for; and, 3. that the Tribunal was wrong in law to allow the builder to recover an amount greater than it had claimed in the email invoice (ground 7). 1. The builder submitted that there was no need for exactitude in assessing the quantum meruit and all that was required was reasonable certainty as to the work done and its cost. The builder relied on the evidence in Mr Duker's affidavit (quoted at par 65 above) and in schedule 2 (which included invoice 249b and all additional works) as providing that certainty. In oral evidence Mr Duker confirmed that the work in schedule 2 was done. The builder made the point that it was never put to Mr Duker by the homeowner that he did not "carry out the work detailed in his affidavit." The charges made by the builder were calculated at the rate of $75.00 per hour. 2. Recovery on a quantum meruit basis in this case was authorised by the Tribunal by an order made under s 94(1A) of the HBA. In Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at [24] Deane J explained that recovery on a quantum meruit requires the payment by the homeowner to the builder "of an amount which constitutes, in all the relevant circumstances, fair and just compensation for the benefit or "enrichment" actually or constructively accepted". 3. In order for the builder to recover on a quantum meruit it must prove the "exact nature of the work it has done" and that it was done with proper skill: Riverside Motors Pty Ltd v Abrahams [1945] VLR 45 at p.53 and Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273. 4. In Commonwealth v Amman Aviation (1991) 174 CLR 64 Mason CJ and Dawson J discussed the obligation to assess damages, even when that task is difficult. Their Honours said, at 83, that this: … 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. See also Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 at [49] – [52]. 2. In the present case the evidence disclosed that there was no contract price. The Email invoice claimed 199.5 hours for "weekly hours from the beginning of April to 13 July 2020." Mr Duker in his affidavit described this as "additional work." The builder did not adduce any evidence identifying what this additional work was, or as to the reasonableness of the time taken to do it. Mr Duker made a global statement of work done by the builder in relation to three invoices in schedule 2, but did not: 1. address how the additional 199.5 hours claimed in the email invoice related to the spreadsheet showing 874.5 hours work done in the same period; or, 2. identify the work to which the Email invoice related, so that an assessment could be made of the reasonableness or otherwise of the charges in the Email invoice for the work to which they related. 1. The Email invoice itself gives no assistance on these issues. 2. The Tribunal noted all these factors and that neither of the experts was able to identify the work to which the Email invoice related. That work was clearly a matter within the knowledge of the builder, which Mr Duker was in a position to identify and give evidence about. The failure to do so left the Tribunal in a position that there was no evidence before it as to what work the Email invoice related to, but there was evidence of the additional hours done and the rate claimed. 3. The Tribunal clearly accepted this and made its own calculation of the amount recoverable, despite there being no evidence of what work the Email invoice related to. In doing so, the Tribunal concluded that the builder had made a mathematical error and made its own calculation of the cost of 199.5 hours labour at $75.00 an hour: $14,962.50. This error was an obvious error that anyone checking the builder's figures would detect. It did not depart from the agreed hourly charge. We do not accept the homeowner's submission that the Tribunal made an impermissible inference when correcting that figure. 4. The Tribunal erred in law by allowing the builder to recover for the Email invoice on a quantum meruit basis when there was no evidence identifying what the additional work claimed for in the Email invoice was. It should not have allowed the builder to recover $14,962.50 for that work without knowing what the work involved was. Without that information the Tribunal could not assess whether the hours spent and costs claimed were fair and reasonable for the result obtained. Invoice 249b – Consideration 1. Invoice 249b was issued on 20 June 2020. It sought payment of $49,288.40 for work specified in the invoice: 'Demolish old bathroom joists and timber beam in kitchen area and install new structural beams and floor joists including new FC flooring for bathroom area, install insulation in sub floor. Install new window winders to existing windows and change over sash window weights, demolish and install new fascias and front barge boards, install new timber stringers along stairs and concrete slab, demolish old sky dome in shower room and re frame and supply and install new velux skylight and flash and install new doors and locks' 1. This amount was claimed before the Tribunal but was assessed by the Tribunal, on a quantum meruit basis, at $15,350,50. No appeal is made against that assessment. 2. The Tribunal (at [29] and [67] of the 2023 decision), relying on Mr Duker's evidence, found that the homeowner had made a progress payment of $20,000.00 "in connection with invoice 249b". 3. The homeowner submits that as a result there was an overpayment to the builder of $4,649.50, being the difference between the assessed value of the work and the $20,000 paid towards invoice 249b. The homeowner submits that this overpayment should have been deducted from the amount recoverable by the builder on the quantum meruit claim, as it was an amount the builder was found not to be entitled to, but which he had received. 4. Further, the homeowner submitted that in the circumstances he was entitled to set-off the amount of $4,649.50, against the money found due to the builder as it was money he had paid towards invoice 249b, which the Tribunal had found was not due as fair and reasonable renumeration for the work on a quantum meruit assessment. The Tribunal had failed to address what should happen with respect to that overpayment and thereby failed to deal with an issue which was before it, and provided no reasons with respect to that issue. 5. In response the builder submitted that the homeowner had not raised the issue of a set-off in his points of defence. Further, the builder asserted that there was no overpayment made that gave rise to a right to claim an off-set or refund. The fact that a $20,000 progress payment had been applied towards part payment of invoice 249b did not change the fact that the progress payment had been made. It was therefore work the builder had received payment for, that was not subject to the quantum meruit as directed by the Tribunal. Only work "that was referrable to the unpaid invoices issued by the builder" was the subject of the quantum meruit assessment as ordered. Therefore, there was no entitlement to a set-off or refund. 6. Yet the invoice was one nominated by the Tribunal in [122] of the 2022 decision which was the subject of the quantum meruit assessment of $15,350,50, less than the amount claimed in the invoice. 7. With respect to invoice 249b the Tribunal's 2023 decision said, at [29]-[30]: Mr Duker does however state that the owner paid $20,000.00 toward the invoice. I find that Mr Madden's valuation of $13,955.00 + GST should be accepted as a valuation of the work referred to in invoice 249b. The amount that will be found in favour of the builder is $15,350.50 including GST. 1. The balance of $4,649.50 is not mentioned in the 2023 decision. 2. Section 38(4) of the NCAT Act instructs: (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 1. The Tribunal is not a court of pleadings. The issue of whether or not the homeowner was entitled to a refund of $4,649.50 was raised in his submissions to the Tribunal with respect to the quantum meruit claim (CB 172) where that refund was specifically sought. The issue of the homeowner seeking that money (or a credit for it) was squarely raised in those submissions. The suggestion that it was not an issue before the Tribunal is therefore rejected. 2. The purpose of a quantum meruit assessment is to ensure that a builder receives fair and reasonable payment for work done, so that the other party is not unjustly enriched by benefiting from work done by the builder, without paying a fair and reasonable cost for it. Inherent in the assessment of what is fair and reasonable, is that money actually paid to the builder for that work be taken into account when determining the builder's fair and reasonable entitlements. To simply ignore such payments and to allow the builder to recover the fair and reasonable cost of the work, without deducting money already paid for it, would result in the builder recovering more than what is fair and reasonable. The builder would be paid twice the original payment, thereby being unjustly enriched. 3. It follows that the Tribunal should have taken the payment made by the homeowner towards the costs of the works into account when assessing what the builder could recover on a quantum meruit basis. That, in itself, is sufficient to dispose of the issue. 4. With respect to the equitable set-off issue, which the homeowner relied on as an alternate basis for claiming credit for the overpayment, we think it an issue that arose for the Tribunal's consideration in the circumstances. In James v Commonwealth Bank of Australia (1992) 37 FCR 445 Gummow J considered the circumstances in which an equitable set-off may arise: "For there to be an equitable set-off, the set-off must essentially be bound up with and go to the root of, challenge, call in question, or impeach the title of the claimant. Equitable set-off is available where the party seeking it can show a recognised equitable ground for being, to the relevant extent, protected from its adversary's demand. The mere existence of a cross-claim is not sufficient. There must be some ground for equitable intervention beyond the mere existence of a cross-claim, such that it can be said that the equity of the defendant impeaches the claimant's title to the legal demand being enforced." 1. In Hawes v Dean [2014] NSWCA 380 in the Court of Appeal, Barrett JA (Bathurst CJ, McColl JA concurring) referred to the consideration of that passage by Emmet JA (Beazley P and Meagher JA concurring) in HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 479 (HP Mercantile): 64. Emmett JA gave three examples of situations in which relevant impeachment will exist. The first is where a mortgage is granted to a solicitor as security for costs and the mortgagor client has a cross-claim against the solicitor for faulty work (the lien of a solicitor was referred to as "well known" in this connection in Simpson v Lamb (1857) 7 E & B 84; 139 ER 1179 at 1181). The second is where a builder has a claim for money due under a building contract and there is an unliquidated claim against the builder for damages for breach of that contract. The third case is where a lender fails to provide promised further advances for a development project and the borrower is unable to complete the development project and repay the advances actually made. 65. In all the hypothetical cases to which Emmett JA referred, two wrongs or defaults are so closely connected that a net position or result ought in equity to prevail between the parties because it would be unconscionable to allow one of them to insist on its legal right without first accommodating the other's countervailing legal right. It is the existence of that unconscionability that causes the first party's claim to be "impeached" (that is, undermined and defeated) by the second party's claim. 1. See also Wollongong Coal Ltd v Gujarat NRE India Pty Ltd [2019] NSWCA 135. 2. In Palaniappan v Westpac Banking Corporation [2016] WASCA 72 Bass JA at [50] explained: An equitable set‑off is available where the party claiming the set‑off can establish a recognised equitable ground for being protected, to the relevant extent, from the other party's demand. The set‑off must essentially be bound up with and go to the root of, challenge, call in question or impeach the title of the other party. The mere existence of a cross‑claim or cross‑demand is not sufficient to establish an equitable set‑off. There must be a recognised ground for equitable intervention (beyond the mere existence of a cross-claim or cross‑demand) so that the equity of the party claiming the set‑off impeaches the title of the other party to the legal demand which it is seeking to enforce. See J & S Holdings Pty Ltd v NRMA Insurance Ltd (1982) 61 FLR 108, 127 (Blackburn, Deane & Ellicott JJ); James v Commonwealth Bank of Australia (1992) 37 FCR 445, 457 ‑ 462 (Gummow J); Hazcor Pty Ltd v Kirwanon Pty Ltd (1995) 12 WAR 62, 67 ‑ 68 (Kennedy J, Malcolm CJ & Murray J agreeing); HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 479; (2013) 306 ALR 53 [136] (Emmett JA, Beazley P relevantly agreeing & Meagher JA agreeing); Hawes v Dean [2014] NSWCA 380 [59] ‑ [65] (Barrett JA, Bathurst CJ & McColl JA agreeing). 1. In making a quantum meruit claim the builder is seeking to recover the fair and reasonable costs of the work done. It would be anomalous if the builder were able to retain monies overpaid by the homeowner, exceeding that fair and reasonable cost, when seeking to recover for the work on a quantum meruit basis. To allow the builder to retain money overpaid in such circumstances is contrary to equity and good conscience. 2. This situation is analogous to the three examples of impeachment posited by Emmet JA in HP Mercantile. Here the builder's claim to recover on a quantum meruit is inextricably linked to the homeowners right to be credited for payments made on account of works included in the quantum meruit claim, and to receive the benefit of any overpayment. A decision about fair and reasonable recompense owing for work actually done, must take into account what the builder has already been paid for that work. 3. In these circumstances the homeowner had an equitable set off for the amount overpaid to the builder for work, which was included in the quantum meruit claim, against the builder's assessed quantum meruit entitlements. 4. The Tribunal did not address these issues at all in the 2023 reasons. There were no findings of fact concerning whether or not there had been an overpayment, and nothing was said about the homeowners claim for a refund. There was no discussion of whether the homeowner was entitled to a refund or set-off. 5. In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Bell P (as the Chief Justice then was) said at [70 -71]: 70… it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court. 71… in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. 1. The homeowner was entitled to the $4,649.50 overpaid on invoice 249b, which the Tribunal should have set-off against the quantum meruit claim. The Tribunal's failure to consider the claim for a refund at all in its reasons rendered the reasons inadequate and is an error of law. Binovac Interiors Invoice – Consideration 1. Invoice number 245 (CB 504), from the builder to the homeowner, for $20,000, which was paid on 23 April 2020 read: 5th progress payment for painters and plasterers. 1. The plasterer was Binovac Interiors (Binovac). In an invoice dated 13 April 2020 Binovac charged $14,315.00 for its work. The Tribunal accepted those charges on a quantum meruit basis. There is no appeal against that decision in so far as it relates to the fair and reasonable value of the work done by Binovac. 2. In its final quantum meruit assessment, the Tribunal allowed the full $14,315.00 to be recovered by the builder. This was so despite the evidence of the builder, at par 71 of Mr Duker's April 2023 affidavit, that the amount owing to Binovac was $3,385.00: $10,930 less than the amount awarded. 3. The homeowner says that because he had paid invoice 245, which was more than the assessed value of Binovac's work, the builder should not have been able to recover for work done by Binovac at all. It had already been paid. The homeowner then submitted that he was also entitled to set-off money paid to the builder for work done by Binovac against any claim made by the builder for the total costs of that work. 4. This was disputed by the builder who argued that, "… payments for progress payments should not be treated as payment by the owner for the sub-contractor's work in the assessment of the builder's claim for reasonable renumeration for the work". 1. This submission does not withstand the weight of analysis in circumstances where: 1. the builder's invoices (called progress payments) themselves say, in some instances, that that they seek payment for nominated sub-contract work; and 2. the quantum meruit assessment is, among other things, specifically related to the unpaid Binovac Invoice (see [122(b)] of the 2022 decision). 1. The allowance of the full value of Binovac's invoice on the quantum meruit assessment, without deduction for payments made, resulted in the homeowner being obliged to pay the builder a total of at least $25,245 for work done by Binovac, when the fair and reasonable value of the work was found to be $14,315.00. In reaching a conclusion about the amount recoverable by builder for the Binovac invoice, the Tribunal should have taken the part-payment to Binovac into account. The available evidence suggests the part-payment was $10,930, being the difference between the amount claimed ($14,315.00) and that owing according to the builder ($3,385.00). Despite submissions to the contrary, this would not relieve the owner of his obligation to pay the remaining unpaid amount. 2. The Tribunal failed to deal with the issue of this part-payment at all, despite the homeowner's submissions asserting that there had been a part-payment of $10,930, and that the amount outstanding was not $14,315.00. 3. There is a passage at [63] of the 2023 decision where the Tribunal said: The owner's counsel's 2 May 2023 submissions suggest that the consideration of the invoices referred to at [122] of the Principal judgement should be viewed against a background which invites a consideration of the some of the evidence and submissions that relate to the hearing the subject of the Principal judgement. I am reluctant to adopt that approach which would widen the issues to be examined and invite further controversy, unless such a course is absolutely necessary. 1. It is not clear to us what the Tribunal was referring to in the homeowner's submissions. If it is a reference to the claim that the homeowner should be credited with part payments made to Binovac and Gerry's Glass (discussed below), then the Tribunal findings resulted in a consideration of that claim being necessary in order to properly dispose of the issues before the Tribunal. 2. The Tribunal failed to have regard to the part-payment and its consequences when assessing the quantum meruit. It made no determination as to the extent to which the homeowner's payment of invoice 245 had been applied in payment of Binovac's invoice. It failed to consider the impact of the part-payment on the quantum meruit assessment, or to consider whether the builder was entitled to the claim for anything in excess of the amount actually unpaid. It did not consider the legal basis for such a claim. The 2023 reasons did not address any of these issues, which were plainly before the Tribunal, in the context of invoice 245. We think this an error of law. 3. This was so despite the Senior Member finding, in the context of invoice 249b that, at [74] of the 2023 decision: I find that a quantum meruit valuation should not ignore a payment made, just as it may not ignore an amount to be spent for rectifying defects in the work that has been accepted – Eddy Lau. I will on that basis take into account the amount which the builder states it was paid in connection with the quantum meruit valuation of invoice 249b. Gerry's Glass Invoice– Consideration 1. Gerry's Glass issued an invoice to the builder dated 3 June 2020 for work done and materials supplied. The total cost claimed was $40,269.90 inclusive of GST. The invoice showed a deposit paid of $5,000, leaving $39,608.90 outstanding. 2. The builder had issued three invoices seeking payments on account of glazing work. They were invoices No 248, 254 and 258: 1. Invoice No 248 was for $20,000 and was dated 1 June 2020 and read: Ninth progress payment for glaziers 1. Invoice No 254, dated 20 July 2020, for $20,000 read: Thirteenth progress payment for glass and stone work. 1. Invoice No 258, dated 20 August 2020, for $20,000 read: Fifteenth progress payment for plasterer and Gerry's glass. 1. Invoices 248 and 254 were paid by the homeowner shortly after they were received. 2. In its 2023 reasons the Tribunal accepted the amount claimed by Gerry's Glass as the fair and reasonable costs for the work it had done, and allowed the full amount of $40,269.90 on a quantum meruit basis. That assessment of the fair and reasonable costs of the work done by Gerry's Glass has not been appealed. 3. In his affidavit of 5 April 2022, Mr Duker gave evidence that at that time Gerry's Glass was owed $20,269.90. In cross-examination, on 14 April 2025, he agreed that: 1. the deposit of $5,000 paid to Gerry's Glass was paid by the homeowner when making progress payments (T35-45); 2. $20,000 had been paid to Gerry's Glass (T37-20); and, 3. Gerry Glass was the only glazier on the project (T37.47). 1. He did not agree that it was reasonable to infer that the invoices from the builder for "glaziers", sought payment in respect of glazing work (T38-03). He went onto explain that this has been a cause of complaints by the homeowner and had led to dispute (T38.16). 2. The homeowner submits that the payment of $20,000 to Gerry's Glass should have been taken into account and credited to him by the Tribunal when determining the fair and reasonable amount recoverable by the builder. This was said to be an issue squarely before the Tribunal, but one which the Senior Member had not considered or adverted to in his reasons. Indeed, the homeowner's submissions to the Tribunal, on the quantum meruit assessment, expressly submitted that the homeowner had already paid $20,000 for work done by Gerry's Glass. Therefore, the homeowner says that only $20,269.90 should have been allowed. 3. Additionally, the homeowner submitted that it could set-off the $20,000 paid against the total bill from Gerry's Glass of $40,269.90. 4. In response the builder again asserted that progress payments made by the owner should "not be treated as payments by the owner of contractors" when assessing a quantum meruit. Once again, and for the same reasons we have given with respect to the Binovac invoice, we reject this submission. 5. In the case of Gerry's Glass, the builder admitted that the amount owing to the glazier was $20,269.90, as $20,000 had already been paid towards that account. In the circumstances, the only reasonable inference is that the source of those funds must have been from payment by the homeowner of progress payments. The Tribunal did not ask itself where that payment came from, a question squarely before it on the evidence. This was in circumstances where it had set itself the task of assessment of the fair and reasonable cost of the "unpaid" invoice. 6. The builder's quantum meruit claim was restricted to specific items which included the unpaid Gerry's Glass account. The order made by the Tribunal in its 2023 decision allowed recovery of the full $40,269.90 and took no account of the homeowner's payments. The result was that the homeowner was required to pay the builder $40,269.90 on top of the $20,000 already paid by the homeowner (which was then paid to Gerry's Glass by the builder, from the progress payments received from the homeowner). 7. This is double dipping and is neither fair nor reasonable. 8. The Tribunal failed to have regard to the part-payment and its consequences when assessing the quantum meruit. It made no determination as to the extent to which the homeowner's payment of invoices 248 and 254 had been applied in payment of the invoice from Gerry's Glass. It failed to consider the impact of the part-payment on the quantum meruit assessment, or to consider whether the builder was entitled to the claim for anything in excess of the amount remaining unpaid. It did not consider the legal basis for such a claim. The 2023 reasons did not address any of these issues, which were plainly before the Tribunal. These are errors of law. Leave to appeal 1. We have already indicated that we will grant leave to appeal with respect to the Tribunal's decision, contained in the 2023 decision, to correct and amend par [122] of the 2022 decision. 2. The homeowner has also sought leave pursuant to Sch 4, Cl 12 of the NCAT Act to appeal decisions made by the Tribunal with respect to some of the above invoices, which essentially mirror the questions of law raised with respect to those invoices. As we have found errors of law affecting the invoices it is not necessary to consider the leave grounds, which in any case were put in the alternative to the question of laws grounds. Disposition of the appeals 1. We will allow the homeowner's appeal for the reasons outlined above. 2. In doing so we will set aside the: 1. order made by the Tribunal under s 63 of the NCAT Act in paragraph [14] of the 2023 decision; and 2. order 1 made by the Tribunal in the 2023 decision. 1. Of our own motion, we will stay the costs order made 19 December 2023 pending further submissions from the parties on appropriate cost orders both in the appeals and the original proceedings given the outcome of this appeal. We will seek the parties' views as to whether the costs issues can be determined without a hearing pursuant to s 50(2) of the NCAT Act. 2. Bearing in mind the guiding principle of the Tribunal under s 36(1) of the NCAT Act, "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" we think this an appropriate case in which to use the Appeal Panel's power to substitute our own decision for that of the Tribunal, based on the evidence that was before it. We see little merit in the builder's submission that the matter be remitted for further hearing, when the issues can be easily determined by us given our extensive consideration of the evidence before the Tribunal relating to the quantum meruit assessment. If remitted, this would involve a considerable duplication of effort at significant costs to the parties. We will therefore substitute our own decision for that of the Tribunal on appeal. 3. In the light of our consideration of the builder's quantum meruit claim above, we find that the builder is entitled to a total of $19,005.40 calculated in accordance with the following table: Invoice Allow Builder Allow Homeowner Invoice 256 $0.00 $0.00 The Email Invoice $0.00 $0.00 249b $0.00 $4,649.50 Binovac's Invoice $3,385.00 $0.00 Gerry's Glass Invoice $20,269.90 $0.00 Totals $23,654.90 $4,649.50 Less $4,649.50 $0.00 Balance due to Builder $19,005.40 $0.00 1. We note that the builders appeal (2023/00347930) was previously dismissed pursuant to s 55(1)(a) of the NCAT Act as it was withdrawn. We further note the costs of the withdrawn appeal were reserved. Orders 1. The Appeal Panel makes the following orders with respect to the homeowners appeal: 1. Insofar as it is necessary, leave to appeal against an interlocutory decision is granted. 2. Appeal allowed. 3. The order made by the Tribunal under s 63 of the NCAT Act in paragraph [14] of the decision dated 29 September 2023 is set aside. 4. Order 1 made by the Tribunal on 29 September 2023 is set aside and the following order substituted for it: Peter Jones must pay Mega Awesome Kapow Constructions Pty Ltd $19,005.40 immediately. 1. With respect to the cost issues arising from both appeals: 1. The costs order made by the Tribunal on 19 December 2023 is stayed pending further order of the Appeal Panel. 2. The appellant shall file and serve any submissions it wishes to make with respect to the costs of these appeals and of the proceedings below, and whether those issues should be determined without a hearing, within 21 days of the date of this order. 3. The respondent shall file and serve any submissions it wishes to make with respect to the costs of these appeals and of the proceedings below, and whether those issues should be determined without a hearing, within 42 days of the date of this order. 4. The appellant shall file and serve any submissions it wishes to make in reply within 49 days of the date of this order. ********** 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 Amendments 25 June 2024 - 1. the amount $4,469.60 wherever it appears in paragraphs 101, 113 and 145 of the decision, to read $4,649.50. 2. the amount $19,195.30 in paragraph 145 of the decision to read $19,185.30. 01 July 2024 - Replacing the amount "$19,185.30" with "$19,005.40": a. in paragraph 145; and b. in order 4, which appears in the coversheet and at paragraph 147 of the decision. 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: 01 July 2024