Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mitsiou v Zanatta; Jenalp Pty Limited v Mitsiou [2018] NSWCATAP 187 Hearing dates: 26 June 2018 Date of orders: 02 August 2018 Decision date: 02 August 2018 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member Dr R Dubler SC, Senior Member Decision: In appeal AP 18/11487: (1) Extend the time for filing of the appeal to 30 March 2018. (2) Leave to appeal is refused and otherwise the appeal is dismissed. (3) The appellant is to pay the costs of the respondent, such costs to be agreed or assessed on an ordinary basis. (4) If any party seeks a different costs order to that in Order (3), the following directions apply: (a) The applicant for costs ("costs applicant") must file and serve any costs application, including submissions and any evidence in support, within 7 days of the date of these orders. (b) The respondent to the costs application is to file and serve any submissions and evidence in reply within 14 days from the date of these orders. (c) The costs applicant is to file any submissions in reply within 21 days from the date of these orders. (d) Any submissions are to include submissions on the issue of whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), dispensing with a hearing of the costs application. (5) In the event an application is made pursuant to Order (4), Order (3) shall cease to have effect. In appeal AP 18/12790: (1) Extend the time for the filing of the appeal to 16 March 2018. (2) The appeal is allowed. (3) Set aside Orders (1)-(6) made 2 February 2018 in HB 17/03766. (4) In lieu of the orders made on 2 February 2018, the following orders are made: (a) The Application is dismissed. (b) Order that the applicants pay the respondents' costs of the Application, such costs to be agreed or assessed on an ordinary basis. (5) The respondents are to pay the costs of the appeal, such costs to be agreed or assessed on an ordinary basis. (6) If any party seeks a different costs order to that in Order (5), the following directions apply: (a) The applicant for costs ("costs applicant") must file and serve any costs application, including submissions and any evidence in support, within 7 days of the date of these orders. (b) The respondent to the costs application is to file and serve any submissions and evidence in reply within 14 days from the date of these orders. (c) The costs applicant is to file any submissions in reply within 21 days from the date of these orders. (d) Any submissions are to include submissions on the issue of whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), dispensing with a hearing of the costs application. (7) In the event an application is made pursuant to Order (6), Order (5) shall cease to have effect. Catchwords: APPEAL – extension of time for filing of appeal – application to rely upon new evidence HOME BUILDING CLAIM – measure of compensable loss where contract for supervisory works is only part-performed – question of fact as to whether payments in cash were made Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Atkinson v Crowley [2011] NSWCA 194 Baltic Shipping Co v Dillon (1993) 176 CLR 344; 67 ALJR 228; [1993] HCA 4 Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248 Clark v Macourt (2013) 253 CLR 1; [2013] HCA 56 Collins v Urban [2014] NSWCATAP 17 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: Nil Category: Principal judgment Parties: AP 18/11487 First Appellant: Peter Mitsiou Second Appellant: Rachel Gayle Mitsiou First Respondent: Jason Zanatta Second Respondent: Jenalp Pty Ltd AP 18/12790 First Appellant: Jenalp Pty Ltd First Respondent: Peter Mitsiou Second Respondent: Rachel Gayle Mitsiou Representation: Counsel: P Kondich – for Appellants in AP 18/11487 and for Respondents in AP 18/12790 M Davies – for Respondents in AP 18/11487 and for Appellant in AP 18/12790 Solicitors: Denison Toyer – for Appellants in AP 18/11487 and for Respondents in AP 18/12790 Robert Webley & Associates – for Respondents in AP 18/11487 and for Appellant in AP 18/12790 File Number(s): AP 18/11487 and AP 18/12790 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 02 February 2018 Before: D Goldstein, Senior Member File Number(s): HB 16/55303 and HB 17/03766 reasons for decision Introduction 1. These appeals arise out of home building claims. The appellants ("the owners") in AP 18/11487 ("the first appeal"), who are also the respondents in AP 18/12790 ("the second appeal"), by a contract dated 3 November 2015 ("the Supervision Contract"), engaged the second respondent in the first appeal ("Jenalp") to perform supervisory work in respect of the building of the owners' duplex. 2. The parties fell out as to what amounts had been paid for such supervisory services. This was difficult to ascertain because, as the Tribunal at first instance put it, "these proceedings are an example of the difficulties that may beset parties who choose to make contractual payments in cash and omit to obtain signed receipts as to the proof of payment". Indeed, the parties seem to have engaged in coded communications whereby one "big banana" referred to $1000 in cash. 3. The Tribunal ordered the owners to pay Jenalp $38,457 for unpaid services rendered. In the first appeal, the owners say the Tribunal erred because it did not believe them when they said they had paid this sum in cash to Jenalp. Consequently, they say they should not have to pay any further money. We are asked to reverse this credit finding in the absence of signed receipts for the cash payments. 4. The Tribunal did, however, in separate proceedings, order that Jenalp pay the owners $12,000 as a consequence of Jenalp walking off the job and leaving the owners to perform some supervisory work, which should have been performed by Jenalp. Jenalp complains about this order in the second appeal. It says that had Jenalp performed the work under the contract with the owners, the owners would have in fact had to pay more than $12,000 for its services, so the owners have sustained no loss. Application for extension of time for filing of the First Appeal 1. The first appeal is in respect of the decision of 2 February 2018 in proceedings HB 16/55303 ("the First Decision") in which the owners were ordered to pay Jenalp $38,457.00. By rule 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) ("NCAT Rules") the Appeal was required to be filed within a period of 28 days after the date of the First Decision, that is, by 2 March 2018. The Notice of Appeal was lodged on 12 March 2018 outside the 28 day period. 2. The reason given by the owners in the Notice of Appeal was that they had recently changed solicitors. Jenalp submits that this reason should not be accepted in the absence of formal proof to that effect. We note there was no affidavit or statutory declaration beyond the statement in the filed Notice of Appeal. However, it is evident from the identity of the legal representative who filed the Notice of Appeal that there was a change of solicitors, and given that this Tribunal is not governed by the rules of evidence, we are prepared to accept the new solicitor's statement in the Notice of Appeal that he was only brought into the matter recently. 3. The power to extend time is given under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"). The considerations relevant to considering whether an extension of time to appeal should be granted were considered in the Appeal Panel decision of Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The considerations involve the length of the delay (here, 10 days), the reason for the delay (here, the recent change of solicitors) and the appellant's prospects of success. A further consideration is the extent of any prejudice suffered by the respondent. In this case, Jenalp has not suffered any prejudice. 4. Here, the length of the delay is not substantial. The reason for the delay, in the circumstances, is not trivial or unreasonable. The appeal involved complex and detailed factual issues arising out of the finding as to whether or not payments of cash had been made. 5. Jenalp contended that the prospects of the appeal succeeding were weak or hopeless. We note that the application for leave to extend time was dealt with in conjunction with the appeal itself. In our opinion, some of the grounds of the appeal were weak. Indeed, some were abandoned during the course of oral addresses. Nevertheless, the key ground of appeal, as to what interpretation should be placed upon the text messages that were before the Tribunal, was reasonably arguable. In the result, we are satisfied it is appropriate to grant the owners an extension of time to file their appeal. The First Appeal 1. We deal with the grounds of appeal in turn. Ground 1 1. Ground 1 is to the effect that the Tribunal at first instance erred in concluding that s 7 of the Home Building Act 1989 (NSW) ("the HBA") was not contravened. 2. The submission put forward was that Jenalp did not tender its builder's licence and, as such, the conclusion of the Tribunal, that s 7 of the HBA was not contravened, was "not supported by the evidence". 3. The owners did not make this submission before the Tribunal at first instance. The Tribunal recorded, at [3] in the First Decision, that no party made a submission that Jenalp was not licensed under the HBA. The licence number for Jenalp was displayed on the relevant Supervision Contract. Further, Mr Zanatta's evidence, that he held a supervisor's licence for Jenalp, was accepted by the Tribunal at [14] of the First Decision. 4. Had the question of the licence been put in issue, Jenalp could have given further evidence about the matter. As that question was not raised at first instance, the principle in Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 ("Coulton") precludes the owners from raising this point on appeal. 5. We reject this ground of appeal. Ground 2 1. Ground 2 is to the effect that the Tribunal erred in concluding that Mr Mitsiou executed the Supervision Contract between the owners and Jenalp on behalf of his wife such that Mrs Mitsiou became a party to the Supervision Contract. 2. The Supervision Contract was signed by Mr Mitsiou adjacent to the descriptor "Mr & Mrs P & R Mitsiou". Whilst Mrs Mitsiou gave evidence, she did not lead any evidence to the effect that Mr Mitsiou, when he signed the Supervision Contract, was not acting on her behalf, including pursuant to any actual (whether express or implied) or ostensible authority. Again, it was not put in issue at first instance whether Mrs Mitsiou was a proper party to the Supervision Contract. 3. Had the matter been put in issue before the Tribunal, it could have been met with evidence or been challenged by way of cross-examination of the owners. In such circumstances, the principle in Coulton precludes the owners from now raising the matter on appeal. Accordingly, we reject this ground of appeal. Ground 3 1. Ground 3 in effect raises two separate grounds as follows: (i) that the Tribunal engaged in "impermissible reasoning" so as to place an onus on the owners to demonstrate that in fact additional cash payments were made; (ii) no amounts were due under the contract in the absence of invoices, which had not been presented. 1. Dealing with the first ground outlined above, the owners focused upon the following sentence of the First Decision at [5]: "One may add to this mix whether it is probable or likely that a person who has been paid in cash, would nonetheless bring proceedings in the Tribunal to recover money which he had already received by way of cash payment." 1. This sentence needs to be viewed in the context of paragraphs [4] and [5] as a whole where the Tribunal sets out commentary on the complexities of fact-finding where cash is alleged to be the means of payment but there is no signed receipt for such payments. The Tribunal goes on subsequently to deal with the evidence of the parties and deals with the owners' contention that they in fact paid $65,000 pursuant to the Supervision Contract as opposed to Jenalp's contention that it only received $27,000. Ultimately, this included a rejection of the submission that Mr Mitsiou's version of events was corroborated by the text messages to which he referred: First Decision at [31]-[35]. 2. Such subsequent reasoning does not disclose that the Tribunal accepted Mr Zanatta's evidence that he only received $27,000 on the basis that he should be accepted merely because he commenced the action, nor that the Tribunal reversed the onus on Jenalp to make out its case that it was owed moneys. Accordingly, we reject this aspect of the ground of appeal. 3. The second aspect of this ground of appeal focuses upon clause 9 of the Supervision Contract which was in the following terms: "Jenalp Pty Ltd & Jason Zanatta will present their personal invoices approx every fortnight or when required for services rendered, payment terms are strictly on presentation of invoice unless other arrangements are made with due notice." 1. That is, progress payments were to be made during the course of the works upon presentation of invoices "approx every fortnight or when required for services rendered". 2. On appeal, the parties accepted that by the time of Jenalp's claim for unpaid fees for supervision services rendered, the Supervision Contract had come to an end, in terms of Jenalp performing work under the contract. This was consistent with the findings of the Tribunal in the First Decision to the effect that Mr Zanatta stopped performance of work in approximately August 2016, but returned to assist in the obtaining of an occupation certificate. This certificate was obtained in October 2016, thereby concluding any possible supervision work that could be performed by Jenalp. 3. It follows that Jenalp was entitled to be paid the balance of the contract sum for work performed, subject to whether the amount only became due and payable on the provision of an invoice. 4. In oral submissions, Jenalp said that the failure to provide an invoice was not raised at the hearing at first instance, nor was there any evidence on this aspect of the case. Otherwise, Jenalp says that, on the proper construction of the contract, an invoice was not required in order for Jenalp to be entitled to the balance due. In reply, the owners conceded that invoicing was irrelevant to the entitlement to the final payment and that the contract was at an end. 5. In these circumstances, it is unnecessary to decide the second aspect of ground 3. Further, and in any event, as the owners did not suggest that the failure to invoice had been raised at the hearing at first instance, and as this ground involves a potential factual dispute about whether a claim for payment had been made (and if so when), in our view it should not be permitted to be raised on appeal, consistent with the decision of Coulton. 6. Accordingly, we reject this ground of appeal. Grounds 4-7 1. The true ground of appeal, arising from the Amended Notice of Appeal under these headings, is elusive and difficult to discern. Apart from a reformulation of the issue dealt with above, involving the submission as to the need for invoices, these grounds appear to put in issue the Tribunal's methodology for arriving at the conclusion that $65,457 was due and payable and in respect of which $27,000 had already been paid. 2. The Tribunal dealt with the calculation of the amount owing at [36]-[48] of the First Decision. The Tribunal found that Jenalp left the site for a period of time commencing on 18 August 2016. No party put this finding in dispute. This was as a result of not being paid fees that Jenalp contended were owing at the time. The Tribunal found that Jenalp did not repudiate the contract and carried out work necessary to obtain the Certificate of Occupancy and sent the home warranty completion advice to the insurer. The Tribunal, however, found that such work did not relate to the supervision of building trades and was not covered by the Supervision Contract. 3. Accordingly, Jenalp performed its last relevant supervisory work under the Supervision Contract in the period up to 18 August 2016. After that date the Tribunal accepted that Mr Mitsiou performed the supervisory work of the trades to complete the project. The Tribunal also found that Jenalp commenced the supervisory work in December 2015 and the Occupation Certificate was obtained on 31 October 2016: see [45] of the First Decision. 4. The Tribunal concluded, as a result, that the duplex construction took 11 months; and that during this period, Jenalp performed supervisory work for 9 months, but was absent for the last 2 months. On this basis, the Tribunal concluded that the Applicant was entitled to a 9/11th share of the total agreed sum of $80,000, being $65,457. 5. In our view, the contract is a divisible one, rather than an entire contract, as the contract envisaged providing substantial benefits to the owners during the course of the Supervision Contract, for which payments were to be made during the contract: see Baltic Shipping Co v Dillon (1993) 176 CLR 344; 67 ALJR 228; [1993] HCA 4, Mason CJ at 353. 6. Dividing the contract up into parts based upon a proportion of the entire period of the construction requiring supervisory work is a method reasonably open to the Tribunal below. The payment of the supervision fee was not dependent upon the number of hours worked. In such circumstances, it was open to the Tribunal to find that the provision of supervisory work under the contract was worth $7,273 per month on a pro rata basis. Accordingly, we reject this aspect of the owners' grounds of appeal. Grounds 8-9, 12, 14 1. These grounds of appeal centre on the proposition that the Tribunal erred in not accepting the owners' contention that they paid $65,000 to Jenalp, including by cash payments. In particular, it was contended that the Tribunal erred in placing no weight or disregarding the text messages said to prove payment had been made and received by Jenalp on various dates. 2. This ground of appeal, in essence, involves a challenge to the findings of fact by the Tribunal wherein it rejected the suggested inferences that should be drawn from text messages and other evidence from Mr Mitsiou that he paid $65,000 to Jenalp for supervision services. 3. The text messages, which at times refer to "big bananas", were placed before the Tribunal. Mr Zanatta accepted in his evidence that this did likely refer to $1,000 for each "big banana". The text messages would refer to the delivery of such "big bananas". Mr Zanatta denied, however, that payment was actually received in respect of some of the critical text messages in question. 4. In one text message there is a reply from Mr Zanatta using the "thumbs up" symbol 30 times. The owners contended that this was acknowledgment of receiving $30,000, being $1,000 for each "thumbs up" symbol. Jenalp, however, contended that this was merely acknowledgment of the text that payments would be made and that Mr Zanatta was not at the time able to receive any cash as the cash was, if anything, to be delivered to his wife. In addition, Mr Zanatta in his evidence stated that there were other contractors that were being paid and that the payments being made may be for those third party contractors rather than for his supervisory services. 5. In the end, Mr Zanatta did not admit to having received the payments alleged to have been made, and maintained his position that only $27,000 had been paid for supervisory services. 6. It was contended by the owners that inferences should also be drawn from an absence of complaint in any text messages about lack of payment. When this was put to Mr Zanatta in cross-examination, he stated that he complained continuously, not by way of text messages, but in face-to-face conversations with Mr Mitsiou. The Tribunal pointed out that this was consistent with his leaving the site by reason of lack of payment. 7. The Tribunal dealt with the matter in its Reasons for Decision as follows: "30. In cross-examination Mr Zanatta stated that although he couldn't recall the date, he made his position clear to the Respondents that he would not do any further work until he was paid and that he was told by the Respondents not to go back on site. 31. Despite being cross-examined that he had in fact received more than $27,000 Mr Zanatta consistently denied receiving additional cash payments. I have no reason to disbelieve Mr Zanatta or to find that in fact he received cash or other payments in excess of $27,000. 32. I find that the applicant has made out a prima facie case that it received only $27,000 from the respondents. 33. Mr B. Mitsiou prepared a statement on behalf of the respondents. He asserts, among other things, that he paid the applicant $65,000 for supervision in cash. He stated that the applicant acknowledged receipt of the cash payments by text messages. He further states that the applicant left the site on 18 August 2016. 34. When being cross-examined Mr Mitsiou stated that payments made by him were sourced from his bank but he did not produce his bank statements in the proceedings. Mr Mitsiou further stated that he kept an audit trail of his payments to the applicant in his text messages. 35. I find that the text messages referred to by Mr Mitsiou at pages 20-37 of his statement do not persuade me that he paid the sum of $65,000 to the applicant. The text messages contain no clear statement that a payment had been made or received. In some cases the text messages refer in code-like terms to envelopes or bananas. However in a project where the respondent was paying the applicant for supervisory services and Mr Zanatta for carpentry services, there is no way of ascertaining what the text messages mean or to what payment they refer." 1. We are unable to discern any error of law in the approach of the Tribunal. The issue on appeal involves seeking to have the Appeal Panel overturn the finding of fact as to the amount of cash payments made which requires leave to appeal. When considering an application for leave to appeal from a decision of the Consumer and Commercial Division, the Appeal Panel is required to be satisfied of the matters set out in cl 12 of Schedule 4 to the NCAT Act before leave can be granted. 2. In its amended Notice of Appeal, the owners, in respect of their application for leave to appeal, stated that the First Decision was against the weight of the evidence. In Collins v Urban [2014] NSWCATAP 17 ("Collins v Urban") the Appeal Panel considered the meaning of the phrase "against the weight of evidence" in cl12(b) of Schedule 4 to the NCAT Act, and stated at [77]: "The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach." (citations omitted) 1. Further, the conclusion reached was based upon the Tribunal's assessment of the credibility of the witnesses. Counsel for the owners accepted that the principles in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 applied in such a case. The owners are required to demonstrate to us that the decision of the Tribunal was glaringly improbable or contrary to compelling inferences in the case. 2. We are not persuaded that this is the case here. It was ultimately correct of the Tribunal to assert that the text messages do not clearly establish that there had been payments made and received for supervisory work under the Supervision Contract. Mr Zanatta's evidence provided a plausible explanation for why the text messages do not evidence in any clear way that payments had been made and received under the Supervision Contract as contended by Mr Mitsiou. 3. Accordingly, we decline leave to appeal and these grounds of appeal are rejected. Ground 10 1. This ground contends that the Tribunal erred in not allowing a reasonable time to allow the owners to tender bank statements that were referred to by the owners before the Tribunal. The way in which it was put in submissions to us was that the Tribunal was on notice that bank statements existed, and therefore erred in not allowing a reasonable time to permit them to be tendered, and that it was unreasonable not to allow that to occur. 2. It was conceded that the bank statements were available, but the former solicitors for the owners chose not to tender them. Fundamentally, it is a matter for the parties to decide what evidence they should lead. The owners were legally represented at the time and it is not for the Tribunal to positively advise a party in such circumstances of the documents they should or should not tender. We reject this ground of appeal. Ground 11 – Leave to introduce new evidence 1. On appeal, the owners sought to introduce into evidence bank statements which, in particular, refer to various cash withdrawals which the owners say were paid to Jenalp. It was submitted that these bank statements corroborate various text messages and other evidence from the owners that Jenalp had received cash for its services in supervising the building work. 2. In such cases, by cl 12(c) of Schedule 4 to the NCAT Act, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: "(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)." 1. It was submitted by the owners that while the bank statements were available at the time the proceedings under appeal were being dealt with, the former solicitors for the owners chose not to tender them. Whether evidence was "reasonably available" is not considered by reference to any subjective explanation from the party seeking leave to appeal but by applying an objective test of considering whether the evidence in question was unavailable because no person could have reasonably obtained it: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]. 2. We are not satisfied that the bank statements constitute "new evidence" in the relevant sense. This is because the documents were known to the owners at the time of the hearing at first instance and were reasonably able to be tendered if that decision was made. 3. In addition, we are not satisfied that the owners may have suffered a "substantial miscarriage of justice" by the failure to tender the bank statements, nor that the bank statements constitute "significant" new evidence. In Collins v Urban, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act 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 circumstances in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." 1. The bank statements in question only establish that cash withdrawals were made from the owners' bank account. They do not establish that Jenalp received the cash, or that cash was received in respect of fees for work performed in supervising the duplex construction. 2. We reject this ground of appeal. Ground 13 1. Ground 13 was in the following terms: "The Member erred in concluding on a proper construction of the contract that Jenalp by its conduct in leaving terminated the contract such the contract came to an end 18 August 2016." 1. At the hearing before us, counsel for the owners accepted that, after the occupation certificate was granted, the contract had come to an end and run its course. This is clearly correct. That is because there was no further work to be performed on the project which required supervision under the Supervision Contract. Consequently, for the reasons already given above, Jenalp at this point had the right to claim outstanding fees for supervision work under the Supervision Contract. We reject this ground of appeal. 2. Having regard to the above conclusions, the first appeal should be dismissed. Application for extension of time for filing of the Second Appeal 1. The second appeal is by Jenalp in respect of the decision of 2 February 2018 in proceedings HB 17/03766 ("the Second Decision"). By rule 25 of the NCAT Rules the Appeal was required to be filed within 28 days after 2 February 2018, being the date of the Second Decision. The Notice of Appeal was lodged on 16 March 2018, outside the 28 day period. 2. The reason given by Jenalp was that the appeal was triggered by the appeal of the owners, lodged on 12 March 2018, and the need to correct an error of law. This reason for the delay is not unreasonable given the amount in dispute, being $12,000. Further, the length of the delay is not substantial, particularly from the date of filing of the first appeal. 3. The owners have not identified any prejudice to them, as a result of the delay, and did not in their submissions raise any arguments in opposition to the application for an extension of time for the filing of the second appeal. Having considered the merits of this second appeal, discussed further below, we are satisfied that an extension of time should be granted for the filing of the second appeal. The Second Appeal 1. Jenalp appeals against the finding of the Tribunal in the Second Decision of 2 February 2018 to the effect that the owners suffered damages in the amount of $12,000, arising from what the Tribunal found was an unlawful leaving of the site by Jenalp. It was found by the Tribunal that Mr Mitsiou performed supervisory work after 18 August 2016 following Jenalp's leaving of the site. While the Tribunal did not accept that Jenalp had repudiated the Supervision Contract (First Decision at [40]) the Tribunal found that the failure to provide the contracted supervisory services after this date was a breach of the Supervision Contract (Second Decision at [53]). These findings are not challenged on appeal. What is challenged is the assessment of damages that flow from Mr Mitsiou performing this work, which otherwise would have been performed by Jenalp under the Supervision Contract. 2. The Tribunal's finding and reasoning in this regard is contained at [56] of the Second Decision as follows: "In assessing the applicants' loss arising out of the first respondent's breach of the contract I will do the best I can on the evidence I have to assess the loss. As stated, I do not accept that $75 per hour is adequate for an unqualified supervisor. I will allow half the amount claimed, $12,000, to allow for Mr Mitsiou's time in overseeing all works and coordinating trades in the first respondent's absence by reason of its breach of the contract." 1. We note that there is no challenge to this finding of fact as to the allowance for Mr Mitsiou's time in overseeing the works or to the entitlement to claim such a loss by a homeowner who performs such work personally. 2. The finding led to an order that Jenalp pay the owners $12,000 in damages for breach of the contract. Jenalp contends that the Tribunal erred in making this order for $12,000, as it did not take into account the effect of the First Decision wherein the Tribunal found that the value of services provided by Jenalp was $65,457. 3. The result was that there was an amount not payable under the Supervision Contract, totalling $14,543, as a consequence of Jenalp not performing the balance of the contracted services. Accordingly, Jenalp points out that the loss suffered by Mr Mitsiou, being $12,000, is less than the amount that the owners would have had to pay in any event had Jenalp performed the contract in full. Hence, the true position, Jenalp contends, is that no loss was suffered. 4. Jenalp refers to the legal principle as stated by Justice Ipp (Hodgson JA and McColl JA agreeing) in Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248 at [85]: "With respect to the cross-claims, the Council would only be entitled to judgment for the amount payable by Beckhaus to it were Macready AsJ to find, on reassessment, that the Council would incur greater costs in having the work rectified and completed in accordance with the Contract than the amount it would have paid to Beckhaus if the latter had duly completed the work. The Council would then be entitled to be paid the difference between the two amounts." 1. This statement of the law reflects the principle that damages for breach of contract are awarded to put the plaintiff in the same position with respect to damages, so far as money can do, as it would have been in if the contract had been performed: see, for example, Clark v Macourt (2013) 253 CLR 1; [2013] HCA 56 at [7]ff, [27]ff and [106]ff. 2. The Tribunal found at [50]-[51] of the Second Decision that Jenalp left the site for a period commencing 18 August 2018, and that Jenalp did not provide supervisory work after this time to achieve practical completion in September 2016. This was the reason that the Tribunal found Jenalp was only entitled to the reduced contract sum having regard to its failure to perform its obligations in this period. 3. The Tribunal found that "all works and co-ordinating trades after [Jenalp] left site" were performed by Mr Mitsiou: Second Decision at [54]. This finding was not challenged. It was this work that the Tribunal valued at $12,000. That is, the Tribunal accepted that the owners incurred costs of $12,000 in carrying out all remaining work which Jenalp had failed to perform in breach of its contract. However, in awarding this sum, the Tribunal did not take account of the amount of $14,543, which the owners did not need to pay to Jenalp. If it had done so, it would have concluded that no loss was suffered. 4. It follows that we accept the submission of Jenalp that, had the contract been performed, on the unchallenged findings of the Tribunal, the owners would have been in a worse financial position, and accordingly they suffered no loss arising out of the breach of contract in question. 5. Accordingly, we allow the second appeal and will make orders accordingly. Orders 1. The Appeal Panel makes the following orders. In appeal AP 18/11487: 1. Extend the time for filing of the appeal to 30 March 2018. 2. Leave to appeal is refused and otherwise the appeal is dismissed. 3. The appellant is to pay the costs of the respondent, such costs to be agreed or assessed on an ordinary basis. 4. If any party seeks a different costs order to that in Order (3), the following directions apply: 1. The applicant for costs ("costs applicant") must file and serve any costs application, including submissions and any evidence in support, within 7 days of the date of these orders. 2. The respondent to the costs application is to file and serve any submissions and evidence in reply within 14 days from the date of these orders. 3. The costs applicant is to file any submissions in reply within 21 days from the date of these orders. 4. Any submissions are to include submissions on the issue of whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), dispensing with a hearing of the costs application. 1. In the event an application is made pursuant to Order (4), Order (3) shall cease to have effect. In appeal AP 18/12790: 1. Extend the time for the filing of the appeal to 16 March 2018. 2. The appeal is allowed. 3. Set aside Orders (1)-(6) made 2 February 2018 in HB 17/03766. 4. In lieu of the orders made on 2 February 2018, the following orders are made: 1. The Application is dismissed. 2. Order that the applicants pay the respondents' costs of the Application, such costs to be agreed or assessed on an ordinary basis. 1. The respondents are to pay the costs of the appeal, such costs to be agreed or assessed on an ordinary basis. 2. If any party seeks a different costs order to that in Order (5), the following directions apply: 1. The applicant for costs ("costs applicant") must file and serve any costs application, including submissions and any evidence in support, within 7 days of the date of these orders. 2. The respondent to the costs application is to file and serve any submissions and evidence in reply within 14 days from the date of these orders. 3. The costs applicant is to file any submissions in reply within 21 days from the date of these orders. 4. Any submissions are to include submissions on the issue of whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), dispensing with a hearing of the costs application. 1. In the event an application is made pursuant to Order (6), Order (5) shall cease to have effect. ******** 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 Amendments 05 September 2018 - Counsel for Jenalp Pty Limited and Mr Zanatta corrected. 12 December 2018 - opened amendment in error 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: 12 December 2018