Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hawach v A & A Building Services Pty Ltd [2024] NSWCATAP 138 Hearing dates: 26 September 2023 Date of orders: 19 July 2024 Decision date: 19 July 2024 Jurisdiction: Appeal Panel Before: G Sarginson, Senior Member D Robertson, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeals are otherwise dismissed. (3) Costs of the appeal are to be determined as follows: (a) Respondent to file with the Appeal Panel and serve on the appellants costs submissions (no more than 5 pages) by 14 days from the date of this decision. (b) Appellants to file with the Appeal Panel and serve on the respondent costs submissions (no more than 5 pages) by 28 days from the date of this decision. (c) Respondent to file with the Appeal Panel and serve on the appellants costs submissions in reply (no more than 3 pages) by 35 days from the date of this decision. (d) The costs submissions of the parties are to identify whether an oral hearing on costs is sought, and if so, why. (e) Subject to consideration of the costs submissions of the parties the Appeal Panel may determine the issue of costs on the papers and without a further oral hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (f) Either party may apply in writing to vary or extend the timetable for the filing and serving of costs submissions. Catchwords: APPEALS---Building and construction---Home Building Act 1989 (NSW)---Equitable set off---When available Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Design and Building Practitioners Act 2020 (NSW) Home Building Act 1989 (NSW) Law Reform (Law and Equity) Act 1972 (NSW) Cases Cited: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295 Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28; [2003] FCAFC 143 Collins v Urban [2014] NSWCATAP 17 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 House v The King (1936) 55 CLR 499; [1936] HCA 40 Italiano v Carbone [2005] NSWCA 177 Jain v Dr N Kalokerinos Pty Ltd [2023] NSWCATAP 141 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Lieschke v Lieschke [2023] NSWCA 241 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Mao v Bao (2023) 113 NSWLR 26; [2023] NSWCA 278 Maygood Australia Pty Ltd v The Owners – Strata Plan No 85338 [2020] NSWCATAP 237 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 O'Connor v O'Connor [2022] NSWCA 97 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 Paraiso v CBS Build Pty Ltd [2020] NSWSC 190 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 Slotwinski v Nutek Constructions Pty Ltd [2020] NSWCATAP 216 Slotwinski v Nutek Constructions Pty Ltd [2021] NSWCATAP 113 Stead v State Government Insurance Commission 161 CLR 141; [1986] HCA 54 Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Veney v The Owners-Strata Plan No 2245 [2023] NSWCATAP 262 Williams v McFarlane [1996] NSWCA 559 Texts Cited: None cited Category: Principal judgment Parties: Joseph Hawach (First Appellant) Sarah Reimers (Second Appellant) A & A Building Services Pty Ltd (Respondent) Representation: Counsel: M Klooster (Appellants) F Clark (Respondent) Solicitors: G & S Law Group (First and Second Appellants) A Plus Legal (Respondent) File Number(s): 2023/00222011 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 13 June 2023 Before: D Goldstein, Senior Member File Number(s): 2021/00387559 (formerly HB 21/32175) REASONS FOR DECISION 1. This is an appeal from two decisions of the Consumer and Commercial Division of the Tribunal involving a dispute between the parties under the Home Building Act 1989 (NSW) (HB Act). 2. Central to the dispute was whether the respondent was the builder performing residential building work under the terms of a partially oral and partially in writing agreement between the parties (and if so, what were the terms of the contract); or whether the respondent was acting as a conduit to facilitate the performance of work by a licensed owner-builder (Ms Reimers) under the auspices of or at the direction of her partner (Mr Hawach). 3. The first decision appealed against is the decision in the substantive proceedings dated 13 June 2023 (the substantive decision). 4. The second decision appealed against is the costs decision dated 9 August 2023. 5. In the substantive decision, the Tribunal dismissed the appellants' proceedings against the respondent. In summary, the Tribunal found that the amount owed to the appellants in damages for the cost of rectifying a limited amount of waterproofing work the respondent had performed under a partly oral and partly written contract to perform residential building work (approximately $25,000) was set off by the amount that the appellants owed the respondent for the costs of materials and other payments made through the respondent outside the terms of the contract between the parties. 6. The appellants filed a Notice of Appeal against the substantive decision on 12 July 2023 and have incorporated an appeal against the costs decision into the Amended Grounds of Appeal. The appeal has been filed within the time period prescribed under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW). 7. The appellants filed an Amended Grounds of Appeal on 18 August 2023. That document sets out the grounds of appeal agitated by the appellants. Each of the grounds will be referred to in this decision, as well as an additional issue (Ground 1A) dealt with in written appeal submissions of both parties. 8. The appellants did not withdraw reliance on any of the grounds of appeal at the appeal hearing. 9. In addition to the written submissions of the parties in the appeal, we have also been provided with a Court Book that includes the documentary evidence relied upon by the parties at the Tribunal hearing; the pleadings; the written submissions relied upon by the parties in the substantive proceedings and the costs application; and a transcript of evidence in respect of the hearing dates. 10. Both parties were legally represented in the proceedings before the Tribunal, and in the Appeal. Counsel for the respondent appeared in the proceedings before the Tribunal and in the appeal proceedings. Counsel for the appellants who appeared in the appeal was not Counsel who had appeared in the substantive proceedings. Background 1. The substantive proceedings involved allegations of defective residential building work in breach of the statutory warranty provisions under s 18B of the HB Act; and breach of duty under section 37 of the Design and Building Practitioners Act 2020 (NSW) (DBP Act). The appellants sought damages of approximately $95,000 for the cost of repairing the allegedly defective work. 2. The Amended Points of Claim in the substantive proceedings filed on 16 August 2022 sought the following orders in "Relief Claimed": 1. Damages 2. Interest to the date judgment is entered. 3. Interest from the date judgment is entered (sic). 4. Costs. 5. Interest on costs. 1. The Amended Points of Claim is an extensive document, that particularises a large number of factual allegations. The causes of action referred to are under the HB Act; and additionally a claim in negligence under ss 36 and 37 of the DBP Act. 2. The Amended Points of Claim did not seek any order that the respondent perform work. Section 48O of the HB Act sets out the power of the Tribunal to make orders as follows: 48O Powers of Tribunal (1) In determining a building claim, the Tribunal is empowered to make one or more of the following orders as it considers appropriate— (a) an order that one party to the proceedings pay money to another party or to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person, (b) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings, (c) an order that a party to the proceedings— (i) do any specified work or perform any specified service or any obligation arising under this Act or the terms of any agreement, or (ii) do or perform, or refrain from doing or performing, any specified act, matter or thing. (2) The Tribunal can make an order even if it is not the order that the applicant asked for. (3) Sections 79R and 79T–79V of the Fair Trading Act 1987 apply, with any necessary modifications, to and in respect of the determination of a building claim. 1. The Amended Points of Claim referred at para [12] to it being a "term of the contract" that the respondent provide certificates to certify that waterproofing works were completed in accordance with relevant standards and that the respondent had failed to do so. 2. The Amended Response to Points of Claim dated 17 August 2022 denied that the parties had entered into a contract for the respondent to perform residential building work "as pleaded…or at all", and asserted that: the appellant utilized the respondent's trade account with "various suppliers"; the respondent paid the trade account balances at the end of each month; the respondent then sent emails and spreadsheets to the appellant seeking to be reimbursed for the materials purchased by the appellant on its trade accounts; and the appellant "ordered day labour through the respondent and the respondent requested payment for the staff that were lent" (para [6] (d)). 3. The Amended Response to Points of Claim also pleaded at para [42] that if the respondent was held liable to pay damages to the appellants it was entitled to an "equitable set off" in respect of the "agreement" that the appellants would reimburse the respondent for "ordering goods and services" on behalf of the appellants; and that "pursuant to this agreement the respondent paid for labour and goods that the applicant took the benefit of and used to undertake the building work the subject of these proceedings". 4. The respondent alleged that the appellants owed it over $126,000 for costs and expenses incurred due to the performance of the works, including materials purchased using the trade account of the respondent and labour provided to the appellants. 5. There was never any written contract between the parties that clearly set out the terms of any agreement, the scope of works, or the agreed price, let alone a contract that complied with the provisions of s 7 of the HB Act. The respondent did not take out any home warranty insurance in respect of the works (ss 92 and 94 of the HB Act). 6. Rather, there was a series of emails, text messages and oral conversations between the parties. Primarily, the correspondence and interactions were between Mr Hawach (the first appellant), and Mr Essay (the director of the respondent). 7. The respondent is a licensed builder. However, as discussed previously, the respondent disputed that it was responsible for the performance of the works that the appellants alleged were defective. 8. Many of the of the allegedly defective works involved waterproofing. 9. Mr Frew is an employee of the respondent. He performed some works at the premises. 10. Ms Reimers, the second appellant, is the wife of Mr Hawach. She obtained an owner-builder permit in respect of renovation and reconstruction works at her property. 11. Under s 32(1) of the HB Act, an owner-builder permit "authorises its holder to do such residential building work as described in the permit on the land specified in the permit". Under s 32AA(1) of the HB Act, the holder of an owner-builder permit must not contract with another person to do any residential building work (or part of the work) for the holder unless the person is the holder of a contractor license to do work of that kind. 12. Ms Reimers was the sole registered owner of the land, and it is on this basis that she obtained the owner-builder permit under the HB Act rather than Mr Hawach. However, Mr Hawach was the person with whom Mr Eassey, and others who were relevantly involved in the works, dealt. 13. As discussed previously, the respondent denied that it was the entity who had contracted with subcontractors or was responsible for the control, organisation, and supervision of the works. 14. However, one of the respondent's employees, Mr Frew, gave evidence that he performed some waterproofing works at the appellants' residence along with another employee of the respondent. 15. The respondent did not file its own application in the Tribunal. Rather, as discussed previously, it argued that in respect of any amount of damages awarded to the appellants, there should be an equitable set off for monies that the appellants owed the respondent for building materials, and the engagement of labour. 16. In addition to lay witness evidence, the parties had engaged experts. The appellants engaged two experts (Mr Frizzell and Mr Farah). The respondent engaged one expert, Mr Cooper. Mr Farah and Mr Cooper had conferred prior to the hearing and prepared a joint expert report setting out the areas that they agreed upon, and disagreed upon. The Decision Of The Tribunal Dated 13 June 2023 1. The decision of the Tribunal comprises 44 pages. 2. The important factual and legal findings pertinent to this appeal are summarised as follows: Who Engaged, Supervised, Controlled and Performed Building Work; and What Work was Defective? 1. Mr Hawach organised the carrying out of the work on behalf of his wife, the licensed owner-builder (para [3]-Reasons). 2. Mr Eassey was introduced to Mr Hawach by mutual friends, with the intention that the respondent would assist the appellants to engage subcontractors by recommending appropriate tradespersons and subcontractors; and by the use of its trade account for the appellants to obtain building materials at a discounted price. The agreement was that the appellants would reimburse the respondent (paras [10]; [22]-[23]; [30]; [33]; [35]-Reasons). 3. The parties did not enter into a contract for the respondent to perform building works by way of the organisation, control, and supervision of the overall works in October 2017 as alleged by the appellants. Assessed objectively, there was no mutual agreement as to the essential terms of any contract (para [29]-Reasons). 4. The evidence of Mr Hawach that he asked Mr Eassey to perform the residential building work was rejected as being self-serving and contrary to the apparent logic of events (para [20]; [29]-Reasons). 5. There was, however, a contract between the parties for the respondent to perform waterproofing works to some parts of the building. Mr Frew was the person who performed such works in his capacity as an employee of the respondent. The relevant areas to which the respondent performed works were the bathrooms and ensuites; waterproof banding in connection with cladding; waterproofing on the podium outside the front door and western balcony; and waterproof bandage on the podium angles (paras [50]-[59]; [87]-Reasons). 6. The Tribunal did not accept the factual assertions of the appellants that the respondent's waterproofing works were far more extensive. Rather, the Tribunal found that it was Mr Hawach who organised the waterproofing to areas other than the areas waterproofed by Mr Frew, with another employee of the respondent known as "Hussain" (para [60]-Reasons). 7. The waterproofing work to the garage storage area was not performed by, or on behalf of, the respondent (para [69]-Reasons). 8. The waterproofing work performed by the respondent did not cause water ingress to the garage north-east corner (para [75]-Reasons). 9. The waterproofing work performed by the respondent did not cause water ingress to the rumpus room at the north-east corner of the house. Even if it did, the appellants had failed to prove there was any damage requiring rectification (para [80]-Reasons) 10. The respondent was responsible for the waterproofing work on the western balcony, that work was defective, and caused water ingress. However, the respondent was not responsible for the ground floor slab defects. The cost of rectification of the defective work waterproofing work on the western balcony was $24,645.91 (paras [87]- [89]-Reasons). 11. The respondent was not responsible for the works to the south-east corner of the garage, and bore no responsibility for any defect in this area (para [97]-Reasons). 12. The respondent was not responsible for roofing work where there was an alleged defect regarding the flashing around the chimney roof level allowing water ingress to damage the fireplace. The respondent contracted with the roofer. However, it did so as the "undisclosed agent" of Mr Hawach. There was an "agency arrangement" where the respondent was engaging the roofer on behalf of Mr Hawach. Mr Hawach approved the engagement, and paid the respondent the amounts the respondent then forwarded on to the roofer. The respondent was not responsible for the allegedly defective roofing works (paras [106]-[109]-Reasons). 13. The respondent was not responsible for water penetration above the first floor hall void area windows. The roofer's scope of works did not include vertical cladding or the provision of the drip edge, and the Tribunal was not satisfied any defect had been established. In any event, the respondent was not responsible for the works of the roofer, as it had merely engaged the roofer as the "agent" of Mr Hawach and was not responsible for the control or supervision of the work (paras [115]-[118]-Reasons). 14. The respondent was not responsible for the tiling work at the base of the balcony east and west walls outside the master bedroom as it did not perform the tiling to the external areas. The Tribunal accepted the evidence of Mr Eassey on this issue (para [125]-Reasons). 15. The Tribunal then dealt with claims by the appellants that they had rectified defective work of the respondent, and sought reimbursement of the monies they had expended to rectify defects. Five items were claimed. The Tribunal rejected four of those items on the basis that the respondent had not performed the original work. The Tribunal found in favour of the appellants in respect of one item. The cost the appellants were entitled to be reimbursed in respect of that item (repair and replace the gyprock affected by water ingress in rumpus room and garage) was $949.85 (paras [126]-[135]-Reasons) 16. When the amount of $949.85 was added to the amount awarded for the cost of rectification of defective works performed by the respondent in its capacity as the builder ($24,645.91), the total amount the respondent was liable to pay the appellants was $25,595.76. The Issue of Set Off 1. The respondent had pleaded in its "Amended Response to Points of Claim" that it was owed $126,553.14 for the works it had performed, and the expenses it had incurred in respect of allowing the appellants to use its trade account to purchase building materials. 2. The Tribunal recorded that the appellants' opening outline of submissions dated 17 August 2022 acknowledged that an amount of $45,000 was outstanding to the respondent, but argued that no set off could be awarded because of the provisions of ss 7, 10, and 92 of the HB Act. 3. The Tribunal noted that in the appellants' closing submissions the appellant stated that the amount acknowledged to be outstanding to the respondent was $30,000. 4. The Tribunal stated that the evidence regarding what amount was owed to the respondent from both parties was unsatisfactory, but that, on the concession of the appellants, the amount owed was between $30,000 and $45,000. 5. The Tribunal found that the respondent was not seeking damages for breach of contract, and the only contract between the parties was the waterproofing contract. Although that contract did not comply with s 7 of the HB Act, the respondent was not seeking damages for breach of that contract. Rather, the respondent was seeking a set off for the monies it was owed by the appellants arising under the agreement that it be reimbursed for monies paid for materials and labour on behalf of the appellants. 6. The Tribunal found that s 10 of the HB Act did not prevent the respondent from pleading, or being awarded, a set off, because the respondent "is not claiming damages or seeking to enforce a remedy in respect of a breach of the waterproofing contract. Nor is it seeking enforce [sic] the waterproofing contract" (para [150]-Reasons). 7. The Tribunal found that the respondent did not provide the appellants with a contract of home warranty insurance compliant with s 92 of the HB Act in respect of the waterproofing works contract. However, the respondent, in seeking to exercise a right to set off, was not demanding or receiving payment from the appellants. Accordingly, s 92(2) of the HB Act was "not an answer to the respondent's set off defence". (paras [151]-[153]-Reasons). 8. The Tribunal found that the damages amount payable by the respondent in respect of defective waterproofing works was "set off" by "the lowest amount conceded, $35,000". As the respondent's set off claim exceeded and thereby extinguished the appellants' claim for damages, the appellants' proceedings in respect of a claim for damages under s 48O of the HB Act for breach of statutory warranties under s 18B of the HB Act were dismissed. 9. The Tribunal then dealt with the appellants' claim for damages under ss 36 and 37 of the DBP Act. The Tribunal dismissed this claim for two reasons. Firstly, the appellants had not sufficiently identified the alleged construction work performed by the respondent, or proved that the respondent had engaged in the extensive building works alleged. Secondly, in respect of the waterproofing work, where the Tribunal had found that there was a contract and the work was defective, the Tribunal had already made an assessment of damages, and there was no separate loss to ground an award of damages under s 37 of the DBP Act. Grounds of Appeal 1. The Grounds of Appeal (as set out in Amended Grounds of Appeal) are as follows: 1. Ground 1. Failure to provide procedural fairness by "misconstruing and misapplying a concession" made by the applicant's Counsel in the appellants' written outline of submissions and written closing submissions." 2. Ground 2. Constructive failure to exercise jurisdiction because the Tribunal did not consider the appellants' claim that waterproofing certificates be provided. 3. Ground 3. Failing to apply the correct legal principle when determining the terms of a contract that was partially in writing and partially oral. 4. Ground 4. Failure to provide procedural fairness in finding that the respondent contracted with the roofer as an "undisclosed agent" and there was an "error" in that finding. 5. Ground 5. Failure to "apply the correct legal principle when making findings as to the credibility of certain witnesses." 6. Ground 6. Failure to provide adequate reasons in respect of the substantive decision. 7. Ground 7. Failure to provide adequate reasons in the cost decision dated 9 August 2023 "with respect to the issue of apportionment". 8. Ground 8. The exercise of discretion in the costs decision "miscarried." 9. Grounds 9-11. Leave to appeal on errors other than an error on a question of law in respect of both the substantive decision and the costs decision. The Amended Grounds of Appeal identifies 16 factual findings that it alleges were against the weight of evidence in the substantive decision; and further alleges that the substantive decision and the costs decision were not fair and equitable. 1. In their written submissions, the appellants also identify "Ground 1A" which is that the Member "Failed to properly apply s 10 of the Home Building Act 1989 (NSW)". The respondent's submissions respond to this ground, and to the extent that it is necessary to grant leave to the appellants to rely upon this ground, we do so as there is no demonstrable prejudice or unfairness to the respondent. Scope And Nature Of Appeals 1. An internal appeal to the Appeal Panel from a decision (other than an interlocutory decision) may be made "as of right on any question of law" under s 80(2)(b) of the NCAT Act, and otherwise with leave of the Appeal Panel. 2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division under s 80(2)(b) of the NCAT Act 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: 1. The decision of the Tribunal under appeal was not fair and equitable; or 2. The decision of the Tribunal under appeal was against the weight of evidence; or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 ('Collins v Urban'), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12 (1) of Sch 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. An appeal is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. 2. Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of cl 12 (1) of sch 4 of the NCAT Act, the Appeal Panel must additionally consider whether it should exercise its discretion to grant leave to appeal under s 80 (2) (b) of the NCAT Act. 3. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. Even if the appellant establishes that it may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains discretion whether to grant leave under s 80(2) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong (Pholi v Wearne [2014] NSWCATAP 78 at [32]). 2. An error on a question of law includes (but is not limited to): 1. A constructive failure to exercise jurisdiction, which includes the failure to consider and address a material issue or by overlooking material evidence raised by a party in the proceedings that is within the jurisdiction of the Tribunal to determine (Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]-[12] and [413]). 2. Acting on the application of the wrong legal principle which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]-[53] (Bimson)). 3. Denial of procedural fairness (Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28; [2003] FCAFC 143 at [8] see also Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 at [13]). 4. Misconstruing a statute (Craig v South Australia (1995) 184 CLR 163 at pp 177-178; [1995] HCA 58 at [12]; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [71]-[74]). 5. Making a factual finding when there is no evidence to support the finding (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156D-F; see also Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 at [13]). 6. Failing to take into account a relevant consideration that is a mandatory consideration Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40; see also Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 at [13]) 7. Reasons that are insufficient to meet the minimum acceptable standard (New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231). 1. Each question of law must be a "pure" question of law (Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Orr v Cobar) at [44]-[58]; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71]). The Court of Criminal Appeal stated in Orr v Cobar (Bathurst CJ and Bell P (as the Chief Justice then was) with Garling, Johnson and Lonergan JJ agreeing) at [109]: "Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law.' They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts. The construction accords with the cases we have referred to at [48] and [70] above." 1. A conclusion of mixed fact and law cannot be challenged on an appeal on a question of law under s 80(2)(b) of the NCAT Act except in the circumstances where it can be determined that the conclusion proceeded from a misdirection of law: Jain v Dr N Kalokerinos Pty Ltd [2023] NSWCATAP 141 at [91]. The wrong application of the correct principles to the facts is an error of mixed fact and law and an appeal would not lie on a question of law: Bimson at [42]-[45]. CONSIDERATION Ground 1-Misconstruing the 'Concession' and Denial of Procedural Fairness 1. At this juncture, it is appropriate to point out that reference by the Tribunal in its reasons to the concession by the builder in closing written submissions that $35,000 was owed was clearly a typographical error, with the correct amount being $30,000. However, that makes no difference to the outcome, because, on the findings of the Tribunal, the appellants owed the respondent an amount that exceeded the amount of damages they were awarded for the rectification of defective work in the contractual waterproofing works agreement between the parties (ie the work performed by Mr Frew as employee of the respondent to the western balcony). 2. The appellants concede that they made a concession in their written opening submissions that the appellants owed the respondent $45,000; and made a concession in their written closing submissions that they owed the respondent $30,000. They also concede that they are bound by the conduct of their Counsel in relation to such a concession. 3. The appellants' closing written submissions relevantly stated as follows (paras [190]-[192] of submissions dated 29 September 2022): "190 Notwithstanding that the Applicants acknowledge and (sic) outstanding amount of $30,000, in entering into the Agreement without a written contract or the requisite insurances, the Builder has not complied with sections 7 and 92 of the HBA, and accordingly, pursuant to s 10 "is not entitled to damages or to enforce any other remedy in respect of breach of the contract committed by any other party to the contract, and the contract is unenforceable by the person who contracted to do the work". 191 Accordingly, the Builder is unable to enforce any such set-off on account of failing to comply with the HBA unless there was a quantum meruit claim, which there was not. 192 In any event, the Applicants submit that there is no contemporaneous or other information available to the Tribunal to determine that any higher amount is due and owing. The Builder simply has not discharged its onus in that regard." 1. The appellants assert that their "concession" was only in the context of the appellants' case that the respondent was responsible for the organisation, supervision and performance of all of the allegedly defective residential building works that formed the basis of their claim. The appellants refer to this as the "works contract," and argue that: 1. It was not a concession that the amount was generally owed to the respondent, only that the amount was owed in respect of the "works contract." 2. What amount was owed to the respondent was a "question of law" to which the appellants could not make a concession and to which the Tribunal was bound to make factual findings. 3. The respondent was arguing that there was no contract at all between the parties. 1. The appellants rely upon the authority of O'Connor v O'Connor [2022] NSWCA 97 at [67] (O'Connor) to support their argument that the Tribunal was bound to make findings on a question of law. 2. The respondent submits that the "concession" was not limited to there being a "works contract" in the terms argued by the appellants. Rather, it was a concession that the appellants owed the respondent either $45,000 or $30,000 for payment in respect of work performed or materials or labour or sub-contractors engaged on behalf of the appellants, irrespective of whether that was under contract, and irrespective of the precise terms of any contract found by the Tribunal. 3. O'Connor involved a purported oral agreement regarding allocation of shares. During oral closing submissions, counsel for a party made a concession that renounced an alternative case that had previously been raised; and the Court did not consider the alternative case when dismissing the proceedings. The NSW Court of Appeal dismissed the appeal. It is relevant to set out the complete passages regarding concessions made at hearing rather than merely para [67]. The Court (Bell CJ; Ward P; and Leeming JA) stated at [65]-[71]: "65 The role of a court is to decide the dispute presented to it. A concession may relieve the court from resolving that aspect of the dispute, because the effect of a concession is to remove one or more issues from the dispute. 66 It is trite that '[t]he adversarial system of litigation operates upon the basis that a party is generally bound by the conduct of counsel': Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [46] and that '[e]xcept in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so': University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; [1985] HCA 28. 67 A concession as to a question of law does not bind the Court. For example, the parties may be agreed that a statute bears a particular meaning, or one of two meanings; in such a case the Court is not restricted to the meanings suggested by the parties. As was said in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [89], parties do not have the power, whether by concession or otherwise, to require a court not to apply the law. A recurring example is the agreement of parties that a court has jurisdiction. It is clear that the parties' agreement does not relieve the court from determining for itself that its jurisdiction has been enlivened: see Minister for Local Government v Blue Mountains City Council (2018) 97 NSWLR 1132; [2018] NSWCA 133 at [51] and the authorities referred to there. 68 But one question which is very largely left for the parties to formulate is the ambit of their own dispute. It is ordinarily for the plaintiff to identify one or more causes of action on which the plaintiff seeks relief, and it is ordinarily open to the plaintiff, at some later stage, to confine its claim, or indeed to abandon aspects of its claim. In the same way, a defendant may admit aspects of a plaintiff's case. For example, not uncommonly, a defendant may admit liability to a claim, leaving only a contest as to quantum. In such circumstances, the court ordinarily has no role in determining whether the defendant was indeed liable while the concession is in place. 69 When that occurs, the 'real issues' in the proceedings – being the points in issue between the parties to which the obligations in s 56 of the Civil Procedure Act 2005 (NSW) apply – thereby shrink. Indeed, it is open to the plaintiff to renounce its claim altogether, and when the parties are agreed that litigation should be dismissed, then absent some additional requirement (such as leave in the case of a plaintiff under a disability, or in a representative proceeding) the Court will give effect to the concession. 70 On the other hand, if the parties agree that their dispute does extend to a particular issue, then it is ordinarily not for the Court to interfere. As Hayne J put it in Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 at [196]: 'the respondent expressly conceded that the Court could and should entertain the point which is decisive of the appeal. Effect must be given to that concession. It is not a concession about the Court's jurisdiction. That would not bind the Court. But, after Crampton, there is no question about the Court's jurisdiction. The respondent not making the submission that the point now raised was given up by the appellant at trial, or cannot now be raised, it is not for this Court to say of its own motion that the appellant is barred from making the argument.' 71 In the present case, one may pass over the less unequivocal statements in the plaintiffs' opening. By the time of final address, the plaintiffs unequivocally renounced in both their written and oral submissions the possible alternative case formulated the previous Thursday afternoon for their consideration by the primary judge. While that concession remained in place, the primary judge was obliged to proceed on the basis that the plaintiffs' claim was confined in that way. This Court is likewise bound when determining this appeal by way of rehearing. It was and is not open for the proceedings to be determined contrary to the plaintiffs'/appellants' concession while that concession remains in place." 1. A legally represented party is bound by the strategic decisions it makes in the manner in which it runs its case, other than in the exceptional circumstance of a mistake, omission, or incompetence leading to a serious miscarriage of justice (Williams v McFarlane [1996] NSWCA 559 at pp 3-5 per Kirby P). 2. In this matter, the Tribunal was faced with the appellants who argued that the respondent performed residential building works under contract with the appellants; and a respondent who argued that there was no contract, but that the appellants owed it a substantial amount of money in respect of materials acquired and payments made to third parties on behalf of the appellants, in circumstances were it was assisting a licensed owner-builder and her partner. 3. The respondent had argued that, if there were defective works that it was responsible for as builder, any amount of damages should be set off by the amount that the appellants owed the respondent. There was diverse and contested evidence between the parties as to what payments had been made by the appellants to the respondent; and what payments had been made by the respondent to third parties and for materials. 4. In those circumstances, the concession by the appellants that they owed the respondent $45,000 or $30,000 was, in effect, a factual concession regarding the amount owed to the respondent, irrespective of whether it was owed under contract or owed on some other legal basis (such as, for example, monies had or received, or unjust enrichment). We do not accept that it was a concession exclusively framed on the basis that $45,000 or $30,000 was only owed to the respondent under the terms of the contract that the appellants argued was extant between the parties. 5. In our view, it was open to the Tribunal to make a factual finding, based on the concession of the appellants, that the appellants owed the respondent $30,000 irrespective of the precise terms of the contract or nature of the agreement between the parties. 6. Further, that concession is, in our view, no different to a pleaded concession in Points of Claim or Points of Defence (Jain v Dr N Kalakerinos Pty Ltd [2023] NSWCATAP 141 at [111]-[118]) that relieves the Tribunal from being compelled to make a factual finding based on evidence; or draw a legal conclusion. It is not a concession that goes to the issue of jurisdiction. 7. The concession regarding the monetary amount owed relieved the Tribunal from making factual findings as to how much was paid by the appellants to the respondent; when it was paid; and what amount remained outstanding. 8. The concession that it was "owed" to the respondent was open to be accepted by the Tribunal as a concession that it was owed to reimburse the respondent, not only for any works performed which on the basis of any factual and legal findings of the Tribunal might be held to have been performed pursuant to a contract to do so, but also for materials that the respondent had purchased on behalf of the appellants, and monies that the respondent had paid on behalf of the appellants to facilitate the performance of the works. In other words, the concession was that the monies were owed, irrespective of whether or not the respondent had a contract with the appellants to perform residential building work. 9. The appellants submit that the Tribunal made an error on a question of law because the Tribunal failed to accord procedural fairness. That is expressed as follows in the appellants' written submissions: "However, in order to afford procedural fairness between the parties, the Tribunal must properly understand the nature and effect of any concession in order to apply it properly. By proceeding in the manner in which it did the Tribunal has not afforded the Owners with procedural fairness on the basis it has allowed a set off in reliance on a concession made by the Owners that only arose in the event the Builder was found to have done the Works and not a substantially smaller scope of works confined to waterproofing works to a very limited and specified area found by the Tribunal under the Waterproofing Contract. In the event that this Ground succeeds and no other grounds succeed, given the factual findings as to the existence and quantification of the defects as found the amount of $25,595.76, that amount should be awarded in favour of the Owners". 1. Procedural fairness requires that a person (or party) be provided a fair opportunity of being heard. What is necessary and appropriate to ensure a fair hearing depends on the particular facts and statutory context, rules of procedural fairness being flexible and adaptable so as to be appropriate in a given case so as to avoid practical injustice (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL) at [26] and [29]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [19]-[20]; Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]-[38]). What is required in order to ensure that the decision is made fairly in the circumstances will depend on the legal framework and factual context in which the decision was made (Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [30] (Kiefel, Bell and Keane JJ); SZBEL at [26]). 2. What is a reasonable opportunity for a party to present its case is a matter of fact and degree, and it is not intended to protect a party from its own failures or strategic choices (Lieschke v Lieschke [2023] NSWCA 241 at [22]-[23]; [105]; [107]). 3. If it is established that there was a denial of procedural fairness, it must then be considered whether there exists a realistic possibility that the outcome of the decision could have been different had the error not been made (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 at [11]-[16], referring to Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 and Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54). 4. The respondent clearly identified in its pleadings and its written submissions that it was claiming amounts it asserted it was owed by the appellants as a set off to any awarded damages for the cost of rectifying allegedly defective residential building work. 5. We are not satisfied that the appellants have demonstrated any denial of procedural fairness. The submissions of the appellants refer to alleged "misconstruing" of the appellants' concession as to the amount owing to the respondent as being a denial of procedural fairness. However, the submissions failed to articulate how the hearing was conducted in a procedurally unfair manner, or how the appellants were not given a reasonable opportunity to present their case resulting in a practical injustice. Ground 1A - Failure to Properly Apply Section 10 of the Home Building Act 1989 (NSW) 1. Section 10 of the HB Act states as follows: 10 Enforceability of contracts and other rights (1) A person who contracts to do any residential building work, or any specialist work, and who so contracts— (a) in contravention of section 4 (Unlicensed contracting), or (b) under a contract to which the requirements of section 7 apply that is not in writing or that does not have sufficient description of the work to which it relates (not being a contract entered into in the circumstances described in section 6(2)), or (c) in contravention of any other provision of this Act or the regulations that is prescribed for the purposes of this paragraph, 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, and the contract is unenforceable by the person who contracted to do the work. However, the person is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person. (2), (3) (Repealed) (4) This section does not affect the liability of the person for an offence against a provision of or made under this or any other Act. 1. The Tribunal found that the respondent had not complied with s 7 of the HB Act in respect of the contract to perform waterproofing works; and that the other agreement between the parties was not a contract to which the provisions of s 7 of the HB Act applied. 2. There is no error of law in the Tribunal's interpretation of s 10 of the HB Act. 3. As the Tribunal correctly identified, s 10 of the HB Act means that a builder who performs unlicensed contracting, or does not comply with s 7 of the HB Act "is not entitled to damages or to enforce any other remedy in respect of the breach of contract committed by any other party to the contract, and the contract is unenforceable by the person who contracts to do the work". The respondent, on the basis of the findings of the Tribunal, was not seeking damages in respect of any breach of the waterproofing contract by the appellants, nor enforcing any other remedy in respect of a breach by the appellants of the waterproofing contract. 4. What the Tribunal did, consistently with the issues that had been raised in the proceedings, was find that there were monies owed to the respondent by the appellants outside the terms of the waterproofing contract. As discussed previously, those findings were based on the Tribunal being satisfied that the appellants (as owner-builder) had agreed with the respondent that the respondent would assist the appellants to procure materials at a discounted cost, and to identify appropriate contractors for the appellants to engage, for which, ultimately, the appellants were obliged to pay. 5. In Slotwinski v Nutek Constructions Pty Ltd [2020] NSWCATAP 216 (Slotwinski), the Appeal Panel held that the Tribunal has the power in HB Act proceedings to consider and apply equitable set off as a 'defence' to an owner's claim for damages by reason of ss 6 and 7 of the Law Reform (Law and Equity) Act 1972 (NSW) and the principles enunciated by White J in Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289. 6. The principles of equitable set off were referred to in detail in Mao v Bao (2023) 113 NSWLR 26; [2023] NSWCA 278 by Ward ACJ at [54]-[63]. Relevantly, at [55]-[59], her Honour stated: "55 The classic test for equitable set-off, articulated by Lord Cottenham LC in Rawson v Samuel and endorsed by the High Court of Australia in Hill v Ziymack (1908) 7 CLR 352 at 361-2; [1908] HCA 13 (Hill v Ziymack) is that of impeachment, namely that the cross-demand must "impeach" the initial claim. Keane JA, then sitting in the Court of Appeal in Queensland (with whom McMurdo P and Fraser JA agreed) said in Forsyth v Gibbs [2009] 1 Qd R 403; [2008] QCA 103 (Forsyth) at [10] that: It is essential that there be such a connection between the claim and the cross-claim that the cross-claim can be said to impeach the claim so as to make it unfair for the claim to be allowed without taking account of the cross-claim. 56 This formulation has been broadly adopted across Australia (see, for example, Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [9]; Hawes v Dean [2014] NSWCA 380 (Hawes) at [61]; Norman v FEA Plantation Ltd (2011) 195 FCR 97; [2011] FCAFC 99 (Norman) at [143]; Mittiga v Community Corporation 20582 Inc (2012) 114 SASR 557; [2012] SASC 202 at [28]; Chamberlain Early Learning Centre Pty Limited v Precious 1 Pty Limited in its own right and as trustee for The 4 Chamberlain Holdings Family Trust [2017] NSWSC 189 (Chamberlain) at [69]-[70]; Meagher, Gummow & Lehane [39-060](g) 1108-1110). 57 The strictness of the "impeachment" requirement was emphasised in this Court in HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 479 (HP Mercantile) at [136] where Emmett JA (with whom Beazley P, as Her Excellency then was, and Meagher JA agreed) said: 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 (James v Commonwealth Bank of Australia (1992) 37 FCR 445 at 457-458). 58 In Hawes, Barrett JA (Bathurst CJ and McColl JA agreeing) emphasised at [65] that the notion of impeachment is fundamentally underpinned by unconscionability, in the sense that the two claims must be so closely linked that it would be unconscionable to allow one to be enforced without accommodating the other, his Honour saying that: In all the hypothetical cases to which Emmett JA referred [in HP Mercantile at [137]] 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. 59 That said, it has also been recognised that the notions of conscience or unconscionability that underpin equitable set-off do not operate at large (Active Adult Management Pty Ltd v Milstern Retirement Living Pty Ltd [2017] NSWSC 1238 (Active Adult Management) at [84]) nor is unconscionability of itself sufficient to establish a defence of equitable set-off (see Wollongong Coal Ltd v Gujurat NRE India Pty Ltd (2019) 100 NSWLR 432; [2019] NSWCA 135 (Wollongong Coal) at [113] per Leeming JA, Bathurst CJ and McCallum J agreeing). In Forsyth (in a passage referred to and affirmed in Hawes) Keane JA made clear (at [10]) that "the availability of an equitable set-off does not depend upon an unfettered discretionary assessment of whether it would be "unfair" in a general sense for a plaintiff to insist on payment of the debt owed to it while the cross-claim remains unpaid". 1. During the hearing, Mr Hawach was questioned about payments made to the respondent, and demands for payment. He agreed that he had made payments for materials ordered by the respondent that he was "given a figure to pay" but asserted he was not provided with invoices. Mr Hawach asserted he had not been provided with invoices for "third party trades or labour" but if invoices were sent and they were addressed to him, he would pay (T:923-930 and 1017-1022 referred to in builder's written closing submissions at pp 50-51). 2. In this matter, the appellants had admitted owing money to the respondent in respect of the performance of the building works. The Tribunal found that there was an "agreement" between the parties that the appellants could use the respondent's trade accounts for the purchase of materials and "expenditure" incurred. The Tribunal found that that amount could be set off against the amount it had found the respondent liable to pay the appellants in respect of defective building work. The appellants maintained that the respondent could not claim a set off by reason of ss 7, 10 and 92 of the HB Act. That submission was rejected. The appellants did not otherwise submit that a set off was not available. The Tribunal was therefore entitled to proceed on the basis that the appellants accepted that the respondent's claim was sufficiently connected with the matters the subject of the appellants' claim that the amounts could be set off. 3. The respondent being able to set off the monies it was owed (being an amount of either $45,000 or $30,000) falls outside the parameters of s 10 of the HB Act, just as an assessment on quantum merit principles also falls outside s 10 (Paraiso v CBS Build Pty Ltd [2020] NSWSC 190 at [41]-[42]). It is not a claim for a contractual remedy under the residential building work contract to perform waterproofing work, but an amount owed by way of debt or in restitution for materials purchased and other expenses incurred by the respondent to facilitate the performance of residential building work by an owner-builder. Ground 2-Failure to Consider Appellants' Case in Respect of Production of Waterproofing Certificate 1. The appellants submit that the appellants had sought production of a waterproofing certificate in their application originally filed with the Tribunal; the Written Outline of Submissions sought a work order that the respondent provide a certificate certifying the waterproofing works undertaken by the respondent; and, during cross examination, Mr Eassey conceded that the respondent had not provided a waterproofing certificate for the works it performed for the appellants. 2. The respondent submits that no work order (ie an order that the respondent do work, or do a specified thing such as providing trade certificates for residential building work performed under s 48O of the HB Act) was sought in the Amended Points of Claim, and that the appellants were only seeking an award of damages. 3. The respondent concedes that the "issue" of failure to provide waterproofing certificates was raised during the course of the hearing, but submits that the failure of the Tribunal to make orders requiring the provision of the certificates was not an error of law. Firstly, the appellants did not seek a work order. Secondly, the appellants would need to prove it was a term of the waterproofing contract as found by the Tribunal that the respondent provide a waterproofing certificate to the appellants before the failure to provide a certificate could constitute a breach of contract by the respondent. The respondent submits that the evidence, assessed objectively, could not establish, on the balance of probabilities, that there was such a term, in circumstances where the respondent only performed a limited amount of waterproofing work, and the Tribunal found that significant other waterproofing works were performed by others. 4. Contrary to the submissions of the appellants, the original application filed with the Tribunal on 27 July 2021 did not seek a work order. That application was filed by Mr Hawach. It sought the following orders: An order that I did not have to pay the amount of $45,000 An order to pay me the amount of $180,000 Is this amount compensation for loss because of a breach of statutory warranty? Yes Total Amount Claimed: $135,000 1. There was reference in the "Dispute Details" and "Reasons for the Orders" to the respondent being responsible for "the waterproofing for all wet areas inside and outside the house," and that a waterproofing certificate was to be sent to the Private Certifier but the respondent did not do so. The "Reasons for the Orders" state "I am seeking this order for repair work to be carried out for all defects and damages" performed by the respondent. However, it is incorrect to assert that the application clearly sought an order that the respondent provide a waterproofing certificate, as distinct from an order for damages for the performance of defective residential building work and the failure to provide a waterproofing certificate. 2. As discussed previously, the Amended Points of Claim did not identify in the "relief claimed" part of the document that the appellants were seeking an order under s 48O of the HB Act for the delivery of waterproofing certificates. 3. The appellants' opening outline of submissions dated 17 August 2022 did seek a "work order" in respect of rectification of defective work (but without specific reference to the production of one or more waterproofing certificates). The appellants' written closing submissions dated 29 September 2022 stated that the owners now sought damages for the cost of rectifying defects rather than the respondent being ordered to perform work, but added in the summary at the end of the submission that one of the orders the Tribunal should make under s 48O of the HB Act was for "the builder to provide a copy of the waterproofing certificate certifying the works undertaken by the builder within 14 days". 4. The appellants also cross-examined Mr Eassey at the hearing in relation to whether the respondent had provided a waterproofing certificate. Mr Eassey stated that the respondent had not provided such a certificate. 5. There was a lack of clarity as to whether or not the appellants were seeking an order for production of a waterproofing certificate. However, the respondent does not submit that this caused any denial of procedural fairness to the respondent. 6. We accept that the appellants had raised a claim to such an order in substance. We also accept that the respondent did not assert in its submissions that the appellants' claim for an order requiring the delivery of a waterproofing certificated was not part of the dispute for consideration. In those circumstances we accept that the respondent was on notice of the claim and would not be denied procedural fairness if the claim were entertained. The Tribunal is not a court of strict pleading but procedural fairness does require that a party give fair notice of any claim: see Maygood Australia Pty Ltd v The Owners – Strata Plan No 85338 [2020] NSWCATAP 237 at [67] – [68] and [76] – [77]. 7. As Gummow and Callinan JJ held in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] – [25], a failure to make a finding on "… a substantial, clearly articulated argument relying upon established facts" can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction. The failure of the Tribunal to deal with the appellants' claim for an order requiring the provision of waterproofing certificates may constitute an error with respect to a question of law on that basis. 8. However, in our view, there was no basis in the evidence before the Tribunal upon which it might have found that the failure of the respondent to provide a waterproofing certificate was a breach of contract. 9. No argument was raised that the failure to provide a waterproofing certificate was a breach of the statutory warranties under s 18B of the HB Act; nor is there evidence that, assessed objectively, could establish on the balance of probabilities that it was a term of the contract for the performance of waterproofing work found by the Tribunal that certification would be provided. The concession by Mr Eassey that a waterproofing certificate had not been provided does not relieve the appellants from proving that it was a term of the contract (as found by the Tribunal, rather than the entirely different contract that the appellants were arguing existed), that a waterproofing certificate be provided for the works performed by the respondent. 10. Accordingly, this ground of appeal fails. Ground 3 - Failure to apply the correct principles in ascertaining and construing the terms of a contract that is partly oral, partly in writing and partly through conduct 1. The appellants submit that the Tribunal failed to apply the correct legal principles because: "[A]t [19] [it] refused to consider any document that came into existence after October 2017 and in so doing did not apply the correct principles … to determine whether or not an agreement that was partly oral, partly in writing and partly through conduct had been entered into on or after October 2017" 1. That submission does not accurately characterise the Tribunal's findings at [19] which were: "The particulars to the Amended Points of Claim state that to the extent that the contract was express and written, it was comprised in 41 written communications which were dated, commencing from 27 October 2017 to March 2021. I find that documents which came into existence after October 2017 cannot be a document which evidences a contract entered into in October 2017, unless the document expressly states that it is a contract document. Otherwise a document which comes into existence after October 2017 may be an acknowledgement of the contract or evidence of the contract in the sense that the document clearly came into existence because of the October 2017 contract. The documents particularised in the Amended Points of Claim are not relied on in the applicants' final submissions." 1. We find no error in those statements. It is simple logic that a document coming into existence after a contract was supposedly formed cannot constitute part of the contract. The Tribunal acknowledged the possibility, which we accept, that documents (such as emails and text messages) and conduct that occurred after October 2017 may be taken into account - to the extent that they throw light on the surrounding circumstances or what the parties have agreed – in construing, objectively, the terms of a contract not wholly in writing (Cherry v Steele-Park (2017) NSWLR 548; [2017] NSWCA 295 at [57]-[90]; Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [141] – [144]). 2. As discussed previously, the appellants were arguing that in October 2017 they entered into a contract with the respondent for the respondent to perform all of the residential building works that were the subject of the dispute between the parties. 3. Even if the Tribunal misstated the legal principles for construing a contract at paragraph [19] of its reasons, that error made no difference to the outcome. 4. The Tribunal gave extensive and detailed reasons as to why it did not accept the evidence of the appellants (relevantly, the evidence of Mr Hawach) that the respondent was the builder for the majority of the works; as distinct from Ms Reimers being the owner-builder responsible for the works and Mr Hawach being involved in the direction and performance of the work on behalf of Ms Reimers. 5. After referring to the objective theory of contract at paragraph [28] of the reasons, the Tribunal stated at paragraphs [29]-[31]: "29 The observations of McHugh JA as referred to above are highly relevant to these proceedings with the facts do not 'fit easily into the slots of "offer", "acceptance," "consideration" and "intention to create legal relationship" which are the benchmarks of contract of classical theory.' I do not accept Mr Hawach's evidence that he entered into an agreement or a contract with the respondent to carry out the work referred to at [14] of his statement or that the respondent would identify or engage suitable contractors to carry out that work under its supervision. I find that Mr Hawach's evidence is self-serving and contrary to the apparent logic of events, which would in my view demonstrate a more sequenced path to a builder agreeing to take on the responsibility of undertaking building work than Mr Hawach's evidence that he unilaterally appointed the respondent as his builder as referred to at [16] above, as he would have the Tribunal accept. His evidence falls short of establishing that the parties entered into an agreement that the respondent will carry out residential building work for the applicants. There is also no evidence that the respondent agreed to enter into such an agreement, or that the respondent was offered consideration for carrying out such work. There is also no evidence that the respondent intended to enter into a contractual relationship with the applicants. 30 I find that at the outset, the intention of the respondent was as stated by Mr Eassey, that he would help out the applicants when he could by answering Mr Hawach's questions and giving him the names of sub-contractors whom the applicants might use on their project. The respondent also allowed the applicants to use its trade accounts to order materials and obtain trade discounts that would otherwise not be available to them. 31 I find that contrary to the allegation at [6] of the applicants Points of Claim the parties did not enter into contractual relations in or around October 2017." 1. These are factual findings rejecting the evidence of Mr Hawach and the argument of the appellants that there was a contract with the respondent from October 2017 onwards by which the respondent was to perform residential building work. The Tribunal also, in its reasons, clearly identified that it had considered events after October 2017 when making its factual findings (see, for example, paragraphs [35]-41]). 2. No error on a question of law is established in respect of this ground of appeal. Ground 4 Denial of Procedural Fairness in Respect of Undisclosed Agency Finding 1. The appellants submit that there was a denial of procedural fairness by reason of the findings of the Tribunal at para [106]-[108] that the respondent was the "undisclosed agent" of Mr Hawach and had not engaged the roofer as a subcontractor to the respondent but on behalf of Mr Hawach who was acting on behalf of the licensed owner-builder. 2. The appellants submit that "the assertion of any undisclosed agency relationship was not pleaded, not raised in opening or otherwise during the hearing or raised by either party at any time in the written submissions provided" and was "a matter that was raised by the Tribunal independently without notice." 3. We do not consider that the appellants were denied procedural fairness in respect of the findings that were made on the issue of agency. It is clear from the submissions of the parties and the manner in which the case was conducted by both parties that the respondent was arguing that it was Mr Hawach who was controlling and directing the engagement of contractors and was acting on behalf of his partner, who was the licensed owner-builder. 4. In those circumstances, a finding that the respondent was the agent of Mr Hawach (whether disclosed, or undisclosed) in relation to the employment of a particular contractor was a factual finding clearly available to the Tribunal on the evidence before it. 5. In the circumstances of this matter, no part of the Tribunal's obligation to accord procedural fairness to the appellants required the Tribunal to directly raise with the appellants a potential finding of "undisclosed agency" before making such a finding. Rather, the issue of who was legally responsible for the engagement, control, supervision, and payment of contractors was clearly in dispute, and the appellants had a reasonable opportunity to make submissions on this issue. Ground 5 Failure to Apply the Correct Legal Principle when Determining Issues of Credit 1. The appellants submit that the Tribunal applied the incorrect legal test to the evidence when making factual findings that Mr Hawach was not a witness of credit in respect of his version of events as to who performed residential building work, and who directed, controlled, engaged, supervised, and paid for contractors to perform work. 2. However, there is an internal inconsistency in the appellants' submission that this is an error on a question of law. The appellants' submissions state as follows (p 21): "The reasons demonstrate that whilst the correct approach was identified, the Senior Member simply did not adopt that approach when assessing and determining issues of credit." 1. The appellants complain that the Tribunal ignored, or did not properly take into account, contemporaneous documents passing between the parties. 2. However, the appellants have failed to articulate how the Tribunal failed to identify the correct legal test when making credit findings. 3. We are not satisfied that the appellants have established that the Tribunal identified and applied the incorrect legal test when making credit findings. Rather, we are satisfied that the Tribunal applied the correct legal test, and made factual findings that were available to it on the evidence before it. The fact that the appellants disagree with the factual findings is not an error with respect to a question of law. Ground 6 Inadequate Reasons 1. The appellants submit that the Tribunal failed to give adequate reasons that meet the "minimal acceptable standards" test (New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [66]-[77]) in a number of respects. The issues raised are: 1. Not providing reasons as to why the appellants' claim for the production of a waterproofing certificate was dismissed. 2. Not referring to "41 documents, 11 conversations and three forms of conduct expressly pleaded in the Amended Points of Claim" when making factual findings about the "terms of the contract entered into between the parties and issues of credit". 3. Failing to adequately explain why there was no breach of the "waterproofing contract." 1. We are not satisfied that any error on a question of law is established in respect of the adequacy of the reasons. 2. The issue of the appellants' claim for the production of a waterproofing certificate has been dealt with previously in this decision. 3. There was no obligation on the Tribunal to identify and refer to every piece of evidence referred to by the appellants in their pleadings and submissions. The fact that the Tribunal did not do so did not mean that the Tribunal's reasons were inadequate. In our view, the reasons provided by the Tribunal meet the "minimum acceptable standard" in respect of the real issues in dispute. 4. In respect of the "waterproofing contract," the Tribunal found that there was a contractual agreement for a limited amount of waterproofing work. The scope of works under the contract as found by the Tribunal was significantly less than claimed by the appellants. The Tribunal found that the contract as found by the Tribunal was breached by the respondent by failing to perform work in accordance with the statutory warranties under s 18B of the HB Act. 5. The Tribunal's finding that the contract had not been breached by the appellants was in respect of monies owed to the respondent under the terms of this contract. The Tribunal did not find that moneys were owed to the respondent under the "waterproofing contract". The finding that there was no breach was made in the context of the appellants' argument that the respondent's claim for a set-off could not be maintained by reason of s 10 of the HB Act. The Tribunal gave adequate reasons for this finding and no error on a question of law is established in respect of the adequacy of the reasons. Grounds 7 and 8 the Costs Decision 1. The purported errors on a question of law in the Costs Decision identified by the appellants are: 1. Failure to give adequate reasons. 2. Mistake as to the facts and mistake as to the correct legal principle to be applied. 1. The costs decision is dated 9 August 2023. Written reasons were provided. The decision was made on the papers, after receipt of written cost submissions by the parties. Neither party sought an oral hearing on the issue of costs. 2. The Tribunal ordered that the appellants pay the respondent's costs of the proceedings on the ordinary basis, as agreed or assessed. 3. The Tribunal rejected the argument of the appellants that there should be a proportionate costs order, and found that, as the amount of damages awarded to the appellants was set off entirely by the monies that they owed the respondent, the appellants were not the successful party in the proceedings. The Tribunal referred to the decision of the Appeal Panel Slotwinski v Nutek Constructions Pty Ltd [2021] NSWCATAP 113, where the Appeal Panel stated at [78] that a party who had successfully argued that the entire damages amount be set off was the successful party in the proceedings. 4. As the appellants were not the successful party in the proceedings and the Tribunal found that the respondent was the successful party, the appellants were found liable to pay the respondent's costs. The Tribunal rejected the submission of the appellants that the respondent had engaged in "disentitling conduct" because the respondent had not complied with sections 7 and 92 of the HB Act. 5. In Veney v The Owners-Strata Plan No 2245 [2023] NSWCATAP 262 the Appeal Panel stated as follows at [48] – [49]: "48 Furthermore, costs decisions fall into the category of discretionary decisions and therefore the appellant must establish an error of the type described in House v The King (1936) 55 CLR 499; [1936] HCA 40, namely that the Tribunal: made an error of legal principle; made a material error of fact; took into account some irrelevant matter; failed to take into account, or gave insufficient weight to, some relevant matter; or arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. 49 In addition, we adopt the "constrained" or "deferential" standard of appellate review that we regard as applicable, as well as the "particular caution" to be exercised in reviewing a decision concerning a question of practice and procedure (see McInnes v Rheem Australia Pty Limited [2021] NSWCA 89 at [21] – [25]; Roberts v The Owners – Strata Plan No 4393 [2023] NSWCATAP 119 at [54] – [56]). In such circumstances, it is relevant to emphasise that it is not enough that an Appeal Panel might conclude that it would have exercised the discretion to award costs differently if the discretion had been conferred on it in the first instance." 1. We are not satisfied that the appellants have demonstrated an error with respect to a question of law in respect of the costs decision. 2. It was open to the Tribunal in the circumstances of the matter to conclude that the respondent was the successful party rather than the appellants. No application of a wrong legal principle is established. 3. To the extent that the exercise of the discretion involves factual findings, leave to appeal is required. We will deal with the issue of leave to appeal separately. Grounds 9 and 10 Leave to Appeal 1. The respondent submits that both the substantive decision and the cost decision are not fair and equitable, and against the weight of evidence. 2. We are not satisfied that either decision is not fair and equitable; or against the weight of evidence such that the Tribunal would exercise its discretion to grant leave to appeal. 3. In respect of the substantive decision, the factual findings made by the Tribunal were open to it on the evidence before it. There is nothing irrational, illogical or unreasonable in the fact-finding process applied by the Tribunal, or the factual findings that it made. The Tribunal was confronted with significantly divergent evidence as to whether or not the respondent was performing residential building work under the terms of a residential building work contract with the appellants, and if so, the terms of that agreement. Further, there was confusing and disputed evidence as to what payments were made, when they were made, for whose benefit they were paid, and what was owed. 4. The Tribunal had to deal with not only conflicting oral evidence, but a phalanx of emails, text messages, and other documentary evidence. In that context, the Tribunal made factual findings that were available to it on the evidence before it. We are not satisfied the decision was not fair and equitable, or was against the weight of evidence. Further, even if we were satisfied that there had been a substantial miscarriage of justice by reason of either, or both, of those matters, we are not satisfied that leave should be granted. 5. This is not an appeal that involves matters of public importance; issues of principle; or an error that is clear and readily apparent, rather than merely arguable, creating an injustice such that we would grant leave to appeal. 6. In respect of the costs decision, we are not satisfied that leave to appeal should be granted. As discussed previously, we are not satisfied appellants have established an error on a question of law under the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40, and otherwise the exercise of the cost discretion does not fall within the grounds for leave to appeal to be granted. The Issue of Costs of the Appeal 1. Our orders set out the manner in which any costs application by the successful respondent is to be dealt with. Orders 1. Leave to appeal is refused. 2. The appeals are otherwise dismissed. 3. The issue of costs of the appeal is to be determined as follows: 1. Respondent to file with the Appeal Panel and serve on the appellants costs submissions (no more than 5 pages) by 14 days from the date of this decision. 2. Appellants to file with the Appeal Panel and serve on the respondent costs submissions (no more than 5 pages) by 28 days from the date of this decision. 3. Respondent to file with the Appeal Panel and serve on the appellants costs submissions in reply (no more than 3 pages) by 35 days from the date of this decision. 4. The costs submissions of the parties are to identify whether an oral hearing on costs is sought, and if so, why. 5. Subject to consideration of the costs submissions of the parties the Appeal Panel may determine the issue of costs on the papers and without a further oral hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 6. Either party may apply in writing to vary or extend the timetable for the filing and serving of costs submissions. ********** 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: 19 July 2024