Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 Hearing dates: 15 February 2017 Date of orders: 07 September 2017 Decision date: 07 September 2017 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member G Sarginson, Senior Member Decision: In AP 16/52241: 1. The appeal is allowed in part. 2. Order 1 of the Tribunal dated 28 October 2016 is varied as follows: "The builder is to pay the homeowners the sum of $95,754.00 immediately". 3. The appeal is otherwise dismissed. In AP 16/53370: 4. Time for National Strategic Construction Pty Ltd to lodge the appeal is extended to 7 December 2016. 5. Leave to appeal is refused. 6. The appeal is dismissed. In both applications: 7. Any application for costs is to be made in writing to the Tribunal (with a copy sent to the other party) within 14 days of the date of publication of these reasons for decision and is to be accompanied by a submission not exceeding three pages in length. 8. Any submission in response to the costs application is not to exceed three pages in length and is to be provided to the Tribunal and the other party within 14 days of receipt of the costs application. 9. Any submission in reply is to be provided to the Tribunal within seven days thereafter. 10. In their submissions on costs, the parties are to address whether the issue of costs can be determined without a hearing, on the basis of the written submissions. Catchwords: APPEAL – Assessment of damages – principle in Bellgrove v Elldridge – Assessment of consequential loss – conventional estoppel – waiver Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Home Building Act 1989 Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 251 ALR 322; [2008] HCA 57 Barwick v Shetab [2017] NSWCATAP 127 Bellgrove v Eldridge [1954] HCA 36; 90 CLR 613 Brewarrina Shire Council v Beckhaus Civil Pty Ltd & 1 Or [2005] NSWCA 248; Chi Building Pty Ltd v Wedgwood [2016] NSWCATAP 64 Collins v Urban [2014] NSWCATAP 17 G MacFayden and Anor v G Tadrosse [2014] NSWCATCD 194 Head Mod Nominees Pty Ltd v Macken [2016] NSWCATAP 106 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Little v J & K Homes Pty Ltd [2017] NSWCATAP 84 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 Miller Heiman Pty Ltd v Sales Principles Pty Ltd [2017 NSWCA 106 Robinson v Harman (1848) 1 Ex 850; 145 ER 363 Sidhu v Van Dyke (2014) 214 CLR 505 [2014] HCA 19 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27 Wheeler v Ecroplot Pty Ltd [2010] NSWCA 61 Category: Principal judgment Parties: Paul Deacon and Emilie Deacon – Appellants and cross-respondents National Strategic Constructions Pty Ltd – Respondent and cross-appellant Representation: Counsel: Mr G Carolan for Paul Deacon and Emilie Deacon Mr A Justice for National Strategic Constructions Pty Ltd Solicitors: Nexus Law Group for Paul Deacon and Emilie Deacon Elsworthy Solicitors for National Strategic Constructions Pty Ltd File Number(s): AP 16/52241 and AP 16/53370 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 28 October 2016 Before: T Simon, Tribunal File Number(s): HB 14/59078 and HB 15/61471 reasons for decision Introduction 1. This is an appeal and cross-appeal arising from a decision made in the Consumer and Commercial Division of the Tribunal in applications brought under the Home Building Act 1989 (the HBA). In our reasons for decision, Paul and Emilie Deacon are referred to as "the homeowner" and National Strategic Constructions Pty Ltd is referred to as "the builder". 2. Key issues in dispute in the appeal and cross-appeal include: 1. The manner in which the Tribunal found defective work and assessed damages for the cost of rectification of the concrete floor slab of the residential premises; 2. The manner in which damages were assessed in regard to the cost of the homeowner moving out of the property while rectification work was to be performed; 3. The findings made regarding the circumstances in which the contract came to an end; and 4. The findings made by the Tribunal that led to a finding that the homeowner's claimed "negative variations" (i.e. payments made by the homeowner to the builder during the duration of the contract for items that were not provided by the builder) were not credited to the homeowner when damages were assessed. 1. As a number of the grounds of appeal of the respective parties involve the same issue, we have structured this decision in a manner that deals with the particular issue in dispute, considering the ground of appeal of the homeowner and the builder respectively arising from that issue. Background 1. The parties entered into a written contract for the construction of a four bedroom house on 27 March 2013. After variations, the contract price was $343,204.90. 2. On 19 December 2013 the homeowner took possession of the house, despite work being incomplete. The parties fell into dispute and the builder subsequently issued a notice of suspension and then a notice to terminate under the written contract. The homeowner asserted the conduct of the builder had caused the contract to come to an end, because the builder had represented the work was complete and the homeowner could move in. 3. The homeowner commenced proceedings in the Tribunal on 9 December 2014, seeking damages for incomplete and defective work. On 11 November 2015 the builder lodged a cross-application seeking damages for unpaid work and interest under the contract. 4. The applications were heard over three days in March 2016. Each party called evidence from an expert building consultant. Relevantly, Mr Lewer was the expert engaged by the homeowner and Mr Shepherd was the expert engaged by the builder. Prior to the hearing, Mr Lewer and Mr Shepherd were involved in a conclave, with a joint Scott Schedule prepared setting out the issues upon which the experts agreed and disagreed. Both Mr Lewer and Mr Shepherd gave evidence at the hearing and were cross-examined. 5. The Tribunal found that the builder had breached the contract and the contract had ended on 19 December 2013. The homeowner was awarded damages for incomplete work and work that was not performed with reasonable care and skill in breach of the statutory warranty contained in Section 18B of the HBA. The homeowner was awarded $81,246.31, including a component of damages for the cost of accommodation in respect of the homeowner moving out the property while rectification work to the concrete slab floor of the property was being performed. The builder was awarded $34,016.10 for monies owed under the contract prior to 19 December 2013. After the set-off of the monies owed to the builder, the Tribunal awarded damages to the homeowner of $47,230.21. 6. The decision of the Tribunal is dated 28 October 2016. The homeowner's appeal was filed on 30 November 2016 and the homeowner asserts that the appeal was filed within 28 days of being notified of the decision of the Tribunal. The builder filed its appeal on 7 December 2016. The builder made an application to stay the original decision and the homeowner made an application to stay the costs order until the appeal was determined. The Appeal Panel refused both applications for a stay on 23 January 2017. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act). The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on that basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … [T]here was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. Determining an appeal 1. The Appeal Panel's powers in determining an appeal are set out in s 81 of the NCAT Act, which states: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal. Application to extend time for the builder's appeal 1. The builder's appeal is outside the limitation period contained in cl 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (the Rules). The homeowner did not oppose leave being granted to the builder to file its appeal. In any event, we are satisfied that the period for the builder to file its appeal should be extended, applying the principles set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. This is particularly given that the delay is not excessive and there is no prejudice to the homeowner in extending time. 2. We note that the builder did not submit that the homeowner's appeal was out of time and we find that the homeowner's appeal was lodged within the time specified in cl 25(4)(c) of the Rules. Evidence and submissions 1. In making a decision in relation to the appeals, we have considered the following: * The homeowner's Notice of Appeal dated 28 November 2016; * The builder's Notice of Appeal dated 21 December 2016; * The homeowner's Reply to Appeal dated 10 January 2017; * The builder's Reply to Appeal dated 8 December 2016; * The homeowner's bundle of documents lodged on 17 January 2017, which includes documents before the Tribunal at first instance, including the application forms, points of claim and points of defence, lay and expert evidence, the joint Scott Schedule, submissions and a transcript; * The builder's bundle of documents lodged on 27 January 2017, which also contains the Tribunal applications, points of claim and points of defence, expert reports, the joint Scott Schedule and submissions, as well as a recording of the hearing; * Written and oral submissions made on behalf of the homeowner; and * Written and oral submissions made on behalf of the builder. Consideration Concrete Floor slab – Ground 1 of the owner's appeal and grounds 1, 2, 3, 4 and 5 of the builder's appeal Concrete floor slab - Ground 1 of the homeowner's appeal 1. The homeowner asserts that the Tribunal erred by finding that quantum of the cost of rectification of the concrete floor slab of the residential premises. The homeowner asserts that the Tribunal misapplied the principle of Bellgrove v Eldridge [1954] HCA 36; 90 CLR 613 (Bellgrove v Eldridge) because the Tribunal made a factual finding accepting the homeowner's expert on the nature of the defect of the concrete slab and the appropriate method of rectification, but rejected his evidence on the cost of rectification, and accepted the lower costing of the builder's expert, who had proposed a different method of rectification. 2. The builder submits that it was open to the Tribunal to accept the evidence of the builder's expert on quantum, and that it could accept such evidence without making a specific factual finding on the method of rectification. Expert evidence 1. Mr Lewer was of the opinion that the concrete floor slab was uneven, and the appropriate method of rectification was to apply levelling compound to all areas and to lay concrete look tiling to the entire floor: Mr Lewer's report at [2.46] and Joint Scott Schedule at item 46. Mr Lewer estimated the cost of rectification by such a method to be $79,006.79. 2. Mr Shepherd did not accept that there was any defect with the floor, and his expert report did not propose any method of rectification. However, in the Joint Scott Schedule, Mr Shepherd stated that if there was a defect, it was sufficient to grind and finish the floor at a cost of $30,483.00. The Tribunal's factual findings 1. The Tribunal found there was defective work, which was attributable to the builder. As the findings regarding the floor slab form the basis of a number of grounds of the homeowner's appeal and the builder's appeal, it is appropriate to set out the reasons in detail. In respect of the floor slab, the Tribunal found as follows at [92] - [97]: 92. Mr Lewer claims 17 out-of-level and other defects. The alleged defects relate mainly to unevenness in the slab floor and defective falls in wet areas. There is agreement between the experts that the entry area is defective. Mr Lewer refers to gaps between skirting boards and slab and states that the slab is wavy and uneven. He also refers to gauging in the concrete and inadequacy of the finish where the concrete slab was opened up to rectify cables from the underfloor heating that were wrongly positioned. He claims that the fall for the floor waste in the bathroom is excessive. 93. The builder makes submissions that the homeowner has failed to identify the correct standard in relation to the defect. He also alleges that Mr Lewer fails to substantiate the defect with supporting evidence and measurements or take into consideration the role of Mr Fair who was contracted by the homeowners to polish floors. The builder makes submissions that Mr Lewer's method of rectification of the flooring is unnecessary and amounts to betterment. 94. On this point the Tribunal prefers the evidence of Mr Lewer. Mr Lewer has identified unacceptable rises and falls as depicted in survey which is 'Annexure Y' to his report. He identifies a 9mm slope variation across the family room patio door, a 9 mm slope across bathroom 1 and an 8mm rise from 5.694 at the north end of the kitchen island cupboard to 5.702 at the south end, then back down to 5.964 at the refrigerator, 1 meter away. 95. In his report and in photograph's, in particular photographs 46, 47, 101, 102 and 103, Mr Lewer identified a number of gouges in the slab. He identified footprints in the concrete in the kitchen and paint spills that could not be removed by Mr Fair's polishing process. 96. Mr Shepherd was not persuasive on this point in cross examination and the Tribunal does not accept the builder's submission that the matter is simply not a defect because there is no evidence of measurements over certain lengths. The Tribunal accepts from Mr Lewer's evidence that the surface is uneven and that there are incorrect falls in the wet areas. The Tribunal is not satisfied that the defect relate to the subsequent work done by Mr Fair. The Tribunal is satisfied on the evidence of Mr Lewer that the concrete floor has not been laid in accordance with the contract or in a proper and workmanlike manner. The Tribunal accepts that the most reasonable method of rectification is for the flooring to be tiled and that the tiling does not amount to betterment. 97. However, for reasons previously identified the Tribunal prefers the quantum evidence of Mr Shepherd and allows and (sic) amount of $30,483.00 1. The "reasons previously identified" that the Tribunal refers to are contained at paragraph [43] of the decision. Relevantly, the Tribunal made the following finding: 43. Mr Lewer and Mr Shepherd both appeared at the hearing and gave evidence by way of hot tub and were cross examined…It should be noted that, unless stated otherwise, in general the Tribunal prefers the quantum evidence of Mr Shepherd. This is because in relation to certain items, Mr Lewer at times had difficulty explaining how he arrived at his figures, this will be highlighted below. Mr Shepherd was more confident when answering questions as to how he arrived at figures. Inconsistency in the findings made and application of the principle in Bellgrove v Eldridge 1. It is clear that builder's expert's method of rectification was a different method of rectification and inconsistent with the method accepted by the Tribunal as the appropriate method of rectification in [96]. 2. In circumstances where the Tribunal accepted the evidence of Mr Lewer on the nature of the defect and the appropriate method of rectification, there was no factual foundation for a finding that damages were to be assessed on the basis set out in the opinion of Mr Shepherd, as he had proposed a completely different method of rectification. 3. When assessing damages for the cost of rectification of defective home building work, the applicable principle was set out by the High Court in Bellgrove v Eldridge (1954) 90 CLR 613 as follows, at pp 617-618: In the present case the respondent was entitled to have a building erected upon her land in accordance with the contract and the plans and specifications which formed part of it, and her damage is the loss which she has sustained by the failure of the appellant to perform his obligation to her…her loss can, prima facie, be measured only by ascertaining the amount required to rectify the defects complained of and so give her the equivalent of a building on her land which is substantially in accordance with the contract…the work necessary to remedy defects in a building and so produce conformity with the plans and specifications may, and frequently will, require the removal or demolition of some part of the structure…that work which is required to achieve conformity and the cost of the work, whether it be necessary to replace a small part, or a substantial part, or, indeed the whole of the building is, subject to the qualification which we have already mentioned and to which we shall refer, together with any appropriate consequential damages, the extent of the building owner's loss. 1. The "qualification" to which the High Court referred in Bellgrove v Eldridge was that the remedial work must be "necessary to produce conformity" with the contract and "a reasonable course to adopt". However, it is only in "fairly exceptional circumstances" that a method of rectification will be held to be an "unreasonable" course to adopt: Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 at [15]; Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27 at 186; Barwick v Shetab [2017] NSWCATAP 127 at [88]. 2. There may be situations where experts identify more than one method of rectification to produce conformity with the contract and the Tribunal must assess the evidence to determine which method (and cost) is the most appropriate to produce conformity. The Tribunal must, in such cases, determine the appropriate method of rectification and be satisfied that it is not an unreasonable course to adopt. However, this was not a case where the experts agreed on the nature and extent of the defect, and the issue of disagreement was the most appropriate method of rectification to produce conformity with the contract. 3. In circumstances where the Tribunal found that Mr Lewer's proposed method of rectification was necessary to produce conformity with the contract, it must follow that unless the proposed method was an unreasonable course to adopt the cost of rectification was the amount identified by Mr Lewer. No finding was made that Mr Lewer's proposed method of rectification was not a reasonable course to adopt. There was no evidence that Mr Shepherd had assessed the cost of rectification based on applying levelling compound and re-tiling the slab. Rather, Mr Shepherd had costed a completely different method of rectification. 4. The Tribunal did not find that Mr Shepherd's proposed method of rectification was appropriate. In such circumstances, the Tribunal erred in finding that the quantum of damages for the cost of rectification of the concrete slab is the amount identified by Mr Shepherd for the cost of grinding the slab, which the Tribunal did not accept as the appropriate method of rectification, rather than the amount identified by Mr Lewer as the cost of applying levelling compound and re-tiling the slab. 5. A finding regarding the general credit of the expert witnesses does not relieve a decision maker from making findings of fact regarding the nature of the defect and the cost of rectification to produce conformity with the contract, nor does it allow a decision maker to select the cost of rectification of one expert over another without explaining the basis of such a finding. 6. We are satisfied that the Tribunal erred in law by reason of a misapplication of the principle in Bellgrove v Elldrige. Accordingly, the homeowner succeeds on this ground of appeal. Concrete Floor Slab-Grounds 1, 2, 3, 4 and 5 of the Builder's Appeal 1. Grounds 1 to 5 of the Builder's appeal also relate to the findings made regarding the acceptance of Mr Lewer's opinion regarding defective work in respect of the slab. 2. Ground 1 of the Builder's appeal is that the Tribunal erred by admitting Mr Lewer's report into evidence, despite it annexing a survey of the floor plan of the residence by Parker Scanlon Pty Ltd, because the survey report was "clearly hearsay". The transcript of the hearing provided by the builder shows that Counsel for the builder objected to the report being admitted into evidence on this basis. The objection was not strongly pressed and Mr Lewer's report was admitted into evidence. As discussed previously, both Mr Lewer and Mr Shepherd participated in a conclave, prepared a Joint Scott Schedule and gave evidence concurrently at the hearing. The survey was a document that Mr Lewer relied upon in asserting his opinion the floor slab was uneven. 3. The builder submits that the document was a hearsay document because the maker of the document could not be identified and was not available for cross-examination. The builder submits the document would be inadmissible by reason of s 59 of the Evidence Act 1995, and is does not fall within exceptions to the hearsay rule in ss 64 and 69 of the Evidence Act. 4. The builder submits that although rules of evidence do not apply in the Tribunal (s 38(2) of the NCAT Act), rules of evidence provide a guide to assessment of the probative value of evidence, within the context of the duty to provide procedural fairness to the parties: Chi Building Pty Ltd v Wedgwood [2016] NSWCATAP 64 at [40]-[41]; Head Mod Nominees Pty Ltd v Macken [2016] NSWCATAP 106 at [69]. 5. It is clear that the rules of evidence are relevant to the operation of procedural fairness. In a home building dispute where both parties are represented and the amount in dispute is significant, a relatively strict consideration of rules of evidence may at times be appropriate to ensure procedural fairness, in comparison to a dispute involving a small amount of money and in which the parties are not legally represented. 6. However, in the circumstances of this matter we are not satisfied that the admission of the survey into evidence as part of Mr Lewer's report was a denial of procedural fairness to the builder. The builder had ample opportunity to obtain its own survey. In his report (at page 122) the builder's expert, Mr Shepherd, referred to the survey and relied upon it as follows: It can be seen from the above summary of the Parker Scanlon survey that the slab is generally constructed to an acceptable level barring a minor hump in front of the kitchen bench and a drop off immediately to the western side of the front entry door. To the front entry it can be seen, from my own investigation and from assessing the Parker Scanlon survey, that while the surface of the floor is not completely flat, the area immediately in the walkway, being the width of the entry door, is out by 8mm. This is highlighted by the fact that the bottom edge of the door is not parallel with the floor. 1. Not only did Mr Shepherd not criticise the survey as being in any way unreliable, he adopted the survey as part of the assumed facts relied upon and as a basis for his opinion that the floor slab was within a reasonable tolerance and was not defective. Both experts were present at the hearing and gave concurrent evidence. If there was any issue regarding the reliability of the survey, Mr Shepherd could have raised the issue and the builder's Counsel could have cross-examined Mr Lewer on the document. 2. At most, the absence of the author of the survey went to the weight to be given to Mr Lewer's evidence. However, it was a document that clearly carried evidentiary weight because the builder's own expert had relied upon the document as an assumed fact in forming the opinion that the floor slab was not defective. The builder had ample opportunity at the hearing to make submissions as to the weight that should be placed on the document. 3. Ground 1 of the builder's appeal is dismissed. 4. Ground 2 of the builder's appeal is that the Tribunal erred by finding that the floor slab was defective when: 1. Mr Lewer had relied upon a survey which should have been ruled inadmissible; 2. There was no evidence that Mr Lewer had undertaken measurements evidencing the builder had breached any relevant standard (such as Australian Standards or the Building Code of Australia) and 3. There was no evidence the floor slab was defective or in breach of the statutory warranties in s 18B of the HBA. 1. In respect of the argument that the survey should not have been admitted into evidence, we have already rejected that argument and no further consideration is necessary. 2. The builder submits that the written contract did not contain plans and specifications of the floor slab and that Mr Lewer did not state in his report or his evidence that the floor slab did not comply with the plans and specifications contained in the contract or that the floor slab was non-compliant with any relevant Australian Standards of the Building Code of Australia. The builder submits that to determine whether or not the builder breached its contractual obligation under cl 1(b)(i) of the written contract, and the statutory warranty under s 18B(1)(a) of the HBA, the Tribunal must be satisfied that the builder breached an objective standard to assess defects, and Mr Lewer's report contained no evidence the builder had breached any objective standard or tolerance in respect of the evenness of the slab. 3. The homeowner submits in reply that cl 26 of the contract incorporated the Guide to Standards and Tolerances published by NSW Fair Trading (the Guide) and that the construction of the slab was not in accordance with Clause 2.08 and Clause 2.11 of the Guide due to its variation in height (cl 2.08 of the Guide) and lack of suitability for applied finishes (cl 2.11 of the Guide). The homeowner submitted that Mr Shepherd agreed in cross-examination that several parts of the slab did not comply with the Guide. 4. Although objective standards such as Australian Standards, the Building Code of Australia and the Guide are of significant relevance in establishing whether work has been performed in a proper and workmanlike manner (Wheeler v Ecroplot Pty Ltd [2010] NSWCA 61 at [10]), the absence of such evidence does not automatically mean a homeowner has failed to establish breach of statutory warranty. In our view, the relevant principle was succinctly stated by Senior Member Goldstein in G MacFayden and Anor v G Tadrosse [2014] NSWCATCD 194 at [46] as follows: …[E]vidence that work does not comply with the Building Code of Australia would establish a basis for a finding that sub section 18B(c) of the Act has been breached. Evidence of the details in which work does not comply with the contractual plans and specifications would form the basis for a finding that sub section 18B(a) of the Act has been breached. Evidence of work not being carried out in a proper and workmanlike manner would in my view involve identification of the work in question, a statement of how the expert would expect it to be carried out in in a proper and workmanlike manner and then identification of the factors which establish that the way in which the work has been carried out falls short of it being carried out in a proper and workmanlike manner. Evidence of this nature, if accepted, would form the basis for a finding that sub section 18B(a) of the Act has been breached. 1. In this matter, although Mr Lewer did not refer to the Guide in his report, he gave oral evidence about the Guide at the hearing and both Mr Lewer and Mr Shepherd were cross-examined about the Guide. Further, by reason of cl 26 of the contract, the standards contained in the Guide were incorporated as specifications under the contract. 2. We are satisfied that the Tribunal did not incorrectly apply the test for determining whether the builder had failed to perform work in accordance with the specifications of the contract or had failed to perform work in a proper and workmanlike manner in respect of the construction of the slab. The Tribunal had expert evidence before it from Mr Lewer and Mr Shepherd as to whether or not the concrete slab was within the specifications set out in the Guide for Standards and Tolerances and clear evidence from Mr Lewer as to why he regarded the work being not of a proper and workmanlike manner. Although the findings of the Tribunal at paragraphs [94] and [96] of the decision could have been expressed more expansively to explain why the Tribunal accepted the evidence of Mr Lewer and rejected the evidence of Mr Shepherd as to why the concrete slab was defective, no error of law has been established regarding the finding. There was evidence to support the finding and the Tribunal did not misapply the relevant legal principle. The builder did not allege error of law in respect of adequacy of reasons, and in any event, we are satisfied the Tribunal's reasons at paragraphs [94] and [96] are sufficient: Collins v Urban [2014] NSWCATAP 17 at [57]. 3. The builder's ground of appeal that Mr Lewer should have personally measured the slab does not disclose any error of law. At most, this issue goes to the weight of Mr Lewer's evidence. As discussed above, both experts gave evidence, both experts were cross-examined at length and both parties made extensive written submissions on issues of liability and quantum. No error of law has been established. Nor is the decision of the Tribunal regarding the concrete slab not fair and equitable or against the weight of evidence. 4. Ground 2 of the builder's appeal is dismissed. 5. Ground 3 of the builder's appeal is that the evidence relied upon to find that the floor slab was defective does not establish or evidence any breach of any relevant standard or that the ground floor slab was defective or in breach of s 18B of the HBA. 6. This ground of appeal has been dealt with when discussing Ground 2. No error of law has been established. Nor has it been established that the decision in relation to the slab is not fair and equitable or against the weight of evidence. 7. Ground 3 of the builder's appeal is dismissed. 8. Ground 4 of the builder's appeal is that the Tribunal erred in finding the method of rectification of the ground floor slab proposed by Mr Lewer did not amount to betterment. 9. The builder submits that the Tribunal misapplied the principle in Bellgrove v Eldridge by finding that Mr Lewer's proposed method of rectification was in accordance with the contract and not an unreasonable course to adopt, because Mr Lewer had proposed "retiling the entire house" (sic) rather than Mr Shepherd's "method of grinding and applying a concrete screed and polishing". The builder also submits that the Tribunal failed to give adequate reasons for its findings. 10. Both the builder's submissions and the Tribunal's reasons refer to "betterment". "Betterment" is "the cure of a defect in a manner that provides the plaintiff with a product of a higher standard, quality or value than the contractor was originally obliged to supply": Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27 at [193] (Walker Group v Tzaneros). However, as the NSW Court of Appeal held in Walker Group v Tzaneros at [201], where the principle in Bellgrove v Eldridge applies, the concept of "betterment" needs to be considered in the context of the application of that principle. 11. We have previously found that the Tribunal failed to correctly apply the principle of Bellgrove v Eldrige when it assessed damages on the basis of the different method of rectification proposed in the Joint Scott Schedule (although not in his report) by Mr Shepherd. However, the issue is not "betterment", it is whether the method of rectification proposed by Mr Lewer was either not in accordance with the contract or was an unreasonable course to adopt. 12. The builder's submissions on this issue appear to be the reverse of the homeowner's submissions on error of law regarding the assessment of damages. The builder's submission amounts to an argument that having accepted Mr Shepherd on the cost of rectification, the Tribunal should have accepted him on the issue of whether or not the work was defective. However, this approach is not logically consistent with the correct application of the principle in Bellgrove v Eldridge. Mr Shepherd did not accept that the concrete floor slab was defective in any respect and there was no clear evidence that his proposed method of rectification (grinding the concrete slab) would rectify the defects identified by Mr Lewer and be consistent with the plans and specifications under the contract. 13. We are satisfied that the Tribunal was considering the principle in Bellgrove v Eldridge when it found at [96] that "the most reasonable method of rectification is for the flooring to be tiled and that the tiling does not amount to betterment". The error of the Tribunal was not in finding that the floor needed to be tiled to rectify the defects, but in finding that damages should be assessed on the cost of merely grinding the slab. 14. We are not satisfied that the finding at paragraph [96] is an error of law in respect of the principle in Bellgrove v Eldridge, nor that the reasons were sufficiently inadequate to constitute an error of law. Further, we are not satisfied that the Tribunal's decision in relation to this issue was not fair and equitable or against the weight of evidence. 15. Ground 4 of the builder's appeal is dismissed. Circumstances in which the contract was terminated and the issue of interest under the contract - Grounds 6 and 7 of the builder's appeal 1. An issue in contention at the hearing was the circumstances in which the contract came to an end. The contract must have come to an end for the homeowner to be able to sue for damages for defective work: Brewarrina Shire Council v Beckhaus Civil Pty Ltd & 1 Or [2005] NSWCA 248; Little v J & K Homes Pty Ltd [2017] NSWCATAP 84. If the builder had not lawfully terminated the contract, the homeowner would be entitled to damages for the increased cost of completing any incomplete work. This is dealt with at paragraphs [35] to [41] of the decision. The homeowner took occupation of the premises on 19 December 2013. The homeowner asserted that Mr Edenbourough, director of the builder, had represented to Mr Deacon on 17 December 2013 that the work was complete and that the homeowner could take occupation. 2. The builder submitted at the hearing that the homeowner had taken occupation in breach of cl 22 of the contract because practical completion had not been achieved and the builder had not given written consent to the homeowner taking possession. The builder issued a written notice of suspension of works and a subsequent written notice of termination of the contract. The homeowner submitted that the notice was invalid, because the builder had misrepresented that the building work was complete and that the homeowner could take possession. 3. At the hearing evidence was given by Mr Deacon and Mr Edenbourough regarding the representation that the work was complete. The Tribunal referred to the evidence in detail at paragraphs [36] and [37] of the reasons. The Tribunal stated that Mr Edenbourough had conceded in cross-examination that he had told Mr Deacon that the work was complete and the homeowners could move into the property despite the work being incomplete. 4. Relevantly, the Tribunal found at [38]-[39]: 38. …[I]t is clear that the builder has agreed that the works are complete and the premises were ready for the homeowner to move into on 19 December 2013. The evidence does not reveal that during those conversations the builder objected to the homeowner moving in until final payment was made…Despite the written terms of the contract regarding the process of practical completion, the builder agreed that he told the homeowner that the works were finished and the home was ready for him to move in on 19 December 2013 and that he would obtain payment pending the final inspection by the bank of the finished works. In those circumstances, the contract came to an end after the builder represented the works were complete and the house was ready for the homeowners to move into and when the homeowners took possession of the property. 39. On the builder's own admissions he had not actually completed the work and he admitted that he had lied. In those circumstances he cannot seek to rely on clause 22(f)(i) of the contract in relation to deemed practical completion to regard the homeowner as in breach of contract." 1. On the basis of the findings at paragraphs [38]-[39], the Tribunal found, at [40], that the contract ended when the homeowner took possession "in the way that clearly both parties had agreed, bringing the contract to an end". 2. Under those circumstances, the Tribunal found that the builder could not rely on cl 22(f)(i) of the contract, and that it was "unnecessary for the Tribunal to consider the subsequent suspension and termination notices as by the time they were issued the contract was already at an end". 3. On the basis of these findings, the Tribunal awarded the homeowner damages for the increased cost of completing work that should have been completed by the builder under the contract. 4. Ground 6 of the builder's grounds of appeal is that the Tribunal erred in finding that the contract between the parties came to an end on 19 December 2013 and in disregarding the notice of suspension and notice of termination issued by the builder. The builder submits that the Tribunal had made a finding that either (i) the contract was terminated by agreement; or (ii) the contract was terminated by repudiation of the builder. The builder submits that: 1. if the contract was terminated by agreement, there was no breach by the builder and the homeowner was not entitled to damages for the increased cost of completing work; and 2. if the contract was repudiated by the builder, there was no evidence that the homeowner had accepted the repudiation. 1. There is no ground of appeal in respect of the findings that the Tribunal's reasons were inadequate. 2. The Tribunal did not explicitly find that the parties had freely and voluntarily consented to the contract ending on 19 December 2013. However, to the extent that the Tribunal found that the contract came to an end on 19 December 2013 by mutual agreement of the parties, we agree that such a finding is not supported by the evidence. 3. In relation to this, the Tribunal effectively found that the builder had deliberately misrepresented to the homeowner that the work was complete when it was not and that the builder consented to the homeowner taking possession notwithstanding the contractual provisions to the contrary. However, taking possession did not of itself bring the contract to an end. 4. We conclude that the factual findings made by the Tribunal regarding these circumstances fall within the principle of conventional estoppel: Miller Heiman Pty Ltd v Sales Principles Pty Ltd [2017] NSWCA 106 at [37]-[49]. Conventional estoppel prevents: "…[A]n unjust departure by one person from an assumption adopted by another as the basis of some act or omission which, unless the assumption be adhered to, would operate to that other's detriment. Whether a departure by a party from the assumption should be considered unjust and inadmissible depends on the part taken by him in occasioning its adoption by the other party": Thompson v Palmer (1933) 49 CLR 507 at 547; [1933] HCA 61. 1. The Tribunal found that the builder, knowing that the work remained incomplete, had made a representation that the work was complete and the homeowner could take possession. The homeowner acted on the basis of the representation by taking possession of the property. The evidence before the Tribunal established that the belief that the work was complete caused the homeowner to take possession and that the homeowner would have acted differently but for the representation of the builder: Sidhu v Van Dyke (2014) 214 CLR 505 [2014] HCA 19 at [90]-[93] per Gaegler J). 2. If the builder were able to resile from this position by relying upon the contract to issue a notice of suspension and a notice to terminate on the basis the homeowner had taken possession in breach of contract, clear detriment would be caused to the homeowner because: 1. the homeowner would not be able to claim damages for the increased cost of completing work that was incomplete; and 2. the homeowner would be liable for damages to the builder for breach of contract. 1. In such circumstances, it would be unjust for the builder to be allowed to depart from his representation and rely upon cl 22 of the contract. 2. Further, the factual findings of the Tribunal also support a conclusion that the builder waived the right to rely upon the notice of suspension and notice of termination in circumstances where the conduct of Mr Edenbourogh evidenced an unequivocal intentional departure from the builder's rights under the contract. It would be manifestly unfair for the builder to be allowed to rely upon its contractual rights in the face of the misrepresentation that the work was complete (Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 251 ALR 322; [2008] HCA 57 at [145]). It is unnecessary to further consider this issue in circumstances where the findings of the Tribunal are consistent with principles of estoppel. 3. We conclude that regardless of how the builder's behaviour is characterised, the suspension and termination notices given by the builder were ineffective. The contract therefore did not end because the builder terminated it. The contract was also not ended on 19 December 2013 or thereafter by any action of the homeowner, as the homeowner did not issue a termination notice to the builder. 4. We conclude that the contract continued until the time for performance of the contract works and the defects liability period had expired. Given that the contract specifies that the works would commence in April 2013 and would take 180 days to complete not including public holidays (Schedule 2 cl 5) and prescribes a 13 week defects liability period (cl 24), this period expired well before the commencement of proceedings by the homeowner. By the time the proceedings had commenced the parties' respective claims had crystallised. In these circumstances, and in view of the builder's purported termination of the contract being ineffective, we are not satisfied that the Tribunal's finding that the contracted ended on 19 December 2013 affected the outcome of the matter. (In relation to the homeowner's ground of appeal concerning negative variations, see below). Given our conclusion in this regard, there is no basis to remit the matter to the Tribunal to determine when the contract came to an end. Interest Under the contract - ground 7 of the builder's appeal 1. Ground 7 of the builder's appeal is that the Tribunal erred by finding that the builder was not entitled to interest on the invoices issued under the contract. The Tribunal found that the builder was not able to claim interest under the contract for unpaid invoices, because the builder had represented the work was complete. 2. The Tribunal's findings regarding the builder's claim for unpaid invoices (and, concomitantly, the claim for interest) are set out in paragraphs [99] - [112] of the decision. The Tribunal stated at [99] that the builder claimed three invoices: Invoice 456, invoice 476 and Invoice 479. In respect of Invoice 456, the Tribunal found that the parties had contemporaneously agreed that the correct amount was $14,684.90 and that the homeowner was liable to pay this amount to the builder at [111]. In respect of Invoice 476, the Tribunal found that this was an agreed variation and that the homeowner was liable to pay this amount to the builder. In respect of Invoice 479, the Tribunal found at [108] that the invoice was for "final payment" and was issued "prematurely" on 6 December 2013. The Tribunal found that the amounts were payable under the contract, having rejected the homeowner's arguments on 'negative variations'. The total amount owed to the builder under the contract was found to be $34,016.10. 3. In respect of the builder's claim for interest, the relevant findings of the Tribunal are set out at [112] as follows: 4. 112. The builder has also claimed interest on the invoices. However, given the builder represented practical completion had occurred when it had not and that the homeowner has been successful in claims for incomplete works, the Tribunal does not find that the builder is entitled to interest pursuant to the contract. 5. The builder submits that the Tribunal erred in law because: 1. The contract was not lawfully terminated by the homeowner; and 2. The invoices were issued prior to the end of the contract and the builder was able to assert its rights accrued under the contract prior to the date of termination (McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 at 476-7 per Dixon J). 1. The builder's submissions make no reference to the clauses of the contract which the builder asserts the Tribunal failed to correctly apply, nor the evidence before the Tribunal at first instance that progress payment claims and final payment claims were administered in accordance with the contract. 2. The homeowner submits that the builder is not entitled to interest because the quantum of damages payable to the homeowner should be significantly increased and 'negative variations' taken into account, but the homeowner's submissions do not clearly indicate why the builder was not entitled to interest. 3. The reasons of the Tribunal at [112] do not clearly articulate why the Tribunal was not satisfied the builder was entitled to interest under the contract for work performed and invoices rendered prior to 19 December 2013. If the Tribunal purported to find that the misrepresentation by the builder and the homeowner's success on the claim for damages due to incomplete work automatically meant the builder could not claim interest under the contract for unpaid invoices rendered prior to 19 December 2013, an error of law has been established because the rights and liabilities of both parties under the contract remained extant until discharge: McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 at 476-7 per Dixon J. 4. However, to the extent the finding at paragraph [112] was an error of law, we are not satisfied that the error of law had any effect on the outcome. For the builder to be entitled to interest on unpaid invoices under the contract, the builder must have complied with the contractual provisions that allow interest to be charged. Such provisions are contained in Schedule 2 and clauses 20 and 23 of the contract. 5. In respect of the invoice for final payment (Invoice 479), cl 23 states that when "Practical Completion is achieved" the builder may issue a written invoice for final payment and if payment is not made within two days, the builder is entitled to interest as set out in Item 4(e) of Schedule 2 of the contract (i.e. in the circumstances of this matter, 10% p.a.). However, because the builder had misrepresented to the homeowner that works were complete when they were not and the invoice was issued prior to the homeowner taking possession, "Practical Completion" had not occurred within the meaning set out in cl 22 of the contract. Accordingly, the builder was not entitled to interest under cl 23. 6. In respect of the other two invoices, no submissions have been made by the builder pointing to evidence before the Tribunal that the builder had issued progress payment claims that complied with Item 4 Schedule 2 of the contract or with cl 20 of the contract. It is clear from the Tribunal's findings that there was a significant dispute between the parties regarding the work that had been performed by the builder and whether there had been variations to the contract. In the absence of the builder pointing to evidence that clearly establishes there is a real prospect the builder would be entitled to interest under the contract, we are not satisfied that the builder has established a question of law or that the builder may have suffered a substantial miscarriage of justice. 7. Grounds 6 and 7 of the builder's appeal have not been established and are dismissed. Assessment of damages in respect of the cost of accommodation while rectification work is being performed - Ground 2 of the homeowner's appeal 1. At [98] of the reasons, the Tribunal found: In relation to the tiling of the flooring, Mr Lewer identified that the homeowner will need to vacate the house for about 9 weeks in order to complete the tiling of the floor. Mr Shepherd disagrees and believes that the owners would only need to move out for a period of 2 weeks". The Tribunal finds that the amount of 9 weeks is excessive and accepts Mr Shepherd's evidence that the homeowners would only be required to move out for 2 weeks. The Tribunal accepts Mr Deacon's costing's that a three bedroom apartment would (sic) an estimated amount of $20,252.00 for the period 9 weeks and the Tribunal has apportioned the amount allowing $4,500.00 for two weeks". 1. In his original report Mr Lewer expressed the view that "the dwelling will be uninhabitable for the duration of the remedial works", which he estimated would take about 12 weeks to complete: page 50 of Mr Lewer's report dated 18 May 2015. In the conclave Joint Scott Schedule, Mr Lewer again expressed the opinion that the opinion that the remedial works would take 12 weeks to complete, but that "interior works would require the contractor to have exclusive possession of site through critical path of approximately 9 weeks". 2. In his report dated 2 December 2015, Mr Shepherd expressed the view (at page 135, Item 2.53B.3) that: The owners would not need to vacate the property for the works to be carried out. The actual works required are minor with the most disruptive works being to the bathroom and ensuite. With careful planning there would always remain one bathroom to be used. Any painting could be carried out room by room to work in with the owners. 1. However, in the conclave Joint Scott Schedule, Mr Shepherd expressed the following opinion (at page 39): I disagree the owners could not remain in occupation while works are completed. Should the Tribunal find for the applicant in regard to item 46 then accommodation may be required for a period of two weeks. I disagree that there are works required that will require vacant possession for twelve weeks. 1. The homeowner submits that the Tribunal made an error of law in respect of the finding at [98] by failing to accept Mr Lewer on quantification of the cost of the homeowner having to move out of the property. The homeowner also submits that the Tribunal's reasons are inadequate. 2. The homeowner submits that, having accepted Mr Lewer on the nature of the defect and method of rectification of the slab, the Tribunal was bound to accept Mr Lewer's evidence concerning the amount of time the homeowner would be required to move out of the property while rectification work was being performed, rather than the estimate of Mr Shepherd, which was based on re-grinding of the slab. 3. We are not satisfied that an error of law has been established. The issue of what is the cost of the homeowner finding alternative accommodation while rectification work is being performed does not involve the application of the principle in Bellgrove v Eldridge because it does not involve the actual cost of rectifying the defect. Rather, the cost of obtaining alternative accommodation is a consequential loss arising from the performance of the rectification work for which the homeowner is entitled to be indemnified, provided that the tests of causation and remoteness of damage are established. The key issue was determining for what period of time the homeowner could not reside in the property while rectification work was being performed and the Tribunal found that two weeks was the relevant period. 4. Acceptance by the Tribunal of Mr Lewer's opinion regarding the nature of the defect of the slab and method of rectification does not automatically mean the Tribunal was bound to accept his opinion on the amount of time the homeowner would be required to vacate the property. There was evidence to support the finding of the Tribunal that two weeks was appropriate. 5. Mr Shepherd states in the conclave Joint Scott Schedule that "should the Tribunal find for the applicant in regard to item 46" then two weeks was an appropriate period where the dwelling was uninhabitable. We do not interpret, nor did the Tribunal interpret, the phrase "should the Tribunal find for the applicant in regard to item 46" as only referring to Mr Shepherd's view that concrete slab could be re-ground. Rather, it is consistent with the expression of an opinion that, if the Tribunal accepted Mr Lewer in respect of the nature of the defect and the method of rectification, two weeks was an appropriate period in which the property would be uninhabitable while rectification work was being performed. 6. Although Mr Lewer did not accept that two weeks was appropriate, the Tribunal had evidence before it from both experts to determine what period of time the property would be uninhabitable while rectification work was being performed. The submission of the homeowner that Mr Shepherd's opinion was solely based upon grinding the concrete slab does not reflect the evidence contained in the conclave Joint Scott Schedule. There was evidence to support the finding made by the Tribunal at [48], and we are not satisfied that the Tribunal misapplied the correct test for assessing damages for consequential loss. 7. We are not satisfied that the finding in [98] is against the weight of evidence, as both Mr Lewer and Mr Shepherd gave evidence on this issue and both were available for cross-examination. Further, we are not satisfied the homeowner has established the Tribunal's decision in relation to this issue was not fair and equitable. Rather, it involved a finding arising from competing evidence as to how long the property would be uninhabitable while rectification work was being performed. We are not satisfied that the homeowner may have suffered a substantial miscarriage of justice as a result of this finding and we would not grant leave to appeal in any event. 8. In respect of the reasons given by the Tribunal at [98], although the reasons are economical, we are satisfied that they explain in sufficient detail why the Tribunal has found that two weeks rather than nine weeks is the period in which the property will be uninhabitable while rectification work is being performed. The reasons are not sufficiently inadequate to constitute an error of law. 9. Ground 2 of the homeowner's appeal is dismissed. Assessment of damages not taking into account 'negative variations' - Ground 4 of the homeowner's appeal 1. The homeowner asserts that the Tribunal committed an error of law by failing to consider the evidence of the builder contained in an email of 10 December 2013 that the builder "acknowledged" a claim for negative variations of $15,689.00, or by failing to "address the actual evidence of variations and the apparent acceptance of the respondent that the claim for credits should have been processed at least to the amount claimed of $15,869.00 as at 10 December 2013": homeowner's written submissions page 7. 2. According to the homeowner, the Tribunal failed to give adequate consideration to cl 14(e) and (f) of the contract, which sets out the relevant method of varying the contract. The homeowner submits that there was clear evidence that on 10 December 2013 the homeowner sent the builder an email estimating the value of works decreased or omitted by the builder as being $23,584.00, and the builder replied by email on 10 December 2013 acknowledging a "negative variation" of $15,869.00 would be taken into account. 3. The Tribunal dealt with the issue of 'negative variations' at [105] - [112]. Relevantly, the Tribunal's findings were that Invoice 476 was "a variation for works done" (at [106]) and the cost of rectifying defective works in respect of the work set out in that invoice had been considered in the homeowner's claim. The Tribunal found that Invoice 476 was, despite being issued prematurely, an "invoice for final payment" (at [108], and the Tribunal had "allowed for any incomplete works". 4. At paragraph [110] the Tribunal found: 110. The Tribunal finds that the builder is entitled to the amounts claimed in those invoices. The Tribunal is not satisfied by the homeowner's evidence that they were entitled to negative adjustments or contingencies. 1. The homeowner further submits that the homeowner was entitled to the benefit of "negative variations" because the finding of the Tribunal at [38] that the contract ended by consent on 19 December 2013 was incorrect and the contract remained on foot but varied to the extent that the builder allowed the homeowner to take possession on 19 December 2013. 2. The builder submits that it agreed the contract did not come to an end on 19 December 2013 (but for completely different reasons, the builder submitting that it was the homeowner in breach), and that there was evidence at the hearing dealing with this issue. The builder submits that, the homeowner tendered documents at the hearing to attempt to establish the negative variations but in cross-examination conceded the documents were incomplete. The builder submitted that there was no error of the Tribunal in rejecting the "negative variations" claim. 3. We are not satisfied the homeowner has established an error of law on this issue. It is clear from the Tribunal's findings that it considered the evidence regarding the homeowner's purported "negative variations" in the context of the assessment of damages for the increased cost of completing incomplete work and of rectifying defective work. For reasons discussed earlier, it is immaterial to the homeowner's claim for "negative variations" whether or not the contract remained on foot as at 19 December 2013 and was discharged at a later date because the builder did no further work after 19 December 2013. Any error of law regarding the date upon which the contract ended is immaterial to the homeowner's claim for adjustment under the contract due to 'negative variations'. 4. Although the Tribunal did not refer to cl 14 of the contract, it is clear from the reasons that the Tribunal was considering what work was incomplete under the contract, and that the assessment of damages to the homeowner included the increased cost of completing incomplete work. The reasons, although economical, are not sufficiently deficient to constitute an error of law. 5. We are satisfied that in taking into account the increased cost of completing incomplete work under the contract and the cost of rectification of defective work, the Tribunal was applying the fundamental principle for assessment of damages for breach of contract, which is the assessment of what amount of money would put the homeowner in the position the homeowner should have been had the builder not breached the contract: Robinson v Harman (1848) 1 Ex 850; 145 ER 363. 6. It is clear from the submissions of the parties and the transcript provided that there was a factual contest at the hearing regarding whether the builder had conceded there were works that had been "decreased or omitted" from the scope of works contained in the contract, which is the contractual provision that cl 14 (e) and (f) pertains to. The email of the builder dated 10 December 2013 was a part of the evidence. 7. We are satisfied that if there is any error, it is an error of fact rather than an error of law based upon the weight given to the evidence of the respective parties on the issue of whether or not there were 'negative variations'. The homeowner must establish a basis for leave to appeal under cl 12 Schedule 4 of the NCAT Act. We are not satisfied that the findings of the Tribunal on this issue involved findings that were not fair and equitable or against the weight of evidence. The homeowner does not claim that significantly new evidence being available that was not reasonably available at the date of hearing. Further, we are not satisfied that a substantial miscarriage of justice has occurred because of the Tribunal's findings in relation to the negative variations issue and would not grant leave to appeal on the basis of the principles set out in Collins v Urban [2014] NSWCATAP 17 at [84]) in any event. 8. This ground of appeal is dismissed. CONCLUSION 1. The homeowner has succeeded in respect of Ground 1 only. The homeowner's other grounds of appeal are dismissed. All of the builder's grounds of appeal are dismissed. 2. Mr Lewer's assessment of the cost of rectification of the concrete slab is $79,006.79 inclusive of builder's margin and GST: Item 2.46.4 at page 49 of Mr Lewer's report dated 18 May 2015. We are satisfied that this amount should be awarded to the homeowner rather than the amount the Tribunal assessed for this head of damages; that is, $30,483.00. This means that the overall order in favour of the builder should be increased by the difference between these two sums, being $48,523.79. 3. After the set-off of monies owed to the builder, the Tribunal awarded damages to the homeowner in the sum of $47,230.21. Our decision in relation to the damages for the slab means that the total sum to be paid by the builder is increased to $95,754.00. orders 1. In AP 16/52241: 1. The appeal is allowed in part. 2. Order 1 of the Tribunal dated 28 October 2016 is varied as follows: "The builder is to pay the homeowners the sum of $95,754.00 immediately". 3. The appeal is otherwise dismissed. In AP 16/53370: 1. Time for National Strategic Construction Pty Ltd to lodge the appeal is extended to 7 December 2016. 2. Leave to appeal is refused. 3. The appeal is dismissed. Both applications: 1. Any application for costs is to be made in writing to the Tribunal (with a copy sent to the other party) within 14 days of the date of publication of these reasons for decision and is to be accompanied by a submission not exceeding three pages in length. 2. Any submission in response to the costs application is not to exceed three pages in length and is to be provided to the Tribunal and the other party within 14 days of receipt of the costs application. 3. Any submission in reply is to be provided to the Tribunal within seven days thereafter. 4. In their submissions, the parties are to address whether the issue of costs can be determined without a hearing, on the basis of the written submissions. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ********** 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: 07 September 2017