(1954) 90 CLR 613
Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33
Source
Original judgment source is linked above.
Catchwords
(1954) 90 CLR 613
Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33
Judgment (7 paragraphs)
[1]
REASONS FOR DECISION
This is an internal appeal by Ali Soukarie t/as A1 SKR Concrete from a decision of the Tribunal's Consumer and Commercial Division which awarded the applicant in the original proceedings, Anna Krallis, the sum of $9,700 being damages in respect of the cost to rectify defective residential building work carried out by Mr Soukarie. The work involved the construction of a concrete slab, coping and path around an inground pool and spa.
[2]
Background
Mr Soukarie was contracted by Ms Krallis to construct a concrete slab and coping around an outdoor pool and spa and to carry out repairs to part of a footpath. The finish was stamped concrete. The concrete was laid on about 5 May 2020. Ms Krallis states that shortly after the work was completed she noticed problems, particularly with the edging around the pool which was rough and unfinished. Apparently Mr Soukarie returned on one occasion to carry out some further work prior to final payment being made.
Ms Krallis states that soon after the work was done cracks began to appear in the concrete. She said that Mr Soukarie would not respond to her calls and she engaged Brett Attenborough from B & M Concreting to render the concrete around the edge of the pool, to remove and replace the section of the path and to reseal and colour the new work. Ms Krallis paid Mr Attenborough $2,400 for this work. She said that following this work by Mr Attenborough, there was still cracking in the concrete.
Ms Krallis lodged an application with the Tribunal seeking a refund of the $9,700 which had been paid to Mr Soukarie. The Tribunal accepted that the claim was a building claim within the Tribunal's jurisdiction under the Home Building Act 1989 and was made within time. Both parties appeared before the Tribunal and Mr Soukarie was assisted by an interpreter in the Arabic language.
In support of her application Ms Krallis provided a number of photographs of the pool and surrounds and the concrete which had been laid by Mr Soukarie and provided oral evidence of when the cracking appeared. Ms Krallis also provided an undated report from Mr Attenborough in which he said that he first visited the site on 8 May 2020 to inspect the works. He stated that, in his opinion as a concreter of 21 years, the work was very poorly finished. He stated that the concrete had not been vibrated and the pool edging had not been finished properly.
Mr Attenborough was engaged to fix the issues around the edge of the pool by rendering over the existing concrete. He stated that he had to grind back and cut the concrete which was hanging over the pool and not finished flush. Mr Attenborough stated that he came back two weeks after finishing the rendering and noticed cracks all through the concrete slab surrounding the pool. He said that, as a result, the render he had applied was now cracking and breaking off because of movement in the slab. Mr Attenborough goes on to say that the slab is uneven and not level with the thickness varying from 50 mm to 100 mm in different areas. He stated that in his expert opinion as a concreter of 21 years he had never seen such a badly finished pool edge and does not believe the job is one of quality workmanship. In his opinion, further cracking would continue and it would be advisable for the slab to be taken up and redone.
Mr Soukarie provided a document from Abdul-Hadi Moussa, an engineer from Nemco Design Pty Ltd, dated 26 November 2020 described as an "Inspection Certificate". The document sets out the materials out of which the slab was constructed, states that no vibration is required for a 100 mm fixed slab, nor is a damp membrane required for a non-structural slab, and states that the structure complies with various Australian Standards. The document does not say that Mr Moussa inspected the slab and Ms Krallis told the Tribunal that Mr Moussa had not attended the property.
Mr Soukarie also provided a document from Abraham Nemra of Nemco Design Pty Ltd in which he identified the strength of concrete and type of mesh sufficient for a concrete driveway slab. From the information supplied it seems that these were the materials used by Mr Soukarie. Ms Krallis stated that Mr Nemra had not attended the property.
Mr Soukarie also provided three statutory declarations from persons who stated that they were concreters who were involved in laying the concrete around the pool. The text of the declarations is virtually identical and all state that Ms Krallis accepted that she needed to engage someone else to render the pool edge of the concrete and that she was happy with the finished work.
On the basis of the photographs, the oral evidence of Ms Krallis and the report of Mr Attenborough, the Tribunal was satisfied that the work performed by Mr Soukarie was not performed with due care and skill and was therefore in breach of the statutory warranty in s 18B(1)(a) of the Home Building Act. Also based on the report of Mr Attenborough and the photographic evidence of significant cracks, the Tribunal was satisfied that the appropriate method of rectification was for the slab to be removed and replaced. Given the nature of the relationship between the parties and the fact that Mr Soukarie did not accept that there were any defects and had made it clear that he would not return to the property to perform any rectification work, the Tribunal was satisfied that it was appropriate to award damages in the circumstances.
The Tribunal awarded Ms Krallis $9,700 which was the agreed amount of the cost of the works under the contract between Ms Krallis and Mr Soukarie. The Tribunal was satisfied that the cost of rectification would not be less than the original sum paid to Mr Soukarie for the work.
[3]
The Appeal
In the appeal, Mr Soukarie submits that there was no evidence before the Tribunal that the work was defective. He argues that Ms Krallis produced no expert evidence to support her claim that the work was defective and alleges that her oral evidence is unreliable. He also states that the photographs do not provide sufficient evidence of the alleged defects.
Mr Soukarie denies that the work was defective as alleged by Ms Krallis. He submits that the burden of proof lay on her to establish that the work was defective but that she failed to provide cogent evidence of such. He states that any award of damages therefore is unlawful.
In his notice of appeal Mr Soukarie sets out six grounds of appeal. These are:
1. Ms Krallis failed to provide any expert evidence to prove that the work was defective;
2. the Tribunal failed to give proper consideration and weight to the evidence provided by Mr Soukarie;
3. the Tribunal failed to consider the nature and extent of the work carried out by Mr Soukarie;
4. the Tribunal failed to consider relevant considerations, namely, that Ms Krallis failed to prove financial loss of $9,700 and failed to provide objective evidence of defective work;
5. as Mr Attenborough carried out work after Mr Soukarie had finished, the work was compromised and the Tribunal could not reach any conclusion that Mr Soukarie's work was defective;
6. the Tribunal failed to accord appropriate weight to Mr Soukarie's evidence and, in the absence of an expert report and expert quotation for rectification of the work from Ms Krallis, the award of damages is an error of law.
In summary, Mr Soukarie submits that the decision was against the weight of the evidence.
We should note that at the beginning of the hearing of the appeal Mr Soukarie sought leave for the first time to be legally represented in the proceedings. Ms Krallis objected to leave being granted, particularly in view of the request being made at such a late stage in the proceedings.
Generally, a party to proceedings in the Tribunal has the carriage of their own matter and is not permitted to be represented at hearings before the Tribunal. We refused leave for Mr Soukarie to be legal represented taking into account the following matters:
the appeal is not particularly factually or legally complex and the amount in dispute is relatively small;
while Mr Soukarie was assisted during the appeal by an interpreter, he had provided comprehensive written submissions in the appeal which demonstrated he understood the nature of the proceedings and the issues to be determined;
the need to ensure that there is no material imbalance between the parties; and
the guiding principle of the Tribunal to facilitate the just quick and cheap resolution of the real issues in the proceedings.
We did, however, permit Mr Soukarie's solicitor to remain with him so that Mr Soukarie could seek advice if necessary during the hearing.
[4]
Relevant legal principles
Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) states:
Any internal appeal may be made:
(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and
(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
Clause 12(1) of Schedule 4 to the NCAT Act states with respect to decisions made in the Consumer and Commercial Division that:
An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
(a) the decision of the Tribunal under appeal was not fair and equitable, or
(b) the decision of the Tribunal under appeal was against the weight of evidence, or
(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The six grounds of appeal as enunciated by Mr Soukarie overlap to a significant degree. Although the grounds of appeal refer to errors of law and irrelevant considerations, the Notice of Appeal states that the Appeal Panel should grant leave to appeal as the decision was against the weight of the evidence.
Obtaining leave to appeal is a two-stage process. At the first stage Mr Soukarie must persuade us that he may have suffered a substantial miscarriage of justice under clause 2 of Schedule 4, because of one or more of the matters referred to in his grounds of appeal. Should he persuade us that he may have suffered a substantial miscarriage of justice he must then, at the second stage, persuade us that we should exercise our discretion to grant leave to appeal on one or more of those grounds. The principles applicable to the granting of leave were set out in Collins v Urban [2014] NSWCATAP 17 at [65] - [84].
For the reasons which appear below we are not persuaded that Mr Soukarie has suffered a substantial miscarriage of justice.
We also note that in written submissions Mr Soukarie states that the Tribunal Member was biased. He has not, however, provided any evidence, including a transcript of the hearing, to substantiate any such claim.
[5]
Consideration
Mr Soukarie submits that the Tribunal's decision was against the weight of the evidence. The expression "against the weight of evidence" in the Tribunal means that the evidence in its totality preponderates so strongly against the conclusion favoured by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach: Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23 at [153], followed in Collins v Urban at [77].
In his appeal, Mr Soukarie primarily states that the Tribunal should not have relied upon the report of Mr Attenborough because it was not "expert evidence" as that term is understood by the courts. He argues that Mr Attenborough is not "independent" as he did work for Ms Krallis, the report is not in any legal format and there is no reference to the Tribunal's Experts' Code of Conduct. Furthermore, because Mr Attenborough did work after he had left the site, it is now impossible for an independent expert report to be obtained as Mr Soukarie's work is now compromised. Mr Soukarie implied that any defective work arises out of the remediation works carried out by Mr Attenborough. In addition, he argues that Ms Krallis has provided no reliable evidence of the cost of rectification.
Mr Soukarie submits that the evidence he had provided from Mr Moussa, Mr Nemra and the three concreters involved in the work clearly establish that the work meets the required standards and is not defective. He notes that Mr Moussa is an engineer. He submits that their evidence was not challenged during the hearing before the Tribunal and should be accepted.
Mr Krallis submits that the decision made by the Tribunal was correct and was based upon the evidence she provided that the work was defective. She stated that Mr Attenborough is an experienced concreter and is independent in that she had no prior association with him.
In his decision the Senior Member was satisfied, based on Mr Attenborough's report, the photographic evidence of significant cracks and Ms Krallis' oral evidence that the work was defective. He acknowledged that Ms Krallis did not have a comprehensive, independent expert report setting out in detail the defects, the method of rectification and the cost of rectification. He referred, however, to the Appeal Panel's decision in Khan v Kang NSWCATAP 48 and held that, in the circumstances where the amount in dispute is relatively small, the evidence provided by her was sufficient.
Mr Soukarie submits in effect that the Tribunal could not make a finding that the work was defective in the absence of an expert report. Procedural Direction No. 3 issued by the President of the Tribunal sets out the requirements, including a Code of Conduct, placed upon experts in matters before the Tribunal. The Procedural Direction is not, however, applicable to all proceedings before the Tribunal and, in matters under the Home Building Act, applies to claims with a value greater than $30,000. There is no evidence before us that any direction was made by the Tribunal that, although the amount in dispute was much less and $30,000, the Procedural Direction was to apply in this matter.
In Khan v Kang the Appeal Panel at [50] stated:
A quotation from a supplier willing to rectify defects or complete incomplete work can, depending on the circumstances and the nature and content of the quotation, constitute evidence of the defects or incomplete work and of the amount required to remedy the defective work or complete any incomplete work. For example, if the person providing the quotation was suitably qualified or experienced, inspected the work, identified defects or incomplete work on that inspection, recorded his or her observations in the quotation and gave a price to rectify or complete the work, it is difficult to understand why that quotation would not provide evidence in support of a claim for defective or incomplete work.
After noting that the weight to be given to such evidence would, of course, depend on many factors, the Appeal Panel went on to say at [53]:
As to the implicit premise that in order to establish a claim for defective or incomplete work in a home building matter there must be a building inspection report by an independent builder to demonstrate any liability of the respondent, such a premise is wrong. Whilst a building inspection report by an independent builder may be very helpful in establishing liability, such a report is not always necessary in a case such as the present. To suggest that an applicant in a home building matter involving only a small monetary amount must engage an independent builder to provide a building inspection report before the applicant can succeed in his or her claim is also inconsistent with the principles set out in ss 36(1) and (4) which require the Tribunal to facilitate the just, quick and cheap resolution of the real issues in proceedings and to conduct proceedings so as to facilitate the resolution of the issues in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter.
The amount in dispute in this claim was relatively small. While Mr Attenborough's report cannot be said to be a formal independent expert report, it sets out his experience, the results of his visual inspection and opinion concerning the method of rectification required. There is no evidence, other than the assertion of Mr Soukarie, that the work performed by Mr Attenborough in rendering the edges of the pool slab compromised the work done by Mr Soukarie in any way. In addition, we are satisfied that the Tribunal was entitled to rely upon the opinion of Mr Attenborough that the appropriate method of rectification was removal and reconstruction of the slab and path.
We see no error in the Senior Member's approach to the evidence presented by Ms Krallis including, in particular, that the absence of any expert report was fatal to her claim.
We note that in his reasons for decision the Senior Member did not specifically address the cogency of the evidence put forward at the hearing by Mr Soukarie. It is clear, however, that he preferred the evidence presented by Ms Krallis, including the report by Mr Attenborough, to that put forward by Mr Soukarie. In that context we note that Mr Soukarie has not contested the evidence of Ms Krallis that neither Mr Moussa nor Mr Nemra visually inspected the work. The documents provided by both these men do no more than describe the materials used. Similarly, the statutory declarations do not purport to be reports on the quality of the works other than to state that at the time it was finished Ms Krallis was happy with it. The Senior Member was correct, in our view, to accord them little or no weight.
We are not satisfied that any error has been established in the manner in which the Member considered the evidence. In our view the findings made by the Member that the work was defective were reasonably available on the evidence put forward by both parties at the hearing.
Mr Soukarie also submits that the award of damages in the amount of $9,700 was made without a sound evidentiary basis.
At the hearing before the Tribunal, Ms Krallis made clear that she was seeking reimbursement of the monies paid to Mr Soukarie as that was the best estimate of the cost to redo the work. The Senior Member referred the principle in Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 concerning rectification costs. He also referred to the case of Howe v Teefy (1927) NSWSR 301 which is authority for the proposition that a court is not relieved from the duty of assessing the loss resulting from a breach of contract merely because the calculation is a difficult one or because the circumstances do not admit of the damages being assessed with certainty. The Senior Member was satisfied that, where the parties had agreed that the cost to construct the slab and path was $9,700 and where it was satisfied that the appropriate method of rectification was to remove the slab and redo the work, the cost of rectification would not be less than the amount paid for the work in the first place.
In Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54, Mason CJ and Dawson J said (at [31]:
The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can: Fink v. Fink [1946] HCA 54; (1946) 74 CLR 127, at p 143; McRae v. Commonwealth Disposals Commission [1951] HCA 79; (1951) 84 CLR 377, at pp 411-412:, Chaplin v. Hicks (1911) 2 KB 786, at p 792. Indeed, in Jones v. Schiffmann [1971] FICA 52; (1971) 124 CLR 303, Menzies J went so far as to say that the 'assessment of damages ... does sometimes, of necessity involve what is guess work rather than estimation': at p 308. Where precise evidence is not available the court must do the best it can: Biggin and Co. Ltd. v. Permanite Ltd. (1951) 1 KB 422, per Devlin J. at p 438.
We note that during the course of the appeal Ms Krallis provided quotations from two concreters to demolish the existing slab and construct a new one. Mr Soukarie submits that we should disregard this evidence. Ms Krallis stated that the quotations had been provided only to demonstrate that the true cost of rectification exceeds the original contract price of $9,700. There is no cross-appeal by Ms Krallis and nor is she seeking to rely upon them to increase the amount of damages claimed. We have not taken these quotations into account in our findings.
There is also a dispute between the parties about whether Mr Soukarie was responsible for finishing off the pool edge. There is no need for us to decide this issue as we note that Ms Krallis has not made any claim for reimbursement of the $2,400 paid to Mr Attenborough for rendering and other works.
We are satisfied that the Tribunal, doing the best it could on the basis of the evidence before it, made no error in its calculation of damages. We agree that, in the circumstances, the original contract price was a good indication of the cost to relay the concrete. We do not therefore agree that its finding was made without sufficient evidence.
Mr Soukarie has not established that the decision was against the weight of the evidence or that the Tribunal made any other error. In all the circumstances we are unable to find that he has suffered a substantial miscarriage of justice. There was no real possibility or fair chance of a different result on the state of the evidence before the Tribunal.
None of the grounds of appeal have been established. Leave to appeal is therefore refused and the appeal is dismissed.
[6]
Orders
We make the following orders:
1. Leave to appeal refused.
2. Appeal dismissed.
[7]
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
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Decision last updated: 10 September 2021