Fair Trading Tribunal New South Wales CITATION: McLaughlin Building Services Pty Limited & McLaughlin v Bannister & Bradstreet [2000] NSWFTT 6 LIST: Rehearing Applications DIVISION: Home Building Division PARTIES: REHEARING APPLICANTS: McLaughlin Building Services Pty Limited & McLaughlin ORIGINAL MATTER: McLaughlin Building Services Pty Limited & McLaughlin v Bannister & Bannister & Bradstreet FILE NUMBER: BU 1999/987; BU 1999/480 DATE OF DECISION: 10/04/2000 BEFORE: PH Molony Senior Member Home Building Act 1989 - ss93 94 7D Fair Trading Tribunal Act - 1998 - ss63 27 36 65 LEGISLATION CITED : 49 42 72 Fair Trading Tribunal Regulations 1999 - 19 8 Interpretation of Legislation Act 1987 Evidence Act 1995 - ss131 Home Building Amendment Act 1998 - cl 48 of Sch 4 - Super John Pty Ltd and 4 Ors v Futuris Rural Pty Ltd (1999) NSW SC 627 - Elderslie Finance Corporation Limited v ASC (1993) 11 ACLC 787 at 791 - Yunghanns and Ors and Yunghanns and Ors and Yunghanns (1999) Fam CA 64 - Scott v Numurkah Corporation (1954) 91 CLR 300 - Casa Maria P/L v Trend Properties P/L (unreported Ct of Appeal CA 40367/98 18 December 1998) - Artura Pty Ltd v Bluecrest Constructions P/L (unreported Santow J Equ D 3006/98 CASES CITED: 21 August 1998) - Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise P/L (unreported Brownie AJ Equ D 13 May 1999) - Maxwell v Murphy (1957) 96 CLR 261 Dixon CJ said at 267 - Fisher v Hepburn (1960) 105 CLR 188 at 194 Fullagher J - Walton v Baffsky (1975) 2 NSWLR 565 - Carr v Finance Corporation of Australia Ltd (1982) 42 ALR 29 at 38 - Mathieson v Burton (1971) 124 CLR1 CATCHWORDS: Denial of natural justice - request for extension of time to file an application for rehearing - substantial injustice - constitution of the Tribunal - mistakes as to the application of law - failure to insure residential building work - access to transcripts of proceedings - promotion of conciliation MATTER FOR DECISION: Application for rehearing ORDERS: 1. The applications for rehearing are refused. Reasons for Decision: Background to the Application for Rehearing 1 By an application dated 31 March 1999 Bannister & Bannister sought an order that they did not have to pay McLaughlin Building Services Pty Ltd (the Company) $87,770.96, and orders for the return and replacement of goods totalling $600. This related to residential building works undertaken by the Company at the Bannister's property at ... , Fishing Point (the property) pursuant to a 'cost plus' building contract dated 10 September 1998. 2 At a directions hearing held at Newcastle on 12 May 1999, at which all parties were legally represented, the Tribunal made procedural orders which, among other things, noted that the Company intended to lodge a cross-claim. On 4 June 1999 the Company and McLaughlin (the Applicants) filed an application against Mr and Mrs Bannister and Ms Bradstreet (the Respondents) in which they sought, among other things, payment for the monies outstanding under the building contract of $128,639.72 plus damages for defamation. 3 At a directions hearing held on 4 June 1999, at which all parties were represented, after hearing submissions the Tribunal made procedural directions relating to both applications, adjourned both applications to allow the Tribunal to consider its jurisdiction with respect to the Applicants' defamation claims, and reserved its decision in respect of an order sought in relation the time frame for a Calderbank offer. By letter dated 20 August 1999 from their solicitors the Applicants discontinued the defamation claim before the Tribunal and advised that they no longer sought a ruling with respect to the time in which a Calderbank offer may remain open. 4 Both applications were next listed for hearing for a day at Newcastle on 26 August 1999 at which the parties were, again, legally represented. The hearing of both applications commenced but was adjourned for further hearing. The balance of evidence relating to the applications was next heard for four days from 25 October to 28 October 1999 inclusive. At the conclusion of the hearing the Tribunal reserved its decision. On 30 October 1999 the Tribunal delivered its decision and published its reasons. On 4 November 1999 a copy of the reasons for decision were provided to the Applicants. 5 In summary the Tribunal found that: a) the value of the building works undertaken by the Company pursuant to a contract made on or about 10 September 1998, which are the subject of the dispute, was $249,506.00; b) the Bannisters had paid the Company $183,229.09 towards the cost of building works, leaving a balance of $65,683.01 ($66,276.61 on my figures); c) the Company was not the holder of a builders licence under the Home Building Act 1989 when the works were undertaken; d) there was no certificate of insurance under the Home Building Act 1989 annexed to the building contract between the Company and the Bannisters; e) that the Company had put into place insurance under the Home Building Act 1989 with respect to the residential building work on 21 October 1999; f) that the Bannisters were entitled to not have to pay the Company $28,748.00 ($37,158 according to my additions) comprised of: i) rectification costs - $16,550; ii) damages to furniture, goods and chattels - $8,100; iii) refund of the value of a hot water service - $400; iv) security screen addition - $2,776; and v) provision for insurance - $9,332. g) that the Company was entitled to recover the difference between the value of the building works completed and the amounts already paid to it by the Bannisters – despite the fact that the Company was unlicensed and that no insurance was effected at the date of the contract – by application of the doctrine of unjust enrichment. The Tribunal calculated this difference to be of $65,683.01 ($66,276.61 on my maths); h) the Tribunal set-off against the figure of $65,683.01 the sum of $28,748.00 which it found that the Bannisters were entitled to recover from the Company. The Tribunal found that the difference $36,935.91 was payable by the Bannisters to the Company. 6 On the basis of these finding the Tribunal made orders which required: a) by way of interim order, the Company and Mr McLaughlin to remove a caveat from the title of the property by 10 December 1999; b) that the Bannisters pay the Company $36,935.91 by 10 December 1999; c) that $27,748.00 was not due or owing by the Bannisters to the Company under the contract, and that the moneys so retained should be used in the rectification of faulty goods or services. 7 The Tribunal which heard this application was constituted by two Members: Mr R G Spratt, who presided, and Ms S Faust. It is essential to the understanding of many of the issues raised by the Applicant for rehearing, to appreciate that at the time of the hearing Mr Spratt was aware, and advised the parties before him, that his term of appointment as a Member of the Tribunal was to expire on 30 October 1999 and that he was not going to be reappointed. The Tribunal and the parties were therefore under pressure to complete the proceedings before Mr Spratt's term expired. 8 On 10 November 1999 the Applicants' solicitor sent the following letter to the Tribunal by facsimile transmission: We are instructed by our client that the tapes requested for transcription are still not available. In those circumstances, our client cannot obtain the benefit of the transcription in time to seek appropriate professional advice before the time for lodging the applications for rehearing or for appeal has passed. We hereby make application for the time in which McLauglin Building Services Pty Ltd may lodge an application for rehearing or appeal in respect of both matters BU1999/987 and BU1999/480 to be extended. 9 It appears from the Tribunal files that this application for extension of time was never dealt with. Instead the Applicant's solicitor was faxed an application for rehearing form on 18 November 1999. 10 On 18 November 1999 the Applicants lodged this application for rehearing by facsimile. For the sake of clarity I set out the points made in that application: Pursuant to Section 63 of the Fair Trading Tribunal Act 1998 and sub-paragraphs (a) –(c) thereto, for the reasons set out in the succeeding paragraphs, since the claimed amount exceeds $25,000, the Claimant requests that it be granted a rehearing. The presiding member of the Tribunal advised the parties on the second day of the resumed hearing which had recommenced on Monday 25th of October 1999 that owing to the impending cessation of his employment as a Tribunal member at 5pm on Friday 29th October 1999, he and his co-member, Ms Faust, had no alternative but to make a decision on or before that time. The Tribunal was thus unable to meet its statutory obligation to ensure natural justice was effected between the parties by reason that it was under unseemly pressure to: (a) bring the hearing to a close by a fixed and arbitrary time. (b) reach a determination of the case by such fixed and arbitrary time. Further or alternately: The Tribunal did not afford the Claimant any, or any sufficient, opportunity to:- (a) call witnesses and otherwise present evidence (b) review the transcript of witnesses who gave evidence prior to examining and cross-examining other witnesses (c) re-call and/or re-question witnesses who had given evidence as and where indicated to the TRIBUNAL and where the agreement that the Claimant be permitted to do so had previously been given or countenanced by the Tribunal (d) Cross-examine witness called by its opponents, either at all, or as appropriate or as assisted by prompt transcript reference (e) Argue and state its case In the circumstances, and further or alternately, the Tribunal made many grievous, and prejudicial rulings on procedure, evidence and law and in consequence, and in the premises of the above, had reached its decision without regard to equity, good conscience and the substantial merits of the case, while mis-directing itself as to the weight, admissibility or probative value of evidence placed before it. Further or alternately, the Tribunal proceeded with its deliberations without ensuring that transcript of the proceedings was timeously available to the parties. Further or alternately, the Tribunal failed to take into account matters which it should have considered before reaching its decision. Further or alternately, the Tribunal took into account matters which it should not have had regard to in coming to its decision. Further or alternately, the Claimant sought an extension of time in which to apply for re-hearing but has received only the attached response from Tribunal officials, and seeks leave of the Tribunal to supplement these reasons for the application for a rehearing by reference to the written transcript when available. The attachment referred to was a copy of the facsimile transmission from the Tribunal to the Applicant's solicitor on 18 November 1999 attaching a application for rehearing form. 11 On 22 December 1999 I made the following orders: I extend the time limit prescribed by Regulation 19(1) of the Fair Trading Tribunal Regulations 1999, to enable the First Applicant to file an amended application for rehearing and for the Second Applicant to make an application for rehearing, by no later than 17 January 2000. I direct that this application for rehearing and any application for rehearing filed by the Second Applicant be referred to me for determination after 17 January 2000. 12 Following further submissions from the Applicants' solicitor seeking an extension of time in which to comply with the orders made on 22 December 1999, on 20 January 2000 I made the following order: Upon reading the letter from the Applicant's solicitor dated 11 January 2000 I extend the time in which the First Applicant may file an amended application for rehearing and for the Second Applicant to make an application for rehearing, to no later than 7 February 2000. 13 On 7 February 2000 the Applicants filed, in support of their applications for rehearing, a transcript of the taped proceedings, and a draft, unsworn affidavit in support by Mr Diamond, a solicitor in the employ of the Applicants' solicitors. Applications for Rehearing Under Section 63 14 Section 63 of the Fair Trading Tribunal Act 1998 provides: 63 Rehearings (1) Except where the regulations preclude the making of an application under this section, a party to proceedings before the Tribunal may, in the manner and within a time prescribed by the regulations, apply to the Chairperson for an order directing that the matter be reheard by the Tribunal, on the ground that the applicant may have suffered a substantial injustice because: (a) the decision of the Tribunal was not fair and equitable, or (b) the decision of the Tribunal was against the weight of evidence, or (c) evidence that is now available was not reasonably available at the time of the hearing. (2) The Chairperson is not to grant the application unless, on the face of the application, it appears to the Chairperson that the applicant may have suffered a substantial injustice. (3) If the application is granted, the Chairperson is to determine the constitution of the Tribunal in a manner appropriate for the purposes of the rehearing, having regard to the circumstances of the case and the requirements of natural justice. (4) The matter is to be dealt with as a hearing de novo by the Tribunal as constituted under subsection (3). (5) Regulations made for the purposes of subsection (1) may preclude the making of an application under this section: (a) in cases where the amount claimed or disputed in the matter concerned exceeded $25,000 (or such other amount as may be prescribed), or (b) in cases of any prescribed class or description. 15 Pursuant to an instrument of delegation made by the Chairperson of the Fair Trading Tribunal on 22 October 1999 under section 10(4) of the Fair Trading Tribunal Act 1998, the Chairperson delegated to me, as a Senior Member of the Tribunal, the exercise of the powers with respect to rehearings under section 63. 16 Regulations made pursuant to Section 63 provide that an application for a rehearing must first be made within fourteen days after receipt of the written notice of the decision (Regulation 19). The Interpretation of Legislation Act 1987 provides that receipt is taken to occur on the fourth working day after posting. The Tribunal has a discretion to waive this time period (Section 27(6)). Where a written request for reasons for the decision is made the time in which an application for rehearing of a claim should be lodged is extended to fourteen days after receipt of the statement of reasons. To date no Regulations have been made which precludes the making of an application for rehearing to matters within certain monetary limits. Thus all claims determined in the Tribunal may be the subject of a rehearing application. There is no prescribed form on which a rehearing application must be made. The Regulations provide only that it must be in writing, addressed to the Registrar. However, only one application for rehearing may be granted unless the Tribunal is satisfied that there are 'special circumstances of the case'. 17 While there is no prescribed form for making an application for rehearing it is in the interest of parties making an application for rehearing to address themselves to the criteria set out in section 63 for the granting of a rehearing. That section sets out the grounds upon which a rehearing may be granted and the information to which the Chairperson or delegate is to have regard in determining whether or not to grant a rehearing. Section 63(2) instructs the Chairperson not to grant a an application for rehearing unless, 'on the face of the application', it appears that the Applicant may have suffered a substantial injustice. The fact that the Applicant may have suffered a substantial injustice must, in turn, arise from on of the three causes set out in sub-section (1), viz: a) because the decision of the Tribunal was not fair and equitable; or b) because the decision of the Tribunal was against the weight of evidence, or c) because evidence that is now available was not reasonably available at the time of hearing. 18 To assist the speedy and efficient determination of their applications for rehearing Applicants should address the considerations set out in Section 63, when applying for a rehearing. It should be understood that the task of the Chairperson or delegate under that section is a very focussed one of determining whether the Applicant may have suffered a substantial injustice for any of the reasons set out in that section. In doing so the Chairperson or delegate must not grant the rehearing unless 'on the face of the application' it appears that the Applicant may have suffered an substantial injustice: section 63(2). Two points need to be made with respect to that last proposition. 19 The term 'on the face of the application' guides the Tribunal as to what should be considered in order to come to a decision whether or not to grant an application for rehearing. To restrict the Tribunal to a consideration only of the matters raised in the application form lodged by a rehearing Applicant would be unjust and unworkable. Many applicants will simply state that they are dissatisfied with the decision. However it is unlikely that an unrepresented applicant will have the ability to adequately match a dissatisfaction with the decision with the grounds set out in section 63(1), and further to be able to detail the substantial injustice which has resulted. It will also be impossible for the Tribunal to determine if an application is against the 'weight of the evidence' if it is not known what the evidence was before the original Tribunal. Similarly it will be impossible to determine if evidence was not available at the time of the hearing without checking that, in fact, it was not before the original Tribunal. Clearly the Tribunal on considering a rehearing application must look beyond the application form. To give 'the face of the application' meaning in the context of consideration of a rehearing application it must encompass other material. 20 The Tribunal keeps a file in each claim which is made up of the Tribunal 'record'. The Tribunal differs significantly from its predecessors in that proceedings are now in public (Section 30) and in most cases are recorded. Matters which constitute the 'record' of the Tribunal are defined in Regulation 8. This provides that the records of the Tribunal include: a) the application b) minutes of orders made by the Tribunal c) written reasons for decision d) reports or copies of reports given to the Tribunal e) documents or copies of documents given to the Tribunal f) exhibits which are retained by the Tribunal g) correspondence received by the Tribunal h) diaries and other records relating to the listing of the hearing and hearing of proceedings before the Tribunal i) transcripts of evidence or sound recording, and j) other records which may be determined by the Tribunal. 21 It is my view that when considering the 'face of the application' for a rehearing the delegate should examine the record of the original proceedings. While this is clearly reading the provisions of section 63(2) to encompass 'the face of the record' it appears to me to be a rational and fair manner in which to proceed to consider the application for rehearing. To restrict the rehearing Applicant to the terms of their written application, whether made on an application form or simply included in a letter, would inhibit the Tribunal in a proper consideration of whether the grounds for a rehearing could be made out. The Tribunal specifically has the power 'to inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.'(Section 27(1)). However, to go beyond the 'record' of the original proceedings appears to me to invite a reconsideration of the merits of the substantive claim, and potentially to cause both parties to the original claim further cost and delay. Where a rehearing is granted there will be opportunity for further evidence to be presented as to the substantive merit of the claim. The rehearing is de novo before a freshly constituted Tribunal. 22 An application for rehearing must disclose a 'substantial injustice' before it can be granted. This term has often been judicially considered in various contexts. In Super John Pty Limited & 4 Others v Futuris Rural Pty Limited [1999] NSW SC 627, 22 June 1999 Santow J. summarised a number of authorities which had considered the term in the context of the Corporations Law as follows: The authorities on the meaning of "substantial injustice" are conveniently summarised in a judgment of Owen J in Elderslie Finance Corporation Limited v ASC (1993) 11 ACLC 787 at 791. "I agree with the submission of counsel for the applicant that s1322(4) of the Law is a remedial remedy and should be given a liberal construction: see Re Australian Koyo Ltd (1984) 2 ACLC 429 at 431; (1984) 8 ACLR 928 at 930. The onus is on the applicant to establish positively that no substantial injustice has been or is likely to be caused to any person; see Australian Hydrocarbons NL v Green & Ors; Green & Ors v Australian Hydrocarbons NL (1985) 3 ACLC 779 at 789;(1985) 10 ACLR 72 at 83. The word "injustice" requires the Court to consider real, and not merely insubstantial or theoretical prejudice. A degree of prejudice to a person or persons may be outweighed if the overwhelming weight of justice is in favour of making the order: see Re Compaction Systems Pty Ltd (1977-1978) CLC ¶40-313 at 29,316; (1976) 2 ACLR 135 at 150." In Yunghanns & Ors & Yunghanns & Ors & Yunghanns [1999] FamCA 64 the Full Court of the Family Court (Lindenmayer, Holden & Mullane JJ,) said at p32: 130. For all of the foregoing reasons we are of the opinion that her Honour's conclusion that the Court had jurisdiction to make orders … was arrived at through the application of wrong principles, and was therefore wrong in law. It therefore falls to this Court to reconsider the matter, and to decide whether, upon the application of proper principles, those orders ought or ought not to have been made. If we should conclude that upon application of the correct principles the orders should still have been made, then the Appellants' application for leave to appeal from that order should fail, because the Appellants will have suffered no substantial injustice as a result of the right order being made on the wrong legal basis. If, on the other hand, we conclude that upon the application of correct principles that order should not have been made, then the Appellants will undoubtedly have suffered a substantial injustice and the application for leave to appeal, and the appeal pursuant to that leave, should be allowed, and we should make such orders as we consider the trial Judge should have made on the applications … which were before her. 23 While these comments are general they nonetheless provide a guide to the Tribunal in the determination of issues of 'substantial injustice' in the context of a Fair Trading Tribunal application. It is clear that for the purposes of section 63 the consideration is limited to whether or not the applicant for rehearing may have suffered a substantial injustice. That another party to a proceeding may have suffered a substantial injustice will not be sufficient: section 63 requires that the Applicant be the focus of the perceived injustice. If the applicant for rehearing alleges that the decision of the Tribunal was not fair and equitable or was against the weight of evidence, those factors alone, if accepted, will not entitle the applicant to a rehearing unless they may have resulted in a substantial injustice to the applicant for rehearing. 24 Where the basis of the application for rehearing is that the applicant may have suffered a substantial injustice because evidence is now available that was not reasonably available at the time of the hearing, the focus of the inquiry will be on the nature of that evidence, whether or not it was reasonably available at the time of the original hearing, and whether or not that evidence may have resulted in a different outcome if it had been available. If the Chairperson or delegate accepts that the evidence was not reasonably available at the time of the original hearing, but concludes that the evidence would not have materially effected the Tribunal's decision, then the applicant will not have suffered a substantial injustice. Consideration of the Applications for Rehearing 25 Turning to the applications for rehearing here the Applicants have filed a draft affidavit is support by Mr Diamond, a solicitor. A reading of that draft affidavit reveals that much of its content contains submissions and assertions supporting the application for rehearing, rather than setting out new evidence or presenting evidence in relation to the course of the original hearing. In so far as the affidavit does purport to give evidence in relation to the course of the original hearing, I am of the opinion that section 63(2) precludes me from taking that evidence into account in considering the application for rehearing, as it is not material which arises on the face of the application in the sense discussed above. I therefore intend to disregard those parts of the affidavit which seek to give evidence, and to treat the affidavit as a submission in support of the applications for rehearing. The submission of affidavits addressing what occurred in the course of an original hearing in support of an application for rehearing will generally be inappropriate. 26 It should also be noted that neither in the original application for rehearing, nor in Mr Diamond's affidavit, are any claims made with respect to evidence now being available which was not reasonably available at the time of the original hearing. The application for rehearing and submissions are focussed on numerous claims about the procedure the Tribunal adopted and alleged errors of law. The manner in which these have been set out is of little assistance to me in undertaking the task of considering the application for rehearing. The list of alleged defects in procedure and errors of law is reminiscent of a summary of appeal points, and is not focussed on and does not address the considerations prescribed by section 63. It should be understood by applicants for rehearing and their representatives that section 63 lays out specific criteria to be addressed in considering an application for rehearing, and that their applications for rehearing should be framed with those criteria in mind. An application for rehearing is not an appeal. 27 For the sake of convenience, I have summarised each of the errors alleged to have occurred in the course of the original hearing said to have resulted in denials of natural justice. For the purposes of these applications for rehearing I will treat these as being said to show that the decision was not fair and equitable under section 63(1)(a) or against the weight of the evidence under section 63(1)(b). It is necessary to deal with them one at a time. The fixing of a date for the completion of the proceedings by reference to arbitrary factors not related to the proceedings. i.e. the expiry of Mr Spratt's appointment. 28 Section 27 of the Fair Trading Tribunal Act 1998 makes provision for the procedure of the Tribunal generally: 27 Procedure of Tribunal generally (1) The Tribunal may, subject to this Act, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties to the proceedings before it understand: (a) the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings. (5) The Tribunal: (a) is to act as expeditiously as is practicable, and (b) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (d) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (e) may require a document to be served outside the State, and (f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (g) may dismiss at any stage any proceedings before it for want of prosecution by the applicant or at the request of the applicant, and (h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or for any other reason that appears to it sufficient. (6) The Tribunal may, of its own motion or on application (whether made before or after the expiry of the time limit concerned) by any person, extend the period of time within which anything would otherwise be required by or under this Act to be done. The Applicants allege that the Tribunal determined the length of the hearing by reference to the arbitrary consideration of Mr Spratt's impending end of term. A perusal of the transcript provided by the Applicants indicates that this was a factor which the Tribunal drew to the attention of the parties. On 27 October 1999 in discussing the time constraints facing the Tribunal Mr Spratt observed, at p6: Perhaps one of the phone calls could be to the Minister with respect to appointments. The Tribunal clearly regarded the expiration of Mr Spratts' terms as a limiting factor on the time for the hearing. 29 At the same time the case was one which involved under $200,000 on both claim and cross-application. The hearing took five days and as the transcript shows was unexpectedly lengthened by circumstances which arose in the course of the hearing. The Tribunal is able to limit the time a party is allowed to present its case pursuant to section 27(5)(d), to a period of time that it considers reasonably necessary for the presentation of the parties cases. While the Tribunal's conduct in the hearing of these applications in limiting the time was clearly made in reliance on that sub-section, the comments of Tribunal compel me to conclude that the Tribunal was not motivated by what was reasonably necessary for the parties to present their cases, but by the impending expiry of Mr Spratts' term. This was not fair and equitable to the Applicants. That the Tribunal was not properly constituted at the time the decision was delivered. 30 As a matter of public record the Mr Spratt's term did not expire until 30 October 1999. The Tribunal delivered its decision on that date. Therefore, I do not accept that the Tribunal was not properly constituted at the time the decision was delivered. That the Tribunal admitted into evidence affidavits without allowing the Applicants having the opportunity to cross-examine the deponents. 31 The Respondents tendered a number of affidavits which were objected to by the Applicants. The basis of that objection was that the deponents were not available for cross-examination. The Tribunal noted the Applicants' objections but allowed the affidavits to be tendered. It did so on the basis that the fact that the deponents were not available for cross-examination went to the weight to be given to the evidence in the affidavits, rather than to their admissibility. 32 The Tribunal is not bound by the rules of evidence and may, subject to the rules of natural justice, inform itself in such manner as it thinks fit: section 27(2). It is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: section 27(3). Specifically, section 36(1)(b) provides: (1) The Tribunal may: (b) examine any witness on oath, or by use of a statutory declaration, The fact that a deponent is not available for cross-examination does not prevent the Tribunal from receiving a statutory declaration or affidavit into evidence. The fact that a deponent is unavailable to be cross-examined, undoubtedly, will effect the weight the Tribunal will give to that evidence, depending on the circumstances of each case. There is nothing in the Tribunal's conduct in admitting into evidence affidavits where the deponents were not available for cross-examination, which given the provisions of the Fair Trading Tribunal Act 1998, was not fair and equitable. That the Tribunal refused to take a view of a retaining wall because of pressure of time, thereby taking into account external and arbitrary factors. 33 An examination of the transcript (pages 41 & 42 of 28 October 1999) reveals that an application was made for a view on behalf of the Applicants in order to determine a perceived conflict between the evidence of Mr McLaughlin and the observations of a Mr Hutchinson regarding works at the property. The Tribunal refused this application on the basis that it did not consider there to be a conflict between the evidence, as the evidence related to different areas. The Tribunal had before it photographs which it considered provided it with a sufficient understanding. There is no indication in the transcript that shortness of time was a critical factor in the Tribunal's refusal to have a view. There is also no disclosure, in the application for rehearing, that the Tribunal had already had a view of the works at the time this application was made. 34 The Tribunal may inform itself as it thinks fit (section 27) and is under no compulsion to have a view. The purpose of the view requested by the Applicants was to enable the Tribunal to resolve for itself, by personal observation, a perceived conflict in evidence. The purpose of a view is that of: … enabling the Tribunal to understand the questions that are being raised, to follow the evidence and apply it, but not to put the result of the view in the place of evidence… See Scott v Numurkah Corporation (1954) 91 CLR 300. As such, the Tribunal should not have embarked on a view for the purpose suggested by the Applicants' solicitor. In my opinion the Tribunal's refusal to embark on a view was within power, justified on its understanding of the evidence, and a proper exercise of its procedural discretion. That the Tribunal's findings that there was a certificate of insurance in respect to the property at the time of the hearing, and that section 94 of the Home Building Act 1989 precluded the builder enforcing any contractual rights under the building contract or recovering for the building works on a quantum meruit, were contradictory. That the Tribunal wrongly applied the law in force under the Home Building Act 1989 respect of insurance requirements at the date of the contract, rather than that at the date of the hearing. 35 Sections 92 and 94 of the Home Building Act 1989 in their current form commenced on 30 July 1999. They provide: 92 Contract work must be insured (1) A person must not do residential building work under a contract unless: (a) a contract of insurance that complies with this Act is in force in relation to that work, and (b) a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, has been provided to the other party (or one of the other parties) to the contract. Maximum penalty: 100 penalty units. (2) A person must not demand or receive a payment under a contract for residential building work (whether as a deposit or other payment and whether or not work under the contract has commenced) from any other party to the contract unless: (a) a contract of insurance that complies with this Act is in force in relation to that work, and (b) a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, has been provided to the other party (or one of the other parties) to the contract. Maximum penalty: 100 penalty units. (3) This section does not apply if the contract price does not exceed $5,000 or (if the contract price is not known) the reasonable market cost of the labour and materials involved does not exceed $5,000. (4) If the same parties enter into two or more contracts to carry out work in stages, the contract price for the purposes of subsection (3) is taken to be the sum of the contract prices under each of the contracts. (5) The regulations may prescribe another amount for the purposes of subsection (3) and an amount so prescribed is to apply in the place of the amount referred to in that subsection. (6) To avoid doubt, this section extends to residential building work that is also owner-builder work. 94 Effect of failure to insure residential building work (1) If a contract of insurance required by section 92 is not in force in relation to any residential building work done under a contract (the uninsured work ), the contractor who did the work: (a) is not entitled to damages, or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, in relation to that work, and (b) is not entitled to recover money in respect of that work under any other right of action (including a quantum meruit). (2) However, the contractor remains liable for damages and subject to any other remedy in respect of any breach of the contract committed by the contractor. (3) Residential building work that is uninsured work at the time the work is done ceases to be uninsured work for the purposes of this section if the required contract of insurance for the work is subsequently obtained. Note . If a contract of insurance is in force in relation to part of the residential building work, this section applies only in relation to the part of the work that is not insured. (including a quantum meruit). They represent the law in effect at the date of the hearing and determination by the Tribunal. Prior to 30 July 1999 sections 92 and 94 relevantly provided: Contract work must be insured (1) A person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to that work. (2) A person must not contract to do any residential building work unless a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, is attached to the contract. (3) … 94 Effects on contract of contravention (1) A person who enters into a contract in contravention of section 92(1) or 93(1): (a) is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract or to recover money in respect of work done under the contract under any other right of action (including a quantum meruit action), but (b) is liable for damages and subject to any other remedy in respect of a breach of contract committed by the person. (2) … 36 To properly understand this issue it is, I think, first necessary to revisit what findings the Tribunal made with respect to insurance under the Home Building Act 1989. The Tribunal found that: a) the Company was not the holder of a licence under the Home Building Act 1989 when it entered into the contract; b) that the Company did not effect a policy of insurance required by the Home Building Act 1989 when it entered into the contract; c) that a the Company put in place insurance under the Home Building Act 1989 on 21 October 1999, well after the works that were undertaken had been completed. The Certificate of Insurance to which this finding relates is exhibit 25, and caused me some concern in considering this application for rehearing. The Certificate itself shows an issue date of 22 June 1998, some three months before the contract and at a time when the Company was unlicensed, and therefore should have been unable to procure the issue of a Certificate of Insurance for building works undertaken by it. I have some difficulty in understanding the means by which the Certificate came to bear the issue date 22 June 1998, but proceed on the basis of the Tribunal's unchallenged finding that the insurance was 'put in place' on 21 October 1999 There is no indication in the application for rehearing that the Applicants dispute these findings. 37 When the works were commenced there was no insurance under the Home Building Act 1989 put in place by the Company. At that time, and throughout the course of the works, section 94 of the Home Building Act 1989 had not been amended by the Home Building Amendment Act 1999. That amendment only commenced operation while proceedings were on foot, on 30 July 1999. Therefore, the law in force at the time of the contract and during the course of the works, precluded a builder, such as the Company, which had not put in place a Certificate of Insurance, from recovering against any other party damages for breach of contract or from recovering under any other right of action including on a quantum meruit: Casa Maria Pty Ltd v Trend Properties Pty Ltd (unreported, Court of Appeal, CA40367/98, 18 December 1998); Artura Pty Ltd v Bluecrest Constructions Pty Ltd (unreported, Santow J, EqD 3066/98, 21 August 1998); and Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd (unreported, Brownie AJ, EqD, 13 May 1999). The Applicants contend that by finding that section 94 of the Home Building Act 1989 precluded them recovering under the contract or on a quantum meruit the Tribunal erred by applying the law in force at the date of the contract rather than that in force at the date of the hearing. Is this the case? 38 As noted above section 94(3) of the Home Building Act 1989 commenced operation on 30 July 1999. It provides that work that is uninsured work at the time the work is done ceases to be uninsured work for the purposes of the section, if the required contract of insurance for the work is subsequently obtained. The Applicants' contention, while not specifically stated, must therefore be that as a result of insurance being effected on 21 October 1999 with respect to the works, the works therefore became insured works for the purposes of section 94: with the corollary being that the Company was therefore entitled to recover damages for breach of contract or on a quantum meruit. Thus the Applicants say the Tribunal should have applied the law in effect at the date of hearing. 39 I do not accept the reasoning underlying this proposition. When the Applicants made their application to the Tribunal section 94(3) did not exist. The right of action which their application sought to enforce against the Respondents was one from which the Respondents were then immune under section 94, as it then stood. The effect of the proposition advanced by the Applicants is that from its commencement section 94(3) operated retrospectively to enable the Company, once it effected the necessary insurance, to: a) maintain a right of action against the Respondents; b) convert its previously baseless application into an extant and enforceable right of action; and c) deprive the Respondent's of the immunity from suit previously bestowed on them by section 94. The effect of the introduction of section 94(3) advanced by the Applicants is one which significantly interferes with, and substantially alters, the previous rights and immunities vested in both the Applicants and the Respondents. There are no transitional provisions in the Home Building Amendment Act 1999 concerning the impact of section 94(3) on residential building works done, and contracts entered into before, the commencement of that sub-section. 40 The proposition advanced by the Applicants in the application for rehearing implies that section 94(3) should be given a retrospective operation. This is contrary to accepted rules of statutory interpretation which start from the basis that there is a presumption against the retrospective operation of legislation. This is especially so where the retrospective operation would deprive a person of vested rights. In Maxwell v Murphy (1957) 96 CLR 261 Dixon CJ said at 267: The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined for past events. But, given rights and liabilities fixed by reference to past fats, matters or events, the law appointing or regulating the manner in which they are to be enforced, or their enjoyment is to be secured, by judicial remedy, is not within the application of such a presumption. The distinction made by the Chief Justice refers to that between laws affecting substantive rights – to which the presumption apples, and those affecting the procedure to enforce or secure those rights – to which the presumption does not apply. In Fisher v Hepburn (1960) 105 CLR 188 at 194 Fullagar J said: There can be no doubt that the general rule is that an amending enactment, or, for that matter, any enactment, is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which have occurred before its commencement. Is the change to the law worked by the introduction of section 93(4) procedural or substantive? 41 Prior to the commencement of section 94(3) the Company was prevented from recovering damages against any other party for breach of contract or under any other right of action including on a quantum meruit. The Respondent's enjoyed the protection from suit by the Company which that restriction on the Company created. In Walton v Baffsky [1975] 2 NSWLR 565 the Court of Appeal considered the effect of an amendment to the Moneylenders and Infants Loans Act, made after a loan contract, which removed the requirement that a money-lender be licensed in order to sue for recovery of money lent. The money lender had not been licensed. Hutley JA said at 568: The word "right" can cover what is more accurately an "immunity". The appellant here, on the substantive construction of s21 … enjoys a valuable immunity, and this immunity is not to be taken away from him unless the statute is expressed to operate at a date prior to its enactment. This statute is not so expressed … In my opinion, the alterations effected by the amendments did not touch the immunity which the appellant obtained by virtue of the failure of the respondents to become duly licensed as money-lenders. See also Carr v Finance Corporation of Australia Limited (1982) 42 ALR 29 at 38; and Mathieson v Burton (1971) 124 CLR 1. As was the case in Walton v Baffsky, it is my opinion that the introduction of section 93(4), which on its face has no retrospective operation, should be construed so that it only applies prospectively to building works and contracts undertaken after its commencement. This is consistent with the presumption against the retrospective operation of legislation, and preserves the 'valuable immunity' enjoyed by the Respondents. 42 That being the case the Tribunal was correct in concluding that the Company could not recover for breaches of contract or pursuant to any other right of action including on a quantum meruit. This is so irrespective of whether or not the Tribunal applied the law at the date of the contract or at the date of the hearing. The difficulty that is apparent from the Tribunal's reasons is that while it was aware of the effect of section 94 in both its old and new forms, it did not consider that the section prevented the Company recovering from the Respondent's by application of the doctrine of unjust enrichment. In my opinion the wording of section 94, in both incarnations, is clear: with uninsured work the contractor "is not entitled to recover money in respect of that work under any other right of action (including a quantum meruit)." As Davenport & Harris, Unjust Enrichment (1997) point out at p12: Unjust enrichment is better known to the construction industry by the term "quantum meruit", but the terms are not synonymous: quantum meruit is the award based on a claim of unjust enrichment. Quantum meruit is to unjust enrichment what damages are to breach of contract or tort. Unjust enrichment is compensated by an award of quantum meruit, while breach of contract and tort are compensated by an award of damages. Damages and quantum meruit are sometimes equal in amount but, since they are calculated differently, that is coincidence. 43 The principle which the Tribunal applied in making orders in favour of the Company, was an application of the principles of unjust enrichment by the award of restitutionary quantum meruit. By this application of those principles the Tribunal enabled the Company, as a contractor of uninsured work, to recover under a right of action contrary to the prohibition on such a right of action contained in section 94 of the Home Building Act 1989 – whether before or after the 1999 amendments. In that sense the decision of the Tribunal was not fair and equitable, although the Company benefited from the application of the principles of unjust enrichment to the disadvantage of the Respondents. That the Tribunal wrongly admitted without prejudice offers and correspondence into evidence 'in circumstances where it was plain that the Tribunal Members are unaware of the law relating to privilege in relation to legal professional privilege or attempts to compromise disputes'. 44 On 26 October 1999, in the course of the hearing, the Applicants' solicitor objected to 'without prejudice' letters exhibited to Mr Bannister's affidavit. He also objected to a witness being asked about those offers. He objected that his clients privilege was being abused, by 'without prejudice' offers being put in evidence. 45 While section 27(2) provides, subject to the rules of natural justice, that the Tribunal is not bound by the rules of evidence, that release from the strictures of the rules of evidence is not unfettered. The rules and practices of evidence should at all times inform the Tribunal in assessing whether to admit evidence which would otherwise be inadmissible, and if a decision is made to admit such evidence, it should guide the Tribunal's considerations of the weight the Tribunal should attach to that evidence. In addition the Fair Trading Tribunal Act 1998 contains a number of other provisions which limit the evidence which can be adduced before the Tribunal. Section 65 of the Act provides: 65 Privileged documents (1) Nothing in this Act requires the disclosure of a document if the Tribunal or the Chairperson is satisfied that evidence of the document could not be adduced in proceedings before a NSW court within the meaning of the Evidence Act 1995 by reason of the operation of any of the following provisions of that Act: (a) section 9 (Application of common law and equity), but only to the extent that it preserves any privilege against the adducing of evidence, (b) section 10 (Parliamentary privilege preserved), (c) Part 3.10 (Privileges) of Chapter 3. Another example is the preservation of a witnesses right to refuse to answer questions where he or she has a reasonable excuse for so doing: section 36(3). 46 Among the provisions to be found in Part 3.10 of Chapter 3 of the Evidence Act 1995 is section 131 which deals with the exclusion of evidence of settlement negotiations, and provides, among other things, that a document that has been prepared in connection with an attempt to negotiate a settlement of a dispute shall not be adduced as evidence: section 131(1)(b). Sub-section (2) lists a number of exceptions to this prohibition, none of which, on the information available to me, would have authorised the admission of the evidence of the without prejudice communications complained of here. The admission of evidence as to those without prejudice negotiations was therefore unlawful, and may have resulted in the decision not being fair and equitable to the Applicants. In passing I note that, in my opinion, the solicitor for the Applicant was correct when he put to the Tribunal at the hearing that, given the nature of the Fair Trading Tribunal, and as distinct from some Courts, he did not consider that Members would have to disqualify themselves when they became aware of without prejudice communications. The denial of access to transcript throughout the proceedings and malfunctions in the recording of the hearing. 47 No running transcript of the proceedings was taken. This was clearly a source of inconvenience to both the parties and the Tribunal. The proceedings were, however, taped and copies of the tapes supplied to the parties. As the Applicants make clear in their application for rehearing the recording system suffered malfunctions in the course of the hearing. As is apparent from the Applicants' transcript of the recording (25 October 1999 page 4) when the parties were advised that the Tribunal was unable to provide a running transcript, the parties considered sharing the costs of a transcription service between them. Unfortunately, but not surprisingly, the likely cost was prohibitive. They therefore accepted that they would be supplied with tape recordings of the proceedings. For reasons that are not apparent to me, there were a number of malfunctions in the recording process affecting a portion of the proceedings. 48 There is no right to a running transcript given to parties before the Tribunal. While a running transcript undoubtedly assists the parties, their representatives and the Tribunal, the Fair Trading Tribunal Act 1998 and the Fair Trading Tribunal Regulations 1999 do not require that proceedings be transcribed and provide no means for the Tribunal to recover anything like the costs of supplying a transcript from the parties where it is supplied. That being the case, the Tribunal is unable to provide running transcripts to parties who desire that convenience as they require. The only reasonable and feasible alternative is the provision of tape recordings. This is what was done in this case. The recording malfunctions are unfortunate, but do have the effect of rendering the decision not fair and equitable. The denial of an opportunity to recall evidence from Mr Bannister 49 On two occasions the Applicant's solicitor indicated that he would like to further cross-examine Mr Bannister. On both occasions, whether through pressure of time, or some other issue arising, this claim was not pressed by the Applicant's solicitor other than in passing. I am not satisfied from reading the pages of transcript referred to by the Applicants that the Tribunal denied the Applicants such an opportunity. Rather my reading of the transcript indicates that this was not pressed. That Tribunal Member Faust by advising the parties at the conclusion of the hearing that the Tribunal had a duty to use its best endeavours to bring the parties to settlement, demonstrated a fundamental misunderstanding of her role and ought to have disqualified herself. 50 Section 49 of the Fair Trading Tribunal Act 1998 provides: 49 Tribunal to promote conciliation (1) Before making an order to determine a matter before it, it is the duty of the Tribunal to use its best endeavours to bring the parties to the proceedings to a settlement acceptable to all of them. (2) If such a settlement is reached, the Tribunal must make orders that give effect to the settlement to the extent permitted by this Act. (3) Any statement or admission made before the Tribunal or any person at a meeting or proceeding held for the purposes of subsection (1) is not admissible at a hearing of the matter concerned or in any other legal proceedings. 51 An examination of the transcript reveals that Ms Faust at the conclusion of the hearing (page 60, 28 October 1999) drew the attention of the parties to the Tribunal's obligations under this provision. There ensued a interchange involving the Applicant's solicitor and the Tribunal in which the Applicant's solicitor expressed his view that the section 49 related to Alternate Dispute Resolution, and that a Member engaged in settlement negotiations under section 49 should not proceed to determine the substantive issues between the parties. After some short discussion it was agreed that the parties had no hope of reaching a settlement and the issue was left there. 52 In my opinion this ground for seeking a rehearing – when construed, as I do construe it, as justifying a claim that the decision of the Tribunal was not fair and equitable – displays a fundamental misunderstanding of the role and functions of the Fair Trading Tribunal. The Tribunal is a creature of statute, which has been equipped with a diverse range of dispute resolution tools that it may deploy in an attempt to bring parties before it to a resolution of the dispute between them. Those tools include mediation, independent neutral evaluation, investigations by assessors and the more traditional approaches of preliminary conferences (in larger matters) and Member facilitated settlement negotiations (sometimes referred to as conciliation), which have a long and successful history in various consumer and small claims jurisdictions. Section 49 is a legislative direction to the Tribunal that it must use its best endeavours to bring parties to a resolution, before determining a dispute judicially. In fulfilling that statutory duty the Tribunal may deploy any of the various dispute resolution tools available to it in accordance with the Act. What Ms. Faust did was to adhere to the performance of that statutory duty in a simple and appropriate manner given the nature and history of the proceeding. Contrary to the assertion that it demonstrated that she did not understand her function, it was clearly an attempt to comply with the Tribunal's statutory duty, and indicates that Ms Faust appreciated the importance of this part of the Tribunal's function. It did not have the effect of rendering the decision potentially unfair or inequitable. That the Tribunal's orders with respect to the removal of the caveat on the property were made without power. 53 The Applicants' solicitor wrote: With respect to the caveat lodged by the Claimant (Applicants) the Tribunal held that the caveat to be contrary to the intentions of the 7D Home Building Act (sic) and therefore should be removed. The provisions of this enactment where clearly drawn to the provisions of this enactment (sic) – where it is stated in the savings and transitional provisions under s48 of the Home Building Amendment Act 1998 does not affect the validity of any contract entered into before the amendments commenced. The Home Building Amendment Act 1998 No 56 did not come into force until 1 January 1999. Therefore it was contrary to law for the Tribunal to make the ruling in this respect. Section 7D of the Home Building Act 1989 provides: 7D Interests in land under contract (1) A contract does not give the holder of a licence or any other person a legal or equitable estate or interest in any land, and a provision in a contract or other agreement is void to the extent that it purports to create such an estate (2) Accordingly, the holder of a licence or any other person may not lodge a caveat under the Real Property Act 1900 in respect of an estate or interest prohibited by subsection (1). (3) However, subsection (1) does not apply to a provision in a contract that creates a charge over land if: (a) the land the subject of the charge is land on which the contract work is, or is to be, carried out, and (b) the charge is in favour of the holder of a licence who is a party to the contract, and (c) the charge is created to secure the payment to the holder of the licence by another party to the contract of money due under the contract, but only if a court or tribunal has made an order or judgment that such payment be made, and (d) in the case of a charge over land under the Real Property Act 1900 —the party to the contract against whom the judgment or order is made is the registered proprietor of the land. (4) A charge referred to in subsection (3) over land under the Real Property Act 1900 ceases to operate if the party to the contract against whom the judgment or order is made ceases to be As the Applicants' solicitor correctly pointed out this provision was inserted into the Home Building Act 1989 by the Home Building Amendment Act 1998 and commenced operation on 1 January 1999. There is a transitional provision which can be found in Clause 48 of Schedule 4 to the Act: Savings and Transitional Provisions: The amendments by way of repeal and re-enactment of sections 7D and 16DD made by the Home Building Amendment Act 1998 do not affect the validity of: (a) any caveat lodged in accordance with the Real Property Act 1900 , or (b) any provision in a contract or agreement entered into,before the amendments commenced. A reading of the transcript provided by the Applicants reveals that the issue of the caveat was raised by the Respondent's solicitor on 28 October (page 27), who asserted that the Applicants had lodged a caveat over the property after the commencement of section 7D. This was not disputed by the Applicants' solicitor who argued, as a matter of law, that section 7D had no application to a contract that was entered into before the commencement of the section. 54 In my view, Clause 48 of Schedule 4 does not have the effect suggested by the Applicants' solicitor. It is expressed not to affect the validity of 'any caveat lodged' before the amendments commenced, and not to effect any 'provision in a contract or agreement' entered into before the amendments commenced. Here, the subject of the discussion is a caveat which the representatives of all parties agreed had been lodged after section 7D commenced. Clause 48 makes it clear that section 7D is intended to affect the validity of such a caveat. The effect of the section on the caveat in this case was to prohibit the lodging of the caveat by the Applicants after that section commenced. The orders for the removal of the caveat are therefore not inequitable or unfair. That the Tribunal erred in rejecting the Applicants claims against under sections 42 and 72 of the Fair Trading Act. 55 In their applications for rehearing the Applicants have asserted that the Tribunal 'erred' in rejecting their allegations that the Respondents had engaged in false and misleading conduct. No basis for this assertion is contained in the applications. The Tribunal does not appear to have made any express finding in relation to this issue, and the error must be suggested to arise from that silence. The Applicants in their application for rehearing referred to pages 46 – 60 of the transcript for 28 October 1999, which covers part of the submissions made by their solicitor, in support of this ground. Nowhere in those pages was any submission made to the Tribunal with respect to misleading and deceptive conduct on the Respondent's behalf. In those circumstances the Applicants have not placed before me any material upon which I could be satisfied that the decision was not fair and equitable, or was against the weight of the evidence, on this ground. That the Tribunal erred in finding that the building works were defective rather than incomplete. 56 There was an abundance of expert reports and evidence before the Tribunal as to the course of the building works, and the alleged defects. The Tribunal had the benefit of a view to assist its understanding of that evidence. On the material before me it was clearly open to the Tribunal to conclude, as it did, that the works were defective. May the Applicants have Suffered a Serious Injustice? 57 In the light of the above I am satisfied that the decision of the Tribunal may not have been fair and equitable because: a) the Tribunal took into account arbitrary factors in fixing the length of the proceedings; b ) the Tribunal wrongly allowed the Applicants quantum meruit claim, on the basis of unjust enrichment, contrary to the prohibition o f them enforcing such a right of action set out in section 94 of the Home Building Act 1989; and c) the Tribunal wrongly admitted evidence of without prejudice offers. That, however, is not determinative of the application for rehearing. In order for the Applicant's to succeed I must be satisfied that they may have suffered a substantial injustice on these grounds. 58 I have no doubt that the Tribunal made a number of serious procedural and substantive errors in the course of this hearing. If the Tribunal had applied the law with respect to contractors being unable to enforce any right of action with respect to uninsured building works, as required by section 94 of the Home Building Act 1989 (whether before or after its 1999 amendment), then the result that would have inevitably followed is that the no order could have been made in the Company's favour. Instead the Tribunal made an order in favour of the Company for $65,683.91, against which it set-off an order in Bannister's favour for $28,748.00. Even if I assume, for the purposes of discussion only, that the other errors made by the Tribunal resulted in it making an erroneous order in favour of the Bannisters for the full amount of $28,748.00, the reality is that the Tribunal's error in favour of the Company is of such a magnitude as to outweigh any injustice it may have suffered as a result of the Tribunal making orders in the Bannister's favour. Upon an application of the correct legal principles, any order made by the Tribunal would have significantly disadvantaged the Company when compared to the orders that were actually made. Put simply, the Tribunal's error in favour of the Company advantaged it by $65,683.91 and disadvantaged the Bannisters equally. If this were an application for rehearing by the Bannisters I would be satisfied that they had suffered a substantial injustice, but the major error made by the Tribunal has been to the advantage of the Company and, in my view, cannot, therefore, be said to amount to a substantial injustice. 59 As to Mr McLaughlin's application for rehearing it, also, cannot succeed. The only order made by the Tribunal which directly affected him was the order for the removal of the caveat which was directed to both the Company and him. As I have already found that the caveat was prohibited by section 7D of the Home Building Act 1989, the order did not work any substantial injustice against him. Following the abandonment of the defamation claims the only claims by Mr McLaughlin which remained on foot were those relating to misleading and deceptive conduct under the Fair Trading Act 1975. I do not consider that Mr McLaughlin may have suffered a substantial injustice because of the Tribunal's failure to make an order on those claims. 60 This is a most unfortunate case. It highlights a number of difficulties which Tribunals such as the Fair Trading Tribunal face in times of transition, and, to my mind, also highlights the issue of whether the rehearing provisions of section 63 of the Fair Trading Tribunal Act 1998 are an appropriate mechanism for dealing with the review of large and complex cases such as this. The limitations placed on the review process by section 63 are starkly highlighted by some facets of this case, as are the large demands the consideration of such a rehearing places on the Tribunal's meagre resources. The delay in disposing of this application for rehearing is illustrative of those demands. 61 In the light of all of the above the applications for rehearing are refused. ........................................... P. H. MOLONY Senior Member, as Delegate for the Chairperson I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE FAIR TRADING TRIBUNAL. 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.