Mr Antonio Aceti ("the appellant") appeals from a decision of the Tribunal of 21 August 2014, the subject of a Notice of Order bearing date 22 August 2014, ordering that his application to the Tribunal for relief be dismissed ("the appealed decision"). For the reasons that follow we consider that the appeal should be allowed, the order under appeal set aside, and the matter remitted to be reconsidered in a new hearing by a member of the Consumer and Commercial Division of the Tribunal other than the member who made the appealed decision.
The appellant commenced proceedings in January 2014 in the Consumer and Commercial Division of the Tribunal against Burhan Pty Ltd t/as Garlick's Heating and Cooling (the first respondent) and Mitsubishi Heavy Industries Air-Conditioners Australia Pty Ltd (the second respondent). The first respondent had designed and installed an air conditioning system in Mr Aceti's residence, apparently in or about 2011. The appealed decision described the installation as including the fitting of ducting, ceiling diffusers, return air, controller and split system. The second respondent was the manufacturer of the air conditioning unit which formed part of the system. Mr Aceti's application was referenced to 30 or so pages of attachments, including a discursive 4 pages of "series of events re air conditioning"; essentially, Mr Aceti complained that while the system functioned adequately in summer it did not do so in winter.
The Notice of Order commenced with advice that on 21 August 2014 the Application was dismissed because:
"Having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof, the balance of probabilities) that the grounds required to make the orders sought have been established."
At the hearing of the appeal we understood Messrs Long (Solicitor, on behalf of the Appellant) and Burrow (agent, on behalf of the First Respondent) to advise that the decision was not announced to the parties before they received the Notice of Order.
The Notice of Order, after explaining the Application, stated:
"At the hearing on 21 August 2014 the applicant claimed the unit operated satisfactorily in summer when the cooling cycle was operated. His concern is that the heating cycle of the unit does not heat adequately.
The applicant claims that the unit when an outside temperature of 8 degrees Celsius is reached the unit shuts down and restarts about 10 minutes. He further claims that the desired temperature is not obtained.
The application has been before the Tribunal a number times and attempts have been made for the parties to resolve the matter but this has not been forthcoming.
On 3 July 2014 the matter was adjourned and an order was made for the applicant to provide an expert report 'on the air conditioning unit and its installation'. That report dated 10 July 2014 was provided to the Tribunal on 1 August 2014."
The Notice of Order went on to deal with the report ("the White report") commencing with this paragraph:
"The report was prepared by Phillip White the manager of Grosvenor Engineering Group. Mr White's qualifications or experience in the area of domestic air conditioning were not provided. The report acknowledges the claims of the applicant that the system will stop and restart for no reason and then restart later when the controller is set at 27 degrees Celsius. The system is capable of heating the residence once the ambient temperature is above 8 degrees Celsius. The power consumption for this unit is high and when cooling it will not shut off once it has reached the set point."
The Notice of Order then commented, at some length, on the White report and matters pertaining to it, including the following:
1. Data from the specifications manual in the capacity co-efficient chart indicated, the report stated, that the system at 0° Celsius ambient would have a reduction in the unit's nominal heating capacity of 25kw to 16.25w and also indicated other factors that restricted the nominal capacity of the unity from being realised such as refrigerant pipe sizes and lengths, supply air ducting size, supply air grille selection, location and installation, grate selection and locations, return ducting and return air grille; the report in effect did not adversely assess compliance with those factors except in respect of grate selections and locations where the report said "would like to see more in living area and entry/hall";
2. Other losses to the efficiency of the system were noted in the report: age of the building, ceiling height and timber flooring, large windows sparsely covered, gaps around the entry door and heat losses through the bathroom and living areas;
3. The report said that the system had four zones and stated that during extreme ambient conditions it should allow the system to 'maintain' conditions in a reduced area;
4. The report stated that if the whole house was to be heated and cooled at any one time a 40kw system would be required;
5. The report adversely commented in general terms on the design and layout of the existing duct work;
6. The report stated that the solution to the problem was to install a larger capacity unit, add extra supply and return air grilles and allow for extra air flow;
7. On 16 April 2014 Mr White (apparently at Mr Burrow's request) had forwarded an email to Mr Burrow reporting on the system; among other things Mr White stated in that email that on first impression the installation was well done, that 'it is a job that I would be glad to show off to anyone', and that there could possibly be an issue with the air supply which may not be enough to maintain a temperature in winter; Mr White then recommenced that vigorous air flow testing be carried out when the outside temperature was at its lowest; and
8. The second respondent in a letter to the Tribunal on 13 May 2014 commented that air flow could possibly be a problem in winter, that no ESP or air flow testing had been carried out, that they had not attended the site but that they were aware ceiling and diffuser blades had been removed and that such removal was against their advice because without these, air flow control could not be set.
A comment by Lawton LJ in R v Turner [1975] QB 834 at 840 was then cited:
"Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless."
The Notice of Order proceeded:
"It was after the materials from the respondents were lodged with the Tribunal that he was directed to provide an expert report. The order made on 3 July 2014 set out those matters the report was to address. These were the design, performance of all aspects of the system and give an estimate of the cost to make good if found faulty.
The report of Mr White does not set out his qualifications. It lacks the facts on which his opinions are based. It does not include any air flow or measurements or other measurements of the performance of the system when compared with the specifications as published by the second respondent that give rise to the conclusions he draws. The report does not adequately provide the facts on which the conclusions are drawn. Neither is it specific in the solutions it recommends.
In addition both Mr White and the respondents identify a certain amount of leakage from the premises such as the gaps around the doors, the adequacy of curtains and airflow into the roof space. These are areas the applicant could have addressed and would have had some impact on the heating of the premises."
The conclusion to the Notice of Order was then given thus:
"The applicant bears the burden of establishing his case. In consideration of the evidence before it the Tribunal is not able to determine the cause of any fault the system may have and is unable to determine any liability that may lie with the respondents.
For these reasons the Tribunal is not satisfied at the civil standard of proof, the balance of probabilities, that the grounds required to make the orders sought have been established and the application is dismissed."
We add some other details concerning the hearing:
1. The hearing took place at Tamworth and the Tribunal records indicate that the hearing lasted for about three quarters of an hour; it had been set down for a half hour hearing; Mr Aceti and Mr Burrow attended in person and an officer of the second respondent participated by telephone; and because of technical difficulties, there is no extant sound recording of the hearing;
2. At the appeal hearing, we understood Mr Long and Mr Burrow to indicate to us that at the hearing in Tamworth, the expertise of Mr White or other matters relating to the status of his report were not debated.
[2]
Appeal and Submissions
A Notice of Appeal bearing dated 22 September 2014 was filed with the Tribunal by Rural Law with Peter Long, Lawyers, of Gunnedah. The Notice of Appeal specified the grounds of appeal:
"1. The Applicant was not afforded procedural fairness.
2. In the alternative, it was common ground in the proceedings that the system was not working.
3. In the alternative, the reasons for the decision are inadequate."
It listed the orders which the Tribunal Appeal Panel should make:
"1. Order that the Second Respondent supply the Plaintiff with a replacement unit, being a Mitsubishi Heavy Industries non inverter 3 phase system, at its own cost 'the replacement system'.
2. Order that the First Respondent attend to installation of the replacement system in the Applicant's home at its own cost."
The Notice of Appeal also asked for leave to appeal and set out the reasons why the Appeal Panel should grant that leave:
"The Decision of the Tribunal on 21 August 2014 was not fair and equitable in the circumstances as the Applicant was not afforded procedural fairness - Hutchings v CTTT (2008) NSWSC 717 at [35].
Further, the Decision of the Tribunal was against the weight of evidence as insufficient consideration was given to submissions made by the parties at earlier hearings of the matter and the content of numerous letters sent by the parties to the Tribunal."
Submissions were attached to the grounds of appeal, the principal ones of which we summarise:
1. It was a common factor among the parties and noted by an interlocutory or directions Tribunal hearing on 17 April 2014 that "there is no further need for evidence from the applicant because it is common ground that the system is not working."
2. The White report was dealt with, and interpreted by, the Tribunal member in a way neither respondent argued for and at the hearing on 21 August 2014 the member did not ask the applicant to make any submissions as to the admissibility of the report nor indicate that he was concerned about its admissibility.
3. The reasons for the decision were inadequate in that they do not refer to evidence, other than the White report, which had been given to the Tribunal.
On 25 November 2014 Mr Burrow who is the managing director of the first respondent filed with the Registry a bundle of documents. Those documents included a two page summary of 20 November 2014, a report of 2 July 2014 detailing results of inspection on 7 May 2014, 30 June 2014 and 1 July 2014, and letters to the Tribunal dated 7 April 2014 and1 May 2014.
The letter of 7 April 2014 included the following comments:
"…After the install when Mr Aceti came back to Garlick's Heating & Cooling and said he was having trouble with the heating of his new air conditioner, we attended the site and we couldn't find anything wrong.
From then we moved onto the next process of elimination which is the gas level which we found to be fine, then the senses with all metered out ok. At that point we went to MHI technical support. The first thing they wanted us to do was removing all the gas and replace it which we did under their direction. At this point we were only doing as they asked. We collected data for them tech plates of PCB's and then were told to check the gas again which we did remove all and replace with new. We returned to site many times at the request of MHI (Peter & Vin) we were then told that they would get another company or person to take over from us."
Included in the letter of 1 May 2014 were these statements:
"…It is at very low temps that the unit has problems with the heating; the unit has no problem cooling at 40°C. If we need to increase the airflow when we are only heating half the house, we are only happy to do so.
…
We have tried to work with MHI but it has been very difficult as Mr Aceti will tell you they just don't get back to us until the point that MHI told us not to go near the unit and that they would get someone else to look after it. Even after that we still tried to get answers for Mr Aceti because there was still no contact from MHI…"
The report of 2 July 2014 commenced with this paragraph:
"On inspection and air results we can't fault the installation of the air conditioning system. All air flows and balancing are what they should be. Mr Aceti was to look how he is using the system and accept the operation limits of reverse cycle air conditioning systems."
The summary of 20 November 2014 included an opening comment:
"As per all submissions from Mr Aceti … the unit … works in summer but faults in winter."
The material referred to in the other documents is then canvassed and the summary has a concluding paragraph:
"The above summary demonstrates that the system design and installation completed by Garlick's Heating & Cooling was to standard and all components of the installation are fixed materials, the only adjustable items are air flow chambers; therefore the unit itself continues to be at issue and not the installation. The unit is a MHI responsibility."
The second respondent through Mr Wayne J. Boom, Solicitor, of Moruya, lodged a Reply to Appeal bearing date 2 December 2014. That Reply denied the grounds of appeal and added to the denial in respect of the second ground "but even if the system was not working that in itself is insufficient evidence to affect decision." Mr Long on behalf of the appellant wrote to the Registrar of the Tribunal on 23 January 2015:
"The Appellant and Second Respondent have come to an Agreement as to Settlement pursuant to which the Appellant discontinues his appeal against the Second Respondent only. I would ask you to note your file accordingly.
The contents of the Agreement as to Settlement are confidential between the Appellant and the Second Respondent.
This letter is to be sent to you by Wayne J Boom, after he, on behalf of the Second Respondent, has signed the foot of this letter."
At the appeal hearing, Mr Long informed the Panel members (in response to questions from them) to the effect that the settlement between the appellant and the second respondent did not include the imposition of any obligation on the second respondent to do anything to the system and the system remained in the same condition. The second respondent did not participate in the appeal hearing.
Mr Long, on 12 December 2014, lodged with the Tribunal a 6 page Appellant's Response to Replies, dealing with the material we have referred to above from the respondents. In respect of the material from the first respondent, principally, the Response put that, first, there were numerous admissions by the first respondent to the Tribunal to the effect that the unit was not working properly in winter; and that, accordingly:
"At the time that the supply and installation of the air conditioning unit was done by the First Respondent, Section 18B of the Home Building Act 1989 implied the following relevant warranties into the contract between the Appellant and the First Respondent:
(a) a warranty that the work will be performed in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract: 18B(a).
(b) a warranty that all materials supplied by the holder or person will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new: 18B(b).
(c) a warranty that the work and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the person for whom the work is done expressly makes known to the holder of the contractor licence or person required to hold a contractor licence, or another person with express or apparent authority to enter into or vary contractual arrangements on behalf of the holder or person, the particular purpose for which the work is required or the result that the owner desires the work to achieve, so as to show that the owner relies on the holder's or person's skill and judgment: 18B(d).
Each of the First Respondent's admissions would have supported a finding by the Tribunal Member that the First Respondent was in breach of the Statutory Warranties contained in Section 18B(a), (b) and (d). Despite this, the Tribunal Member referred to none of them and paid no heed to them."
The Response dealt with the White report: it noted that the first respondent had already relied upon the expertise of Mr White and did not object to his qualifications to provide such a report; it set out various opinions expressed by Mr White; and it concluded:
"Each of the opinions expressed in the White Report would have supported a finding by the Tribunal Member that the First Respondent was in breach of the Statutory Warranties contained in Section 18B(a), (b) and (d). Despite this, the Tribunal Member, although he referred to them, paid no heed to them. Rather, he criticised the White Report as it did not set out its author's qualifications or the facts on which his opinions were based or any measurements but did not go on to actually reject it."
The Response also (in dealing with the second respondent) noted that the White report contained an estimate of $25,000 as the cost to make the system good. The White report proposed as a solution to the applicant's complaints about the system would be the installation of a larger capacity unit to accommodate the extra air flow with the addition of extra supply and return air grilles and alterations to the supply and return ducting.
At the hearing of the appeal Mr Long appeared for the appellant and Mr Burrow participated by telephone on behalf of the first respondent. Each spoke to and relied on positions respectively put by them in the written material we have dealt with above.
During his submissions at the appeal hearing, Mr Long made reference, in support of his reliance on the Home Building Act, to the definition in s3 of "specialist work" to include "any work declared by the regulations to be … air-conditioning work"; the definitions in s48A of "building claim" to encompass a claim which "arises from the supply of building goods or services" and of "building goods or services" to include "goods or services for or in connection with the carrying out of … specialist work…"; and regulation 11(1) under the Act which specifies that (among other work) work is declared "to be air-conditioning work for the purposes of the definition of specialist work in section 3(1) of the Act", "any work required to install, maintain or service an air-conditioning system … in a building…" (regulation 11(2) excludes such work in premises other than a dwelling). He also asked that the Appeal Panel find that breaches of the Home Building Act by the first respondent had occurred and order that the first respondent pay to the appellant $25,000 being the amount referred in the White report.
Mr Burrow told the Appeal Panel in particular, that he had worked very closely with the appellant to investigate the problems of which the appellant complained. He said that he had repeatedly tried to get the second respondent to respond to the appellant's complaints, but that the second respondent refused to get involved. Mr Burrow explained that he and his company were the only ones who had taken undertaken any tests and tried to obtain data to identify the cause of the problem. He submitted that the installation of the air conditioning system was acceptable and appropriate but it was Mitsubishi's air conditioning unit that was the problem. He said that he had the results to show that his installation works. He acknowledged that the air conditioner stops from time to time when the temperature drops, and that he does not know why. He said that what he does know is that his installation works. He also told the Appeal Panel that he had been asked to step aside by the second respondent.
[3]
Questions of Law, Leave to Appeal and Consideration
The Civil and Administrative Tribunal Act 2013 ("the Act") Act sets out the basis upon which internal appeals from decisions of the Tribunal may be made. Under s80 an appeal may be made as of right on any question of law (s80(2)(b)), or with leave of the Appeal Panel on any other grounds (s80(2)(b)). As we have noted above in the Appeal and Submissions section of this decision, the appellant seeks to appeal against the appealed decision and also seeks leave to appeal against it. We have also set out there the grounds of appeal and the grounds on which the appellant says the Appeal Panel should grant leave to appeal, as detailed in the Notice of Appeal.
While in the Notice of Appeal the appellant does not explicitly identify any of the grounds of appeal as constituting a question of law, the first ground (alleging denial of procedural fairness) and the third ground (alleging inadequacy of reasons) do involve questions of law. That an allegation of denial of natural justice involves a question of law is confirmed in Prendergast v Western Murray Irrigation Ltd [2014] NSWCTAP 69 at [13] sub-paragraph (4) and the authorities there cited and Stewart v Yarrawarra Aboriginal Corporation [2015] NSWCTAP 4 at pages 11 and 20-22 and the authorities cited there. It is also clear from the Prendergast decision at [13] in sub-paragraph (1) and the Stewart decision at pages 11 and 22-23, and the authorities which those decisions respectively cite in those places, that an allegation of inadequacy of reasons in a decision involves a question of law. We will deal first with the adequacy or otherwise of the reasons in the appealed decision.
In addition to general law obligations concerning the giving of reasons for decisions, s62 of the Act provides that:
(1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings.
(2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.
(3) A written statement of reasons for the purposes of this section must set out the following:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal's understanding of the applicable law,
(c) the reasoning processes that lead the Tribunal to the conclusions it made.
The adequacy of reasons in the Tribunal decisions at first instance was considered in Collins v Urban [2014] NSWCATAP 17 at [43] to [64]. We note in particular what was said at [49]:
"One reason why reasons are generally required, notwithstanding a provision such as s62, is that if reasons for decision are neither sought nor prepared and an appeal or application for leave to appeal is lodged, the findings of fact and legal reasoning of the decision maker at first instance would not be available to the appellate body by way of written reasons. In many instances not having findings of fact and legal reasoning explicitly available may render effectively worthless any appeal right because the appellate body does not have a statement of the findings of fact, the relevant law and explanation of how the law was applied to the facts as found, by the decision maker at first instance."
And at [53]):
"The other basis upon which it has been held that reasons are generally required to be given was recently reiterated by the Court of Appeal in Keith v Gal [2013] NSWCA 339 (per Gleeson JA at [109] as being that failure to provide sufficient reasons promotes 'a sense of grievance' and denies 'both the fact and the appearance of justice having been done', thus working a miscarriage of justice, citing Mifsud v Campbell (1991) 21 NSWLR 725 at 729: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA…"
We also note in [57] guidance as to some aspects to be considered concerning the adequacy of reasons:
the content and detail of the reasons for decisions to be provided will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision;
the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance;
not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality;
There is perhaps within [57] of the Collins decision a suggestion of a cautious and not overly critical approach to the review on appeal of the adequacy of reasons in a decision under appeal. Such an approach could be seen to be particularly apposite in the context of provisions in the Act concerning practice and procedure in this Tribunal, notable among which are:
S36(1) The "guiding principle" for this Act and the procedural rules in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
S36(4) In addition, the practice of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.
S38(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
S38(4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
Such a cautious and not overly critical approach would also be consistent with the need to acknowledge the first instance work load in this Tribunal, particularly in the Consumer and Commercial Division, where the daily lists are regularly long, the available hearing times can be limited, and often the parties do not have legal assistance.
In Beale v GIO of NSW (1997) 48 NSWLR 430 at 443 Meagher JA spoke of three fundamental elements of a statement of reasons: first, there should be reference to relevant evidence; secondly, there should be set out any material findings of fact and any conclusions or ultimate findings of fact reached; and thirdly, there should be provided reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Treatment of those three fundamental elements should generally be, in our opinion, apparent within a decision of this Tribunal.
Unfortunately, and even with a cautious and not overly critical approach, we see the reasons given in this case as significantly inadequate. Essentially, they consist of only an appraisal, and expression of dissatisfaction with, the White report. They do not deal with other relevant evidence; particularly, in our opinion, they should have made some reference to the acknowledgement by the respondents to the effect that the system was not working adequately in cold weather; and also there should have been some assessment (not necessarily lengthy) of the considerable documentation lodged with the Tribunal by the parties and any relevant assistance there might be within that documentation. They do not deal with, to use the language of s62(3)(a) "the findings on material questions of fact", which in this case included facts which might give rise to liability in the first respondent under the Home Building Act as contended for in this appeal. Beyond what they say concerning the White report, they do not include any attempt to give reasons for relevant findings of fact or for the application of the law to facts found.
[4]
Orders
For the above reasons, the Appeal Panel makes the following orders:
1. The appeal is allowed.
2. The order under appeal that the application be dismissed, is set aside.
3. The matter is remitted to the Consumer and Commercial Division of the Tribunal to be reconsidered in a new hearing constituted by a member other than the member who made the order under appeal.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 30 March 2015
As to the claim on behalf of the appellant under the Home Building Act, we do note that the application form which the appellant lodged with the Tribunal to commence the subject proceedings made no reference to the Home Building Act nor to any possible legal basis for his claim. Nevertheless, there were numerous pointers to the Home Building Act: the important jurisdiction given to the Tribunal under Part 3A of the Home Building Act in respect of building claims; ascription by the Tribunal registry to the proceedings of a number with the prefix "HB" indicating that it was in the Home Building list; the inclusion in the attachment to the application of communications between the appellant and the Department of Fair Trading, which documents might be suggestive of a building dispute as referred to in Part 3A of the Home Building Act; and the publication on the first respondent's letterhead of its licence number.
In the Prendergast decision the Appeal Panel was dealing with an appellant who was not legally represented. That decision said at [12]:
"In circumstances where the appellants are not legally represented it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent."
In our opinion, at first instance, the Tribunal has a similar obligation to look at the complaints of an unrepresented applicant generally and endeavour to determine whether any legal basis, within the Tribunal's jurisdiction, for the application, has been raised. The extent of that obligation in any particular case will depend on the circumstances. In our opinion in the case now before us, however, the Tribunal should have raised the Home Building Act situation at the hearing and in its decision even if it had not been specifically mentioned by any party.
We see the insufficiency of the reasons here as being of such an order as to constitute also a denial of procedural fairness. They did not really address the issue or issues about which the appellant was complaining to the Tribunal. Particularly when coupled with an apparent failure of the Tribunal to refer at the hearing to what were about to be its criticisms and effective rejection of the White report, they constitute a failure to afford an adequate hearing to the appellant.
Thus, we are of the opinion that the appeal succeeds on questions of law. The issue of leave to appeal thus does not arise. We note, however, the guidance given in the Collins decision at [65] to [84] on the considerations involved in a leave to appeal situation; in our opinion the appellant may have suffered a substantial miscarriage of justice, and this appeal would have otherwise warranted leave to appeal, on account of the matters we have dealt with above.
As we have recorded above, at the appeal hearing Mr Long did ask that we find that breaches of the Home Building Act by the first respondent had occurred and order that the first respondent pay to the appellant $25,000 being the amount referred to in the White report. Apart from other considerations, it seems to us that a dissection of any necessary rectification work into components with individual pricings may be necessary for a proper evaluation to be made of any need for, and the cost of, each component. Those issues, being the claim by the appellant under the Home Building Act and the quantum of any loss he may have suffered are, together with all other issues, appropriate to be considered and decided on at a rehearing. We make it clear that at the rehearing we should not be taken to have expressed any binding view on any of them.