respondent. Leave to appeal was refused and the appeal was dismissed.
Key principles
The Appeal Panel found no error of law in the Tribunal's decision to award the Builder compensation on a quantum meruit basis for variations that did not strictly comply with the...
The Tribunal's factual findings about the value and performance of the variations were reasonably open on the evidence. In particular, the contemporaneous Submitted Variations...
The appellant did not establish the substantial miscarriage of justice required for leave under cl 12(1) of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW): the...
Even if the statutory leave criteria had been met, the Appeal Panel would not have exercised its discretion to grant leave because no significant question of principle, public...
Issues before the court
Whether the Tribunal made an error of law by allowing variation claims despite their non-compliance with the Building Contract and statutory...
Whether the Tribunal failed to give adequate reasons or ignored the Home Owner's evidence and submissions.
Plain English Summary
The Appeal Panel did not retry the building dispute. It checked whether the Tribunal made a legal error or whether the evidence and fairness grounds justified permission to appeal. It concluded that the Tribunal had considered the relevant documents and evidence, and that its assessment of the variation claims was reasonably open. The Home Owner therefore did not establish a basis for leave, and the appeal was dismissed.
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Deep Dive
2,275 words · generated 28/09/2026
What happened
Akbarian v Stibilj [2020] NSWCATAP 1 is an internal appeal from a decision of the NSW Civil and Administrative Tribunal's Consumer and Commercial Division. The Appeal Panel, comprising Senior Members D Charles and A Boxall, heard the appeal on 27 November 2019 and delivered its decision on 8 January 2020. Its orders were that leave to appeal was refused and the appeal dismissed.
Whether the factual findings about Submitted Variations, Other Variations and the architect's reconciliation document warranted leave to appeal.
Whether suspension of work or the Home Owner's cross-application required appellate intervention.
Cited legislation
3 cited instruments linked from this judgment.
The dispute arose from a residential building contract signed on 27 August 2014. The contract price was $152,659.86 including GST. The work involved alterations and additions to an existing residence in Lindfield. The Home Owner's architect, Ian Neill, was also project manager and Contract Superintendent.
The plans changed after the contract was signed. Revised engineering plans dated 25 September 2014 included excavation below a deck and construction of a room there, as well as changes to columns and structural requirements. The Home Owner also applied to amend the development consent to accommodate the room. Work began on 27 August 2014, but the Builder suspended it in about January 2015 after disputes arose over payment, including payment for variations.
At first instance, the Builder initially claimed about $85,000 for variations, later reducing the claim to about $70,000. The claim included variations submitted to the architect and other variations. The Builder accepted that the claims did not strictly comply with the contractual variation provisions or the relevant statutory requirements, and advanced them on a quantum meruit basis. The Tribunal awarded $34,757.77.
The Home Owner challenged that decision. His appeal questioned the use of the variation records, the assessment of invoices, the Builder's credibility, the effect of the suspension of work, and the dismissal of the Home Owner's cross-application. The Appeal Panel found no error of law and no ground for leave.
Why the court decided this way
The Appeal Panel separated questions of law from disagreements about factual findings. Under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW), an internal appeal may be brought as of right on a question of law, but otherwise requires leave. For decisions of the Consumer and Commercial Division, cl 12(1) of Sch 4 limits leave to cases where the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, was against the weight of evidence, or significant new evidence has arisen.
The Panel referred to Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] for examples of questions of law, including applying the wrong legal principle, failing to consider a mandatory matter, making a finding without evidence, or reaching a decision so unreasonable that no reasonable decision-maker would make it. The Panel's central conclusion was: “We are unable to discern any error of law.” The material repeatedly expressed disagreement with the Tribunal's view of the evidence, but did not show a legal error.
On the variation claims, the Panel accepted that the Tribunal understood the contractual context. The first-instance Tribunal had identified the signed contract, plans and specifications, and the amended engineering plans. It also recognised the effect of the proposed room beneath the dwelling. The Appeal Panel considered that the Tribunal had not overlooked the non-compliance issue: the Builder's claim was advanced on the basis that the formal variation requirements had not been strictly followed.
The Panel accepted the Tribunal's use of a quantum meruit analysis, referring to Ingate v Andrews [2018] NSWCATAP 99 at [423]-[424]. It also accepted that the Tribunal could rely on evidence that the architect and Contract Superintendent had authorised work and that the submitted variation documents recorded that work. The Panel did not treat the appeal as an opportunity to substitute its own assessment of each variation merely because the Home Owner disputed the findings.
A central evidentiary issue concerned the contemporaneous Submitted Variations. The Home Owner argued that a later document from the architect, dated 30 January 2015, gave a lower final reconciliation figure of $23,651. The Panel noted that the Tribunal had considered this document but found it indecipherable and gave it little weight. The architect had not been called as a witness, so the document's nature and purpose could not be tested through his evidence. The Appeal Panel held that it was reasonably open to prefer Variation 9A, which was clearly documented and recorded $29,043.98.
The Panel also rejected the contention that the Tribunal had implicitly approved Progress Payment No. 3. It stated that the Tribunal had made no such finding. Rather, it had relied on Variation 9A as the most reliable record of authorised variations and the work done.
For Other Variations, the Panel considered the Tribunal's treatment of particular invoices. It accepted that the Tribunal had distinguished between invoices that were adequately linked to the property and those that were not. For example, it noted the Tribunal only allowed amounts on the New Line Building Supplies invoice that were signed by the Builder and expressly referred to the property. The Hardware General invoice was a cash sale and did not name the property, but its date, materials and the Builder's evidence connected it with the work. The Tribunal's assessment of labour invoices was also supported by the Builder's diary and the evidence of Mr Waymouth, whom the Tribunal regarded as frank and honest. The Tribunal discounted the labour claim by 20% to account for imperfections and differences between diary entries and invoices. The Appeal Panel concluded that these were factual evaluations reasonably open to the Tribunal.
The complaint that the Builder should receive nothing because he suspended work was also rejected. The Appeal Panel noted the first-instance Tribunal's finding that the Builder could suspend work pending payment for work authorised by the Home Owner's architect and project manager. The Home Owner's cross-application was likewise considered at first instance and found not made out on the evidence.
Finally, the Panel applied the leave threshold. Collins v Urban [2014] NSWCATAP 17 at [76] describes the relevant possibility as a “significant possibility” or a chance fairly open that a different, more favourable result would have been achieved. The Panel found no such possibility. It also said that, even if the statutory criteria had been satisfied, it would not have granted leave because the appeal raised no important principle or public policy question, no clear injustice or plain error, and no unusual fact-finding process.
Before and after state of the law
The judgment does not purport to change the law governing building variations or quantum meruit claims. Its significance is principally in applying existing appeal and leave principles to a residential building dispute. The Panel relied on the appeal framework in s 80(2) and cl 12(1) of Sch 4 of the NCAT Act, and cited existing NCAT Appeal Panel decisions on the meaning of substantial miscarriage and the discretionary character of leave.
Before this decision, the cited authorities already set out that an appeal as of right is confined to questions of law, while factual challenges generally require leave. The decision applies those principles to an appeal where the appellant's submissions largely disputed the Tribunal's assessment of documents, credibility and factual inferences. It reinforces that a disagreement with a factual conclusion, without an identified appealable error or a qualifying miscarriage, will not itself establish a basis for leave.
On reasons, the Panel applied the proposition from Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2]: a decision-maker need not refer to every item of evidence, but central controversies must be dealt with and relevant competing evidence analysed. The Appeal Panel found that the Tribunal had done so in this case. The decision therefore illustrates application of that standard, rather than establishing a new one.
After the decision, the immediate order was that the first-instance award remained undisturbed because leave was refused and the appeal dismissed. The supplied judgment contains no information about how later courts or tribunals treated Akbarian v Stibilj. It is therefore not possible, on this source alone, to describe any subsequent precedential treatment.
Key passages with plain-English translation
The Appeal Panel said: “We are unable to discern any error of law.” In plain English, it found no legal mistake that would permit an appeal as of right. This did not mean that every factual finding was beyond disagreement. Rather, the Panel considered that disagreement over the evidence did not show that the Tribunal applied the wrong legal test or failed to perform its task.
The Panel also found that the Tribunal's Reasons were “detailed and thorough” and addressed the substantial arguments made by the Home Owner. This reflects the distinction drawn from Mitchell v Cullingral Pty Ltd: reasons do not have to catalogue every item of evidence, but they must engage with the important contested issues.
On the architect's later reconciliation document, the Panel explained that it had been considered at first instance but was indecipherable, and the architect was not called to explain it. In practical terms, the existence of a later document did not compel the Tribunal to accept it. The Tribunal could assess its clarity, context and evidentiary support against the contemporaneous variation records.
For the Other Variations, the Panel emphasised the evidence relating each invoice to the property. The reasoning was not that all invoices were automatically accepted. The Tribunal had rejected or limited claims where support was lacking, and accepted some where the documents and testimony provided a sufficient connection. That invoice-by-invoice approach was part of why the Appeal Panel found the assessment reasonably open.
The Panel's leave conclusion was that the findings were not against the weight of evidence, were not unfair and inequitable, and were not accompanied by significant new evidence. Put plainly, the appellant had not shown the kind of serious potential injustice required for permission to pursue the factual appeal.
What fact patterns trigger this precedent
This decision is most relevant to internal NCAT appeals in which a party seeks to challenge factual findings about building work, payment records, variations or witness credibility. It is especially pertinent where the appellant's core complaint is that the Tribunal preferred one set of documents or one witness over another, rather than that it applied an incorrect legal rule.
The reasoning may be relevant where variation work was not documented in strict compliance with contract or statutory requirements, but a party advances a claim for reasonable compensation on a quantum meruit basis. The case does not establish that every non-compliant variation claim can succeed. Its reasoning depended on the particular evidence of authorisation, contemporaneous variation documents, invoices, diary records and the Tribunal's findings.
It may also be useful where an appellant argues that reasons are inadequate because they omit reference to particular evidence or submissions. The judgment indicates that the question is whether central controversies were dealt with, not whether every piece of material received express mention.
The decision is less directly useful where there is a demonstrated legal error, a clear failure to address a central issue, compelling new evidence that was not reasonably available at first instance, or a factual process that was plainly unfair. The Appeal Panel's conclusion was tied to its assessment that those features were absent on the record before it.
How later courts have treated it
The supplied judgment does not cite any decisions that post-date Akbarian v Stibilj and provides no account of later treatment. No conclusion about whether later courts or tribunals followed, distinguished or criticised it can therefore be drawn from this text.
The judgment itself relied on earlier authorities. It applied Collins v Urban [2014] NSWCATAP 17 to the substantial-miscarriage threshold and referred to Pholi v Wearne [2014] NSWCATAP 78 on the separate discretion to grant leave. It cited Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 for examples of questions of law, and Cominos v Di Rico [2016] NSWCATAP 5 when considering how to approach appeal grounds prepared by non-lawyers. The quantum meruit analysis referred to Ingate v Andrews [2018] NSWCATAP 99. The reasons discussion applied Mitchell v Cullingral Pty Ltd [2012] NSWCA 389.
These citations show the Panel placing the case within existing appeal and evidentiary principles. They do not establish how the decision was subsequently treated.
Still-open questions
The decision is fact-specific. It does not set out a comprehensive test for every quantum meruit claim arising from residential building work, nor does it determine that all contractual or statutory non-compliance can be overcome by a restitutionary claim. The Panel accepted the Tribunal's analysis in the circumstances before it, where the work was found to have been authorised and evidence supported the amount awarded.
The judgment also does not resolve what evidentiary weight a later reconciliation document should generally receive. In this dispute, the particular document was found indecipherable and its author was not called. A clearer document, supported by explanatory evidence, could present a different evidentiary question, but the judgment does not decide that hypothetical.
The Panel's decision does not define the outer limits of an adequate statement of reasons. It applied the central-controversy approach to detailed reasons that it considered sufficient. How that principle applies to materially shorter or more ambiguous reasons is not addressed here.
Finally, the judgment does not decide how an appeal would be resolved if the Tribunal had ignored a central item of evidence, made findings unsupported by evidence, or failed to consider a mandatory legal requirement. It identifies those as potentially relevant categories of error through the cited authorities, but found that they were not present on this record.
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Catchwords
HB 17/43422
Judgment (12 paragraphs)
[1]
Introduction
This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 NSW (NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 23 September 2019.
The application to the Tribunal was brought by Arash Akbarian (Home Owner), against Vinko Stibilj trading as Stibilj Constructions (Builder).
For the reasons set out below, we have decided to refuse leave to appeal and otherwise dismiss the appeal.
[2]
Background
On 27 August 2014, the parties signed a written contract for residential building work, in the nature of alterations and additions, to an existing residence (Building Contract), at the Home Owner's property at Lindfield NSW (Property). The contract price was $152,659.86 including GST.
Mr Ian Neill (Mr Neill) was the Home Owner's architect and project manager. Mr Neill was also the Contract Superintendent.
The Building Contract was preceded by various quotations culminating in a final quotation dated 14 August 2014. There were also signed architectural plans of March 2014, signed specifications of 2014, and engineering plans of 9 July 2014.
The engineering plans were revised on 25 September 2014. The key changes were:
1. Excavation of a space below the deck;
2. Construction of a room below the deck with a concrete floor and concrete blockwork walls;
3. The elimination of concrete columns originally specified to support future decks on the Ground and First Floors above;
4. Additional structural requirements of the footings and Lower Ground Floor concrete terrace due to the excavation and to provide support for increased load bearing requirements of the concrete decks on the Ground and First floors.
In or about December 2014, the Home Owner signed an application to amend the development consent for the alterations and additions to his residence, to reflect the fact that he wanted to build a room under the dwelling. The application to amend the development consent included a letter from the Home Owner's architect and engineer. Such application to amend the development consent bears a date stamp 3 April 2015 affixed by Ku-ring-gai Council.
The Builder commenced construction works at the Property on 27 August 2014, and thereafter, the Home Owner made progress payments to the Builder in accordance with progress certificates 1 to 4 issued by Mr Neill.
In or about January 2015, the Builder suspended work at the Property as disputes had arisen with the Home Owner about payments for work including variations.
[3]
Tribunal proceedings and decision
The initial proceeding before the Tribunal at first instance was the Builder's claim in File No HB 17/37302. In that proceeding, the Tribunal found (Reasons [63] - [68]) that the application was lodged on 22 August 2017 and therefore within the time required by the Home Building Act 1989 (NSW) (HB Act) in s 48K(8).
The Builder initially put his claim for variations as about $85,000, but at the conclusion of the evidence, in oral submissions, the Builder reduced his claim for variations to approximately $70,000.00 comprising: about $45,000.00 to $47,000.00 for variations which had been submitted to the architect Mr Neill (Submitted Variations) and other variations totalling about $23,000.00 (Other Variations). The Submitted Variations and the Other Variations did not strictly conform to the requirements of the Building Contract, or the HB Act, so the Builder's claims were put on a quantum meruit basis.
In October 2017, the Home Owner lodged a cross application (File No HB 17/43422) disputing the matters claimed in the Builder's application and seeking damages for additional engineering work that the Home Owner submitted was required. By leave, the Home Owner's application was later amended to include a claim for defective work but such claim was not pressed at the end of the hearing (i.e. it was withdrawn).
The Tribunal found that so long as the Builder was able to establish the fair and reasonable compensation for labour and materials, he should be entitled to the variation claims sought as it would be unfair for the Home Owner to have the benefit from such variations without having to pay for them. (Reasons, [78]). After weighing all of the available evidence in respect of the claims for the Submitted Variations and the Other Variations, the Tribunal found that the Builder was entitled to $34,757.77 and ordered the payment of that amount in the Builder's application.
Noting that the part of the Home Owner's case which related to defective work had been withdrawn, the Tribunal otherwise dismissed the Home Owner's application insofar as it related to formwork, due to a lack of evidence: Reasons [143] - [148].
[4]
Scope and nature of internal appeals
Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: NCAT Act, s 80(2).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law:
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 (i.e., mandatory) considerations;
6. Whether the Tribunal took into account an irrelevant consideration;
7. Whether there was no evidence to support a finding of fact; and
8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:
1. the decision of the Tribunal under appeal was not fair and equitable; or
2. the decision of the Tribunal under appeal was against the weight of evidence; or
3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:
… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b): Pholi v Wearne [2014] NSWCATAP 78 at [31].
[5]
Submissions and evidence
In deciding the appeal, we have had regard to the following:
The Notice of Appeal lodged on 30 September 2019;
The Reply to Appeal lodged on 10 October 2019;
The Appellant's written submissions, attached to the Notice of Appeal, and under the headings: 'Summary', 'Grounds of Appeal - Further Details' and 'Grounds for Staying Decision';
Further written submissions of the appellant dated 5 November 2019 (13 pages, without annexures);
Folders (3) of documents (Folders 2, 3 and 4) containing the Home Owner's application in File No HB 17/43422, the Builder's application in File No HB 17/37302, the witness statements of the Home Owner, the Builder, the Home Owner's father, Mohsen Akbarian (Mr Akbarian) and the Builder's labourer, Geoff Waymouth (Mr Waymouth), the written submissions of both parties in the proceedings at first instance, and the appellant's transcript of the hearing of both applications on 6 July 2018, 3 and 4 December 2018, and 13 and 14 May 2019;
The Respondent's written submissions, comprising two attachments to the Reply to Appeal, under the headings 'Reply to Appeal' and 'Opposition to Stay Application';
The Reasons for Decision dated 23 September 2019 (Reasons);
The Directions made by the Appeal Panel at the callover of the Appeal on 15 October 2019;
The oral submissions made at the appeal hearing by Mr Mohsen Akbarian on behalf of his son, the Home Owner, and by Mr Michael Stibilj on behalf of his father.
[6]
Notice of Appeal
As indicated, the Notice of Appeal was lodged on 30 September 2019, which is within the 28 day time period specified in cl 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW).
The appellant's stay application was dealt with at the callover on 15 October 2019. The stay application was dismissed as the Builder indicated that he would not seek to enforce the order for payment of the $34,757.77 until after the appeal is finalised.
[7]
The "Grounds" of Appeal of the Home Owner
Without intending any criticism of Mr Akbarian, who represented his son at the hearing of the appeal, we observe that the various paragraphs under the headings 'Summary', 'Grounds of Appeal' and 'Grounds for Staying Decision', and also in the further written submissions dated 5 November 2019, are really not statements as to grounds of appeal; rather, they are a commentary on particular parts or aspects of the Tribunal's decision of 23 September 2019 as set out in the Senior Member's Reasons. Often it is the case that the Home Owner's representative (his father) does no more than make a statement as to his disagreement with the Tribunal's findings, without any, or any proper, analysis as to whether the disagreement relates to some error in principle by the Tribunal, instead of a bare contest on the part of the Home Owner as to the Tribunal's ultimate finding.
Strictly speaking, this is not a case where the parties were self-represented; because the parties chose for a family member to represent each of them at the appeal hearing and also to assist them in the preparation for the appeal including drawing the Notice of Appeal, the Reply to Appeal and the written submissions in their respective cases. However, neither of the Home Owner's father and the Builder's son are Australian legal practitioners; so in those circumstances, we are mindful of what was said in Cominos v Di Rico [2016] NSWCATAP 5 at [13]:
13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
[8]
Reply to Appeal
The Builder filed a Reply to Appeal on 10 October 2019.
The Builder also provided written submissions which were supplemented by oral submissions at the appeal hearing. The Builder's Reply and submissions opposed the Home Owner's appeal on all grounds.
In essence, the Builder relied upon the reasoning of the Senior Member of the Tribunal who heard the proceedings at first instance. The Builder argued that the Senior Member's Decision should stand, that there are no questions of law, that there are no grounds for leave to appeal, and that the appeal must be dismissed.
[9]
Was there an error of law in the Tribunal's decision?
We are unable to discern any error of law.
We have considered carefully all of the Home Owner's written material for this appeal. That material included Mr Akbarian's references to the transcript of the five day hearing at first instance, and to the witness statements and submissions put before the Senior Member at first instance. To the extent such written material, supplemented by Mr Akbarian's oral submissions at the appeal hearing, raise grounds of appeal bearing upon a question of law (in respect of which leave is not required), or bearing upon the Tribunal's findings of fact (which do require leave), it is not incumbent upon us to make determinations on every argument or every submission advanced on a ground, particularly where the arguments advanced are numerous and of varying significance. In the circumstances, we have not done so: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443.
While the Home Owner's submissions did not identify which provisions of the Building Contract were "totally ignored" by the Tribunal, we understood this submission as an assertion that the Tribunal's legal analysis of the Builder's variation claims was flawed because the Tribunal's decision to allow claims totalling $34,757.77 did not take into account the fact that the variations did not conform with the requirements of the Building Contract, or with the requirements (as to form and writing) of the HB Act in s 6(1)(b) and s 7.
We do not accept that submission. The Tribunal accepted (Reasons [3] - [8]) that the parties' contract was contained in and evidenced by the Building Contract signed by the parties on or about 27 August 2014, the signed architectural plans of March 2014 and the signed specifications of 2014 and the engineering plans of 9 July 2014, revised on or about 25 September 2014.
The Tribunal further noted (Reasons, [9] and [10]) that along with the amended engineering plans, the Home Owner had applied to the local council to amend the development consent to include construction works (requiring excavation) for a new room under the dwelling, and that this circumstance had impacted on the work to be performed by the Builder under the parties' contract.
It was against such factual background that the Tribunal placed reliance upon the Submitted Variations in finding for the Builder whose claim for variations (i.e. on a quantum meruit basis) had always recognised the variations did not strictly comply with provisions in the Building Contract as to variations and as to the HB Act. Having noted (Reasons, [32]) that the Home Owner's architect and Contract Superintendent, Mr Neill, was not called as a witness, the Tribunal then found (Reasons, [81] and [82]) that the Submitted Variations were, in substance, authorisations by Mr Neill for contractual works to be performed at the Property and that they had been documented as such "variations" in Mr Neill's business records. We are satisfied that the Tribunal correctly analysed (Reasons, [91]) the legal basis for recovery of a restitutionary claim on a quantum meruit basis: see, for example, the statement of principles in Ingate v Andrews [2018] NSWCATAP 99 at [423] - [424]. We are also satisfied that the Tribunal made a fair and reasonable finding as regards the variation claims on the evidence before it and for the purposes of considering the claim on a quantum meruit basis.
[10]
Should the Appeal Panel grant leave to appeal?
Apart from errors of law (for which leave to appeal is not required) Mr Akbarian argued in the Home Owner's case that leave to appeal should be granted in respect of the specific matters (as referred to earlier) where it was submitted that the Tribunal's determinations in the Builder's favour were against the weight of the evidence or further and alternatively, that the Tribunal's Decision was not fair and equitable.
The argument that the Tribunal should have relied upon the architect's document dated 30 January 2015 (Attachments 13 and 14 of R2) cannot succeed. In fact, the Tribunal did consider the document: Reasons at [98]. It found that the document should be given little weight on the grounds that it was indecipherable. As the architect was not called as a witness he could not be questioned about the nature and purpose of the document. In the absence of any oral evidence from its author, it was reasonably open to the Tribunal to prefer the Submitted Variations on Mr Neill's letterhead which clearly detailed the work performed. The last of the Submitted Variations was Variation 9A recording an amount owing to the Builder of $29,043.98. We see no error in the Tribunal's approach.
The Home Owner's submission that the Tribunal was wrong "by implication" to approve Progress Payment #3 of 14 December 2014 for the amount of $62,320.00, has no evidentiary foundation. The Tribunal made no such finding. As indicated, it relied on the Submitted Variations (specifically, Variation 9A) as the most reliable record of the cost of the authorised variations and the work performed pursuant to those variations. Again, we see no error or unfairness in the Tribunal's approach to the documentary evidence before it.
The Home Owner's submissions in respect of the Other Variations, taken at their highest, are that the Tribunal erred in fact by finding the Other Variations claimed by the Builder (i.e. the total awarded by the Tribunal was $5,713.79) were valid. Mr Akbarian on behalf on the Home Owner argued that each of the invoice claims are "misleading" and should be "thrown out" because they either do not relate to the Property or were paid for by the Home Owner.
We are satisfied that the Tribunal dealt with each of the invoices in the Other Variations' claim, carefully. In our opinion, the Tribunal's findings, including findings that it did not accept some invoices, were reasonably open to it, and further, that such findings were soundly based upon probative documentary evidence as well as the Tribunal's other findings as to the credibility of the Builder, and Mr Waymouth, in the Builder's case, and of Mr Akbarian and the Home Owner, in the Home Owner's case.
[11]
Conclusion and Orders
In conclusion, we are of the opinion that the grounds of appeal and the other submissions made by the Home Owner do not identify any error of law.
Nor are there any other grounds identified which would permit us to grant leave under cl 12 of Sch 4 of the NCAT Act, or for us to exercise the Appeal Panel's discretion in the appellant's favour.
In the circumstances, the appeal must be dismissed.
The Appeal Panel make the following orders:
1. Leave to appeal is refused.
2. The appeal is dismissed.
[12]
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: 08 January 2020
Leave to appeal was refused and the appeal was dismissed.
In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
To the extent any appeal grounds raising questions of law were discernible, we note that Mr Akbarian, on behalf of the Builder, argued that the Tribunal at first instance did not pay any attention to the Home Owner's evidence and to the Home Owner's extensive submissions (written and oral). Specifically, Mr Akbarian submitted that the Tribunal: "in effect, totally ignored the sworn statements of the Home Owner's witnesses and any evidence provided by the Home Owner in support of its claim has not been mentioned in the reasons provided by the Tribunal"; that the Tribunal's Reasons included mistakes (said to be material and going beyond an accidental slip or omission), which affected the Tribunal's proper reasoning process, and that the Tribunal "totally ignored" the provisions of the Building Contract signed by the parties on 27 August 2014 in respect of claims for variations.
Further, in our view, the attachments to the Home Owner's Notice of Appeal, as supplemented by the Home Owner's submissions dated 5 November 2019, and Mr Akbarian's oral submissions at the appeal hearing, raised the following other matters of significance in the appellant's case:
1. The Home Owner challenged the Tribunal's finding that the Invoice titled 9A being a variation claim in the amount of $29,043.98 contained the most reliable evidence of what was ultimately owed to the Builder. The Tribunal's relevant finding is at [95] - [96] of the Reasons. The Home Owner submitted that this finding was not fair or equitable or was against the weight of the evidence because the Tribunal should have relied upon later documentation from Mr Neill, the architect, dated 30 January 2015 (Attachments 13 and 14 of R2) which is said to be the final reconciliation of the Builder's variation claims and which contains the correct figure apparently owed to the Builder, being $23,651.00.
2. The Home Owner submitted that the Tribunal was wrong "by implication" to approve Progress Payment #3 of 14 December 2014 in the amount of $62,320.00.
3. The invoices for the Other Variations (marked A1) were considered by the Tribunal at [100] - [142] of the Reasons. In the context that there had been forensic difficulties for the Builder in substantiating with legible and sufficiently detailed documents the various claims of the Builder under the category of Other Variations, the Home Owner submitted that such difficulties evidenced an "alarming" attempt on the part of the Builder to "mislead" the Tribunal, and that the Tribunal's findings are not fair or equitable or are against the weight of the evidence because: "on balance, it would appear that the 'other variations' are not valid claims because they either do not relate to the site or they have already been paid for by the Home Owner".
4. The Home Owner challenged the veracity of the invoices for labour of Mr Waymouth. Such submission is indicative of a general submission throughout all of the Home Owner's written material for the appeal, and which was reiterated in the oral submissions made by Mr Akbarian at the appeal hearing, as to the Builder's overall credibility. It was made specifically as to the Tribunal's reliance on the labourer's invoices or 'other invoices' to make findings in the context of the parties' disputes about work completed and money owed.
5. The Home Owner further submitted that the Builder had "abandoned" work on the Property in January 2015 and therefore should not be entitled to payment of any of the variation amounts claimed.
6. Additionally, the Home Owner submitted that the Tribunal's findings and conclusions as regards the Home Owner's cross application (File No HB 17/43422) were not fair and equitable.
If these matters are put as grounds of appeal, then leave to appeal is required.
We do not agree with any appeal grounds which assert that the Tribunal did not give proper reasons for the Decision in the Builder's claim or that there was no evidence to support findings of fact. There are many references in the appellant's written submissions to this effect: that the Tribunal did not take into account the evidence in the Home Owner's witness statements, did not refer in the Reasons to the Home Owner's written submissions, and did not explain why specific submissions in the Home Owner's case were not accepted by the Tribunal. We find the Reasons were detailed and thorough and further that they addressed the substantial arguments in the Home Owner's case in response to the Builder's claim.
As Allsop P (with whose observation McColl JA agreed) stated in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2]:
There are ample statements of this Court and of the High Court to express the duty upon judicial officers as to the giving of reasons. . . . In many cases, however, a judge may, in dealing with large bodies of evidence, be forced to economise in expression and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression. Judgment writing should not become a process that is oppressive and that produces unnecessary prolixity. Not every piece of evidence must be referred to. That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed and resolved.
In that case, the NSW Court of Appeal found that critical factual enquiries were not embarked upon by the primary judge. We are satisfied that did not occur in this case. The Reasons clearly record the written and oral evidence that was presented to the Tribunal over the five day hearing and provide, as we indicated, a careful and detailed analysis of this material: see Reasons [29] - [61] and [69] - [142]. In circumstances where, due to the passage of time, the Tribunal had difficulties in accepting the Builder's oral evidence as to substantiating the amount of each variation, we are satisfied that the Tribunal was entitled to find (Reasons, [77] and [95]) that the variations submitted at the time the relevant work was performed constituted the best and most reliable evidence for determining the claimed variation amounts to which the builder was entitled. We find no error or unfairness in the Tribunal's approach.
For the foregoing reasons, we find that there was no error of law in the Tribunal's determination of the Builder's quantum meruit claims.
The Tribunal upheld, or partly upheld, the Builder's claims in the Other Variations category. We are satisfied that there was no error in it doing so, for the following reasons:
1. Reasons [107] - [111] - Although the builder maintained that the entire "New Line Building Supplies" invoice related to the Property, there was no error or unfairness in the Tribunal's finding that it would only uphold the amounts claimed in the invoice which were signed by the builder and which expressly referenced the Property. There was also no evidence to indicate that this invoice was paid for by the Home Owner.
2. Reasons [122] - [125] - In respect of the Hardware General Invoice, the Tribunal was correct to acknowledge that although this invoice did not reference the Property, it could not be expected to do so given that it records a 'Cash Sale'. Further, as the date of the invoice corresponds with the period in which the Builder says he performed the work on the Property, and also given that the Home Owner did not refute the Builder's sworn evidence at the hearing that the type of material purchased was atypical and related to specific work performed at the Property, we are satisfied that the Tribunal had good grounds to find in the Builder's favour in relation to this claim. Again, there was no evidence to indicate that the invoice was paid for by the Home Owner and the Home Owner did not present any evidence at the hearing to refute the invoice's connection to work performed by the Builder at the Property.
3. Reasons [131] - [141] - As regards the invoice concerning the work performed by Mr Waymouth, at the hearing the Tribunal found Mr Waymouth to be a frank and honest witness: Reasons, [46] and [133]. The Tribunal further accepted that the Builder's contemporaneous diary records of Mr Waymouth's attendances at the Property largely substantiated the Builder's claim for Mr Waymouth's labour: Reasons, [140] - [141]. We consider the Tribunal's findings on this aspect of the Builder's claim were reasonably open on the available evidence, noting also that the Tribunal discounted by 20% the Builder's claim to take account of the fact that the Builder's evidence was not "perfect" and that there were some disparities between the hours entered in the diary and the hours claimed in the invoices. Again, there was no evidence from the Home Owner that Mr Waymouth's labour did not relate to works on the Property and there was no evidence that the Home Owner had paid for the invoice.
Further, we do not accept the Home Owner's submission that because the Builder suspended work on the Property in early 2015, he should not be entitled to the variation amounts claimed. We are satisfied that the Tribunal addressed this argument in the Reasons at [155]:
Finally, although the homeowner claimed the builder unlawfully suspended the work, he has failed to clearly delineate how this impacts on either his own or the builder's claim. In any event, on the findings I have made above, the builder was entitled to suspend work pending payment of money to which I have found he was entitled for work he carried out under the authorisation of the homeowner's architect and project manager and for which he was not paid.
The appellant also expressed his dissatisfaction with the Tribunal's findings and conclusions as to the Home Owner's unsuccessful cross application. The Tribunal considered the cross application (Reasons, [143] - [147]) but found it was not made out on the evidence. We see no reason to disturb the Tribunal's findings.
We are satisfied that the findings of the Tribunal were not against the weight of the evidence, nor were they not fair and equitable, and there is no new evidence which was not reasonably available at the time of hearing. We find that the Home Owner has not been deprived of a significant possibility or of a chance which was fairly open: Collins v Urban at [76] - [79].
Further, even if the considerations in cl 12 of Sch 4 of the NCAT Act were satisfied, we would not have been inclined to grant leave pursuant to s 80(2)(b) of the NCAT Act for the following reasons:
1. The appellant has not pointed to any questions of law or issue of principle which the Tribunal is said to have misunderstood or misapplied. Rather, to the extent grounds of appeal may be discerned from the appellant's material, such grounds amount to the appellant's dissatisfaction with the Tribunal's factual findings.
2. There are no matters of public importance or policy which might have general application.
3. The Tribunal's decision was not infected by any plain or readily apparent legal or factual error. Any mistakes in factual matters (e.g. referring to "duplicated" invoices when they were in fact original documents) were not material to the Tribunal's reasoning. The Tribunal considered all of the written and oral evidence before it and where sufficiently evidenced, placed greater weight on the Builder's more consistent and better evidenced version of relevant events. We are satisfied that was a perfectly fair and rational approach for the Tribunal to take and that there was no injustice.
4. We have considered the transcript of the hearing provided in the appellant's documents (within Folder 4). It is apparent that the Tribunal took into account the extensive material that was put before it by both parties. The hearing of the evidence took place for 5 days over 3 separate hearing periods, which reflected, in our view, a meticulous and patient approach to the evidence that was brought to the Tribunal by the layperson parties. We find that there was nothing unusual or unorthodox in the Tribunal's approach.