Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Donohoe v Albulario [2024] NSWCATAP 166 Hearing dates: 19 August 2024 Date of orders: 28 August 2024 Decision date: 28 August 2024 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member S Higgins, Senior Member Decision: (1) Leave to appeal is refused. (2) The appellant is to pay the costs of the appeal of the respondents as agreed or assessed. Catchwords: APPEALS — Procedural fairness — Applicable principles - Whether failure to afford procedural fairness by Tribunal member not informing unrepresented party of right to cross-examine witness and to apply for an adjournment — Appeal dismissed BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) - Building dispute – Incomplete work and delay in completion – Money order made Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 35, 38, 60, 80, Sch 4, cl 12, Sch 6, cl 14 Civil and Administrative Tribunal Rules 2014, rr 25, 38, 38A Evidence Act 1995 (NSW), s 79 Home Building Act 1989 (NSW), ss 48MA, 48O Interpretation Act 1985 (NSW), s 36 Cases Cited: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10 Collins v Urban [2014] NSWCATAP 17 Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 280 FCR 479; [2020] FCAFC 138 Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106 Gallo v Duflou [2014] NSWCATAP 115 Hancock v East Coast Timber Products Pty Ltd (2011) 80 NSWLR 43; [2011] NSWCA 11 Italiano v Carbone & Ors [2005] NSWCA 177 Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99 Jeray v Blue Mountains City Council [2024] NSWCATAP 66 Julie (a pseudonym) v John (a pseudonym) [2024] NSWSC 964 Khan v Kang [2014] NSWCATAP 48 Maclean v Brylweski [2023] NSWCA 173 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Meacham v Commissioner of Police [2020] NSWCATAP 107 Roach v Swain [2021] NSWCATAP 258 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Shakiri v Holland [2024] NSWCATAP 28 Southwestern Sydney Area Health Service v Edmonds [2007] NSWCA 16 The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Vella v Mir (No 3) [2020] NSWCATAP 17 Wollondilly Shire Council v Styles [2024] NSWCATAP 104 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: NCAT Procedural Direction 3 - Expert Evidence Category: Principal judgment Parties: Christopher Donohoe (Appellant) Crisanto Albulario and Ellen Albulario (Respondents) Representation: Counsel: D O'Connor (Appellant) Solicitors: Adams & Partners Lawyers (Appellant) Respondents (self-represented) File Number(s): 2024/00200508 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 29 April 2024 Before: R Titterton OAM, Senior Member File Number(s): 2023/00374155 (formerly HB 23/43647) REASONS FOR DECISION Overview 1. This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal constituted by Senior Member R Titterton OAM made on 29 April 2024 in proceedings under the Home Building Act 1989 (NSW) (HB Act) concerning a dispute between the respondents, Crisanto Albulario (Mr Albulario) and Ellen Albulario (Ms Albulario) (together referred to as the Albularios), who are the owners of a property at Leura in New South Wales (the property), and the appellant, Christopher Donohoe (Mr Donohoe), who is the builder that carried out residential building works involving the construction of a new dwelling on the property (the works) under the building contract between them (the contract). In the decision the Tribunal ordered Mr Donohoe to pay $399,050.00 to the Albularios on or before 27 May 2024 (the 29 April 2024 order). 2. The substantial issues in the appeal are whether the Tribunal made errors because it failed to afford procedural fairness to Mr Donohoe by conducting the hearing on 13 December 2023 in accordance with the proper procedure by failing to inform Mr Donohoe that he had a right to apply for an adjournment and to cross-examine the expert witness of the Albularios, accepted the evidence of the Albularios as to the existence and reasonable cost of remedying incomplete work, and made a money order rather than a work order. 3. We have decided that the Tribunal did not make any such errors. It follows that we have decided to refuse leave to appeal and order Mr Donohoe to pay the Albularios' costs of the appeal. The history of the proceedings between the parties in the Consumer and Commercial Division of the Tribunal 1. On 26 September 2023, the Albularios as the applicants commenced proceedings HB 23/43647 (which were subsequently renumbered 2023/00374155) in the Consumer and Commercial Division of the Tribunal against Mr Donohoe as the respondent by lodging a home building application claiming a money order of $480,782.51, being the total of $390,000.00 for defective and incomplete works and $90,782.51 consequential losses including rental accommodation, storage fees and utility charges (the Albulario application). 2. On 20 October 2023, the Tribunal constituted by Senior Member G Sarginson made procedural orders for the hearing (the 20 October 2023 orders) which relevantly provided: "… 2. The applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the applicant intends to rely at the hearing by 03-Nov-2023. 3. The respondent shall provide to the applicant and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the respondent intends to rely at the hearing by 24-Nov-2023. IMPORTANT NOTE: For the purpose of these directions "document" means: - Witness statements / statutory declarations or affidavits setting our relevant factual events - Expert reports prepared in accordance with NCAT Procedural Direction 3 for Expert Witnesses; - A Scott Schedule dealing with causation, method of rectification and quantum (amount of claim) cross-referenced to expert reports provided; … 10. All parties must arrange for any witnesses who have provided witness statements, affidavits, statutory declarations or expert reports in support of their case to be available for questioning at the hearing. …" 1. On 13 December 2023, the hearing took place and the Senior Member made orders providing for the adduction of further evidence by the Albularios (the 13 December 2023 orders) which relevantly provided: "… 2. The applicants Crisanto And Ellen Albulario are, on or before 22-Dec-2023, to lodge with the Tribunal, and give to the other party a document prepared by Mr S Elali which sets out his skills, education , training and experience which qualifies Mr Elali to provide the quotation of Mattrix Group dated 25 September 2023 on which the applicants seek to rely. 3. The respondent may respond if he wishes by 05-Jan-2024. …" 1. On 29 April 2024, the Senior Member published his decision (the 29 April 2024 decision) in which he made the 29 April 2024 order in the following terms, and set out his reasons (the 29 April 2024 reasons): "The respondent is to pay the applicants $399,050.00 on or before 27 May 2024" The 29 April 2024 reasons 1. In the 29 April 2024 reasons, the Senior Member: 1. summarised the Albulario application and the 29 April 2024 order ([1]-[3]); 2. set out the evidence of the parties ([4]-[8]) comprising: 1. the documents of the Albularios ([4]); 2. the disregard of post-hearing submissions of the Albularios ([5]); 3. the oral evidence of Mr Albulario and Ms Albulario ([6]); 4. the affidavit of Mr Donohoe dated 25 November 2023 (the 25 November 2023 Donohoe affidavit) ([7]): "The respondent relied on an affidavit dated 25 November 2023. This affidavit, which is part evidence, part submissions, in summary states: (1) the documents of Mattrix Group on which the applicants rely in relation to the costs of defective and incomplete works were not prepared in accordance with the NCAT Procedural Directions for Expert Witnesses; …" 1. the oral evidence of Mr Donohoe ([8]); 1. set out his approach to making findings including the application of the onus of proof ([9]-[12]); 2. set out his factual findings ([13]-[35]) including: 1. the parties entered into the contract in the form of a Residential Building (BC4) contract dated 13 August 2020 which included architectural plans and a structural design and provided that the contract price was $339,000.00, delay costs for each party were "Nil", the date of commencement was "TBC" and the number of days to carry out the work were 182 (not including Saturdays, Sundays and public holidays) ([14]-[16]); 2. taking into account a variation in relation to the kitchen and laundry at a price of $16,047.00 the total price for the contract became $355,047.00 of which the Albularios paid a total of $338,097.00 leaving an outstanding amount of $16,950.00 as claimed by Mr Donohoe ([17]-[19]); 3. construction commenced in about mid to late November 2020 ([20]); 4. after the works reached lock up stage, and paying Mr Donohoe $50,850.00, but dissatisfied with the progress of the works, on 7 September 2022 the Albularios filed application HB 22/40558 with the Tribunal in which they sought a money order in the sum of $433,827.00 for defective and incomplete works ([26]); 5. by a further "Addendum to Contract" dated 14 February 2023, the parties relevantly agreed: "… This reinstatement of the contract has now the time frame for the client to occupy the dwelling by the 22th March 2023 and as per Schedule 2 Clause 3 with the builder and the owner both with a cost of $1000.00 per calendar week in reference to delays. …" 1. on 26 April 2023, the Albularios withdrew application HB 22/40558 ([33]); 2. on 22 September 2023, the Albularios terminated the contract ([34]); 1. noted the two components of the Albularios' claim: for defective and incomplete works and for delay damages ([36]-[37]); 2. made findings in relation to the claim for defective and incomplete works ([38]-[73]) including: 1. the works were defective ([39]); 2. his finding that the Albularios were entitled to a money order ([40]): "I further accept that the applicants' have made out a case for a money order, and not the preferred outcome of rectification provided for s 48MA of the Home Building Act 1989 (NSW). In any event, I understand that the Builder is now unlicensed, making it inappropriate for the Tribunal to order the Builder to undertake any works." 1. the following documents were relied on by the Albularios for a money order prepared by Mr Sam Elali (Mr Elali) of Mattrix Group who was not required for cross-examination by Mr Donohoe ([41]-[47]): 1. a letter dated 25 September 2023; 2. a "Construction Proposal" dated 6 October 2023 (the Construction Proposal) comprising the five items ("Item 1: Preliminaries/Site Set Up"; "Item 2: BAL 29 & 40 Compliance"; "Item 3: External Finish"; "Item 4: Internal Finish"; "Item 5: Plumbing & Electrical" [44]) quantified globally in the sum of $396,000.00 ([46]) which is based on the following documents [45]): "> MBA Building Contract between Owner and Builder, dated 13th August 2020 > Builder Quote dated 13/08/2020 - Scope of Works and Exclusions > Architectural Plans prepared by RP Design Studio, dated Sep 2019 > Structural Design prepared by Danmar Consulting Engineers, dated 27/02/2019 > Development Consent No:X/131/2019 > Construction Certificate No: X/993/2019" 1. a summary of orders 2 and 3 of the 13 December 2023 orders ([48]); 2. the evidence of the Albularios as to the qualifications of Mr Elali ([49]): "… Carpenter, Project Manager, and Accounts …, holding Cert 3 in Carpentry, Cert 4 in Building and Construction, and a Diploma of Building and Construction, plays a pivotal role in project management, ensuring timelines, budgets, and schedules are met with precision." 1. the opposition of Mr Donohoe to reliance being placed on the documents of Mr Elali ([50]); 2. the Construction Proposal was prepared by an appropriately qualified person by reference to the constituent contractual documents, and Mr Donohoe did not dispute Mr Elali's qualifications to prepare it and require him for cross-examination. It was a form of quotation which constituted evidence as explained by the Appeal Panel in Khan v Kang [2014] NSWCATAP 48 (Khan) at [49]-[52] ([51]-[52]); 3. no weight should be placed on the Construction Proposal in relation to defects ([53]); 4. the sum of $363,050.00 should be allowed as completion costs, being the total of the completion costs of $380,000.00 less $16,950.00 the Albularios would have paid had Mr Donohoe completed the works ([54]-[73]); 1. made findings in relation to the claim for delay damages ([74]-[81]) including: 1. as it was common ground that the works were to have been completed by 23 March 2023, the contract was terminated on 22 September 2023 by the Albularios and the termination was accepted by Mr Donohoe, the Albularios were entitled to delay damages for that period ([74]-[75]); 2. as the parties agreed to a liquidated damages clause, there was no occasion to assess the Albularios' claims for wasted interest, extra accommodation costs, living expenses and the like ([76]-[80]); 3. delay damages were assessed at $26,000, being the 26 weeks between 23 March 2023 to 22 September 2023 ([81]); 1. concluded Mr Donohoe was to pay $399,050.00, being the total of $363,050.00 for completion costs and $26,000 for delay damages to the Albularios within 28 days ([82]); 2. set out the 29 April 2024 order ([83]). The history of the appeal 1. On 29 May 2024, Mr Donohoe as the appellant commenced proceedings 2024/00200508 against the Albularios as the respondent by lodging a notice of appeal (together with an application for a stay of the work order) in which he relevantly: 1. in section 2 states that the 29 April 2024 decision was received on 29 April 2024; 2. in section 5A challenges the 29 April 2024 order; 3. in section 5B sets out grounds of appeal: "GROUNDS OF APPEAL - Errors of Law 1. The Tribunal erred in law by finding that the Homeowner had validly terminated the contract. The Tribunal should have found that there was no evidence properly before the Tribunal to ground a finding that the Homeowner had validly terminated the contract. 2. The Tribunal erred by not giving reasons for its finding at [38] that "the applicants terminated the Contract". 3. The Tribunal denied the builder procedural fairness by permitting the Homeowners to advance a case on termination without serving their evidence in either affidavits or a statement in accordance with the orders of the tribunal, The Tribunal should not have permitted the Homeowners to advance evidence at hearing that either had not been served in accordance with the procedural directions of the tribunal or at all. 4. Given the fact that both Homeowner and builder were unpresented, and that neither party had served evidence in accordance with the orders of the Tribunal, the Tribunal erred in continuing to hear the matter. The Tribunal should have adjourned the hearing and ordered that both parties comply with the procedural directions for the exchange of evidence." 1. in section 5C relevantly seeks the following orders: "1. The decision below is set aside. 2. The matter is remitted back to be re-heard by a different Member. 3. Costs of this appeal is to be paid by the Owners." 1. in section 5D ticks the box "Yes" in answer to the question "Will you be applying for a stay of the original decision?" 2. in section 6B ticks the box "Yes" in answer to the question "Are you asking for leave (to appeal)?"; 3. in section 6Bi dealing with the ground that the 29 April 2024 decision was not fair and equitable relies on his grounds of appeal; 4. in section 7 ticks the box "No" in answer to the question "Do you require an extension of time?" 1. On 11 June 2024, the Albularios filed their reply to appeal in which they relevantly: 1. in section 3A support the 29 April 2024 order; 2. in section 3B reply to the grounds of appeal; 3. in section 4 oppose leave being granted; 4. in section 5 state that they do not accept that the appeal was lodged within time and object to the Tribunal extending the time for the lodging of the appeal. 1. On 19 June 2024, the Appeal Panel constituted by Principal Member A Suthers made procedural orders for the hearing of the appeal, which were corrected on 27 June 2024 (the 19 June 2024 orders), including granting the parties leave to be legally represented (orders 2 and 3), and conditionally staying the 29 April 2024 order upon payment by Mr Donohoe to the Albularios of the sum of $1,000.00 per week commencing on 26 June 2024 and with the Appeal Panel to determine the character of the weekly payments until the earlier of a further order of the Tribunal or the finalisation of the appeal (order 9). 2. On 7 August 2024, the Appeal Panel constituted by Senior Member G Blake AM SC made procedural orders for the hearing of the appeal, which drew the attention of the parties to Wollondilly Shire Council v Styles [2024] NSWCATAP 104 (Wollondilly) at [23]-[32] and noted that the notice of appeal does not specify any question of law, and provided for the lodgement and service of an amended notice of appeal which specifies any questions of law and any amended reply to appeal by Mr Donohoe and the Albularios respectively (the 7 August 2024 orders). 3. On 12 August 2024, Mr Donohoe lodged amended grounds of appeal signed by his counsel (the amended grounds of appeal) which sets out the following grounds: "Ground 1 The tribunal denied the appellant a reasonable opportunity to be heard in breach of section 38(5) of the Act by permitting the respondents to rely on the proposal of Mr Elali without affording the appellant an opportunity to commission evidence in reply. As a consequence of accepting the proposal into evidence, despite the admitted non compliances with the rules, the tribunal should have done two things to ensure procedural fairness and compliance with the Act; Firstly, the tribunal should have pointed out to the appellant that he had no evidence before the tribunal to confront the proposal and it was therefore likely that his case would fail, and; Secondly, it was open to him to make an application for an adjournment to deal with the prejudice occasioned by the admission of the proposal into evidence. Ground 2 The tribunal denied the appellant procedural fairness by not advising him that he had a right to not only cross examine the respondents, but also the respondents' witnesses. The tribunal erred in taking into account that the appellant had not required Mr Elali for cross examination given that he had not provided any evidence in accordance with the orders of the tribunal. In the alternative, the tribunal should have found that as Mr Etali had not authored any expert evidence in compliance with the orders of the tribunal, there was nothing to cross examine Mr Elali about. Ground 3 The proposal of Elali was not evidence of a fact in issue in the proceedings. The tribunal erred in directing itself the proposal of Etali was evidence of the cost to complete and cost to rectify defects. The tribunal should have directed itself that the proposal of Elali was not evidence and had no probative effect. Ground 4 The appellant seeks leave. The tribunal erred in finding that an order for the purposes of section 48O was preferable to 48MA because the appellant was not licensed to undertake residential building works. The tribunal should have found that the appellant was at all times licensed to undertake residential building works. The appellant seeks Leave to provide a copy of his license to the Appeal Panel. The tribunal denied the appellant procedural fairness by proceeding to make a finding about a matter never raised in oral address or in submissions. The tribunal erred in giving no reasons as to how it was the respondents "have made out a case for a money order and not the preferred outcome of rectification provided for" in section 48MA at J[40]." 1. On 16 August 2024, the Albularios lodged their reply to the amended grounds of appeal. The hearing of the appeal 1. On 19 August 2024, we heard the appeal. Mr Donohoe was represented by Mr D O'Connor, a barrister. The Albularios represented themselves. 2. Mr Donohoe relied a bundle of documents lodged on 11 July 2024 (the Donohoe appeal documents) which included: 1. his written submissions dated 8 July 2024 (the Donohoe appeal submissions); 2. the evidence before the Tribunal at first instance; 3. the transcript of the hearing on 13 December 2023 (the 13 December 2023 transcript); 4. the affidavit of Atul Singh (Mr Singh), the solicitor of Mr Donohoe, sworn on 5 July 2024 (the 5 July 2024 Singh affidavit) which we admitted into evidence without objection and marked as exhibit A1; 5. his statement dated 8 July 2024 (the 8 July 2024 Donohoe statement) which we admitted into evidence without objection and marked as exhibit A2. 1. The Albularios relied on a bundle of documents lodged on 22 July 2024 (the Albulario appeal documents) which included some of the evidence before the Tribunal at first instance. 2. Counsel for Mr Donohoe and the Albularios made oral submissions in which they substantially repeated their written submissions. 3. The parties agreed that Mr Donohoe had paid to the Albularios the sum of $8,000.00 pursuant to order 9 of the 19 June 2024 orders. Counsel for Mr Donohoe accepted that there was no reason why we should not discharge order 9 of the 19 June 2024 orders and order Mr Donohoe to pay the sum of $18,000.00, being the balance of the sum of $26,000.00 awarded as damages for delay, to the Albularios immediately. 4. At the conclusion of the hearing, we reserved our decision, discharged order 9 of the 19 June 2024 orders and ordered Mr Donohoe to pay the sum of $18,000.00 to the Albularios immediately. The scope and nature of internal appeals 1. Internal appeals against an internally appealable decision may be made in the case of any kind of decision (including an ancillary decision) other than an interlocutory decision as of right on a question of law, or with the leave of the Appeal Panel, on any other grounds: s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are where it is satisfied that the appellant may have suffered a substantial miscarriage of justice on grounds including because the decision of the Tribunal under appeal was not fair and equitable: cl 12(1)(a) of Sch 4 of the NCAT Act. 3. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act 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." (emphasis in original) 1. In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act. 2. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. 3. In Collins, the Appeal Panel at [84] set out the general principles which govern the granting of leave to appeal. These general principles were recently summarised by the New South Wales Court of Appeal in Maclean v Brylweski [2023] NSWCA 173 at [24] (Ward P and Simpson AJA): "[24] It is not disputed that leave to appeal is necessary. In determining whether leave to appeal should be granted, something more must be demonstrated than that the primary judge's decision was arguably wrong. What is ordinarily required to be demonstrated is that the matter involves a question of principle or of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable. Moreover, where, as here, the decision the subject of the application for leave to appeal involves an exercise of discretion, what is required to be demonstrated is error in the House v The King sense." (citations omitted) 1. The Appeal Panel has determined that, except when it conducts a new hearing under s 80(3), an appeal under s 80(1) of the NCAT Act involves a rehearing in the sense of conducting a rehearing on the materials before the Tribunal to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error and, in some cases, has power to receive additional evidence. Although the appeal is described as being "by way of rehearing", it does not call for a fresh hearing and the Appeal Panel does not hear the witnesses again": Yuen v Thom [2016] NSWCATAP 243 at [14]-[22]. The preliminary matters 1. The following preliminary matters require determination: 1. whether the appeal was lodged within time; 2. whether the appeal is on one or more questions of law. Whether the appeal was lodged within time 1. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that in the case of proceedings under the HB Act an appeal must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed. 2. In the 5 July 2024 Singh affidavit Mr Singh has given evidence that the notice of appeal was lodged at the Penrith Registry on 27 May 2024. We accept this evidence. 3. In their reply to appeal the Albularios state that they received the notice of appeal on 29 May 2024, and contend that the appeal is out of time and should be dismissed. 4. Having regard to s 36(1) of the Interpretation Act 1985 (NSW), the last date for Mr Donohoe to lodge an appeal against the 29 April 2024 decision was 28 May 2024. It follows that we are satisfied that the notice of appeal was lodged within the time prescribed under r 25(4)(c) of the NCAT Rules. Whether the appeal is on one or more questions of law 1. In Wollondilly at [23]-[24], the Appeal Panel addressed the scope of a question of law within s 80(2)(b) of the NCAT Act: "What is a question of law? [23] Following a body of decisions of the Supreme Court and Court of Appeal, the Appeal Panel has recently confirmed that a question of law in the context of s 80(2)(b) of the NCAT Act should be interpreted similarly to "a question of law alone" or a "pure question of law." It excludes questions of mixed fact and law and, of course, questions of fact: (citations omitted). [24] The most recent support for that proposition in an analogous context comes from the decision of Kunc J in AW v WW (No 2) [2024] NSWSC 146. Whilst his Honour was interpreting cl 14(1)(b) of Sch 6 to the NCAT Act, the form and function of that clause, which provides for appeals from decisions of this Tribunal's Guardianship Division to the Court, is substantially the same as s 80(2)(b). In respect of his Honour's reasoning, the only factor which may differentiate the process of interpretation engaged in by his Honour was that an appeal under cl 14(1)(b) to the Court was from a "specialist division of the Tribunal" (at [53]) but we see no reason why the absence of that consideration should lead to a different conclusion when interpreting s 80(2)(b) of the NCAT Act." 1. In Julie (a pseudonym) v John (a pseudonym) [2024] NSWSC 964 (Julie v John) at [98], Meek J addressed the scope of a question of law within cl 14(1)(b) of Sch 6 of the NCAT Act: "[98] Relevantly (in Judicial Review of Administrative Action and Government Liability (7th ed, 2022, Lawbook Co)), the learned authors also noted that: … the concept of error of law is not entirely the same as the concept of a question of law. Most obviously, a "question of law" needs to state a question, and that concept's meaning arises in any context where a court's appellate or review jurisdiction depends on it being asked to provide an answer. Different statutory contexts result in the concept receiving different meanings, but they all require that a question be propounded. It is semantically possible to reformulate an alleged error of law as a "question" as to whether the decision-maker erred in law, but semantics are not always accepted." 1. We consider that comments in Julie v John at [98] apply equally to the scope of a question of law within s 80(2)(b) of the NCAT Act. 2. One of the cases cited in Wollondilly at [23] is the judgment of the New South Wales Court of Appeal in Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 which involved an appeal under s 83(1) of the NCAT Act with leave on "a question of law". The notice of appeal elaborated a large number of bases upon which, so it was said, the Appeal Panel had erred and fell short of squarely identifying a question of law. The Court of Appeal examined the key finding which was the subject of the appeal and found that that there was no error in the finding and that no question of law arose from the finding: at [34]-[58] (Leeming JA) (with Meagher JA at [1] and Griffiths AJA at [75] agreeing). At [40] and [71] Leeming JA relevantly made the following observations: "[40] Ordinarily I would attend to whether or not the questions of law raised by the applicant are in fact question of law which engage this Court's limited appellate jurisdiction at the outset. The drafting of the notice of appeal presents difficulties in doing so (because no question of law is explicitly identified) …." "[71] First, this application illustrates the importance of those contemplating bringing an appeal which is confined to a question of law attending to the statute and identifying the question of law. That obligation is not satisfied by rolled up allegations asserting error of law, still less by grounds which merely allege "error". It should be possible for the reader of a notice of appeal to apprehend what the question or questions of law are. …" 1. We find that it is unsatisfactory that, notwithstanding the terms of the 7 August 2024 orders, grounds 1 to 3 of the amended grounds of appeal did not identify any question of law. Not only do these amended grounds of appeal not state any question, but also their terms make clear that questions of fact are necessarily to be considered as part of each of them. It is unnecessary to consider ground 4 of the amended grounds of appeal in this context as its terms make clear that it is advanced in support of the grant of leave to appeal. 2. In the absence of grounds 1 to 3 of the amended grounds of appeal stating any question, we understand that Mr Donohoe is raising the following questions: 1. as to ground 1, whether the Tribunal failed to afford procedural fairness to Mr Donohoe by conducting the hearing in accordance with the proper procedure by not informing him that he had a right to apply for an adjournment for the purpose of obtaining expert evidence; 2. as to the first limb of ground 2, whether the Tribunal failed to afford procedural fairness to Mr Donohoe by conducting the hearing in accordance with the proper procedure by not informing him that he had a right to cross-examine Mr Elali; 3. as to the alternative limb of ground 2, whether the Tribunal should have not have received the Construction Proposal into evidence; 4. as to ground 3, whether the Tribunal should have given no weight to the Construction Proposal. 1. We are not satisfied that grounds 1 to 3 of the amended grounds of appeal raise any question of law within s 80(2)(b) of the NCAT Act for the following reasons: 1. as to ground 1, it is properly characterised as a question of mixed fact and law; 2. as to the first limb of ground 2, it is properly characterised as a question of mixed fact and law; 3. as to the alternative limb of ground 2, it is properly characterised as a question of mixed fact and law; 4. as to ground 3, it is properly characterised as a question of mixed fact and law. 1. It follows that Mr Donohoe does not have a right of appeal and necessarily must be granted leave to appeal. The issues for determination in the appeal 1. The following issues arise for determination in this appeal: 1. issue 1: whether Mr Donohoe should be granted leave to appeal against the 29 April 2024 order, and if so whether the appeal should be allowed; 2. issue 2: the costs of the appeal. Issue 1: whether Mr Donohoe should be granted leave to appeal against the 29 April 2024 order, and if so whether the appeal should be allowed Introduction 1. We understand that Mr Donohoe in section 6Bi of the notice of appeal is seeking leave to appeal on the basis that the 29 April 2024 decision was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act on the same grounds as in section 5B of the notice of appeal. While Mr Donohoe did not seek leave to appeal in the event that grounds 1 to 3 of the amended grounds of appeal do not raise a question of law within s 80(2)(b) of the NCAT Act, we have treated these grounds as being advanced in support of leave to appeal being granted within cl 12(1)(a) of Sch 4 of the NCAT Act. 2. We find that it is unsatisfactory that ground 4 of the amended grounds of appeal does not identify the particular basis within cl 12(1) of Sch 4 of the NCAT Act that is relied upon for the grant of leave to appeal, particularly where a ground dealing with the same subject matter was not raised in the notice of appeal. 3. In the absence of ground 4 of the amended grounds of appeal stating the particular basis within cl 12(1) of Sch 4 of the NCAT Act that is relied upon for the grant of leave to appeal, we have understood that this ground relies upon cl 12(1)(a) of Sch 4 of the NCAT Act and raises the question of whether the 29 April 2024 decision was not fair and equitable on the following grounds: 1. the Tribunal failed to afford procedural fairness to Mr Donohoe by not conducting the hearing in accordance with the proper procedure by making a finding that he was not a licensed contractor which was not raised in oral address or in submissions; 2. the Tribunal failed to provide reasons for its finding that the Albularios had made out a case for a money order, and not the preferred outcome of rectification provided for in s 48MA of the HB Act; 3. the Tribunal erred in the exercise of its discretion under s 48O of the HB Act in making a money order because it was based on an incorrect finding that Mr Donohoe was not a licensed contractor. 1. In considering the various bases on which leave to appeal is being sought by Mr Donohoe, we have had regard to the principle that where a ground asserting an infringement of the rules of natural justice is raised, it is appropriate for the court to consider it first and in advance of other grounds because if established the ground may necessitate a remittal for rehearing in any event: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 (Concrete) at [116]-[117] (Gummow ACJ). This principle has been applied by the Appeal Panel: see for example Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10 at [32]. 2. Having regard to the principle in Concrete at [116]-[117], we have decided to consider ground 1 and the first limb of ground 2 of the amended grounds of appeal prior to considering the other grounds on which leave to appeal is being sought. Ground 1 and the first limb of ground 2 of the amended grounds of appeal 1. Before considering these grounds, it is appropriate to set out the applicable statutory provisions and legal principles, the relevant evidence, and the submissions of the parties. The applicable statutory provisions 1. The NCAT Act includes section 38 which deals with the procedure of the Tribunal generally, and relevantly provides: 38 Procedure of Tribunal generally … (5) The Tribunal is to take such measures as are reasonably practicable— … (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. … The applicable legal principles 1. In Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 280 FCR 479; [2020] FCAFC 138 (Flightdeck Geelong) the Full Federal Court (Markovic, Derrington and Anastassiou JJ) considered the scope of the Court's obligation to assist an unrepresented litigant. The Court at [51]-[60] relevantly made the following observations as to the Court's duty to the litigant-in-person and relief for denial of procedural fairness: "The Court's duty to the litigant-in-person [51] The submissions advanced on appeal revealed the existing lack of clarity as to the obligations of a court to a litigant-in-person. Though the principles might be succinctly stated at a high level of generality, their application in a particular case is somewhat more problematic. … [52] As acknowledged by the High Court in Neil v Nott (1994) 68 ALJR 509 at 510; 121 ALR 148 at 150, "[a] frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy". …. [53] However, whilst disadvantages exist and the Court is obliged to act to ameliorate them by giving assistance to the unrepresented litigant, its role is constrained by its concurrent duty to remain an impartial adjudicator: … Indeed, the Court must strike a fine balance between providing assistance to a litigant-in-person, and ensuring a fair trial for all parties: … [54] The assistance provided to a litigant-in-person must therefore be limited to that which is necessary to diminish the disadvantage which he or she will ordinarily suffer, and the Court should be wary to avoid placing a litigant-in-person in a position of advantage or privilege over a represented opponent. … [55] In practical terms, the Court may find it appropriate to provide the following kinds of assistance to a litigant-in-person: (a) Ensuring the litigant has sufficient information about the practice and procedure of the Court to make effective choices in the conduct of the matter: … (b) Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous: … (c) Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments: … [56] The duty of the Court does not extend to providing judicial advice, counselling a litigant on how to exercise their rights, or conducting the case on their behalf: … Nor does the duty of the Court require it to view a litigant-in-person's case with a favourable eye. … [57] It seems to be well accepted that the extent of the Court's obligation to assist an unrepresented litigant is factually idiosyncratic and, significantly, depends upon "the litigant, the nature of the case, and the litigant's intelligence and understanding of the case": … Relief for denial of procedural fairness [58] A denial of procedural fairness must work a practical injustice on the appellant in order for the Court to exercise its discretion to grant relief: …. An appellant alleging a denial of procedural fairness need only demonstrate that they were deprived of the possibility of a successful outcome; to negate that possibility it is necessary to find that a properly conducted trial could not possibly have produced a different result: …. To put it another way, as framed by the Full Court in King v Delta Metallics Pty Ltd [2013] FCAFC 93 at [59], "[i]f the denial of procedural fairness would have made no difference to the outcome of the proceeding, relief will not be granted": …. [59] Depending on the circumstances of the case, the onus may be on the appellant to demonstrate what they would have done, or what evidence they would have led, so as to establish they were in fact denied procedural fairness. As explained by Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [59]-[60]: "There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard. **493 Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given." (Footnotes omitted.) (Emphasis added.) [60] In reaching this conclusion, their Honours cited the Full Court decision of WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511, where at [58] their Honours had observed that where a party has been denied an opportunity to be heard on an important issue, that will amount to a denial of procedural fairness unless it can be shown that the appellant could not, even if given the opportunity to do so, affect the outcome. …." (citations omitted except as included) 1. We note that s 38(5) of the NCAT Act reflects the general law duties of procedural fairness and the principles in Flightdeck Geelong at [51]-[60] apply to proceedings in the Tribunal: see, for example, Jeray v Blue Mountains City Council [2024] NSWCATAP 66 at [13]-[15], [18]. 2. In Italiano v Carbone & Ors [2005] NSWCA 177 (Italiano) at [105]-[107], Basten JA explained in relation to the Consumer, Trader and Tenancy Tribunal (which was a predecessor of the Tribunal) that a failure to adjourn proceedings or to advise a litigant of his right to apply for an adjournment may constitute a failure to afford procedural fairness to the litigant: "[105] The remaining question is thus whether, on the evidence, the Tribunal was under an independent obligation to take particular steps which it did not do. If so, the consequent question is whether its failure invalidated the resulting orders. There is statutory support in the CTTT Act for such obligations. Thus, s.35 (set out at [69] above) provides that the Tribunal "must ensure" that each party is given "a reasonable opportunity" to present its case. Where necessary this will entail offering an appropriate adjournment, whether sought or not. In addition, s.28(4) (see [68] above) requires the Tribunal to "take such measures as are reasonably practicable" to ensure that the parties understand not only the nature of the assertions made in the proceedings, but also "the legal implications of those assertions". [106] There are, as already noted, provisions which allow the Tribunal a significant degree of flexibility in adapting its procedures to the exigencies of the case in determining the manner in which the proceedings will be conducted. Nevertheless, those provisions should not be construed so as to derogate from other provisions cast in obligatory language which constitute core elements of procedural fairness. That conclusion is consistent with the approach adopted by the High Court in SAAP in relation to the obligation imposed on the Refugee Review Tribunal under s.424A of the Migration Act to give an applicant, in the way that the Tribunal considered appropriate in the circumstances, information which the Tribunal considered might be the reason or part of the reason for affirming the decision adverse to the applicant. [107] A provision in similar terms to those contained in s.35 of the CTTT Act led Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 342 (25) to state: "Where a Tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe… . If, in all the circumstances, the failure of the Tribunal to adjourn the matter to enable Dr Evans to be called as a witness or to alert the appellant of his right to apply for such an adjournment constituted a denial to the appellant of a reasonable opportunity of presenting his case, both the common law principles applicable to a tribunal under a duty to act judicially and the specific provisions [of the Act] entitle the appellant to the intervention of this Court." His Honour then referred to provisions in the Administrative Appeals Tribunal Act (s.33(1)(b)) equivalent to s.28(3) of the CTTT Act. His Honour concluded, at p.343 (10): "A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment … that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a Tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506. In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled." …" 1. The principles in Italiano at [105]-[107] have been applied by the Appeal Panel to proceedings in the Tribunal: see, for example, Roach v Swain [2021] NSWCATAP 258 at [29]-[30]. 2. In Gallo v Duflou [2014] NSWCATAP 115 (Gallo) at [33], the Appeal Panel made the following observations about the duty of the Tribunal to an unrepresented party: "Where a party is unrepresented, a court or tribunal has a common law duty to ensure that that party understands that they may cross examine the other party and that party's witnesses. This is particularly so where the absence of an understanding of a procedural matter adversely affects a party's opportunity to be heard." (citations omitted) 1. In Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99 (Jannis) at [29]-[31], the Appeal Panel considered whether the appellants had been denied procedural fairness by not being provided an opportunity to cross-examine the respondent's witnesses: "[29] It is well-established that a failure by the Tribunal to allow a party an opportunity to cross-examine another party's witness may, in some situations, constitute a denial of procedural fairness. [30] Further, where a party is unrepresented, a failure by the Tribunal to explain its procedures, if requested to do so, may also constitute a denial of procedural fairness, as well as a failure to comply with its obligations under s 38(5) of the NCAT Act. This principle has, in some instances, led Appeal Panels in this Tribunal to decide that a failure to inform an unrepresented party that they had a right to cross-examine the other party's witnesses was an error of law. [31] However, cross-examination is not an essential element of an oral hearing, nor is there a rigid rule that fairness always requires cross-examination to be permitted in administrative hearings." (citations omitted) The relevant evidence 1. In the Donohoe appeal documents submissions, Mr Donohoe drew attention to the following evidence relevant to this issue: 1. order 2 of the 20 October 2023 orders when read with "Important Note"; 2. his affidavit sworn on 25 November 2023 (the 25 November 2023 Donohoe affidavit) at [6] in which he relevantly made the following submission in relation to order 2 of the 20 October 2023 orders and the Construction Proposal: "6 In the Notice of Order there is an IMPORTANT NOTE at page 1 of the Notice of Order, stating that 'Expert reports prepared in accordance with the NCAT Procedural Direction 3 for Expert Witnesses'. The applicant has not engaged an expert witness nor has the applicant supplied through the Builder (Mattrix Group) an Expert Witness Report prepared in accordance with NCAT Procedural Direction 3 … The applicant rather has supplied a written Construction Proposal from a Builder (Mattrix Group) which has no line-item pricing. ... The items in the Proposal costings cannot be verified nor agreed upon which has been submitted in the incorrect format and not that of a Scott Schedule." 1. the following passages in the 13 December 2023 transcript: 1. about the parties' right to cross-examine (p 2, ll 23-25): "SENIOR MEMBER TITTERTON: … Mr Donohoe, you have a right to cross-examine the Albularios if you want to ask them 24 any questions about factual matters and you have a right to cross-examine or ask 25 Mr Donohoe questions about factual matters if you wish to." 1. about the prejudice to Mr Donohoe in relation to admission of the Construction Proposal into evidence (p 5, ll 130-136): "SENIOR MEMBER TITTERTON: And I assume you're going to say that that's not going to be probative or persuasive evidence of the cost of completion of the project? DONOHOE: I can't argue against the price because I haven't been given a clear precise breakdown of each component of what the quote is. SENIOR MEMBER TITTERTON: Yes, I understand. All right." 1. about the failure of Mr Donohoe to adduce expert evidence (pp 19, l 762-20, l 777): "SENIOR MEMBER TITTERTON: When were you last there? WITNESS DONOHOE: A long time ago. I asked to go to do an inspection with my expert witness but that never eventuated because of - SENIOR MEMBER TITTERTON: You weren't given access? WITNESS DONOHOE: No, it wasn't that I wasn't given access, Senior Member, it was I didn't get an expert witness because I didn't have an answer to – SENIOR MEMBER TITTERTON: You didn't have anything to respond to is what you're saying? WITNESS DONOHOE: That's what I'm saying, so - SENIOR MEMBER TITTERTON: That's all right, okay. …" 1. about his response to any defective works and incomplete works and the Construction Proposal (p 30, ll 1229-1240): "SENIOR MEMBER TITTERTON: … Okay, well now it's your turn, Mr Donohoe, you tell me exactly what you want to say about any defective works, about incomplete works and what you want to say about the Mattrix report in addition to what you've already put down in your affidavit? WITNESS DONOHOE: Okay. So with those two reports, there's no documented evidence on how they were going to repair or rectify the works. SENIOR MEMBER TITTERTON: So no scope of works - WITNESS DONOHOE: No scope of works. SENIOR MEMBER TITTERTON: - for rectification. …" The submissions of Mr Donohoe 1. In the Donohoe appeal submissions, Mr Donohoe made the following submissions: 1. the Tribunal denied him a reasonable opportunity to be heard in breach of s 38(5) of the NCAT Act by permitting the Albularios to rely on the Construction Proposal without affording him an opportunity to commission evidence in reply. As a consequence of accepting the Construction Proposal into evidence, despite "the admitted non compliances with the rules", the Tribunal should have done the following two things to ensure procedural fairness and compliance with the NCAT Act: 1. it should have pointed out to him that he had no evidence before the Tribunal to confront the Construction Proposal and it was therefore likely that his case would fail; 2. it was open to him to make an application for an adjournment to deal with the prejudice occasioned by the admission of the Construction Proposal into evidence; 1. he clearly indicated he would suffer prejudice if Construction Proposal was to be accepted into evidence (Tcpt, 13 December 2023, p 5, ll 130-136; p 30, ll 1229-1240); 2. the Tribunal denied him procedural fairness by not advising him that he had a right to not only cross examine the Albularios, but also their witnesses as explained in Gallo at [33]. The submissions of the Albularios 1. The Albularios denied that the Tribunal failed to afford procedural fairness to Mr Donohoe, but did not address any arguments as to why the requirements for procedural fairness had been satisfied in respect of his specific complaints. Consideration 1. We are satisfied that the Senior Member should have understood from the exchanges during the hearing (Tcpt, 13 December 2023, pp 19, l 762-20, l 777) that Mr Donohoe did not adduce expert evidence because the Construction Proposal did not comply with NCAT Procedural Direction 3 - Expert Evidence (PD3) and that he was prejudiced by its admission into evidence. While the Senior Member was entitled to dispense with compliance with PD3 by Mr Donohoe, having regard to the principles in Italiano at [105]-[107], he should have informed Mr Donohoe that he had a right to apply for an adjournment for the purpose of obtaining expert evidence. 2. We are also satisfied that the Senior Member understood the deficiencies of the Construction Proposal as expressed in the 29 April 2024 reasons at [51]. He should have understood the importance of cross-examination as a means of Mr Donohoe challenging its accuracy. In these circumstances, having regard to the principles in Gallo at [33] and Jannis at [29]-[31], he should have informed Mr Donohoe that he had a right to cross-examine Mr Elali. 3. However, we are not satisfied that the Tribunal breached s 38(5)(c) of the NCAT Act and the principles in Flightdeck Geelong at [51]-[60] by its failure to ensure that Mr Donohoe had a reasonable opportunity to be heard by informing him he had a right to apply for an adjournment and to cross-examine Mr Elali because he adduced no evidence that he would have applied for an adjournment and/or cross-examined Mr Elali if he had been informed of his rights to do so. 4. In these circumstances, we are not satisfied that the 29 April 2024 decision was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act on these amended grounds of appeal. It follows that we have decided to refuse Mr Donohoe leave to appeal on these grounds. The alternative limb of ground 2 of the amended grounds of appeal 1. Counsel for Mr Donohoe in his oral submissions submitted that the Tribunal should not have received the Construction Proposal into evidence because it did not comply with Khan at [50] where the Appeal Panel dealt with evidence of the defects or incomplete work and of the amount required to remedy the defective work or complete any incomplete work: "[50] A quotation from a supplier willing to rectify defects or complete incomplete work can, depending on the circumstances and the nature and content of the quotation, constitute evidence of the defects or incomplete work and of the amount required to remedy the defective work or complete any incomplete work. For example, if the person providing the quotation was suitably qualified or experienced, inspected the work, identified defects or incomplete work on that inspection, recorded his or her observations in the quotation and gave a price to rectify or complete the work, it is difficult to understand why that quotation would not provide evidence in support of a claim for defective or incomplete work. The weight to be given to the evidence would, of course, depend upon many factors. Nonetheless, it would be wrong to conclude that simply because an applicant relied only upon a quotation or quotations for the rectification or completion of work that there was no evidence to support the claim that the work was defective or incomplete." 1. We accept that the Tribunal, notwithstanding the terms of order 2 of the 20 October 2023 orders, was entitled to receive the Construction Proposal into evidence pursuant paras 3 and 5 of PD3 which relevantly provide: "3. In proceedings where the Tribunal is not bound by the rules of evidence, the acceptability of expert evidence is a question of weight not admissibility. Nonetheless, if those proceedings involve complex or difficult expert issues, it is appropriate to require expert evidence to be prepared and presented in a manner which seeks to ensure its usefulness." "5. The Tribunal may excuse a party or an expert witness from complying with this Procedural Direction before or after the time for compliance." 1. We do not accept the submission of Mr Donohoe that the Construction Proposal was not a quotation as contemplated in Khan at [50] because Mr Elali expressed an opinion as to the total cost to rectify the defective work and to complete the incomplete work, and did not include the cost of each component of the rectification work and the completion work. The Appeal Panel did not specify in Khan at [50] that a quotation from a supplier must include the cost of each component of the rectification work and the completion work to be accepted as evidence of the cost to rectify the defective work and to complete the incomplete work, but indicated that the weight to be given to the evidence would depend upon many factors. 2. In these circumstances, we are not satisfied that the 29 April 2024 decision was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act on this alternative amended ground of appeal. It follows that we have decided to refuse Mr Donohoe leave to appeal on this ground. Ground 3 of the amended grounds of appeal 1. In the Donohoe appeal submissions Mr Donohoe made the following submissions: 1. he referred to Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 (Makita) at [59], [64], [68], [71] and [79]; 2. the principles in Khan at [49]-[52] are distinguishable for the following reasons: 1. the Appeal Panel in Khan at [50] by stating "depending on the circumstances and the nature and content of the quotation" puts a clear limitation on the use of quotations; 2. the Appeal Panel in Khan at [51] clearly distinguishes between small quotes and larger quotes: "51 Of course, a quotation relied upon by a party may be inadequate for these purposes but, if this is to be the Tribunal's conclusion, the reasons for rejecting the quotation must be explained in the reasons for decision. Such an explanation does not have to be lengthy especially in a claim that has only a small monetary value, but some explanation is required. This is what s 62(3) entails when it requires findings of fact to be made referring to the evidence or other material on which those findings were based and when it requires the reasoning processes that led the Tribunal to its conclusions to be set out." 1. it is remarkable in itself that a quote for $396,000 would not include some break-up of the costings and the rates charged. Plainly, in Khan the Appeal Panel was alive to the fact that before a quote could be accepted into evidence the Tribunal would necessarily have some regard to how the quote was made up, particularly when it came to larger numbers; 2. it is relevant to note the following passages in the 13 December 2023 transcript: 1. the Senior Member stated the cost of the Construction Proposal "seems like a lot of money" (p 24, ll 958-960); 2. Mr Donohoe gave evidence that there is no scope of works in the Construction Proposal (p 30, ll 1233-1234); 3. the Senior Member stated that he can't even guess at what the scope of works may be (p 32, ll 1312-1313); 4. Mr Donohoe gave evidence that the costing in the Construction Proposal is not what was contracted for between the parties, and contains alterations to the original scope (p 36, ll 1463-1464; p 38, ll 1560-1564). 1. In Makita at [85], Heydon JA summarised the requirements for expert evidence to be admissible under s 79 of the Evidence Act 1995 (NSW): "[85] In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; … the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. …" 1. The New South Wales Court of Appeal has further explained the requirements and application of s 79 of the Evidence Act in Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106 (Forster), and Hancock v East Coast Timber Products Pty Ltd (2011) 80 NSWLR 43; [2011] NSWCA 11 (Hancock). The New South Wales Court of Appeal has also considered expert evidence in appeals from the Workers Compensation Commission where the rules of evidence do not apply in Southwestern Sydney Area Health Service v Edmonds [2007] NSWCA 16 (Edmonds) and Hancock. 2. In Shakiri v Holland [2024] NSWCATAP 28 (Shakiri), the Appeal Panel at [88]-[97] set out passages in Forster, Makita, Edmonds and Hancock, and at [98] concluded: "[98] It is evident that the legal principles to be applied when considering the admissibility of expert evidence under s 79 of the Evidence Act are similar to those to be applied in non-Evidence proceedings before this Tribunal, where the question is not the admissibility of an expert opinion, but the weight to be given to it. The content of an expert report, its form, the relevance and sufficiency of the expert's demonstrated expertise, the adequacy of the report's explanation of the facts (both demonstrated and assumed), and the clarity of the reasoning leading to its conclusions, will all be central to the ultimate weight given to it by the Tribunal." 1. Having regard to the principles in Shakiri at [98], we do not accept the submissions of Mr Donohoe that the Tribunal erred in placing weight on the Construction Proposal which: 1. specified the documents on which it is based as referred to in the 29 April 2024 reasons at [45]; 2. identified the scope of works set out under the five headings as referred to in the 29 April 2024 reasons at [44]; 3. stated the cost of $396,060.00 inclusive of GST as referred to in the 29 April 2024 reasons at [46]; 4. was provided by Mr Elali who had the qualifications as referred to in the 29 April 2024 reasons at [49]. 1. In these circumstances, we are not satisfied that the 29 April 2024 decision was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act on this amended ground of appeal. It follows that we have decided to refuse Mr Donohoe leave to appeal on this ground. Ground 4 of the amended grounds of appeal 1. In the 8 July 2024 Donohoe statement Mr Donohoe has given evidence that he has had contractor licence (number 152495C) within the category of general building work since it was issued on 27 June 2006. We accept this evidence. 2. We are satisfied that the Senior Member was in error in finding in the 29 April 2024 reasons at [40] that Mr Donohoe was unlicensed. However, it is clear from the words "In any event" in this paragraph that the Senior Member exercised the discretion under s 48O(1)(a) of the HB Act to make a money order independently of the contractual status of Mr Donohoe and this finding was not material to that decision. To the extent that this ground of appeal is based on this error it is misconceived. 3. In Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147 (Coscuez International) at [87], the Appeal Panel explained the principles applicable to adequacy of reasons: "[87] The principles applicable to adequacy of reasons were dealt with by the NSW Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [65]-[77]. The quality (or detail) of reasons does not have to be optimal, but it must meet the minimum acceptable standard or "minimum characteristics" to be able to understand: (1) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (2) the Tribunal's understanding of the applicable law, and (3) the reasoning processes that lead the Tribunal to the conclusions it made." 1. The fact that the Tribunal makes an error does not necessarily mean that the decision should be set aside, unless the error is material in the sense that it "might" or "may" have made a difference to the decision: Meacham v Commissioner of Police [2020] NSWCATAP 107 (Meacham) at [29]. 2. Having regard to the principles at Coscuez International at [87], we accept the submissions of Mr Donohoe that the Senior Member failed to provide adequate reasons for his finding that the Albularios had made out a case for a money order and not the preferred outcome of a work order provided for in s 48MA of the HB Act. It is unclear why the Senior Member exercised the discretion under s 48O(1)(a) of the HB Act to make a money order. 3. Having regard to the principles at Meacham at [29], this error was not material in the sense that it "might" or "may" have made a difference to the decision for the reason that the Senior Member found in the 29 April 2024 reasons at [34] that on 22 September 2023 the Albularios terminated the contract. In circumstances where this finding has not been challenged in the amended grounds of appeal, there was no error made by the Senior Member in the exercise of the discretion under s 48O(1)(a) of the HB Act to make a money order. 4. In these circumstances, we are not satisfied that the 29 April 2024 decision was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act on this amended ground of appeal. It follows that we have decided to refuse Mr Donohoe leave to appeal on this ground. Conclusion 1. As we are not satisfied that the 29 April 2024 decision was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act on each of the grounds in the amended grounds of appeal, the exercise of the discretion under this clause does not arise. It follows that leave to appeal should be refused. Issue 2: the costs of the appeal Introduction 1. Before considering this issue, it is appropriate to set out the applicable statutory provisions and legal principles, and the submissions of the parties. The applicable statutory provisions NCAT Act 1. Section 60(1), (2) and (5)(b) of the NCAT Act relevantly provide that each party to an appeal is to pay the party's own costs and the Tribunal may award costs in relation to an appeal only if it is satisfied that there are special circumstances warranting an award of costs. 2. In proceedings commenced in the Consumer and Commercial Division, by reason of the operation of s 35 when read with par (a) of the definition of "procedural rules" and the definition of "Tribunal rules" in s 4(1) of the NCAT Act, s 60 is subject to the NCAT Rules. NCAT Rules 1. Rule 38 of the NCAT Rules relevantly provides: 38 Costs in Consumer and Commercial Division of the Tribunal (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if— … (b) the amount claimed or in dispute in the proceedings is more than $30,000. 1. Rule 38A of the NCAT Rules relevantly provides: 38A Costs in internal appeals … (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal. The applicable legal principles Costs under r 38(2)(b) of the NCAT Rules 1. In The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256 (Malachite Holdings) at [3]-[5], the Appeal Panel summarised the circumstances in which r 38(2)(b) of the NCAT Rules applies: "[3] Rule 38(2)(b) applies to the following proceedings: (1) Where the relief claimed in the proceedings is for an order to pay a specific amount of money, or an order to be relieved from an obligation to pay a specific amount of money, and that amount is more than $30,000; (2) Where an order is sought in the proceedings for the performance of an obligation (such as to do work), and the Tribunal has power make an order to pay a specific amount of money, even if not asked for by the claimant, provided that (a) there is credible evidence relating to the amount the Tribunal could award; and (b) that evidence, if accepted, would establish an entitlement to an order for an amount more than $30,000. [4] Rule 38(2)(b) may also apply to proceedings where the orders sought in the proceedings depend upon the claimant proving there is a debt owed in order to establish an entitlement to the relief sought, and that amount is in dispute and is more than $30,000. [5] Rule 38(2)(b) does not apply to proceedings: (1) Where a claim for relief in the proceedings (not being a claim for an order to be paid or be relieved from paying a specific sum) may, as a consequence of that relief being granted, result in the loss of any property or other civil right to a value of more than $30,000; or (2) Where there is a matter at issue amounting to or of a value of more than $30,000 but: (a) no direct relief is sought and no order could be made in the proceedings requiring payment or relief from payment of an amount more than $30,000; or (b) the relief sought does not depend on there being a finding that a specific amount of money is owed." 1. The general principles concerning the awarding of costs under r 38 of the NCAT Rules were considered by the Appeal Panel in Vella v Mir (No 3) [2020] NSWCATAP 17 (Vella (No 3)) at [28]-[30]: "[28] Clause 38 gives the Tribunal a wide discretion to make an order for costs. It does not specify the factors the Tribunal must take into account in exercising the discretion, although the discretion to make such an order must be exercised judicially: see, for example, Ruddock v Vadarlis [2001] FCA 1865 at [9]. [29] Where an application has been heard and determined on the merits and Clause 38 applies, the appropriate starting point for the exercise of the discretion is not that the parties are to pay their own costs. Rather, it is the well-established position at common law; that is, that the purpose of making a costs order is to provide compensation to the party in whose favour the order is made for the expense the party has been put to in prosecuting or defending legal proceedings. In general terms, this means that a party who is successful is entitled to an order for costs in its favour, subject to exceptions generally involving misconduct on the part of that party: Latoudis v Casey [1990] 170 CLR 534; Oshlak v Richmond River Council [1998] HCA 11. [30] In BNT Constructions Pty Ltd v Allen [2017] NSWCATAP 186 the Appeal Panel, having set aside a costs order made in the Consumer and Commercial Division, decided to re-exercise the costs discretion. Clause 38 was the applicable costs provision in that case. At [67] the Appeal Panel noted the following principles relevant to the exercise of the discretion: (1) the starting point is that a successful party should be entitled to an order for costs in his favour; (2) an award of costs is by way of an indemnity and not as punishment; (3) there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party; (4) the factors to be considered are not to be confined as to do so would constrain the general discretion; (5) the relative success of the parties on different issues and the time taken to determine them may be relevant; (6) the nature of the proceedings is relevant; (7) the proper exercise of the discretion requires a decision maker to do justice between the parties and to exercise the discretion having regard to relevant considerations and in a manner which is not arbitrary and capricious." Costs under r 38A(2) of the NCAT Rules 1. For the purpose of r 38A of the NCAT Rules the amount claimed or in dispute is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57]. The submissions of Mr Donohoe 1. In his oral submissions, counsel for Mr Donohoe submitted that costs should follow the event. The submissions of the Albularios 1. In their reply to appeal, the Albularios made the following submissions in response to the order for the costs of the appeal sought by Mr Donohoe: "● We do not need to give credibility to this kind of shameful intimidation. We are just retirees who want to live our lives in our 2-bedroom retirement home that Mr. Donohoe abandoned. ● For almost four (4) years, we have been throwing money away in amortization, rental and storage expenses, all because Mr. Donohoe did not use the money, we gave him to build our home ● Mr. Donohoe has had other cases against him listed in "NSW FAIR TRADING". ● If need be, we can get names of subcontractors under Mr. Donohoe's employ, who did some work in our house, but were never paid by Mr. Donohoe. These subcontractors are requesting us to be their witnesses for their collecting agents." 1. In their oral submissions, the Albularios opposed the order for the costs of the appeal sought by Mr Donohoe. Consideration 1. Having regard to the principles in Malachite Holdings at [3(2)], we are satisfied that r 38(2)(b) of the NCAT Rules was applicable to the Tribunal proceedings as the Tribunal had power to make a money order under s 48O(1)(a) of the HB Act. 2. It follows that in circumstances where Mr Donohoe in the appeal was seeking to set aside the 29 April 2024 order, r 38A(2) of the NCAT Rules is applicable to the appeal because the amount in dispute in the appeal is more than $30,000. 3. Having regard to the principles in Vella (No 3) at [28]-[30], we are satisfied that costs should follow the event and accordingly that Mr Donohoe should pay the costs of the appeal of the Albularios as agreed or assessed. Orders 1. We make the following orders: 1. Leave to appeal is refused. 2. The appellant is to pay the costs of the appeal of the respondents as agreed or assessed. ********** 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 August 2024