Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hoque v ARZ Building & Constructions Pty Ltd [2017] NSWCATAP 71 Hearing dates: 13 May 2016 (last submissions 23 June 2016) Date of orders: 29 March 2017 Decision date: 29 March 2017 Jurisdiction: Appeal Panel Before: J Harris SC, Senior Member Dr J Renwick SC, Senior Member Decision: (1) The appeal against the decision of the Tribunal in HB 14/47135 is allowed and the orders made on 9 February 2016 are set aside. (2) The appeal against the decision of the Tribunal in HB 14/57483 is allowed and the orders made on 9 February 2016 are set aside. (3) Each of the matters in AP 16/11843 (being HB 14/47135 and HB 14/57483 below) is remitted to the Commercial and Consumer Division of the Tribunal for reconsideration according to law, either with or without further evidence as the Tribunal below may determine. (4) Within 21 days the parties are to confer as to costs of the appeal, and in the event there is no agreement as to costs orders (if any) on the appeal, submissions as to costs (which are not to exceed 5 pages) are to be filed and served in a further 14 days. Catchwords: Civil and Administrative Tribunal – Appeal Panel – questions of law – building contract – errors of law established – matter remitted for consideration according to law Legislation Cited: Home Building Act 1989 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Browne v Dunn (1893) 6 R 67 Campbelltown City Council v Vegan [2006] NSWCA 284 Carlson v King (1947) 64 WN (NSW) 6 Collins v Urban [2014] NSWCATAP 17 Fox v Australian Industrial Relations Commission [2007] FCAFC 150 Keith v Gal [2013] NSWCA 339 Mifsud v Campbell (1991) 21 NSWLR 725 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 Pettitt v Dunkley [1971] 1 NSWLR 376 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sydney Supermarkets Pty Limited v Xu [2009] NSWADTAP 28 TAG Aviation Pty Ltd v Kirk [2017] NSWCATAP 41 Wainohu v New South Wales (2011) 243 CLR 181 Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority 24 NSWLR 156 Yong v Antworks Pty Ltd [2016] NSWCATAP 14 Texts Cited: None Category: Principal judgment Parties: Kazi Emdadul Hoque and Mossammat Nazmun Nahar (Appellants) ARZ Building & Constructions Pty Ltd (Respondents) Representation: Solicitors: P Meehan, Meehans Solicitors (Appellants) P Kioussis, Kioussis Lawyers (Respondents) File Number(s): AP 16/11843 Publication restriction: None Decision under appeal Court or tribunal: NSW Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Date of Decision: 9 February 2016 Before: M Cohen, Senior Member File Number(s): HB 14/47135 & HB 14/57483 Reasons for decision Introduction and procedural history 1. This is an appeal from decisions of a Senior Member sitting in the Consumer and Commercial Division in relation to a dispute relating to residential building work to which the Home Building Act 1989 (the Act) applies. No issue arises as to the Tribunal's jurisdiction. 2. The key background facts follow. 3. The Appellants (Homeowners) contracted with the Respondent (Builder) to undertake residential building works in New South Wales. The building contract was allegedly terminated in September 2014. 4. Prior to that date there had been disputes between the parties commenced in the Tribunal which had been resolved by mediation or negotiation, the terms of which were reduced to writing: see decision below [13-16]. 5. The decision from which the appeal, and application for leave to appeal, were brought involved two proceedings which were heard together. The first proceeding below (HB/47135) was brought by the Homeowners. Their claim against the Builder was for damages assessed by reference to the cost of completing work alleged to have been left outstanding, and the cost of rectification of some alleged defective work following a purported termination of the building contract. The Tribunal below dismissed that application with costs. 6. The second proceeding (HB 14/57483) was brought by the Builder. That claim was for amounts said to be due under the building contract, or on a quantum meruit assessment. In the result, the Tribunal awarded the Builder $85,403.08 and costs against the Homeowners. 7. The proceedings below were heard together and a single set of reasons produced. The Homeowners appealed from all orders made below in both proceedings and we heard both matter together. 8. A Notice of Appeal was followed by an Amended Notice of Appeal filed on 8 April 2016. It was not clear from the original Notice which grounds are said to concern errors of law giving rise to an appeal as of right, and which are grounds for which leave is required: see, eg Collins v Urban [2014] NSWCATAP 17. 9. We required these matters to be clarified and on 24 May 2016 the Homeowners filed a Further Amended Notice of Appeal. We have allowed the amendments, which do not change the substance of the case, but make it clearer. 10. On 23 June 2016, the Builder filed a 25 page response to that document. 11. The Homeowners' 38 page outline of submissions before us sought to divide the Senior Member's decision into five principal parts. It also sought to "group" the grounds of appeal by reference to those parts of the decision. The "groups" are a useful way of analysing the various issues, they were as follows: 1. The amendment of the contract: decision [34-96]; 2. The Homeowners' breach of the contract: decision [97-102]; 3. Whether the Homeowners suffered a loss: decision [103-111]; 4. The Builder's claim: decision [112-136]; 5. Relief for the Builder: decision [137-160]. 1. By contrast, the Builder's outline adopts the conventional approach of dealing with each ground of appeal in turn. 2. Many folders of material were provided to us and it has taken us time to work through the complexity of the material and the grounds. All of the foregoing matters combined to render the resolution of this matter even more complex and time-consuming. In the end, however, we are able to dispose of the appeal on relatively narrow grounds as, regrettably, all the orders made below are infected with legal error and must be set aside and the proceedings remitted for reconsideration according to law. The essential reasoning below 1. The Senior Member, at first instance, set out the competing cases at the outset of his decision by reference to Points of Claim which had been filed in both proceedings. He summarised out the Homeowners' Points of Claim at paragraph 19 of the decision below as follows: 1. The parties negotiated the terms and conditions of the Building Contract in May – June 2011, and it was executed in final form on 22 July 2011 for the construction of two townhouses to be constructed on the land, with the aim of subsequent subdivision of the land and sale to third-party purchasers of each of the residences thus created. 2. The works continued, subject to the earlier disputes which were resolved in the earlier proceedings enumerated above, until 3 September 2014 when the Homeowners terminated the Building Contract. 3. The Builder failed to carry out the works in accordance with cll. 1(b),1(c) & 10(b) of the Building Contract. 4. The Builder failed to maintain a license to carry out the works. 5. The Builder breached s 18B(d) of the Act. 6. The Homeowners claim the costs of completing incomplete works and rectifying defective works. 1. The Builder denied these allegations. In its case, the Tribunal below summarised the Builder's case as follows: 1. All amendments to the Standard Form Building Contract were recorded on the face of the document at the time it was executed on 22 July 2011. 2. Amendments recorded on the face of the building contract after execution on 22 July 2011 were applied by the Homeowners without the approval or consent of the Builder, including: 1. Schedule 1, item #b, 'Is the builder responsible for getting any approval' amendment of "No" to "Yes" – See Ex B, p.4; 2. Schedule 3, section (b), 'Is any aspect of the work set out in what are the contract drawings and specifications excluded from the contract work and therefore the contract sum' although 'No' is ticked, there is the addition of the words: "Lock Contract as per Tender Quotation" – see Ex B, p. 13; 3. Schedule 4, Special Conditions, addition of words: "Final Occupancy Certificate must be provided by [the Builder] to [the Homeowners] before receiving the final payment" see – Ex B, p.15; and 1. The progress claims made under the Building Contract amounted to the sum of $533,121.57, of which amount the Homeowners have paid $516,878.43, leaving the sum of $16,243.14 which is claimed. 2. The Builder also claims the balance of the contract sum by way of damages upon acceptance of repudiation by the Homeowners, leading to a claimed amount of $83,121.57. 3. Variations claimed under the Building Contract in the sum of $59,733.88 remain outstanding and unpaid. 4. Delay costs under the Building Contract of $20,000.00. 5. Interest under the Building Contract of $11,183.20. 6. Conceded sum of $4,988.40 flowing from the conclave of experts, if the Tribunal finds the full extent of liability contended for by the Homeowners. 7. Total net claim of $124,050.25. 8. Alternatively, if the sum claimed under the Building Contract is not available pursuant to its terms, that sum is claimed as upon a quantum meruit at general law. 1. The Homeowners disputed the whole of the Builder's claim. 2. A substantial factual dispute arose on the hearing. The Homeowners funded the building project through a commercial lender, Homeside Lending. A loan facility was established to the extent of $585,000 secured on the land. The Senior Member found, and it appears that there was no dispute, that the approval for the loan facility was given by Homeside Lending in August 2011. 3. There was no dispute, it seems, that the Building Contract was entered into on 22 July 2011. 4. The Builder contended that the Homeowners altered the Building Contract after it was executed and without the Builder's knowledge or consent. It contended, as the Senior Member records in his decision, that this was done to enable the maximum funds available under the lending facility to be made available. The Homeowners denied that they had so altered the contract. 5. It is useful to describe the effect of the alterations as alleged in the Builder's Points of Claim. As we understand, the argument advanced by the Builder and accepted by the Senior Member, was that this had the effect of advancing the availability of $30,000 from the lender from the end to the beginning of the project. 6. The Senior Member resolved that factual dispute on the evidence before him, finding (at paragraphs 95 – 96) for the Builder and against the Homeowners that the latter had altered the Building Contract. The significance of that finding for the Senior Member was expressed in the next paragraphs of his decision. He said: [97] The corollary of that finding is that the Tribunal may, and does find, that the Applicants were thereafter in material breach of the Building Contract; and that upon the purported termination of the Building Contract by the Applicants on 4 September 2014, the Applicants repudiated the Building Contract which repudiation the Builder was at liberty to accept and sue upon the breach for damages. [98] This finding is supported by the related finding by the Tribunal that nowhere in the evidence have the [Homeowners] established that particulars contained in the Notice of Breach…are made out, as opposed merely to the fact that they are advanced by bare assertion. [99] To the extent that proof must flow from the testimony of the Applicant's themselves, the Tribunal is not able to find that such facts as are needed to make good the underlying breaches of the Building Contract alleged have been proved on the balance of probabilities; [100] It follows necessarily and the Tribunal finds that the basis for the Notice of Termination under the building contract was absent. With [relevant] provisions…not being enlivened; [101] The consequence is that the Applicants did not have a maintainable cause of action for breach by way of incomplete works, and rejects their contention that they were at liberty to terminate by reason of earlier breach alleged by the Respondent. [102] Alternatively…the Tribunal finds that any such breach as may have occurred was waived by the Applicants in any event by reason of the earlier resolution of the claims made in the proceedings [referred to in [13-16] below]; or alternatively there had been an election by the Applicants not to pursue their legal rights. 1. The tribunal went on to further find that the Homeowners had in any event suffered no loss at [103-107]. Adequacy of reasons and failure to deal with an argument seriously advanced 1. In TAG Aviation Pty Ltd v Kirk [2017] NSWCATAP 41 an Appeal Panel which included the President said: [28] Whether there has been a failure to give adequate reasons constitutes a question of law for which a party to the proceedings at first instance has a right of appeal under s 80(2)(b) of the NCAT Act. [28] The nature and extent of the reasons required are variable, depending on the circumstances of the particular case, Collins v Urban [2014] NSWCATAP 17 at [57]. However, the reasons should be sufficient to enable an aggrieved party to exercise any rights of appeal: see for example the cases referred to in Collins v Urban [2014] NSWCATAP 17 at [49] ff. Generally, the duty to give reasons, both under s 62(2) of the NCAT and generally at common law, includes the requirement for Members to state their understanding of the applicable law and the reasoning processes that led the Tribunal to its conclusions, see for example s 62(3)(b) and (c). 1. Given the central importance of reasons we now quote in greater detail from that decision in Collins v Urban: Reasons at First Instance [43] Although it was not a matter relied upon or raised by the parties, the Appeal Panel believes it is appropriate and may be of assistance to make some observations on the duty to give or prepare reasons for decisions in the light of the approach taken in the present case. [44] The Tribunal below decided the matter and made orders on 27 February 2014. At that time, it appears no reasons for decision were delivered apart from the notation to the effect that the rent from 2 January 2014 to 27 February 2014 which was owing amounted to $3,248.57. From the orders made, the Hearing Notes and the other material referred to above, it is possible to discern what determinations were made by the Member as to the amount of rent unpaid, whether the residential tenancy agreement had been breached and whether an order for termination and possession should be made. [45] Neither the appellants nor the respondents apparently requested the Tribunal at first instance to provide a written statement of reasons for its decision notwithstanding that such a course was available under s 62(2) of the Act. Since the appellants did not request reasons, it is not surprising that failure to give reasons was not relied upon as a ground of appeal. [46] Section 62 provides: (1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. (4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party. [47] Section 62 establishes a regime under which the Tribunal is not under an express statutory obligation to provide reasons for a decision unless a party makes a request for reasons under s 62(2) but the Tribunal may and in many cases does prepare and give reasons for decision, whether oral or written, without a request to do so from the parties, consistently with s 62(4). [48] A provision such as s 62 of the Act does not, however, define exhaustively when there is a duty to give reasons or the extent of that duty. [49] One reason why reasons are generally required, notwithstanding a provision such as s 62, is that if reasons for decision are neither sought nor prepared and an appeal or application for leave to appeal is lodged, the findings of fact and legal reasoning of the decision maker at first instance would not be available to the appellate body by way of written reasons. In many instances not having findings of fact and legal reasoning explicitly available may render effectively worthless any appeal right because the appellate body does not have a statement of the findings of fact, the relevant law and explanation of how the law was applied to the facts as found, by the decision maker at first instance. [50] It was held in Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 (per Moffitt JA, Manning JA agreeing) that: The force of the authorities, which in various ways say that the judge or magistrate at first instance in particular cases ought to have given reasons, is that, as part of his judicial duty and apart from any express requirement of any statute, he ought to have given reasons for the decision in question. I think there is duty upon a judge or magistrate, at least at first instance, in an appropriate case and in appropriate circumstances to give reasons for decision such as will facilitate a litigant, who may be aggrieved, exercising rights he may have to appeal. In Carlson v King [(1947) 64 WN (NSW) 6] Jordan CJ in delivering the decision of the Full Court said: "It has long been established that it is the duty of a court of first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. [...]" The judgment otherwise makes it clear that this statement is directed to the general judicial duty of a judge of a court from which an appeal lies, whether or not a provision such as s. 144(3) [which in effect required a judge upon request to provide reasons] exists or not. [51] It can be observed that Jordon CJ in the passage quoted contemplates that the relevant duty may be discharged not only by giving oral or written reasons for a decision but also by preparing a suitable record of the evidence, law and reasoning so that an appellate body is properly informed if it is required to consider the matter on appeal. [52] The duty in relation to reasons endorsed in Pettit has been held to apply not only to Courts but also to other judicial or quasi-judicial tribunals or bodies - see for example Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372. [53] The other basis upon which it has been held that reasons are generally required to be given was recently reiterated by the Court of Appeal in Keith v Gal [2013] NSWCA 339 (per Gleeson JA at [109]) as being that failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice, citing Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA. If, however, the parties have the right to request written reasons but do not do so, this basis for generally requiring reasons to be given may be of less significance but it continues to apply. Further, in proceedings that are uncontested by the respondent, this consideration may also carry less weight. [54] In relation to one of the principal predecessors of the present Tribunal, the Appeal Panel of the Administrative Decisions Tribunal (ADT) held that the principles identified above applied to that Tribunal. In Sydney Supermarkets Pty Limited v Xu [2009] NSWADTAP 28 the Appeal Panel of the ADT said at [56] - [60]: 56 The Tribunal is obliged to give adequate reasons. Appeal Panels of the Tribunal have routinely accepted the principles enunciated in the line of cases that include Soulemezis v Dudley (1987) 10 NSWLR 247, Mifsud v Campbell (1991) 21 NSWLR 725 and Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. The Tribunal is a deliberative body engaged in the exercise of a judicial function when hearing and determining applications, giving reasons for decision and making final orders. See recently, Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372, esp at [109] ff per Basten JA. The Commonwealth authorities relating to Commonwealth tribunals are to similar effect. See, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 366; Dornan v Riordan (1990) 24 FCR 564 at 568; Edwards v Guidice [1999] FCA 1836; (1999) 169 ALR 89 at [10], [43]. 57 In our view, s 89(5) of the ADT Act, to which counsel for the appellant gave emphasis, does no more than confirm the law as it would in any event have applied to the Tribunal. 58 Section 89(5) states that the Tribunal must in reasons published under s 89 set out: '(a) the findings on material questions of fact, referring to the evidence or other material on which these findings are based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.' 59 (In that regard we note that strictly interpreted s 89 is not applicable to this case. Section 89 is concerned with the circumstance where the Tribunal does not publish written reasons at the time it makes its final orders.) 60 A trier of fact is not obliged to address, and reconcile, every contradiction or inconsistency in the evidence. The law does 'not require lengthy or elaborate reasons' but it is 'necessary that the essential ground or grounds upon which the decision rests should be articulated': Soulemezis v Dudley (Holdings) Pty Ltd per McHugh JA at 280. [55] Section 89 of the Administrative Decisions Tribunal Act 1997 was in similar terms to s 62 of the Act, although there was no equivalent of s 62(4). [56] The Appeal Panel accepts that these principles should also be applied in relation to decisions in proceedings before the Consumer and Commercial Division of the Tribunal, which are judicial in nature. An appeal lies from the Consumer and Commercial Division to the Appeal Panel as of right from a final or ancillary decision on a question of law and by leave on other grounds or from interlocutory decisions. As a result, there is generally a duty on Members sitting in the Consumer and Commercial Division to give oral or written reasons for their decisions or, at least in uncontested proceedings, "to make... a note of everything necessary to enable the case to be laid properly and sufficiently before the [Appeal Panel] if there should be an appeal", to quote the words of Sir Frederick Jordan in Carlson v King (1947) 64 WN (NSW) 6. [57] A number of propositions can be derived from the authorities concerning the nature and extent of the duty to give of reasons as follows: (1) notwithstanding that there have been many cases (some of which are collected in De Iacovo v Lacanale [1957] VicRp 78; (1957) VR 553, at pp 558-559) in which it has been held that it is the duty of a judge, magistrate or other relevant decision maker to state reasons, that does not mean that a decision maker must give his or her reasons in every case. There is no "inflexible rule of universal application" that reasons should be given for judicial decisions. Whilst it is no doubt right to describe the requirement to give reasons as "an incident of the judicial process", it is subject to the qualification that it is a normal but not a universal incident - Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667 per Gibbs CJ; (2) the content and detail of the reasons for decisions to be provided will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision - Wainohu v New South Wales (2011) 243 CLR 181 at [56] per French CJ and Kiefel J; (3) the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46] per Basten JA; (4) not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] per Basten JA. 1. It is also an error of law to fail to deal with an argument seriously advanced. Relevant precedent for this proposition was noted in Yong v Antworks Pty Ltd [2016] NSWCATAP 14 at [31- 34] where the Appeal Panel said: 'In Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority 24 NSWLR 156 at 186 Handley JA stated: 'The duty of a judicial officer to hear and determine a claim made in judicial proceedings conducted before that officer is also an incident of the judicial process. Since breaches of the duty to give proper reasons and to observe procedural fairness involved errors of law, there seems every reason to hold that a breach of the duty to hear and determine a claim made in judicial proceedings also gives rise to such an error. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Gaudron J in context of the Migration Act (Cth) discussed a constructive failure to exercise jurisdiction stating: 'It follows from what has been written above that the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, failure to conduct a review as required by the Act.' In Fox v Australian Industrial Relations Commission [2007] FCAFC 150 Marshall and Tracey JJ stated at paragraph 38: 'In the present case the complaint is not that the full bench ignored the evidence but rather that it did not deal with an important ground raised by Mr Fox. This case is more akin to one where there is a failure by a Tribunal to deal with necessary issues. Such a failure constitutes a jurisdictional error.' In Khan v Kang (supra) the Appeal Panel found that the Tribunal had made an error of law by failing to consider a claim made by Mr Khan. The Appeal Panel observed at [28] as follows: 'It is possible to characterise what occurred either as a failure to give reasons for the Tribunal's decision or a failure to exercise the jurisdiction conferred on the Tribunal and invoked by the appellant in relation to this claim in respect of excess timber - see Waterways Authority v Fitzgibbon [2005] HCA 57 at [129] - [130] and Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [42]. Whichever way it should be characterised, the Tribunal's failure to consider such a claim at all in its Reasons for Decision amounted to an error of law by the Tribunal below' 1. Regrettably, and after careful consideration of the lengthy submissions we conclude that there are a number of errors of law of these types. Although the grounds of appeal are numerous and diffuse, clearly enough these two grounds are raised, see, eg, Appeal Ground 13A. Consideration of the Tribunal's decision below concerning HB 14/47135 1. Even assuming there were the changes set out above made by the Homeowners to the building contract without the knowledge or consent of the Builders, and that these were made for the purpose of deceiving the Homeowner's financier, it is not an inevitable corollary that the Applicants were thereafter in material breach of, and later repudiated, the contract as set out in [97] and following. 2. The Tribunal below was required to, but apparently did not consider the significance of its findings in relation to the: 1. the law as to repudiation as set out for example in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61 at [44-61]; 2. the requirement that a court not readily infer from a party's insistence on a 'wrong' construction of a contract that the party is unwilling to perform it according to its true construction: Green v Sommerville (197) [1979] HCA 60; per Mason J, at 611; being matters which were seriously advanced by the Homeowners below, in writing. 1. Those failings amount to an error of law. 2. Further, the findings at [98-99] self-evidently do not sufficiently refer to the evidence to permit this Appeal Panel to discern the basis for the factual findings made below, so that the minimum standard contemplated by Resource Pacific Pty Ltd v Wilkinson and Collins v Urban, and required by s 62(3) of the CAT Act have not been met. 3. The next finding at [100 below] as to waiver or election also involves a manifest inadequacy to provide reasons by reference to the relevant legal tests for such notions. We, like the parties, are left guessing as to the reasons why these conclusions were reached. There is also a serious question (which we need not resolve) whether there was any prior notice given of the Tribunal's intention to come to this finding (which would amount to a denial of procedural fairness). 4. The Homeowners are further correct to submit that the findings at [97-100] are central to the conclusion to dismiss the Homeowner's case. Those conclusions are infected with errors of law and must be set aside. 5. The remaining question on the Homeowners' case is whether the conclusions that there was no loss at [101-110] 'saves' the orders in relation to the Homeowners' case. 6. It does not, not least because this consideration also involved errors of law, namely a failure to consider arguable submissions seriously put forward (see Appellant's outline on appeal [61-71, especially at 68] to the effect that the sale price of the houses is not relevant to the question or quantum of damages for breach of the statutory warranties as alleged. Cases such as Bannister & Hunter v Transition Resort Holdings (No 3) [2013] NSWSC 1943 at 302-345] to which the Tribunal below was referred by the Homeowners in writing contain reference to the principles supporting the Homeowners' contentions. 7. For these reasons the Tribunal's decision and orders below concerning HB 14/47135 must be set aside, as must the related costs order. 8. In the circumstances of this appeal, it is not possible nor appropriate for the Appeal Panel to embark on the necessary re-hearing process which must now take place. Consideration of the Tribunal's decision below concerning HB 14/57483 1. We accept the Homeowners' submissions that the two cases were intertwined in the way that the member below considered them. Our decision to set aside the Tribunal's decision below concerning the Homeowners' case has an immediate effect on the decision below concerning the terms of the building contract (including any variations) and whether it was breached, (and if so how), or repudiated, (and if so how). The decision of the Tribunal below with respect to those issues cannot stand given our decision. 2. Furthermore, all of these matters were in this matter critical to the availability and determination of any quantum meruit claim: see Trimis & v Mina [1999] NSWCA 140; Update Constructions Pty Limited v Rozelle Child Care Centre Limited (1990) 20 NSWLR 251; Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277. 3. These errors of law require the setting aside of the decision and orders in the Builder's claim, including the related costs order. 4. We provide for a regime for consideration of costs of the appeal. 5. The orders we make are as follows. 1. The appeal against the decision of the Tribunal in HB 14/47135 is allowed and the orders made on 9 February 2016 are set aside. 2. The appeal against the decision of the Tribunal in HB 14/57483 is allowed and the orders made on 9 February 2016 are set aside. 3. Each of the matters in AP 16/11843 (being HB 14/47135 and HB 14/57483 below) is remitted to the Commercial and Consumer Division of the Tribunal for reconsideration according to law, either with or without further evidence as the Tribunal below may determine. 4. Within 21 days the parties are to confer as to costs of the appeal, and in the event there is no agreement as to costs orders (if any) on the appeal, submissions as to costs (which are not to exceed 5 pages) are to be filed and served in a further 14 days. 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: 30 March 2017