Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ndaira v Allways Building NSW Pty Ltd [2018] NSWCATAP 279 Hearing dates: 6 November 2018 Date of orders: 26 November 2018 Decision date: 26 November 2018 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member K Rosser, Principal Member Decision: 1 Leave to appeal is granted, the appeal is allowed and the order made 2 May 2018 is set aside. 2 The proceedings are remitted for rehearing by a differently constituted Tribunal for the purpose of determining the issues set out in Annexure A to these reasons (Issues). 3 Pursuant to Sch 1, Pt 2, cl 6(3) of the Civil and Administrative Tribunal Regulation 2013 (NSW), the Appeal Panel directs that these proceedings be referred for mediation by the Community Justice Centre in accordance with the Community Justice Centres Act 1983 (NSW). 4 The following directions are made in the remitted proceedings: a) On or before 14 December 2018, the applicant (Ndaira) is to file and serve any further evidence and submissions in respect of the Issues; b) On or before 11 January 2019, the respondent (Allways Buildings NSW Pty Ltd) is to file and serve any further evidence and submissions in reply in respect of the Issues; c) All evidence provided by the parties or their witnesses must be in the form of statutory declarations or expert reports; d) All witnesses, including those who provide quotations in respect of work to be performed, must be available for cross examination; e) A party may not rely on any evidence not served in accordance with these directions except with leave of the Tribunal, which leave will only be granted in exceptional circumstances; f) The proceedings are to be listed for hearing on a date to be fixed by the Registrar. 5. Nothing in these orders prevents the Tribunal, on remittal, varying the directions for hearing made in order 4. Catchwords: RENEWAL PROCEEDINGS – Terms of work orders – lack of specificity – interpretation of work order – use of reasons for decision and extrinsic material – assessment of loss or refund following non-compliance with work order Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Community Justice Centres Act 1983 (NSW) Home Building Act 1989 (NSW) Cases Cited: Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 Collins v Urban [2014] NSWCATAP 17 Curtis v Potter & Co Pty Ltd t/as The Africa Safari Co [2016] NSWCATAP 196 Category: Principal judgment Parties: Nagila Ndaira (Appellant) Allways Building NSW Pty Ltd (Respondent) Representation: J Ndaira (Daughter) (Appellant) L Smith (Manager) (Respondent) File Number(s): AP 18/30665 Decision under appeal Court or tribunal: Civil and Administrative Tribunal New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 02 May 2018 Before: J Levingston, General Member File Number(s): HB 17/39942 reasons for decision Introduction 1. On 2 May 2018, the Tribunal dismissed application HB 17/39942 (renewal proceedings). 2. In that application, the appellant sought a money order against the respondent who had previously been ordered to carry out work to a bathroom. The bathroom formed part of premises at Hebersham that are owned by the appellant. 3. The contract to which the dispute relates was for demolition of an existing bathroom, relocation of various services, waterproofing of the bathroom and installation of new tiles. The respondent was the contractor/builder. 4. The work order was made in applications HB 17/09814 and HB 17/20746 on 26 July 2017 (work order). It was in the following terms: 1. By 25 August 2017 [the respondent] is to carry out the following rectification work (the Works) and make good in a proper and workmanlike manner (a) Investigate the cause of the presence of damp in the bathroom as indicated by discolouration of grout between the wall tiles near the floor; water damage along the base of the timber door frame in the bathroom; and discolouration of the grout between the floor tiles; and make good; (b) Remove the hard black rubber ramp in the hall and make good the floor; (c) Remove the bathroom shower screen and install a new shower screen; (d) Relocate the power point in the bathroom say that it is a minimum of 400 mm away from the hand basin, and make good. 2. [The appellant] is to give [the respondent] access to the premises to carry out the Works on 3 days' notice. 3. Within 7 days of completion of the works in Order 1, [the appellant] is to pay [the respondent] the sum of $6132.00. 1. While application HB 17/39942 was in the form of a home building application seeking original relief, the nature of the appellant's application was to seek renewal of the earlier proceedings because of non-compliance with the work order. In this regard, the orders sought were for the respondent to pay the appellant the sum of $15,122 as compensation. The application recorded the reasons for the order as follows: 1. the "Respondent failed to comply with order 1(a) as they did not investigate"; and 2. "parts that they did comply with are faulty and some damaged in addition they did not complete rectification in a workman like manner". 1. From the documents provided by the appellant in the appeal and from what we were told by her daughter, who represented the appellant at the hearing with leave, it would seem that the amount claimed was the cost to demolish and rebuild the bathroom. 2. The Tribunal dismissed the application, concluding that the appellant had failed to prove her claim. In particular, the Tribunal noted that the appellant provided insufficient evidence to identify any problem with waterproofing or water ingress and did not provide evidence that would prove the respondent was responsible. The Tribunal provided reasons for decision (Reasons). 3. The appellant appealed this decision by Notice of Appeal filed 3 July 2018. The appeal was lodged out of time, more than 28 days after notice of the decision was received by the appellant on 7 May 2018. The appellant sought an extension of time. At the hearing on 6 November 2018, we made an order granting this extension, having been satisfied that the appellant had provided a reasonable explanation of the delay (as set out in her Notice of Appeal), no prejudice was shown to the respondent and, in any event, the respondent did not oppose an extension of time having regard to the circumstances disclosed in the Notice of Appeal. 4. The parties each provided bundles of documents in support of the appeal, to which we will refer as the appellant's bundle (AB) and the respondent's bundle (RB). History of the proceedings at first instance 1. As indicated above, the work order was made on 26 July 2017. 2. The renewal application was filed on 16 September 2017. 3. The Tribunal made directions for the filing and service of evidence by each of the parties in the renewal proceedings. Directions were initially made on 18 October 2018. The appellant's evidence was due by 15 November 2017. The renewal proceedings were fixed for hearing on 5 February 2018. 4. However, when the renewal proceedings came on for hearing, they were adjourned in circumstances where further directions were made permitting the filing and service of additional evidence by the parties. Any further evidence from the appellant was directed to be provided by 15 March 2018. The circumstances in which these directions were made became the subject of submissions at the hearing of the appeal. 5. The directions also provided for the respondent to file and serve evidence in reply. In this regard, the Appeal Panel's attention was directed to evidence of emails between the parties in which the respondent sought access to the premises to allow the respondent to "do further investigations/reports": RB 18. The respondent referred to the email found at RB 19 and said this was evidence the appellant had refused access to the premises. This is a matter to which we will return below. 6. In the renewal proceedings, the Tribunal made various findings concerning work carried out by the respondent in consequence of the work order. These findings were: 1. The black rubber ramp was removed. A timber piece has been installed in the hole in the floor created by the removal of the old doorjamb. Various screw holes have been left in the carpet. While there are minor repair works to be done, the Tribunal concluded this was not within the scope of the work order and therefore not the responsibility of the respondent: Reasons at [8a] and [16]; 2. The shower screen has apparently been removed and replaced, however there are minor installation works to be completed, including fitting screw heads flush to various metal angles, making square the frame by reference to the wall and finishing off with silicon sealant. In this regard, the Tribunal noted that "water escapes from the shower recess onto the bathroom floor", a matter the Tribunal found required "silicon finishing". Otherwise, the Tribunal was unable to ascertain, on the evidence before it, whether "water discolouration on the door jam and the wall tile grout where the tiles adjoin the floor" were caused by the lack of silicon finishing or some other cause. In any event, the appellant did not wish to give the respondent access to complete this work: Reasons at [8b] and 16. 3. The power point has been relocated and there is no evidence that the C clip used to attach the power point in its new location is not functioning properly: Reasons at [8c] and [16]. 4. The respondent has removed grout by hand and replaced it. There is no evidence that this work did not achieve a proper and workmanlike outcome: Reasons at [8d] and [16]. 1. The Tribunal also found that the appellant had refused access to the respondent for the purpose of an inspection to determine the cause of the "presence of damp under the tiles". In this regard, the Tribunal noted the appellant had originally relied on an expert report, prepared by Mr Dan Drexler dated 24 April 2017 (Drexler report), particularly at cl 4.2.4, as part of her evidence in the proceedings in which the work order was made. However, this evidence was inconclusive as to the cause of any damp under the tiles: Reasons at [17]. 2. It is common ground that in the renewal proceedings the appellant did not file and serve any expert evidence in the form of a report or other evidence from a builder or suitably qualified person as to the nature and extent of any non-compliance with the work order. The appellant simply said investigative work had not been done despite the work order requiring such work. The evidence relied upon by the appellant was the original Drexler report (AB 199 and following), an exchange of emails (AB 238-239), photographs depicting various features of the bathroom (AB 298-339) and various quotations in respect of the demolition and reconstruction of the bathroom: see e.g. AB 415 and following. The evidence of the respondent was limited to that of its own employees, for instance Mr Williams: see RB 13 and following. Notice of Appeal 1. The Notice of Appeal set out the grounds of appeal in the following terms: The main reason for lodging the appeal is due to the fact that [the Tribunal] made an order on 28/07/2017 ordering the respondent to investigate and complete other works in a workman like manner however neither has occurred. [The Tribunal] has failed to acknowledge the fact that the respondent did not investigate; they did not provide any evidence of investigation and ignored did they complete the work in a workman like manner. 1. In relation to the orders sought on appeal, in Section C the appellant said: Due to the respondent failing to abide by the order dated 28-Jul-2017 and failing to complete an investigation; the dismissal be reversed and the [appellant] be provided with the funds required to allow the [appellant] to demolish the interior of the bathroom to investigate the cause of the ongoing issues of the presence of damp, water damage along the base of the timber door frame and discolouration of the grout-as per Notice of order dated28-Jul-2017; point 1(a) and as per opinion noted in the Dexler [sic] building report page 90 of evidence submitted by the [appellant] point 5.6. 1. When asked at the hearing of the appeal which orders the appellant said had not been complied with, the appellant identified the following: 1. Order 1(a) had not been complied with, in that there had been no investigation of the water issues; 2. Order 1(c) had not been complied with. The appellant said, amongst other things, that silicon sealing work had not been properly completed around the shower frame, screws securing part of the shower frame were not flush and the shower frame was misaligned. Problems with water leaking under the silicon seal were said to be demonstrated by photographs such as photograph 4 (AB 309). Incorrectly installed screws were said to be depicted by photographs 21 and 22 (AB 308). Although numerous photos were identified showing misalignment of the shower screen, it is unnecessary to identify these for present purposes. 3. Order 1(d) had not been complied with in that the original power point had a metal frame inside the wall for securing it whereas the power point in its new location had metal clips. These matters were said to be depicted, for example, in photographs 75 and 76: AB 336. 1. In addition to asking the appellant to identify the orders which the appellant claimed had not been complied with, the Appeal Panel noted that the nature of renewal proceedings was that the Tribunal was empowered on renewal to make an alternative order to that which was originally made. In this case, that would be a money order to compensate the appellant for the cost to complete and/or make good the works which the respondent had otherwise failed to do in accordance with the work order. In drawing this matter to the attention of the appellant, the Appeal Panel asked whether there was any evidence of the costs of performing such work; including investigation and rectification of any defective work as necessary. The only material to which we were referred was the cost of demolishing and rebuilding the whole bathroom, there being no evidence limited to the cost of making good the particular defects identified. 2. When questioned about the absence of evidence, the appellant said that she had been informed by the Tribunal on 5 February 2018 (when the proceedings had been originally listed for hearing and were adjourned due to insufficient evidence) that she needed to provide evidence of the cost to demolish and rebuild the bathroom. The appellant submitted that it was for this reason that she obtained quotations to demolish and rebuild the bathroom, and not evidence of other matters, such as the cost of making good the defects identified in her statement of claim. 3. When asked to identify the pages in the transcript of the hearing on 5 February 2018 where she asserted she was given advice by the Tribunal as to the nature and extent of evidence she was to provide, we were referred to AB 143-144 and AB 146-147. 4. These paragraphs do not corroborate the appellant's assertion that she was provided advice by the Tribunal as to what evidence was required to prove her claim. Consideration 1. Where the Tribunal makes an order and it is not complied with, a party in whose favour that order has been made may take enforcement proceedings as permitted by the relevant enabling legislation and by the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Available enforcement procedures may include those found in Pt 5 of the NCAT Act. This appeal does not concern enforcement action generally. 2. However, where orders are made in proceedings in the Consumer and Commercial Division of the Tribunal, an additional procedure is available to a party in whose favour an order is made where the other party has failed to comply with the terms of the order. This procedure is called "renewal of proceedings". Schedule 4 cl 8 of the NCAT Act provides: 8 Renewal of proceedings in respect of certain Division decisions (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. 1. The scope of this clause and its operation was considered by the Appeal Panel in Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98. 2. In short, an applicant on renewal may obtain an order for the payment of money as an alternative to a work order. The amount an applicant is entitled to recover is the reasonable cost of bringing the work into compliance with the requirements of the original order to perform work. Alternatively, where there is power to do so, a refund of monies paid may be ordered. 3. The present appeal relates to such a renewal application. As the original application makes clear, the orders sought in the proceedings at first instance arise from non-compliance by the respondent with the work order made 26 July 2018, the appellant seeking a money order in substitution for the work order. 4. The determination of such applications requires the Tribunal to consider what works were required to be performed, what works were not in fact performed (or only partially performed) and what is the reasonable cost to an applicant on renewal to have those works performed in the required manner. 5. Self-evidently, the assessment of such claims is dependent upon the work order actually made. In the case of a work order to perform residential building works, the work order should precisely specify the work which is required to be performed, to the extent necessary identifying the plans, specifications and exact scope of the work. Because such orders are made in circumstances where the party making the claim has established, on proper evidence, the existence of defective work or incomplete work, the terms of the work order should reflect the manner in which the identified defects are to be rectified or the incomplete work is to be finished. Absent such detail, it may be impossible: 1. for the party to whom the work order is directed to comply with its terms; or, 2. where such terms are not complied with, to ascertain the nature and extent of any alleged non-compliance so as to make an appropriate award for compensation in a renewal application or to otherwise allow enforcement proceedings in respect of any breach. 1. Order 1(a) made by the Tribunal on 26 July 2017 is indicative of an order that, on its face, lacks precision. The order states: Investigate the cause of the presence of damp in the bathroom as indicated by discolouration of grout between the wall tiles near the floor; water damage along the base of the timber door frame in the bathroom; and discolouration of the grout between the floor tiles; and make good. 1. It is reflective of an order to do work to rectify a defect, the cause of which is unknown. It makes no reference to the nature or extent of the investigation to be made. It is ambiguous in terms of whether the respondent will be responsible for rectification work regardless of whether the identified cause is as a result of a breach of any obligation by the respondent. It does not expressly reference any plans or specifications or other scope of work to which the "make good" obligation might relate. 2. In our view, orders in this form should not be made. 3. Be that as it may, neither party sought to appeal the work order. Rather, this appeal must be determined in the context of the order made and having regard to: 1. the reasons for the work order dated 28 July 2017 provided by the Tribunal (Work Order Reasons); and 2. the evidence which was provided at that hearing. 1. In this regard, where an order is ambiguous, a court or tribunal required to interpret the order may have regard to "extrinsic material, including the reasons for judgment" – Hodgson JA in Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58 at [29] , referring to Justice P W Young, "Construing Court Orders" (1998) 72 ALJ 117. 2. In Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170; (2014) 86 NSWLR 674 at [60] Basten JA summarised the general principle with respect to construing court orders. Highlighting his Honour's judgment in Athens, Basten JA noted that Hodgson JA "also cited the proposition from Repatriation Commission v Nation (1995) 57 FCR 25 at 34, where Beaumont J said (Black CJ and Jenkinson J agreeing) that "evidence of surrounding circumstances is admissible to assist in [construction] of an instrument if the language is ambiguous or susceptible of more than one meaning, but not admissible to contradict the language of the instrument when it has a 'plain meaning' (see Codelfa Construction Pty Ltd v State Rail Authority(NSW) (1982) 149 CLR 337 per Mason J at 352)". This proposition was recently affirmed in Ross v Lane Cove Council [2014] NSWCA 50 at [30]–[31] (Leeming JA)."" 3. In these circumstances, we are satisfied regard may be had to the Work Order Reasons and relevant extrinsic material in order to determine the objective intention expressed in the work order. 4. The Work Order Reasons record that the Tribunal considered the observations of the expert, Mr Drexler, as to the nature of the investigation and rectification work, which was to be done in order to resolve the damp problem in the bathroom: at [13]-[20]. The terms of the work order required an investigation of the type Mr Drexler said was necessary. As far as the Appeal Panel is aware, this was the only expert report that was provided by either party in the proceedings in which the work order was made on 26 July 2017. Therefore, some assistance in interpreting the work order can be found in the Drexler report. 5. Relevantly, clauses 4.2.2 and 4.2.4 of the Drexler report provide: 4.2.2 Cause 4.2.2.1 It is my opinion that the discolouration of the white grout between the base of the wall tiles is due to damp penetration into the tiles from the use of the shower, or a leak in the plumbing pipes in the bathroom walls. 4.2.2.2 It is my opinion that the discolouration of the grey cement between the floor tiles is due to damp penetration into the tiles from the use of the shower, or a leak in the plumbing pipes in the bathroom walls. 4.2.2.3 It is my opinion that staining along the bases of the door frames at both sides of the bathroom door is due to damp penetration into the door frames from the use of the shower, or a leak in the plumbing pipes in the bathroom walls. 4.2.2.4 It is my opinion that damp entry into the base of the grout between the wall tiles, cement between the floor tiles and timber work at the bases of the door frames has occurred because the waterproof membrane in the bathroom, if in fact one has been installed, has failed, or because of a leak in the plumbing pipes in the walls. … 4.2.4 Rectification 4.2.4.1 The builder is required to pressure test the water supply pipes in the bathroom to determine whether they are leaking. 4.2.4.2 Should leaking of the water supply pipes in the bathroom walls not be present, the builder is required to remove the vanity, toilet, shower screen, wall tiles and floor tiles in the bathroom, remove the existing waterproof membrane, if one has in fact been installed, supply and install a new waterproof membrane, retile the walls and floor, and reinstall the vanity, toilet and shower screen. 4.2.4.3 It is my opinion that if the presence of damp is due to the omission or failure of the waterproof membrane in the bathroom, the above repairs constitute the reconstruction of the entire bathroom. 4.2.4.4 It is my opinion that if the presence of damp is due to the omission or failure of the waterproof membrane in the bathroom, the builder is required to reconstruct the entire bathroom. 1. The respondent conceded at the hearing of the appeal that none of the investigation work required by the work order had been carried out after the work order was made. However, the respondent did say that it had previously pressure tested the water supply pipes and found no defect in existence. 2. If this statement is accepted then, when the work order is read in the context of the Drexler report, the respondent was required to "remove the vanity, toilet, shower screen, wall tiles and floor tiles in the bathroom, remove the existing waterproof membrane, if one has in fact been installed, supply and install a new waterproof membrane, retile the walls and floor, and reinstall the vanity, toilet and shower screen". 3. None of this work was performed. Rather, it seems that work of a minor nature was done, as well as some work to the shower screen that was not satisfactory in terms of silicon sealant. 4. In dismissing the appellant's claim, the Tribunal said in its reasons at [9] and following: 9 The applicant was requested to give access to the premises on several occasions but either did not answer, or refused access. An example was a request by the respondent on 23/2/18 to which the applicant did not reply. A further example was the respondent's request on 2/3/18 for access to obtain a Building Inspection report which was refused by the applicant on 4/3/18. 10 Of the current issues, most relevantly, the applicant contends that since the remedial works were carried out, there is a continuing discolouration of the grout up the walls and moisture penetration of the door jamb and architrave. She produced (undated photographs said to have been taken after the respondent completed its Works, which had no supporting narrative to describe what was in the photographs, which she did by oral evidence) but the photographs are useful to show only the current condition of the items depicted, but not the cause thereof. The applicant's evidence is inadequate and required an expert report, of which there was none current.. Expert reports 11 The applicant has not obtained an expert or any report from relevant trades to prove her most recent complaints. 12 The respondent requested access for a building inspection, but the applicant refused to give access, and the respondent was unable to obtain an opinion. 13 I will discuss the absence of expert reports below in the context of the applicant proving the respondent is liable. The law Liability 14 The applicant has the onus of proving that the Works have not been done in a proper and workmanlike manner. The applicant relied on two reports made prior to the Orders on 26/7/17. 15 First, the Applicant relied on the Rectification Order of Mr Optland of 12/2/17 identified two issues: rectify the fixed panel and stain to shower screen; and move the power socket in the bathroom - both works have been completed. 16 Second, she has relied on the Drexler Report of 24/4/17 which was done before the rectification Works were completed. This identified removal of the black rubber ramp – which has been done; remove and instal a new shower screen - which has been done; relocate the power point - which has been done; discolouration of the grout - this has also been done by removal and replacement of the grout. 17 The other issue in the Drexler Report [4.2.4] concerning the bathroom waterproofing, but this was inconclusive and no investigation had been done to identify the problem causing the presence of damp under the tiles. The respondent required access for an inspection of the damp but the applicant refused. 18 The applicant has not obtained her own report on this issue. There is no evidence of the cause. As the applicant has the onus of proof, in the absence of proof her claim fails. 19 A further matter concerns the applicant's payment of the balance of the contract price of $6,132.00, which payment was conditional upon completion of the rectification Works, and to be paid within 7 days thereof. The applicant has paid this amount and there must be a presumption that on the day she paid the amount, she was satisfied with the Works done by the respondent. That would not of-course prevent a fresh claim being brought if an issue emerged some time later but within the warranty period. That is not how the claim was presented. Conclusion 20 The Orders are made in the interests of justice as between the parties to quell their dispute. 1. In reaching these conclusions, the Tribunal did not make any findings concerning what work the respondent was required to undertake in order to comply with the work order. The Tribunal did not reach any conclusions as to whether or not that work had been done in the required time. Rather, the Tribunal found: 1. there had been a failure by the appellant to allow the respondent to inspect the premises, 2. the appellant had not provided evidence as to the cause of any water ingress; and, 3. in the absence of evidence, the appellant had failed to prove her claim. 1. There are a number of problems with this analysis. 2. A determination of what the appellant was required to prove in order to succeed in her renewal application necessarily involved the identification of the work required by the work order, what work the builder had done, what work remained to be done in order to comply with the work order and what was the reasonable cost of doing this outstanding work. 3. In our view, the work order, properly construed in the context of the Work Order Reasons, required the following: 1. The pressure testing of the water pipes to ascertain whether there were any leaks; 2. If no leaks were present in the water pipes, the respondent was required, as the builder, to remove the vanity, toilet, shower screen, wall tiles and floor tiles in the bathroom, remove the existing waterproof membrane, if one has in fact been installed, supply and install a new waterproof membrane, retile the walls and floor, and reinstall the vanity, toilet and shower screen. 3. Having carried out investigation work in this manner, the respondent was required to make good the bathroom at its cost. 1. The respondent's obligation to undertake this work was not limited to what might be discovered as the cause of the dampness or whether or not the cause was attributable to the respondent. Rather, there was to be an investigation and all necessary work (including make good) was to be done by the respondent. 2. This form of order might suggest that the respondent had some unlimited liability, whether or not any cause of the defects was attributable to it, a form of order which might otherwise appear unjust. However, there are two reasons why that consideration is not relevant in the present appeal. Firstly, the respondent did not challenge the form of the work order by way of appeal. Secondly, and more significantly, when one considers the scope of work which the respondent had originally contracted to perform, there is in fact little or no possibility that the damp problem might be attributable to a cause for which the respondent had no responsibility. This seems clear from the scope of works of the contract which the parties entered into (found at AB 397, being a modified version of the scope of work found at AB 400). That scope included the demolition of "entire walls & floor", the relocation of various plumbing services, the supply and installation of a new shower screen and various associated works. The works included waterproofing of the bathroom: see Waterproofing Warranty dated 29 June 2016, which we were told was provided by the respondent's subcontractor: see AB 340. 3. As such, on the evidence before the Tribunal and presented in this appeal, any water ingress or water damage arose from the manner in which the bathroom works were carried out by the respondent and would therefore be the responsibility of the respondent as the builder. 4. While the orders required the cause to be identified, the identification process was only for the purpose of determining whether destructive testing would be necessary or whether the rectification work need only be limited to fixing any leaking water pipes. 5. As can be seen from the orders, as we have interpreted them, it was only if the pressure testing indicated that the pipes were leaking that the invasive investigation and destruction of the recently built bathroom would occur. 6. The respondent said at the hearing of the appeal it had undertaken pressure testing of pipes before the work order was made and no problems were revealed. While we do not have the sound recording of the hearing at first instance (it being agreed by the parties that the recording of the renewal application was unavailable), we assume this evidence was given by the respondent to the Tribunal or, if the Tribunal had enquired about such evidence, would have been given by the respondent. If so, and accepting what we were told by the respondent, the failure to carry out this part of the work order appears irrelevant, a repeat test likely to produce the same result. 7. Consequently, it was inevitable the bathroom would be subject to significant invasive work which would involve the removal of the shower screen, removal of floor and wall tiles and the removal of the other fitments which had been installed as part of the bathroom work (including any works to rectify the shower screen). To the extent necessary, the removal of electrical fitments may also have been necessary. Thereafter, make good was required. 8. It is in this context that the appellant's claim for damages, being the cost to demolish and rebuild the bathroom by an alternative contractor, needs to be considered. 9. On this aspect of the case, the Tribunal did not evaluate the evidence of loss and damage. 10. Rather, as outlined above, the claim was rejected because the "respondent required access for an inspection of the damp but the applicant refused" and the "applicant had not obtained her own report on this issue" and there was "no evidence of the cause". Consequently, the Tribunal dismissed the claim due to the "absence of proof". 11. In relation to the issue of inspection, the Appeal Panel was referred to emails concerning a request to inspect. The emails are found at RB 18-19. 12. The email at RB 18 dated 23 February 2018 from Jody Smith, apparently employed by the respondent, says: As discussed at our last meeting the member gave us both an extension of time to do further investigations/reports. We would like to have a builder's report done on our workmanship. The name of the company's Sydney building reports. 1. The email nominated possible dates for inspection. 2. By email dated 2 March 2018 (RB 19), forwarded to the respondent by the daughter of the appellant, the appellant's daughter said: If you recall this tribunal is regarding Allways not abiding to the order. Allways had more than sufficient opportunities to complete inspections and if you referred to your previous email correspondence you have advised you were not willing to complete due to cost. Several opportunities were provided. The member requested I adjourn for the sake of me providing further evidence. I am sure you will recall Levi declined the request for adjournment. We have no confidence nor trust in your company nor any of your tradesmen. As far as I am aware you have failed to comply with the order and you were provided with sufficient time to complete the inspections. I have a father who is extremely unwell and my time is limited. Allways has already taken a lot of time and energy. I am going from work to my dad before I get to go home. This request seems convenient at this stage now that you have attempted to cover up the areas in question by removing and replacing the grout. This is not to say that the bathroom does not still contain evidence of the issues occurring as the recent photos submitted show. 1. The email from the respondent indicates that it wished to prepare a report concerning the quality of its workmanship. It was not proposing, by this email, to return to the site to complete the work required by the work order. Rather, it was seeking to provide a report on its "workmanship". Presumably, this report was to prove, at the final hearing of the renewal proceedings, the work it had done was of an appropriate quality. 2. When it was denied access by the appellant, the respondent did not seek an order of the Tribunal for access to the premises for the purpose of preparing any evidence. Rather, the respondent chose to proceed with the hearing on 2 May 2018 without such material. 3. We note: 1. the work order required all work to be completed by 25 August 2017, subject to the appellant giving access to the premises for that purpose; 2. some work was done, but not as ordered; 3. there is no evidence that the respondent sought from the Tribunal, or was granted, an extension of time to complete its obligations under the work order; and 4. there was no evidence that the respondent was otherwise intending to fully comply with the work order. 1. Seen in this light, any refusal by the appellant to allow an inspection has no relevance to the fact that the respondent had failed to carry out the work required by the work order by the due date. This work was the removal of the fitments, tiles and shower screen to investigate and make good relevant waterproofing issues, which the Tribunal had accepted needed to be completed when it made the work order on 26 July 2017. 2. As to the need to identify the cause of the dampness in order to establish an entitlement to an award for compensation, having regard to the position of the respondent that the water pipes had been tested and that the work order consequently required destructive investigative work to be undertaken in the manner we have set out above, it is difficult to see why it was necessary for the appellant to prove the cause of the water ingress when the effect of the investigative work ordered by the Tribunal would, inevitably, require the reconstruction of the bathroom as part of the make good, once such investigative work was completed. 3. There is no suggestion in any of the evidence provided to the Tribunal in the proceedings at first instance or on appeal that the invasive testing works, carried out in a manner proposed in the Drexler report, would not have necessitated the reconstruction of the bathroom. On the other hand, the investigative work required by the Drexler report makes clear that the need to reconstruct the bathroom will be the consequence of the investigation process: see e.g. Drexler report at 4.2.4.3. 4. Consequently, the Tribunal was in error in dismissing the appellant's claim because of any failure to provide access to the respondent to report on the work actually done following the making of the work order and in concluding it was necessary for the appellant to prove the cause of water damage. 5. The Tribunal was required to determine the amount of compensation, to which the appellant was entitled to complete the work required by the work order, and the sufficiency of evidence in this regard. It may also have considered whether, in the alternative, an order should have been made to order the respondent to repay the whole or part of the amount paid by the appellant to the respondent pursuant to the contract. Section 48O(1)(b) of the Home Building Act 1989 (NSW) (HB Act) permits such an order. 6. The appellant relied on the Drexler report and on quotations she had obtained for the reconstruction of her bathroom. These quotations were from: 1. DC Constructions Pty Ltd dated 16 February 2018 for $20,800 plus GST (AB 414); and 2. Oxford Bathrooms dated 7 March 2018 for $18,500 including GST (AB 415 and following). 1. The quotation from DC Constructions provided little or no detail as to the work to be performed. The quotation from Oxford Bathrooms indicated that the ceiling was to remain in place and otherwise the bathroom was to be fully stripped out. This work also included: 1. the relocation of an existing double power point; 2. the installation of a new double power point; and 3. the resupply, rather than the reuse, of the shower screen, toilet suite, vanity, tapwear, handheld shower on rail, custom mirror and accessories. 1. Unfortunately, we have not been provided with the transcript of any evidence provided by the witnesses who prepared these quotations nor have we been provided with any information concerning any evidence and submissions otherwise made on the aspect of the claim. It is unclear whether or not the works proposed in the quotations, in terms of quality of fitments and finishes, will be an improvement to the work which were to be performed under the original contract and the work order. 2. However, it seems probable that various supply items originally provided by the respondent, such as the tap wear, shower fittings and vanity could be reused as contemplated by the Drexler report. This evidence may, after cross examination and upon consideration of submissions, allow the Tribunal to assess compensation for completion of the required work. 3. Alternatively, there was evidence before the Appeal Panel that the appellant entered into a contract with the respondent for an amount of $10,600 inclusive of GST (AB 397). This work included the supply and installation of the following items: 1. 2 x 600 towel rails; 2. new shower screen; 3. new portable shower; 4. mixer in shower rail. 1. There was also evidence that the appellant was to supply floor tiles. 2. This evidence, coupled with an opportunity for the parties to cross-examine relevant witnesses and make submissions, may have provided a proper basis for the Tribunal to order a refund or partial refund of the contract price. 3. Regarding the assessment of loss and what order should be made, we note that any award in favour of a claimant may, in some circumstances, involve a degree of estimation by a tribunal or court because precise evidence of loss or damage cannot reasonably be obtained: see eg Curtis v Potter & Co Pty Ltd t/as The Africa Safari Co [2016] NSWCATAP 196 where the Tribunal said at [73]: Difficulty of assessment is no bar to the assessment of damages, and the court or tribunal must do the best it can: Biggin and Co Ltd v Permanite Ltd (1951) 1 KB 422, per Devlin J. at p 438); Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54. In Amann at [31], Mason CJ and Dawson J note that in Jones v. Schiffmann [1971] HCA 52; (1971) 124 CLR 303 at 308, Menzies J. said that that the "assessment of damages ... does sometimes, of necessity involve what is guess work rather than estimation". 1. In the absence of a transcript and any relevant consideration by the Tribunal of the quantum evidence, in the context of the matters we have set out above, we can only conclude that the approach taken by the Tribunal at the hearing: 1. did not involve an examination of the factual matters to which we have referred above; and 2. denied the parties an opportunity to deal with these aspects of the renewal application. Orders 1. The Tribunal made errors in its interpretation of the work order, its assessment of the legal obligations of the appellant in proving her case and its consideration of the evidence concerning what work was required to complete the work required by the work order. To the extent that these matters raise questions of law, there is a right of appeal. Otherwise, leave to appeal is required: see s 80(2)(b) and Sch 4 cl 12 of the NCAT Act and Collins v Urban [2014] NSWCATAP 17. 2. It follows from what we have said above that the order dismissing the renewal application should be set aside and the proceedings remitted for rehearing. To the extent necessary, leave to appeal should be granted as it is clear the appellant may have suffered a substantial miscarriage of justice because of a failure in the way the matter was conducted or decided, which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred: Collins at [70] and following. 3. The rehearing should be limited to the assessment of damages and/or whether an order should be made in favour of the appellant for the refund of all or part of the contract price paid to the respondent. 4. To facilitate this rehearing, we will make directions for the filing and service of evidence and the attendance of witnesses. In making these directions, we note that both parties have already been given several opportunities by the Tribunal to provide relevant evidence from suitably qualified witnesses. Because the proceedings are being remitted, a further opportunity should be provided limited to evidence in relation to the issues to be resolved. However, we should make clear that, subject to any directions the Tribunal may make on remittal, neither party should expect any further indulgence of the Tribunal. Any failure to comply with the directions we propose to make may have a consequence that a party will not be permitted to raise new material or to rely on evidence from witnesses which is not provided in accordance with the directions we will make. 5. Consistent with these reasons, we will provide a list of the issues for determination on remittal, both to assist the Tribunal on remittal and to confine the matters for redetermination. 6. Lastly, in light of the long history of these proceedings, the parties might take the view that they should discuss whether the dispute can be settled on mutually acceptable terms. In this way, they might avoid the likely expense of the further hearing required by these orders and the possibility of further appeals. We will make an order directing this dispute be referred to the Community Justice Centre for mediation under the Community Justice Centres Act 1983 (NSW), pursuant to Sch 1, Pt 2, cl 6(3) of the Civil and Administrative Tribunal Regulation 2013 (NSW). As the remitted proceedings may not be reheard this year, the parties may find a way to resolve this dispute before the end of the year through the process of mediation. 7. The Appeal Panel makes the following orders: 1. Leave to appeal is granted, the appeal is allowed and the order made 2 May 2018 is set aside. 2. The proceedings are remitted for rehearing by a differently constituted Tribunal for the purpose of determining the issues set out in Annexure A to these reasons (Issues). 3. Pursuant to Sch 1, Pt 2, cl 6(3) of the Civil and Administrative Tribunal Regulation 2013 (NSW), the Appeal Panel directs that these proceedings be referred for mediation by the Community Justice Centre in accordance with the Community Justice Centres Act 1983 (NSW). 4. The following directions are made in the remitted proceedings: 1. On or before 14 December 2018, the applicant (Ndaira) is to file and serve any further evidence and submissions in respect of the Issues. 2. On or before 11 January 2019, the respondent (Allways Buildings NSW Pty Ltd) is to file and serve any further evidence and submissions in reply in respect of the Issues. 3. All evidence provided by the parties or their witnesses must be in the form of statutory declarations or expert reports. 4. All witnesses, including those who provide quotations in respect of work to be performed, must be available for cross examination. 5. A party may not rely on any evidence not served in accordance with these directions except with leave of the Tribunal, which will only be granted in exceptional circumstances. 6. The proceedings are to be listed for hearing on a date to be fixed by the Registrar. 1. Nothing in these orders prevents the Tribunal, on remittal, varying the directions for hearing made in order 4. ********** Annexure A – Issues 1. The Tribunal is to determine the amount, if any, that the respondent is entitled to be paid by reason of the appellant failing to comply with the work order made by the Tribunal on 26 July 2017 (Work Order). 2. In deciding what, if any, amount should be awarded, the Tribunal is to consider whether: 1. it is appropriate to order a refund of all or part of the contract price; 2. it is appropriate to order compensation equivalent to the cost of completing the work required by the Work Order. 1. In making the determination required by paragraph 2, the Tribunal is to have regard to the following: 1. The work required to be completed by the Work Order is the work described in cl 4.2.4.2 of the Drexler report dated 24 April 2017, namely "to remove the vanity, toilet, shower screen, wall tiles and floor tiles in the bathroom, remove the existing waterproof membrane, if one has in fact been installed, supply and install a new waterproof membrane, retile the walls and floor, and reinstall the vanity, toilet and shower screen". 2. Any amount to be awarded by way of refund or an order for compensation is to take account of the fact the respondent has supplied various fixtures and fittings which, when removed, may be suitable to be reused in reinstating the bathroom. As such, an appropriate deduction should be made from any award to make allowance for such items, except to the extent that the removal process will necessarily result in their damage and therefore unsuitability for reuse. 3. The applicant (Ndaira) originally supplied tiles for the wall and floor that will need to be removed. Allowance should be made for the costs of removing and replacing only those tiles required to be removed and replaced for the purpose of completing the work described in (1). 4. The assessment is not to take account of any changes in the scope of work from that in the original contract with the respondent (Allways Building NSW Pty Ltd), which the applicant may wish to now have undertaken. ********** 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 31 December 2018 - Annexure A 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: 31 December 2018