Ace Homes & Construction Pty Ltd v Su

1. The appellant says it received the Primary Decision on 6 June 2025. The appellant then filed a Notice of Appeal on 1 July 2025, which is within the time provided by r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW).
2. The appellant challenges the order made by the Tribunal. The grounds of appeal are stated as:

1. The rectification cost is outside of the agreement of the work, My Company Shouldnt liable for it. Chuling Su provided evidences that appears to lack authenticity and includes fraudulent invoices.

2. Chuling Su had an owner builder permit, this cost is invoiced by her own company, this cost shouldn't accept by the court. The submitted invoice constitutes a sham invoice, deliberately misrepresenting the transaction to circumvent fair market principles. This violates Australian commercial law requirements for authenticity, arm's-length dealings, and good faith. And the work value maximum $70 (1 hours for work, $50/hr and materials only cost $20).

3. This is a daily work, I only worked for 2 days and I received $1,000. The rest of work are not liable to me.

4. the work is completed. Engineer does not show this is an defect, Chuling Su received the engineer certificate already. therefore, this cost is not liable to me.

5. Chuling SU should pay me back the Daily labour work. it is outside of the contract and the total is $1,843.75

(grammatical and other errors as in original)

1. We will refer to these five grounds of appeal respectively as Grounds One, Ground Two, Three, Four and Five.
2. In addition, the appellant says that the Primary Decision was not fair and equitable, against the weight of the evidence, and that significant new evidence is now available that was not available at the time of the hearing.
3. We will refer to these three grounds of appeal respectively as Grounds Six, Seven and Eight.

1. The appellant filed various bundles of documents, but these were consolidated into a single volume filed on 24 September 2025.[1]
2. This bundle included documents divided into three sections, namely Sections One, Two and Three. The bundle included some documents that were not before the Tribunal.

1. The respondent filed a document titled Reply to Appeal on 15 July 2025 (Reply).[2]
2. Attached to the Reply were submissions dated 15 July 2025, a copy of the Primary Decision, a certificate issued under s 78 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), and a 138 page bundle of materials titled "Written submissions in opposition to the appeal". That document also included a further four pages of submissions.
3. The respondent's documents also included documents not before the Tribunal. Some were in response to the new materials the appellant sought to rely on; others related to additional costs claimed to have been incurred by the respondent.

1. There are two preliminary matters to deal with.
2. The first is that, for some reason, Mr Jiadong Su was named as a respondent to the appeal. Mr Su is actually a director of the appellant.
3. Rule 29 of the NCAT Rules provides that:

29 Parties to internal appeal

The parties to an internal appeal are -

(a) the appellant, and

(b) any person or body (other than the appellant) who was a party to the proceedings before the Tribunal at first instance, and

(c) if the Attorney General or another Minister intervenes in the proceedings under section 44 of the Act - the Attorney General or Minister, and

(d) any other person who is made a party to the proceedings by the Tribunal under section 44 of the Act, and

(e) any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or the procedural rules.

1. Mr Su was not a party to proceedings 2025/00040649. No application was made that he be joined as a party to the appeal.
2. In those circumstances, as we explained to the parties at the appeal hearing, Mr Su had to be removed as a respondent to the appeal. Neither of the parties objected to that course.
3. The second matter concerns the documents filed by the parties for the purposes of the appeal. The usual rule is that the evidence before the Appeal Panel will be limited to the evidence before the Tribunal at first instance. There is an exception to that rule, namely for evidence that was not reasonably available at the time of the Tribunal hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 (Al-Daouk) at [14].
4. In Al-Daouk, the Appeal Panel found that while Mrs Al-Daouk had taken a number of steps to obtain evidence of the type she sought to rely on at the appeal, the issue was whether, objectively, the evidence had arisen since the hearing and was therefore was "not reasonably available" at the time of the hearing.
5. By way of example, the appellant seeks to rely on evidence which proves that Duo Rendering Pty Ltd (Duo) was deregistered on 1 August 2021. The significance of this event was that at the Tribunal hearing the respondent relied on invoice numbered 24022 of Duo dated 25 November 2024 (invoice) to found its entitlement to rectification costs of $9,680.00.
6. Mr Su told us that he only became aware of the deregistration of Duo after he was ordered by the Tribunal to pay the respondent $9,680.00 in respect of rectification costs. He says that the invoice therefore is a sham. On the other hand, the respondent told us that that was the invoice she received from Duo when it provided its services, which she accepted and paid for in good faith.
7. Consistent with the usual practice of the Appeal Panel, which the evidence in this case gives no cause to depart from, then as we are not satisfied that the documents sought to be relied on by either parties were not reasonably available at the time of the Tribunal hearing, we will have no regard to those documents as evidence which can be relied upon before us.
8. However, any documents Ms Su wishes to rely on in relation to the costs of the appeal may be filed in accordance with the orders have made.

1. Section 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel set out a non-exhaustive list of possible questions of law giving rise to an appeal as of right:

(1) whether there has been a failure to provide proper reasons;

(2) whether the Tribunal identified the wrong issue or asked the wrong question;

(3) whether a wrong principle of law had been applied;

(4) whether there was a failure to afford procedural fairness;

(5) whether the Tribunal failed to take into account relevant (that is, mandatory) considerations;

(6) whether the Tribunal took into account an irrelevant consideration;

(7) whether there was no evidence to support a finding of fact;

(8) whether the decision was so unreasonable that no reasonable decision-maker would make it.

1. These matters were clarified and expanded by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) where the Appeal Panel relevantly stated at [32] (references omitted):

To the above list [referring to the list in Prendergast extracted above] might be added the following (some of which are nuanced aspects of the categories in Prendergast):

(1) Whether the Tribunal drew inferences that were not available from the facts as found (an extension of item 7 [of Prendergast]) ...

(2) Whether the construction of a statute or contract arrived at by the Tribunal at first instance was wrong in some identified way: ...

(3) Whether the Tribunal's decision was vitiated by bias, or a reasonable apprehension of bias, relates to and intersects with the fair hearing rule, and may encompass or be related to the procedural fairness question: ...

(4) Whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice, that is, procedural unfairness. Alternatively, it may also constitute a constructive failure to exercise jurisdiction: ...

(5) Whether the facts as found necessarily satisfied the statute or necessarily did not: ...

33 Plainly, the categories are not closed.

1. Where a party is a self-represented non-legally trained appellant, the grounds of appeal may be considered generally by the Appeal Panel (subject to procedural fairness considerations) to determine whether a question of law has been raised: Simjanovska v Dogan [2023] NSWCATAP 69 at [78]; Prendergast at [12].

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(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. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) 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.

1. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

1. Before considering the grounds of appeal, it is appropriate to briefly summarise the structure and content of the Primary Decision.
2. At [1]-[3], the Tribunal considers the question of whether it had jurisdiction to hear and determine the matter, The Tribunal found that it did.
3. At [4]-[8], the Tribunal sets out the "Background" to the matter, noting at [4] that the parties agreed sometime in April 2024 that the respondent would carry out some building work, namely "(laying a slab and excavation, erecting timber framing wall and roof, and termite barries installation - together the Original Scope of Works) for $47,000". The Tribunal also noted at [4] that all but $3,250.00 had been paid by the respondent to the appellant. At [5], the Tribunal noted that further works and variations were agreed and implemented between the parties "along the way", but these were not the "direct subject" of the proceedings.
4. At [6] the Tribunal noted that there was no written formal contract between the parties, "although most of the material terms were agreed through Wechat between the parties, of which records have been provided by the parties".
5. At [9], the Tribunal sets out what it describes as the relevant legal principles, setting out ss 18B(1) and (2) and s 18BA(1)-(4) of the Home Building Act 1989 (NSW) (HB Act).
6. At [10]-[12], the Tribunal summarises the issues in dispute between the parties, noting at [10] that the respondent was seeking compensation for rectification works carried out, together with compensation for lost rental income, legal fees and other out of pocket costs, for a total of $35,489.00, which amount was reduced to $29,489.00 during the course of the hearing.
7. At [13]-[24] the Tribunal summarised the material before it which included the "extensive bundles of documents" provided by the parties, and some of the oral evidence given by Mr Su on behalf of the appellant and the respondent.
8. At [25]-[36] the Tribunal sets out the alleged defects, noting that the respondent had obtained a building defect report prepared by Seido Construction Pty Ltd (Seido) (Seido Report).
9. Relevantly:

(1) at [26], the Tribunal stated that Seido noted that the concrete upturn wall had embedded timber, which had been inadequately installed, and would not be waterproof and could potentially cause the concrete to crack. Seido offered four possible solutions, and the respondent elected to implement the fourth, which was to waterproof and render the wall;

(2) at [28], the Tribunal stated that, with regard to this defect, the appellant acknowledged that this was a defect requiring rectification, but that the appellant submitted it had never agreed to do rendering as part of the Original Scope of Works. (We note that the appellant repeated that submission at the appeal hearing);

(3) at [30], the Tribunal stated that the Seido Report noted that a pvc pipe installed by the appellant was unsealed, which could enable water to penetrate the concrete slab and wall. Seido offered four possible solutions, and the respondent elected to implement the third, which was to seal off the penetration. The respondent engaged the services of her own interior decorating company for this service at a cost of $550.00;

(4) at [33], the Tribunal states that the respondent stated that concrete marks made by the appellant's sub-contractor had stained her front retaining wall, and that she had obtained a quote for $1,155 to rectify these marks;

(5) at [35], the Tribunal states that the Seido Report noted a gap between the window frame and the steel lintel above caused water ingress concerns. Seido offered two possible solutions, and the respondent obtained a quotation of $1,980 to rectify this issue;

(6) at [36], in possible contradiction to the Tribunal's statement at [5] that further works and variations were agreed and implemented between the parties "along the way", but these were not the "direct subject" of the proceedings, the Tribunal states that "the [appellant] noted that the window installation was not part of the Original Scope of Works but did acknowledge that this was part of a variation added subsequently". The Tribunal then notes that this work was paid for by the respondent, with the appellant not explaining its failure to rectify the gap.

1. At [37]-[42], the Tribunal sets out the claims for lost rental income and delay damages. At [45]-[47], the Tribunal sets out the claim in respect of "pipe/plumbing job". Similarly, at [48]-[52], the Tribunal summarises "additional claims".
2. As all these additional claims were dismissed it is not necessary to summarise them in these reasons.
3. At [53]-[61], the Tribunal sets out its "Findings and reasons for decision". The Tribunal relevantly finds:

With regard to the arrangements between the parties, I find that the [appellant] did contract with the [respondent] to provide the Original Scope of Works for a fixed price, no hidden costs or additional labour or material charges. The [respondent] continues to owe $3,250 to the [appellant] under that contract, and that amount should therefore be applied to the rectification costs awarded herein.

With regard to the [respondent's] claim for rectification costs of $9,680 paid to Duo Rendering Pty Ltd, to rectify some of the defects, I find that these defects relate to the residential building works undertaken by the [appellant], and have been acknowledged by the [appellant]. The [appellant] elected not to rectify the defects, and therefore liability for the cost of rectification is attributable to the Respondent accordingly.

With regard to the [respondent's] claim for rectification costs of $550 paid to W & M Construction Project Pty Ltd to rectify the seal, I find that this defect relates to the residential building works undertaken by the [appellant], and has been acknowledged by the [appellant]. The [appellant] elected not to rectify the defects, and therefore liability for the cost of rectification is attributable to the [appellant] accordingly].

With regard to the [respondent's] claim for rectification costs of $10,010 quoted by Built & Co Pty Ltd, to rectify some of the defects, I find that the window gap seal ($1,980) and the removal of concrete marks ($1,155) are defects which are attributable to the [appellant], which he [sic - it] either refused to rectify or rectified inadequately, and therefore liability for the cost of rectification is attributable to the [appellant] accordingly.

1. Ground One is set out above.
2. It consists of two limbs.
3. The first is that the rectification costs were "outside of the agreement of the work".
4. It is not clear whether the appellant is referring to Item 1 alone (being rectification costs of $9,680.00) or more generally to all the Items the subject of the Tribunal's order, in particular Item 2 (being seal rectification).
5. Either way, there is some substance to this point. The issue here is that the Tribunal failed to make clear findings as to the terms of the contract between the parties, in particular what was the scope of works agreed to the parties. The Tribunal did note in its "Background" section, by way of introduction, that the parties agreed sometime in April 2024 that the respondent would carry out some building work, namely "laying a slab and excavation, erecting timber framing wall and roof, and termite barries installation - together the Original Scope of Works for $47,000".
6. However, even if we accepted that that was a statement of relevant findings of the scope of works, the Tribunal goes on later to find at [36] that the window installation (the subject of Item 3) was not part of the Original Scope of Works, but the appellant should compensate the respondent $1,980.00 in respect of the "window gap seal".
7. Nevertheless, the fact is that here are no clear findings on what was the scope of works the subject of the contract between the parties, save for the statement at [4] of the Primary Decision. We discussed this issue with the parties at the hearing. In particular, we asked them how Items 2, 3 and 4 arose as a breach of the contract. No satisfactory answer to this question was given.
8. In relation to Items 2 and 4, we fail to see how the costs of rectifying a seal, the window gap seal and concrete marks, can relate to any of "laying a slab and excavation, erecting timber framing wall and roof, and termite barrier installation".
9. In any event, Item 4 appears to have been a claim for consequential damage caused by the appellant. We only know that as that was what we were told at the appeal hearing. That fact cannot be gleaned by the text of the Primary Decision. And there was no sound recording of transcript of the hearing before us.
10. It appears therefore that, while perhaps Item (4) may have been "directly attributable to the [appellant]", it was not a defect (Primary Decision at [61]).
11. Turning to Item 1, compensation for Item 1 is the largest amount allowed for. The Tribunal's findings in relation to this item are set out at [59] of the Primary Decision.
12. The Seido Report relevantly states:

CONCRETE UPTURN WALL

Timbers have been spotted embedded into concrete turnup wall after formwork has been removed as per the following photo shows. It is believed that timbers used as formwork support have been inadequately installed and result they became impossible to remove when concrete was poured around it.

[photos and diagram]

Concerns:

1. Timber could span and rot when contact with moisture particularly as H2 treated pine and over time it could cause the surrounding concrete to crack

2. Similar to basement or other underground external wall, this concrete upturn wall has been designed as retaining wall which the external face will be in contract with natural ground at all time. Proper waterproofing is required to stop moisture/water to penetrate into interior space however it is impossible to apply waterproofing due to the embedded timber.

Suggestion:

1. Completely remove the embedded timber off from concrete wall.

2. Roughen and etch the concrete surface around the opening after timber has been properly removed

3. Apply concrete repair mortar such SikaQuick-2500AU Repair mortar to seal up all penetration. Install steel anchor as per instruction where applicable.

4. Apply waterproofing to external face of upturn wall and apply render or other interior finish to the internal face.

1. The Duo invoice states that the invoice is in respect of "colour texture for external walls of house". In our view, "colour texture" should be understood as rendering. However, suggestion (or solution) number 4 includes mention about waterproofing of the external wall. Waterproofing and rendering are not the same processes.
2. We discussed this with the respondent, who said that the expert opinion "[a]pply waterproofing to external face of upturn wall and apply render or other interior finish to the internal face" should be understood as meaning "[a]pply waterproofing to external face of upturn wall and apply render" to the external wall.
3. We disagree. We consider that the meaning of the expert's fourth solution is to apply waterproofing to external face of the upturn wall, and to apply render or [an]other interior finish to the internal face. In our view, the conjunctive "and" suggests that the expert's solution was two fold, namely to apply waterproofing to external face of the upturn wall, and to apply render or [an]other interior finish to the internal face.
4. The Tribunal stated at [26] of the Primary Decision, in describing the alleged defects, that "the [respondent] elected to implement the fourth [suggestion of Seido], which was to waterproof and render the wall" (emphasis added). That was what the Tribunal said that the Seido Report stated. We disagree. We consider that the Tribunal misunderstood what the Seido Report stated.
5. But regardless of that, the Tribunal did not state in its "Finding and reasons" why the $9,680.00 paid to Duo, which the Tribunal ordered the appellant to reimburse to the respondent, related to defects in the work undertaken by the appellant, save for what the Tribunal stated at [59] of the Primary Decision.
6. In our view, the Tribunal's reasons are inadequate.
7. The relevant principles relating to adequacy of reasons of the Tribunal were stated by the Court of Appeal in NSW Land and Housing Corporation v Orr [2019] NSWCA 231, by Bell P (as the Chief Justice of NSW then was), with whom Ward JA (as the President of the Court of Appeal then was) agreed.
8. In Orr, the Court of Appeal stated at [71] that:

... there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the [Civil and Administrative Tribunal Act 2013 (NSW)] which ... requires there to be set out in reasons (when requested by a party):

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal's understanding of the applicable law, and

(c) the reasoning processes that lead the Tribunal to the conclusions it made.

(emphasis added)

1. Those principles have been followed and applied many times by the Appeal Panel, including most recently on 10 October 2025 in Tiglin Constructions Pty Ltd v Warhurst [2025] NSWCATAP 251 (Tiglin). In Tiglin, the Appeal Panel stated at [72] that the reasoning need not be unduly long or elaborate, but needs to be sufficient to explain why a decision was made.
2. As a majority of the Court of Appeal (Bell CJ and Kirk JA) stated in Della Bruna v Health Care Complaints Commission [2025] NSWCA 105 at [63]:

it was certainly a legal error by failure to give adequate, intelligible or logical reasons ... It was also a constructive failure to exercise jurisdiction insofar as it involved a failure to grapple with a substantial and clearly articulated aspect of the appellant's case ... That type of error can also be expressed in terms of procedural fairness (as raised by ground 5(b)): Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24].

1. In our view, a similar finding should be made in respect of the Primary Decision's finding with respect to Items 2, 3 and 4. The Primary Decision does not explain why Items 2, 3 and 4 fell within the scope of works agreed by the appellant and the respondent.
2. In summary, we consider that the appellant has raised a question of law, and that the appellant has established an error on a question of law. In this respect, see the recent decision of the Appeal Panel SD Portfolio Holdings Pty Ltd v Todd [2025] NSWCATAP 280.
3. It follows that the appeal must be allowed and the order of the Tribunal set aside.

1. The appellant also claimed that the respondent should pay him $1,843.75 in respect of "the Daily labour work" which he said was "outside of the contract".
2. We note that the Tribunal allowed "$3,250.00 owing on the contract", in circumstances where no cross-application had been filed by the appellant. Perhaps the amount was allowed by way of set-off, but if this was the case, this was not explained in the reasons for decision.
3. In any event, there is no basis for the Appeal Panel to order the respondent to pay the appellant the $1,843.75 as claimed.

1. Having determined that the order made as part of the Primary Decision should be set aside, the question arises whether the issues should be remitted to the Tribunal, or reconsidered by us.
2. As we have no transcript of the hearing, we do not consider that we can reconsider the matter. It will need to be reconsidered by the Tribunal differently constituted.
3. The amount involved in the appeal $10,115.00 is a modest one, given that the jurisdictional limit for orders for damages of the Tribunal in relation to residential building disputes is $500,000.00. We encourage the parties to resolve this matter consensually, bearing in mind that the outcome of a further hearing is unknown and each run the risk that they will be in a worse position than they are currently.

1. The appellant has been successful.
2. We have included in our orders a timetable for the filing of submissions on costs.
3. We propose to deal with costs on the papers and without a hearing: Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 at [85]. Any party opposing that approach must address that issue in their submissions.
4. Submissions must identify the relevant costs rule, and are to be limited to five pages.

(1) Mr Jiadong Su is removed as a respondent.

(2) The appeal is allowed.

(3) The order of the Consumer and Commercial Division of the Civil and Administrative Tribunal of 5 June 2025 in matter 2025/00040649 is set aside.

(4) The matter is remitted to the Consumer and Commercial Division of the Civil and Administrative Tribunal for redetermination by a differently constituted Tribunal.

(5) If the appellant seeks its costs of the appeal, it is to file and serve any submissions (and if necessary, evidence) as to costs on or before 21 November 2025, 14 days from publication.

(6) The respondent may respond on or before 5 December 2025, 28 days from publication.

(7) The appellant may reply on or before 12 December 2025, 35 days from publication.

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.

10 November 2025 - Amended references in cover sheet and paragraph 27.

13 November 2025 - Paragraph 74 amended from "sores position then" to "a worse position than"

13 November 2025 - Paragraph 74 amended from "then" to "than"