Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ahmed v Phase Projects Pty Ltd [2024] NSWCATAP 92 Hearing dates: 29 April 2024 Date of orders: 28 May 2024 Decision date: 28 May 2024 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President G Blake AM SC, Senior Member Decision: (1) Appeal upheld. (2) Order 3 made at first instance is set aside. (3) The Appellant's application is remitted for rehearing limited to consideration of whether the Appellant should have any of the orders sought and identified in [8(1) to (5)] inclusive of the Decision having regard to the findings made by this Appeal Panel that the Respondent has breached its obligations under the Preliminary Agreement. (4) If the Appellant seeks an order for costs of the appeal she must lodge with the Tribunal an application within 14 days and serve a copy on the Respondent (whereupon the Appeal Panel will make further directions). Catchwords: APPEALS – consumer claim – whether Tribunal constructively failed to exercise its jurisdiction – interpretation of an agreement for provision of services – order for remittal for the purposes of calculation of damages Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 80, 81, Sch 4, cl 12 Fair Trading Act 1987 (NSW), Pt 6A, s 79U Cases Cited: Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17 Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Jabbcorp (NSW) Pty Ltd v Strathfield Golf Club [2020] NSWSC 1317 Manca v Tullipan Homes Pty Ltd [2002] NSWCATAP 296 Najask Pty Ltd v Stow [2016] NSWSC 1511 Robinson v Harman (1848) 1 Exch 850; 154 ER 363 Tsung v Johnson [2022] NSWCATAP 151 Category: Principal judgment Parties: Farah Ahmed (Appellant) Phase Projects Pty Ltd (Respondent) Representation: Counsel: C Bolger (Respondent) Solicitors: Appellant (self-represented) Chatswood Law (Respondent) File Number(s): 2024/00031452 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 2 January 2024 Before: S De Jersey, Senior Member File Number(s): 2023/00401454 (formerly HB 23/15728) REASONS FOR DECISION Introduction 1. This is an appeal from a decision published on 2 January 2024 (which we will refer to as the Decision) in which the Tribunal made an order dismissing the Appellant's claim for the return of money paid to the Respondent and for compensation. 2. The relevant background is the following: 1. The Appellant lodged an application in the Tribunal, seeking compensation from the Respondent by reason of alleged breaches of an agreement between the parties, by which the Respondent was to supply certain services to the Appellant. 2. The Respondent lodged an application for the recovery of monies alleged by the Respondent to be owing to it by the Appellant, under the agreement between the parties. 3. Both parties were unsuccessful in their respective applications. However, the Appellant was partly successful. In the Appellant's application the Tribunal dismissed her application for compensation but made declarations to the effect that certain sums invoiced by the Respondent to the Appellant were not due and owing. The Respondent's application was dismissed. 4. The Tribunal was exercising the jurisdiction conferred upon it under the Fair Trading Act 1987 (NSW), which gives jurisdiction to the Tribunal to make determinations with respect to consumer claims. This includes jurisdiction to make orders requiring the applicant consumer to pay money to the respondent supplier. 1. The Appellant lodged a Notice of Appeal with respect to the order made dismissing the Appellant's application. The Respondent has not lodged an appeal with respect to the order dismissing its application or in respect of the declarations that the invoiced sums were not payable by the Appellant. 2. The dispute concerned allegations made by the Appellant that the Respondent had breached its obligations under an agreement dated 13 October 2021 (referred to by the parties as the "Preliminary Agreement"). The Preliminary Agreement consists of two pages. The first page is in the form of a letter to the Appellant and to Mr Ahmed. It states: "Thank you for the opportunity to provide the Preliminary Agreement for the proposed development at xxxxxxxxx St Mascot. We will work closely with you and the other consultants to provide certainty regarding the design and your budget. The preconstruction stage includes the following services: 1. Detailed measure of your existing home 2. Design and preparation of architectural plans (inclusive of three revisions). 3. Full set of CDC (Complying Development Certificate), DA (Development Application) and CC (Construction Certificate), drawings including plans, elevations and sections, Basix Certificate and general specifications for submission to Council. 4. Structural Engineering Design and Compliance Certificate. 5. Stormwater Design and Compliance Certificate. 6. A Private Certifier (PC) must be appointed by the landowner prior to any building works commencing, PC is responsible for issuing a Construction Certificate, carrying out critical inspections and providing an Occupation Certificate on completion. Quotes can be obtained following issue of the CDC documentation. Please ask for some recommended local PC's prior to engagement." 1. The second page listed "inclusions and exclusions". Under the heading Preliminary Agreement, the following was listed (which the parties acknowledged to be a list of the included services to be provided by the Respondent): Architectural Drawings – 3 Revisions (including Construction Drawings and DA/CDC submission drawings). Exterior Finishes Selection. 3D image concept render Basix requirements as per plans Acoustic report Structural Design (Engineering) Landscape Design (CDD and/or DA Approvals) Stormwater Design GeoTech Report CDD and/or DA approvals Sydney Water Tapin Final Fixed construction price based on final drawings. 1. Page 2 also listed exclusions, but it is not necessary to set those out. Page 2 contained reference to a quotation for $26,200 plus GST of $2,620 and a total figure of $28,820. It was common ground that that figure had been paid by the Appellant to the Respondent as consideration for the provision by the Respondent of the agreed services. 2. We are of the opinion that the appeal should be upheld and, in order to understand our reasons, it is firstly necessary to set out the reasoning contained in the Decision. That is undertaken in the following paragraphs. Summary of the Decision 1. From [10] the Tribunal set out the background facts. 2. In addition, at [10], the Tribunal recorded that the Respondent engaged an architect firm called Space 0.681:1 Pty Ltd (Space) to provide the design services. The Respondent prepared a number of plans and drawings, and a development application was lodged with the relevant council on or about 22 March 2022. The development application was approved by the Council on 21 November 2022 and the Council issued a Notice of Determination. 3. On 11 January 2023 the parties met to discuss the issues raised in the Notice of Determination and the Tribunal stated that no concluded agreement was reached. On 19 January 2023, the Appellant emailed the Respondent to obtain a copy of the documents submitted to the Council. On 31 January 2023 the Respondent emailed the Appellant to state that the hydraulic/stormwater drawings were being worked on by the engineer but could not be finalised until the Geotech report had been done. 4. On 21 February 2023 the Respondent emailed the Appellant attaching documents which it stated were covered in the Preliminary Agreement and advising as follows: "The repeated and ongoing nature of these issues has excessively prolonged the entire process from the very beginning, which is not in line with our standard operating procedures. As a result, we will no longer be involved and cannot provide further information or assistance. The additional information required is beyond the scope of our agreement, and we have only been assisting out of good faith." 1. We note that the above extract from the email of 21 February 2023 is preceded by this sentence: "As discussed on the phone two weeks ago, we will reiterate (as it seems like what I said meant very little and this is our recurring problem). It is with regret that we decided to end our consultation services, it appears that our professional advice is not being valued or followed." 1. In addition, the letter stated the "Geo Tech report of $1500" will be refunded. 2. At [10(21)] the Tribunal recorded, as indicated above, that the Respondent noted in the email of 21 February 2023 that the Geo Tech report was not completed and that the Respondent would arrange for the cost of the report of $1500 to be refunded to the Appellant. On 2 March 2023, the Appellant sent an email to the Respondent disputing that all documents had been provided to her under the Preliminary Agreement. 3. Thereafter, the Respondent invoiced the Appellant for further amounts said to be owing and caused a letter of demand to be issued on its behalf by a solicitor. The Appellant lodged her application with the Tribunal on 3 April 2023. 4. At [16] the Decision records that the central allegation of the Appellant is that the Respondent failed to provide all documents required under the Preliminary Agreement. The Appellant made a claim that as a result of that alleged breach she incurred additional engineering costs as well as costs associated with paying rent and mortgage charges. 5. From [23] to [26] the Tribunal considered the Respondent's claims against the Appellant and set out its reasons for dismissing the Respondent's claims. Those reasons are not relevant to how this appeal should be determined. 6. From [27] the Tribunal considered the Appellant's claims against the Respondent. The Respondent's alleged breaches were described as follows: 1. The stormwater plan which was provided was an old version and not the correct version. 2. A structural report was not provided and the structural engineering design, which was provided, was of no utility. 3. A full set of construction drawings was not provided. 4. A detailed construction quote was not provided. 5. The Geotech report was not provided. Both parties acknowledged that a refund for that report had been given by the Respondent to the Appellant. 1. At [30] the Tribunal recorded that there was no issue between the parties that the list of matters which the Council required to be done to satisfy the Notice of Determination are listed in an email from Space to the Respondent and to the Appellant on 5 December 2022. 2. At [31] the Tribunal recorded that the Respondent contended that the parties met on 11 January 2023 at which the Appellant said that there was no point in attending to the issues raised by the Notice of Determination because the Appellant believed she was unable to afford the construction cost of the new home that she wanted. At [32] the Tribunal recorded that it was the contention of the Respondent that it had provided all documents to the Appellant in the email of 21 February 2023 as required by the Preliminary Agreement. 3. Further in [32] the Tribunal recorded the content of an email sent by the Respondent to the Appellant dated 2 March 2023 stating that all contractual obligations had been met, additional documents sought by the Appellant were outside the scope of the Preliminary Agreement and the documentation to satisfy the Notice of Determination is outside the scope of the Preliminary Agreement. 4. At [34] of the Decision the Tribunal found that there was no evidence "in the form of an expert report providing an opinion based on review of all documentation which has been provided by [the Respondent] that the [Respondent] is in breach of its obligations to [the Appellant] under the Preliminary Agreement". The Tribunal found that it would have been appropriate for the Appellant to have provided an independent expert opinion to establish that, in the circumstances of the case, the documentation which has been prepared and provided was not in accordance with the Preliminary Agreement and whether there was a breach of the scope of work that was agreed to in the Preliminary Agreement. 5. At [35] the Tribunal found that the Appellant had not discharged the onus of proof that there has been a breach of the Preliminary Agreement. Accordingly, the Appellant's application was dismissed. Notice of Appeal 1. The grounds of appeal may be summarised as follows: 1. The Tribunal erred in its interpretation of the agreement. In particular, the Tribunal did not consider the requirement under the Preliminary Agreement for the Respondent to provide "CC (Construction Certificate) drawings". 2. The Notice of Appeal contained submissions that the Decision was not fair and equitable and against the weight of the evidence. In particular the submissions stated that the stormwater plan which was provided was an old version and not the correct version. Exhibit 10(a) of the Appellant's evidence is a stormwater plan that the Respondent provided and that plan does not match the Council's approved plan (Exhibit 10(b)). The difference between the two concerns the location of the swimming pool. The submissions also make reference to the fact that the Respondent's email of 31 January 2023 stated that the hydraulic/stormwater drawings were being worked on by the engineer but could not be finalised until the GeoTech report had been done. The submissions also contend that a full set of construction drawings were not provided and that the Appellant's evidence in that respect was not given any weight. 3. The submissions attached to the Notice of Appeal also contended that a detailed construction quotation was not provided. 1. The Respondent filed a Reply to Appeal which may be summarised as follows: 1. The Notice of Appeal does not raise any question of law and only raises complaints about factual findings. Further, there is no basis to grant leave to appeal. 2. With respect to the stormwater plan, the Reply stated that the Respondent had provided a stormwater plan "but because of continual amendments to the plans by the Appellant and her husband, after the Council's Notice of Determination issued, an updated report was required. This updated report was not within the scope of the Preliminary Agreement and was an additional cost, as disclosed by the Respondent". The Reply stated that the Respondent conceded that a GeoTech report was not provided and that a refund was provided before the Preliminary Agreement was terminated. Further, the Reply stated that the Appellant's complaint concerning the Construction Drawings is misconceived. The plans containing the marking that the plans are not for construction did not preclude the plans being provided to the Appellant's certifier for the purposes of issuing a Construction Certificate. With respect to the Appellant's complaint about a quotation for construction, the reply stated that the Respondent provided a quote and that a more detailed quote was not provided as the Appellant could not afford the construction costs. Appellant's Submissions 1. The Appellant's submissions largely concerned contentions as to the documents which the Respondent had allegedly not provided. The first of these documents is the stormwater plan. As stated earlier, the Appellant contended that the stormwater plan provided needed to be updated as a result of alterations to the plans. The Appellant stated that in an email dated 31 January 2023 that the Respondent informed the Appellant that the "hydraulic/stormwater drawings are currently being worked on by the engineer. In order to finalise this, the engineer requires the Geotech report". 2. The second document referred to by the Appellant concerns the structural engineering drawing. It appears that the Appellant's contention is that the drawing provided contained an error with respect to the placement of the pool pump. 3. The third document, the subject of the Appellant's submissions, is the construction drawing which was not provided. 4. The Appellant submitted that the Notice of Determination confirmed that the stormwater plan provided was out of date. Paragraph 24 of the Notice of Determination contains the heading "Detailed Design Stormwater Management Plan" and states that prior to the issue of any Construction Certificate, detailed drainage design plans for the management of stormwater are to be submitted to the Principal Certifier for assessment and approval. That clause also states that engineering design certification and drainage design calculations are to be submitted with the plans. 5. With respect to the structural engineering drawing the Appellant submitted that the drawing provided was inconsistent with the approved development application. Respondent's Submissions 1. The Respondent's submissions contended that the Appellant's grounds of appeal did not raise any question of law and therefore there was no appeal as of right. Further, to the extent that the Appellant relied upon grounds not involving a question of law, the Respondent submitted that leave to appeal should not be granted. 2. In the course of the hearing of the appeal counsel for the Respondent acknowledged that the stormwater plan needed to be updated as the one provided was not consistent with other plans and drawings. Therefore, the stormwater plan was not consistent with the DA approval as recorded in the Notice of Determination. 3. Counsel for the Respondent submitted that the Appellant had terminated the Preliminary Agreement by her indication that the proposed cost of the building was beyond her budget. Counsel referred to paragraph 84 of the statement of Mohamed Tawil dated 3 July 2023 (which was part of the Respondent's evidence at first instance). Paragraph 84 of the statement refers to a meeting on 11 January 2023 between the Appellant, her husband and Mr Tawil (a director of the Respondent). Counsel placed reliance upon words attributed to the Appellant to the effect that she could not afford to build the proposed home and that there was no point paying additional costs to meet the conditions of the Notice of Determination. 4. However, in our view the balance of the Mr Tawil's statement does not support counsel's contention that the agreement was terminated at the behest of the Appellant. For example, attachment "Z7" to Mr Tawil's statement is an email dated 1 February 2023 from the Appellant to Mr Tawil where the Appellant asks for an estimated time for delivery of further items so that the Appellant can send a report and the Respondent's "final quote" to her bank for the purpose of a valuation being obtained to "assess our borrowing". Mr Tawil's statement also states (at paragraph 88) that on 3 February 2023 he spoke to the Appellant in which he said that she had not paid for additional revisions and that if the Appellant wanted the Respondent to undertake further work, the Appellant needed to pay outstanding fees and costs of the work involved with obtaining the additional reports. Further, Mr Tawil's statement attaches an email from the Appellant to Mr Tawil dated 19 February 2023 in which the Appellant enquires about the "engineer timeline". At [90] of Mr Tawil's statement he refers to an email from the Appellant dated 21 February 2023 requesting an update on the progress in meeting the conditions required by the Council. He replied by the email of the same date earlier referred to in this Decision. 5. The Respondent's essential submission was that the Respondent had fully complied with its obligations under the of the Preliminary Agreement. During the course of the appeal hearing, we understood counsel for the Respondent to have conceded that further updating of reports and plans may have been required prior to the private certifier issuing a Construction Certificate. Consideration 1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides that an internal appeal (which this is) may be made as of right to the Appeal Panel on a question of law and otherwise with the leave of the Appeal Panel. An appeal may be brought with leave, that is, with the permission of the Appeal Panel, on grounds which do not involve a question of law. As these proceedings were brought in the Consumer and Commercial Division of the Tribunal, an appeal concerning grounds which are not involving questions of law, are regulated by the provisions of cl 12 of Sch 4 of the NCAT Act. 2. An internal appeal is not a rehearing of the original proceedings or an opportunity for the Appellant to reargue her case. Rather, to succeed in an appeal the appellant must establish that an error of law has occurred or otherwise an error of the type that involves granting leave to appeal. 3. As was stated by an Appeal Panel in Tsung v Johnson [2022] NSWCATAP 151 at [18], an error of law will occur where there has been a material failure by the Tribunal to respond to a "substantial, clearly articulated argument relying upon established facts" that may be characterised as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]-[25]. In Tsung the Appeal Panel stated that where parties are not legally represented it is appropriate for the Appeal Panel to review the stated grounds of appeal, the material provided by the parties and the Tribunal's decision which is being challenged to ascertain whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal [20]. 4. In Manca v Tullipan Homes Pty Ltd (2022) NSWCATAP 296, the Appeal Panel considered what it means when a ground of appeal concerns a constructive failure to exercise jurisdiction. At [23] the Appeal Panel said: Whether there has been a constructive failure to exercise jurisdiction is a question of law. In Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [9] Basten JA said (Beazley JA at [1] agreeing): "[9] The adoption, on an appeal limited to errors in point of law, of language derived from the supervisory jurisdiction of the court must be undertaken with caution. It is, no doubt, an error of law for the trial court to fail to exercise its constitutional function, which is to resolve a dispute presented to it by the parties by applying the law in accordance with proper procedure. In the present case, that function was almost entirely satisfied by the resolution of disputed factual issues. The term "constructive failure to exercise jurisdiction" is used to describe a situation where the court has purported to resolve the parties' dispute but has not in fact done so. Thus, particularly with a court or tribunal required to provide reasons for its decision, it may become apparent from those reasons that a material issue has simply not been addressed or that material evidence has been overlooked. Examples of circumstances which may properly give rise to a concern on this kind were referred to by Gummow ACJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [23]. On occasion, the function of the decision-maker (which should include a court) has been identified as being to "give proper, genuine and realistic consideration to the merits of the case": Kahn v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 (Gummow J). ..." 1. It can be seen from the extract quoted above from the Resource Pacific case that the term "constructive failure to exercise jurisdiction" is used to describe a situation where the court (or in this case the Tribunal) has purported to resolve the parties' dispute but has not in fact done so. The court there said that this may be apparent from the reasons that a material issue has simply not been addressed. 2. Ground 1 of the Grounds of Appeal contends that the Tribunal made an error of law in interpreting the contract. At the appeal hearing we indicated to the parties that our then tentative view was that the Tribunal had not engaged in the task of attempting to construe the contract or in determining the respective rights and obligations of the parties under the contract. The view we then expressed on a tentative basis was that there was an error of law because of this omission and that it may be described as a constructive failure to exercise jurisdiction. 3. The tentative views we expressed at the hearing are no longer tentative. The dispute between the parties involved the issue of whether Respondent had complied with the terms of the Preliminary Agreement to provide services to the Appellant. In order to determine whether the Appellant's contentions that the Respondent had breached its obligations it was necessary for the Tribunal to have found and to describe what the Respondent's obligations were under the Preliminary Agreement. This it did not do. 4. Rather, the Tribunal found that it was necessary for the Appellant to have provided an independent expert opinion to opine upon whether the documentation provided by the Respondent was not in accordance with the Preliminary Agreement and whether there was a breach of the scope of work that was required under that agreement. In our view, that is not the role of an independent expert. Determination of the contractual obligations imposed upon the Respondent was for the Tribunal to determine. 5. It is of relevance to state some general principles concerning the interpretation or construction of contracts. This issue was considered in Jabbcorp (NSW) Pty Ltd v Strathfield Golf Club [2020] NSWSC 1317. In that judgment His Honour Justice Ball referred to the principles relevant to the interpretation of a commercial contract from [60]. Paragraph 60 states as follows: The principles relevant to the interpretation of a commercial contract were set out by French CJ, Nettle and Gordon JJ in Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (2015) 256 CLR 104; [2015] HCA 37 at [46]ff: [46] The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose. [47] In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract. [48] Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning. [49] However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". It may be necessary in determining the proper construction where there is a constructional choice. … [50] Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties' statements and actions reflecting their actual intentions and expectations. [51] Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption "that the parties … intended to produce a commercial result". Put another way, a commercial contract should be construed so as to avoid it "making commercial nonsense or working commercial inconvenience". 1. In our view (applying the above approach) the terms of the Preliminary Agreement required the Respondent to engage in such services as would produce to the Appellant the documents and plans described on both pages of the agreement. 2. We are further of the opinion that the agreement is to be interpreted as an entire obligation, meaning that the Respondent was not free to decline to produce one of the documents or plans contractually obliged to be provided even with the promise of a refund for the document or documents not provided. 3. In Najask Pty Ltd v Stow [2016] NSWSC 1511, Wilson J was required to review whether a magistrate had erred in the construction of a contract between the parties to the dispute before the court. At [32] the court referred to earlier cases in which the issue of what is an entire contract was discussed. Paragraph 32 reads as follows: Her Honour cited Baltic Shipping Co v Dillon [1992]-[1993] 176 CLR 344, wherein reference was made to Steele v Tardiani [1946] HCA 21; (1946) 72 CLR 386 at 401. The relevant section of the judgment is at 350: "An entire contract or, perhaps more accurately, an entire obligation is one in which the consideration for the payment of money or for the rendering of some other counter-performance is entire and indivisible. In Steele v Tardiani (27), Dixon J. cited the general proposition stated in E. V. Williams' Notes to Saunders' Reports (28): "Where the consideration for the payment of money is entire and indivisible, as where the benefit expected by the defendant under the agreement is to result from the enjoyment of every part of the consideration jointly, so that the money payable is neither apportioned by the contract, nor capable of being apportioned by a jury, no action is maintainable, if any part of the consideration has failed; for, being entire, by failing partially, it fails altogether."" 1. In our view, the consideration paid by the Appellant for the provision of the services agreed to by the Respondent was entire and indivisible. The purpose of the agreement was to put the Appellant in the position of having the expressly identified documents so that the Appellant could engage a private certifier for the purposes of the issue of a Construction Certificate. 2. The Respondent's obligations were limited to the provision of the listed documents. The agreement states what is excluded. The exclusions were stated to be: counsel's fees and contributions, subdivision and land titling costs, home warranty insurance, additional consultants such as private certifier fees, town planning, structural, hydraulic, heritage, architectural landscaping etc. It can be seen that what was excluded were certain costs, insurance costs and additional consultants (including the private certifier fees), if required by Council. 3. Ground 1 of the Notice of Appeal is upheld. It is therefore necessary to make an order setting aside order 3 (which had the effect of dismissing the Appellant's application). 4. Because we have sufficient evidence before us it is desirable that we consider the Appellant's assertions in relation to documents or plans not provided and to determine whether the Respondent had the obligation to provide such documents, and whether that was in fact done. 5. By s 81(2) of the NCAT Act the Appeal Panel may exercise all of the functions that are conferred or imposed by the NCAT Act or other legislation on the Tribunal at first instance when confirming, affirming, varying or making a decision in substitution for the decision under appeal. 6. Accordingly, we propose to consider, having regard to our determination as to the obligations of the Respondent to supply to the Appellant the documents identified in the Preliminary Agreement, whether, as contended by the Appellant, any such documents were not provided. 7. However, before doing so, it is necessary to determine which of the two parties terminated the Preliminary Agreement. Both parties conducted the proceedings upon the basis that the Preliminary Agreement had come to an end. The Respondent contended during the course of the appeal hearing that the Appellant had, in effect, indicated to the Respondent that she no longer wanted the Preliminary Agreement to continue and that she wanted that agreement to come to an end because she could no longer afford the likely cost of the proposed building. 8. We have already indicated that we do not think that the evidence contained in Mr Tawil's statement supports such a finding. It is our view that the terms of the email of the Respondent dated 21 February 2023 clearly shows that it was the Respondent that brought the agreement to an end. The email states that the Respondent has decided to "end our consultation services". If that occurred at a time when the Respondent had not yet completed all of its obligations under the Preliminary Agreement, then the email constituted repudiation by the Respondent entitling the Appellant to compensation. If, as the Respondent contends, the Preliminary Agreement came an end at a time when it had performed all of its obligations under the Preliminary Agreement, then the Respondent did not breach its obligations and the Appellant has no entitlement to any compensation. 9. We are of the view that the Preliminary Agreement, being an entire contract, was brought to an end by the Respondent before performance of all of its obligations under the Preliminary Agreement and that by the email of 21 February 2023, the Respondent repudiated the Preliminary Agreement. The Appellant is thus entitled to such damages as flow from the Respondent's breach. 10. It is necessary, in order to support the above conclusions, to identify the Respondent's breaches. 11. There is no dispute that the stormwater plan provided by the Respondent required to be updated and that therefore a further stormwater plan was required to be prepared. This was conceded by the Respondent's counsel at the hearing of the appeal. By repudiating the Preliminary Agreement by its email of 21 February 2023, the Respondent has evinced an intention to no longer provide the services necessary to have the stormwater plan updated. The Respondent is therefore in breach of its obligations in this respect under the Preliminary Agreement. 12. The Respondent concedes that the Geotech report was not provided. We are of the opinion that the failure to provide that report is a further breach of the Preliminary Agreement. The fact that the Respondent refunded to the Appellant a sum of money for the cost of that report does not excuse the breach. 13. We are also of the opinion that the Respondent breached its obligation to provide a structural engineering design in performance of its obligations as the document provided was inconsistent with the application to the Council. This is confirmed in our view by paragraph 94 of the statement of Mr Tawil where he states that stormwater drawings for "the redesign were only required to be updated to comply with the Development determination and before the issue of the construction certificate. This required re-engaging the stormwater engineers to update and provide an amended drawing". 14. Accordingly, we find that the Respondent did not perform the entirety of its obligations under the Preliminary Agreement and by its email of 21 February 2023 repudiated its remaining obligations under that agreement. The Appellant is therefore entitled to damages that flow from the breach. 15. The question arises as to what orders we should make in light of the findings of fact and law we have set out in the above paragraphs. In our view, it is not possible for us to assess the damages that flow from the Respondent's breach. As recorded in [8] of the Decision, the Appellant sought orders as follows: 1. A refund of all monies paid under the Preliminary Agreement. 2. The cost of an engineer's invoice. 3. Mortgage costs which were continuing. 4. Copyright for architectural drawings. 5. Release of the CAD file of architectural drawings. 1. The sixth order sought was a declaration that invoices rendered to her by the Respondent were for amounts for which she was not liable. She was successful in that regard. 2. The measure of compensation for breach of contract is the amount necessary to put the innocent party in the position it would have been if the contract had been performed: Robinson v Harman (1848) 1 Exch 850 at 855; 154 ER 363 at 365; Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17 at [6], [48], [60], [190]. 3. Whilst, on its face, in the light of our decision, the Appellant may be entitled to an order for the return of the money she has paid under the Preliminary Agreement, an order to that effect may not apply the principles referred to in Robinson v Harman and nor may such an order be fair and equitable. This is relevant having regard to s 79U of the Fair Trading Act. 4. In these proceedings are Tribunal was exercising its jurisdiction under Part 6A of the Fair Trading Act. Section 79U of that Act requires that when the Tribunal makes any orders under that division of the Fair Trading Act, the Tribunal must be satisfied that the orders will be "fair and equitable to all the parties to the claim". 5. We cannot be satisfied as to the appropriate calculation of damages as we have not been addressed with evidence or submissions as to what further costs, if any, the Appellant will spend on obtaining the balance of the documents and services required under the Preliminary Agreement (being those documents and services that the Respondent should have but did not provide) from another supplier. 6. Other orders sought by the Appellant were not for compensation but rather for the provision of copyright and the release of the "CAD file". Whether the Appellant was entitled to such orders was not determined by the Tribunal at first instance and as stated above we have insufficient evidence or other material to assess whether the Appellant should have such orders. 7. Accordingly, the appropriate order to be made is to remit the Appellant's application back to the Consumer and Commercial Division of the Tribunal to be reheard on the question of whether the Appellant should be entitled to any further orders sought by the Appellant at first instance and, if so, for the purposes of the Tribunal making appropriate orders. The remittal does not include a rehearing of the Respondent's application for additional sums to be paid to the Respondent. The Tribunal has determined the Respondent's application and there is no appeal from the dismissal of the Respondent's application. 8. It is not necessary to deal with the other grounds of appeal raised by the Appellant. Nor is it necessary to make an order in respect of the costs of the appeal. That is because, given that the appeal has been upheld, the Respondent is not entitled to costs and the Appellant is self-represented. The Appellant incurred some costs in engaging an expert to obtain a report in support of her appeal. The report was not considered by us in deciding the appeal and we are of the view that the Appellant is not entitled to an order that the Respondent pay the Appellant the costs incurred in obtaining the report. However, if the Appellant wishes to make an application for costs she must comply with order (4) below. Orders 1. We make the following orders: 1. Appeal upheld. 2. Order 3 made at first instance is set aside. 3. The Appellant's application is remitted for rehearing limited to consideration of whether the Appellant should have any of the orders sought and identified in [8(1) to (5)] inclusive of the Decision having regard to the findings made by this Appeal Panel that the Respondent has breached its obligations under the Preliminary Agreement. 4. If the Appellant seeks an order for costs of the appeal she must lodge with the Tribunal an application within 14 days and serve a copy on the Respondent (whereupon the Appeal Panel will make further directions). ************ I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2024