Bao Long Guo t/as GD Brother Projects v GB Electrical Services Pty Ltd

NCAT Appeal Panel|2020-02-06|Before: Blake AM, Adam J

REASONS FOR DECISION

Bao Long Guo, trading as GD Brothers Projects (who we will refer to as 'BLG'), is a builder. GB Electrical Services Pty Ltd (who we will refer to as ('GB Electrical') provides the services of an electrician.
GB Electrical entered into a contract with BLG to provide electrical work for a house to be constructed by BLG pursuant to a contract between BLG and the owner of the land upon which the house was to be constructed ('the landowner'). The construction of the house began in 2017 and finished in 2018.
In addition to performing the electrical work specified in its contract with BLG, GB Electrical performed certain electrical work on the house which was not specified in its contract with BLG ('the additional electrical work').
GB Electrical applied to the Consumer and Commercial Division of the Tribunal for payment from BLG for an amount of $6,000 which, it claimed, was outstanding under its contract with BLG, together with an amount to compensate GB Electrical for undertaking the additional electrical works. In its application at first instance to the Tribunal, GB Electrical claimed a total amount of $32,256. It was claimed in the application that the price of the project (meaning, we infer, all of the electrical works undertaken by GB Electrical in the course of the building of the house) was $37,256. It was alleged, in the application, that GB Electrical had been paid $5,000 under the contract, and was seeking a further $6,000 under the contract, together with $26,256 for the value of the additional electrical work.

The decision at first instance

The Tribunal at first instance made the following findings of fact (among others): 1. On 8 October 2016, BLG entered into a home building contract with the landowner 'in the amount of $500,000'. 2. BLG's evidence was that the landowner asked him to get a quote from GB Electrical for the electrical and lighting work. It was common ground that BLG and GB Electrical had worked together on projects on 'at least three previous occasions'. 3. BLG provided information about the building project, including plans and diagrams, to GB Electrical, and asked for a quotation for the electrical works. There was a dispute about the amount of information BLG gave to GB Electrical about the building project. 4. GB Electrical provided BLG with a quotation for the works in the sum of $11,000, excluding GST, and excluding a 3-in-1 fan. The following works were the works included in the quotation: 1. Supply and install 72 LED lights 2. Supply and install 29 power points 3. Supply and install 19 switches 4. Supply and install 2 TV points 5. Supply and install 2 internet points 6. Supply and install 2 telephone points 7. Supply and install one antenna 8. Supply cable and install 5 bathroom fans 9. Supply cable and install 2 smoke alarms 10. Supply and install 1 switchboard. 1. The landowner asked GB Electrical to perform the additional electrical work. GB Electrical performed the additional electrical work and charged BLG for that work, on the basis that the work constituted variations to the contract between BLG and the landowner (see p 3 of the Tribunal's reasons). 2. The additional electrical work is itemised in Invoice 1987 dated 15 February 2019 ('Invoice 1987'), which was provided to the Tribunal at first instance in the bundle of documents tendered in GB Electrical's case at p 22 of that bundle. 3. Invoice 1987 itemises the work specified in the contract between BLG and GB Electrical under the heading 'First quote', and attributes to that work the total value of $11,000. 4. Invoice 1987 itemises 21 further works under the heading 'Variation', with values attributed to each item of work. Three deductions are made from that list, presumably on account of items supplied by someone other than GB Electrical. Three further works are itemised under the heading 'Security System', with values ascribed to each of those works and one deduction on account of the supply of one camera by the 'client'. 5. The subtotal of Invoice 1987 is $34,070. That subtotal is comprised of $11,000 for the works itemised under the heading 'First quote' and $23,070 for the works itemised under the headings 'Variation' and 'Security system', the deductions having been made. When GST of $3,407 is added, the total sum claimed by GB Electrical from BGL in Invoice 1987 is $37,477. 6. There is no suggestion that any of the work performed by GB Electrical was defective. 7. BGL agreed that the value attributed to the works set out in Invoice 1987 is reasonable. 8. The work performed by BLG for the landowner was residential building work, and the claim is within both the time and the quantum limitations in the Home Building Act 1989 (NSW). 9. The contract between BLG and GB Electrical was not in compliance with s 7 of the Home Building Act 1989. There is a 'partly written contract in relation to the quote but the statutory details are not provided'. There was, nonetheless, a contract between BLG and GB Electrical for the performance of those works. 10. There was no writing, between BLG and GB Electrical, or at all, in relation to the works listed under 'Variation' and 'Security system' on Invoice 1987. 11. BLG did not dispute his liability for the amount set out in the contract between him and GB Electrical for the 'First quote' works, except that BLG said that GB Electrical had not installed 72 downlights from the 'First quote' with a value of $1,080. BLG arranged for another electrician, Airlectro, to install those lights, and Airlectro charged $1,080 for that work, at $15 per light. At the time that BLG made the arrangement for Airlectro to install the 72 downlights, GB Electrical was still working on the site, and no explanation was given as to why the arrangement was made with Airlectro. GB Electrical had installed the fittings for the 72 downlights, and Airlectro simply installed the actual lights in those fittings. GB Electrical disputed that $15 per light was a reasonable price, and argued that the true value of Airlectro's work was $7.50 per light, or $540. 12. The additional electrical work was requested by the landowner and was performed by the contractor in response to those requests.
The Tribunal at first instance, in its reasons, sometimes refers to the additional electrical work as 'variations'. This is a misdescription. It is clear that the Tribunal at first instance did not view the additional electrical work as variations under the contract. The Tribunal at first instance said, in its reasons at p 5, that the works described as 'variations', 'are in fact additional works outside the contract'. The Tribunal at first instance, in its reasons on p 5, made a specific finding that there was no contract between GB Electrical and BGL with respect to the additional electrical work.
The Tribunal at first instance, said, on p 6 of the document containing its reasons: I reject the submission of the builder that he was not aware of the variations. It is not clear on the evidence precisely when the builder became aware of the additional works but I find that on the evidence before me the electrical work was being roughed in between 13 February 2018 and 28 March 2018 and in my opinion the evidence shows that the builder became aware of the additional works during that period. The builder asserts that he did not become aware of the additional work until on or after 18 May 2018 when the contractor started the fit out of the electrical works on or about 24 June 2018. I do not accept that evidence, given the very extensive additional work being undertaken by the contractor and the familiarity of the builder with electrical installation generally and in particular with electrical installations carried out by this contractor on other projects with the builder. I note in particular that the builder did not dispute the evidence of the contractor, referring to those other projects, that the contractor would carry out various works and provide a final tax invoice for those works at the time they were concluded. I am also satisfied, and it is not disputed indeed it is conceded, by the builder, that he confirmed with the owner that the contractor had been requested to do certain additional works by the owner. Furthermore, the builder agrees that he advised the owner that he, the owner, would have to pay for these additional works. Despite that, the builder's evidence is completely silent as to whether he endeavoured to bring the owner's attention to the possible costs until the contractor provided the initial invoice on or about 24 June 2018. I find on the basis of the above factual findings that the builder was aware the contractor expected to be paid for the additional works. The builder asserts that there can be no quantum meruit claim on the basis that the builder has not been unjustly enriched or has not been paid any amount, on account of the variations, that he is not reasonably entitled to keep. This assertion is on the basis that the contract with the owner charged an amount of $500,000.00 for the works and the builder has been paid $500,000.00 and no more. In my opinion that assertion is misconceived. I find that the builder, having been paid $500,000.00 by the owner has retained the amount or amounts which should be paid to the contractor by way of a quantum meruit. In that sense the builder has been unjustly enriched and should be ordered to pay the sum assessed to the contractor As quantum is agreed, I order that the builder is to pay $34,070.00 less $810.00 or or $36,586.00 incl GST. As it is agreed the contractor has been paid the sum of $5,000.00, the net amount owing to the contractor is $31,586.00.
We note that the home building contract between BLG and the landowner provides, on p 15: Any agreement to vary this contract, or to vary the plans and specifications for work to be done under this contract, must be in writing signed by each party to this contract.
There was no evidence of any such variation with respect to electrical work before the Tribunal at any stage of these proceedings.
It is common ground that the home building contract between BLG as the builder and the landowner provided for a total price of $500,000, and that the landowner paid $500,000 to BLG pursuant to that contract.
There is no evidence or suggestion that BLG was paid any additional sum, over and above the contract sum of $500,000.

The appeal by Bao Long Guo

BLG's notice of appeal filed on 20 November 2019 set out the following text in the field on the notice of appeal titled 'Grounds of appeal': 1. Unjust enrichment - having firstly found that the additional work that the Respondent Contractor claimed was indeed additional work outside the contract, the Tribunal erred in question of law by treating money due under the Home Building Contract between the Appellant Builder and the third party owner as benefit that he retained for the additional work performed by the Respondent Contractor.
In the notice of appeal, in the field titled 'Orders that the NCAT appeal panel should make', the following text appeared: Order the Appellant Builder to pay to the Respondent Contract a sum of $5,709 inclusive of GST being the balance outstanding for the work in the original quote less $891 being the value of work not completed.
We infer that BGL is seeking to have the orders made by the Tribunal at first instance set aside, and to have an order in the terms of the order set out in the notice of appeal substituted for order 1.
In the notice of appeal, BLG applied for leave to appeal on the ground that the decision of the Tribunal at first instance was not fair and equitable. The basis set out in the notice of appeal for the assertion that the Tribunal's decision was not fair and equitable was as follows: The third party owner requested the Respondent Contractor to perform additional work. He has not paid the Respondent Contractor or the Appellant Builder. The decision compels the Appellant Builder to pay for the additional work. It prevents the Appellant Builder from seeking the costs from the third party owner because the Tribunal says in the decision that "…builder having been paid $500,000 by the owner has retained the amount or amounts which should be paid to the contractor by way of quantum meruit". The decision could become a precedent which an owner may rely on to avoid paying for additional work.

GB Electrical's Reply

In its Reply to BGL's appeal, GB Electrical set out the following in the field titled 'Reply to appellant's grounds of appeal': 1. Unjust enrichment - the Tribunal made no error of law. It applied the remedy of quantum meruit and not unjust enrichment in finding for the Respondent Contractor in relation to the additional work. Based on the Appellant Builder's own evidence (see clause 16 of the Building Contract, Attachment B, and the Project Budget, Attachment C, to his statutory declaration dated 20 November 2019) the Appellant received a windfall gain for work and material that was excluded in the contract (ie, gyprock, tiles and tiling (flooring), painting, windows, door and door hardware and Alfresco ("Excluded items")) but which he budgeted for (circa $102,000 for the Excluded Items, see Attachment "1") in determining the $500,000 contract price and in that sense he was unjustly enriched. The unjust enrichment reference by the Tribunal was in that context and was not the reason it found in favour of the Respondent, the reason was the Tribunal considered that the Respondent had successfully made out a quantum meruit claim. It is also noted that the Appellant Builder's Notice of Appeal (at Section 5.A.) misrepresents the Tribunal's Order 1 made on 25 October 2019. The money that the Tribunal ordered the Appellant to pay the Respondent under Order 1 is in the amount of $31,586 and not $24,486.
In its Reply, GB Electrical set out the following in the field titled 'Reply to leave to appeal": The Appellant has not suffered a substantial miscarriage of justice. There has been no error of law made by the Tribunal and based on the evidence and submissions put forward by both parties to the Tribunal there is no question that the decision made by the Tribunal was fair and equitable in all respects. The Tribunal's finding that a quantum meruit claim was successfully made out by the Respondent was supported by the evidence which confirmed that there was not dispute between the parties as to the quantity of the variation electrical works save as to a certain number of LED lights which exception the Tribunal valued at $801 (ex GST). There was not dispute about the quality of the works. As for quantum, the Tribunal noted in its decision that the Appellant specifically accepts that the quantum claimed by the Respondent represents a fair value for the work done. The Appellant's case is not strong. He has not submitted any additional or new evidence to advance his case further. Further, the issues and principles relevant to these proceedings have been fully and properly considered by the Tribunal. There is not question of public importance with the Tribunal's decision and contrary to the Appellant's claim, the decision is not a precedent since it is an unreported decision and not on the public record. Granting leave to the Appellant would incur unnecessary costs and time and further delay the payment of moneys owing to the Respondent for electrical works performed close to 18 months ago.

Statutory provisions

The proceedings at first instance were a 'building claim' under s 48A of the Home Building Act 1989.
The jurisdiction of the Tribunal with respect to a building claim is set out in s 48K of the Home Building Act 1989, and the powers of a Tribunal with respect to a building claim are provided for in s 48O of the Home Building Act 1989.
The Tribunal's jurisdiction with respect to a building claim under the Home Building Act 1989 is within its 'general jurisdiction' under s 29 of the Civil and Administrative Tribunal Act 2013 (NSW).
Under s 32 of the Civil and Administrative Tribunal Act 2013, the Tribunal has appeal jurisdiction over any decision made by the Tribunal in proceedings for a general decision.
The Civil and Administrative Tribunal Act 2013 provides, in s 80: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) 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. (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
The Civil and Administrative Tribunal Act 2013 provides, in Schedule 4 clause 12: 12 Limitations on internal appeals against Division decisions (1) 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). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. …
The Civil and Administrative Tribunal Act 2013 provides, in s 81: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.

Leave to appeal

BLG has appealed to the Appeal Panel. Although, on the face of his notice of appeal, BLG appears to seek leave to appeal, thus giving rise to the inference that he wishes to appeal on a ground which is not a question of law, it seems to us that BLG's appeal is confined to a question of law.
The formulation of the question of law relied upon by BLG in this appeal, which appears in his notice of appeal, is set out in [18] above.
We do not consider that BLG requires leave to appeal to the Appeal Panel. BLG has a right of appeal under the Civil and Administrative Tribunal Act 2013 s 80(2)(b). That part of BLG's notice of appeal set out in [21] above is otiose.

Evidence and fresh evidence

Both parties were legally represented, both at first instance in the Tribunal and before us.
Prior to the hearing at first instance, both parties were given the opportunity to provide to the Tribunal: 'all documents including expert reports, witness statements, scott schedule… on which the (applicant or respondent) intends to rely at the hearing.' (see orders made following a directions hearing on 24 June 2019 by Senior Member S Thode).
At first instance, GB Electrical provided various submissions and documents to the Tribunal, including copies of text messages in Chinese and their translations (see p 3 of the reasons of the Tribunal).
At first instance, BLG provided evidence to the Tribunal by means of a statutory declaration, together with documentary evidence, including a copy of the contract between BLG and the landowner. That evidence was not contested by GB Electrical (see p 4 of the reasons of the Tribunal).
Various documents were provided to the Tribunal subsequent to the filing of the notice of appeal. We have not taken those documents into account. As we have set out above, BLG's appeal is purely an appeal on a question of law. For that reason, we have not taken into account any of the evidentiary material which was filed subsequent to the filing of the notice of appeal. In any event, that material is not probative of any of the factual matters which underpin the real issue between the parties to these proceedings.
Subsequent to the hearing of the appeal, but prior to any decision being made by the Appeal Panel, GB Electrical, the respondent to the appeal, applied for the following orders: The respondent, GB Electrical Services Pty Limited, is seeking an order under section 38(6) of the Civil and Administrative Tribunal Act 2013 that in advance of a decision in these proceedings the respondent can lodge with the Tribunal and provide to the appellant further evidence to support its claim that: 1) the additional electrical works performed by the respondent were either requested of the respondent by the appellant directly or alternatively by the owner of the property on behalf of the appellant; and 2) the appellant had actual knowledge of the additional electrical works during the period of quoting stage and the electrical work was being roughed in between 13 February 2018 and 28 March 2018. 3) the appellant obtained the benefit of the additional electrical works.
GB Electrical pleaded the following grounds for its application: The respondent requests the order on the ground of procedural fairness. The appellant was provided the opportunity by order 3 made by M Harrowell, Deputy President on 28 November 2019 to lodge evidence that was provided to the Tribunal below on which it intended to rely in this appeal. The same opportunity was not however provided to the respondent by the Appeal Panel. Order 4 only provided for the respondent to lodge written submissions in opposition to the appeal. There was a considerable focus at the hearing of the appeal on 6 February 2020 as to what evidence had been provided in support of the respondent's application in the original proceedings and it is submitted that it is just and reasonable that the respondent be provided the opportunity to submit further evidence to assist the Appeal Panel in reaching its decision in these proceedings.
GB Electrical has sought leave, in the context of BLG's appeal, to, in effect, reopen its case and adduce fresh evidence, in the form of two affidavits. As we have said, the application was made subsequent to the hearing of the appeal. GB Electrical is the respondent to the appeal and has not filed a cross appeal. BLG has opposed the application by GB Electrical to adduce fresh evidence.
Upon receipt of the application by GB Electrical to adduce fresh evidence, we made directions giving the parties an opportunity to make submissions as to whether the Tribunal ought to dispense with a hearing with respect to the orders sought in GB Electrical's application, and also giving the parties an opportunity to make submissions as to whether the orders sought be GB Electrical should be made.
Neither party objected to a hearing with respect to GB Electrical's application being dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013. We have formed the view that the issues for determination with respect to GB Electrical's application can be adequately determined in the absence of the parties by considering the written submissions and other material received from the parties. We will make an order dispensing with a hearing on that issue.
In its application, GB Electrical relied upon s 38(6) of the Civil and Administrative Tribunal Act 2013, which provides: 38 Procedure of Tribunal generally (6) The Tribunal - (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
Ample opportunity was given to both parties, prior to the hearing at first instance, to put before the Tribunal any material upon which they wished to rely. GB Electrical was advised and represented by a lawyer at all relevant times.
In the grounds set out in its miscellaneous application, GB Electrical complains that it was not given the same opportunity as BLG to place the material which was before the Tribunal at first instance before the appeal panel. This ground is misconceived. The appeal panel has before it all of the evidence which was before the Tribunal at first instance. Should GB Electrical have wished for further orders in the pre-appeal directions hearings, it had ample opportunity to ask for those orders.
As there is no application before us to conduct an appeal by way of re-hearing, no occasion arises for the acceptance of fresh evidence from either party.
Even if that impediment could be overcome, and, at this stage of the proceedings, we could embark upon a new hearing and receive further evidence from GB Electrical under s 80(3)(b) of the Civil and Administrative Tribunal Act 2013, there would be further considerations.
As we have said above, at [29], under clause 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013, an appeal from a decision of the Tribunal made in the Consumer and Commercial Division, on grounds other than a question of law, can be the subject of a grant of leave by the Appeal Panel of the Tribunal only in the following circumstances: 12 Limitations on internal appeals against Division decisions (1) 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). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. …
GB Electrical has not sought leave to appeal at all, but, if it had, and if it sought to pursue its challenge to the Tribunal's decision at first instance on the basis of allegations that the factual findings are wrong, then it would have had to satisfy us that it may have suffered a substantial miscarriage of justice on one of the basis set out in clause 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013.
GB Electrical, as the respondent to the existing appeal by BLG, wishes to maintain the decision at first instance. It does not seek to argue that the decision of the Tribunal at first instance was not fair and equitable or that the decision of the Tribunal at first instance was against the weight of the evidence.
GB Electrical has become aware, probably partly because of exchanges which occurred during the argument of the appeal, that there is a real issue as to whether one element of the factual basis for a quantum meruit claim was established by it at first instance, on the basis of the factual findings made by the Tribunal at first instance. The element in issue is the question of whether BLG obtained or accepted the benefit of the additional electrical work performed by GB Electrical. The affidavits seek to relate to that issue.
GB Electrical should have been aware of that issue from the time that it received BLG's notice of appeal from the decision of the Tribunal at first instance. It can be inferred from the ground of appeal set out in BLG's notice of appeal that BLG is asserting that BLG did not obtain or accept any material benefit from the additional electrical work.
The evidence that GB Electrical now seeks to have this Appeal Panel take into account is contained in an affidavit of the electrician who performed the work on the landowner's house on behalf of GB Electrical, who is also the owner of the company, Mr Jia, and in a further affidavit of his wife, the 'accountant and estimator' for GB Electrical, Ms Li.
There can be no doubt that the evidence which is now sought to be adduced by these affidavits was readily available at the time that the proceedings were dealt with at first instance. The evidence relates to a period prior to the hearing at first instance.
Some of the evidence is hearsay. Some of it contradicts the evidence of BLG which was before the Tribunal at first instance and was not challenged by GB Electrical. A decision was made in GB Electrical's case not to cross examine BLG, and such a decision has been held to 'tell decisively against the application' to re-open (see Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at [32] ('Smith').
A line of authority, including Building Professionals Board v Hans (GD) [2008] NSWADTAP 13 and BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 (BCL) was summarised by Cowdroy ADCJ in Mielczarek v Commissioner for Fair Trading [2016] NSWCATAP 217 at [18], referring to the Appeal Panel in BCL: … the Appeal Panel affirmed that new evidence should be admitted only if it were "likely" to have produced a different result.
The evidence contained in the affidavits does not establish, as a matter of fact, on the balance of probabilities, that BLG obtained a material benefit from the additional electrical work performed by GB Electrical outside of its contract with BLG.
The expense of litigation and the public interest in the finality of litigation are relevant factors to be weighed in deciding whether to exercise a discretion to accept fresh evidence (see Smith at [27] and [32]).
In this matter, the procedural and statutory pre-conditions which must exist in order for that discretion to arise have not been met.
Even if the procedural and statutory pre-conditions had been met, the affidavits GB Electrical now seeks to have the Tribunal take into account should not be received into evidence. They are not fresh evidence, they are not significant evidence and they are not sufficiently probative of the issue in relation to which it is sought to tender them.
It would be unfair to BLG for us to receive the affidavits at this stage of the proceedings. If the affidavits were permitted to be tendered now, the requirements of procedural fairness would trigger an entitlement in BLG to cross examine on those affidavits, and to answer the evidence with further evidence in his own case. Further delay and expense would be occasioned.
GB Electrical's application to tender an affidavit of Mr Jia and an affidavit of Ms Li will be refused.

Quantum Meruit

In Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221 (Pavey's case), Deane J said, at p 256-257: 13. …The quasi-contractual obligation to pay fair and just compensation for a benefit which has been accepted will only arise in a case where there is no applicable genuine agreement or where such an agreement is frustrated, avoided or unenforceable. In such a case, it is the very fact that there is no genuine agreement or that the genuine agreement is frustrated, avoided or unenforceable that provides the occasion for (and part of the circumstances giving rise to) the imposition by the law of the obligation to make restitution. 14. To identify the basis of such actions as restitution and not genuine agreement is not to assert a judicial discretion to do whatever idiosyncratic notions of what is fair and just might dictate. The circumstances in which the common law imposes an enforceable obligation to pay compensation for a benefit accepted under an unenforceable agreement have been explored in the reported cases and in learned writings and are unlikely to be greatly affected by the perception that the basis of such an obligation, when the common law imposes it, is preferably seen as lying in restitution rather than in the implication of a genuine agreement where in fact the unenforceable agreement left no room for one. That is not to deny the importance of the concept of unjust enrichment in the law of this country. It constitutes a unifying legal concept which explains why the law recognizes, in a variety of distinct categories of case, an obligation on the part of a defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff and which assists in the determination, by the ordinary processes of legal reasoning, of the question whether the law should, in justice, recognize such an obligation in a new or developing category of case (see Muschinski v. Dodds (1985) 60 ALJR 52, at p 67; [1985] HCA 78; 62 ALR 429, at p 455; Goff & Jones, op. cit., at pp 11ff.). In a category of case where the law recognizes an obligation to pay a reasonable remuneration or compensation for a benefit actually or constructively accepted, the general concept of restitution or unjust enrichment is, as is pointed out subsequently in this judgment, also relevant, in a more direct sense, to the identification of the proper basis upon which the quantum of remuneration or compensation should be ascertained in that particular category of case.
In Angelopoulos & Anor v Sabatino & Anor (1995) 65 SASR 1, at [26], Doyle CJ summarised Pavey's case as follows: It seems to me that the argument for the defendants in the present case harked back to the notion that a restitutionary claim for a quantum meruit was based upon a fictional promise to pay a reasonable amount, implied into a request to do work. Put a little differently, the argument for the defendants was that a restitutionary claim was based upon a contract which was implied as a matter of fact from the making of a request. But in my opinion Pavey's Case has now made it clear that a restitutionary claim may be described as a claim "to recover a debt owing in circumstances where the law itself imposed or imputed an obligation or promise to make compensation for a benefit accepted": Deane J at 255; see also Australia And New Zealand Banking Group Limited v Westpac Banking Corporation (1988) 164 CLR 662 at 673. For this reason, the existence of a request in a case such as the present one, that work be performed, is not critical.
In order to establish a claim in quantum meruit against BGL, GB Electrical must prove, on the balance of probabilities, that BGL has obtained or accepted the benefit of work performed by GB Electrical so that the law recognises an obligation on the part of BGL to make fair and just restitution to GB Electrical for that benefit.
The Civil and Administrative Tribunal Act 2013 provides, in s 36: 36 Guiding principle to be applied to practice and procedure (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. …
The real issue in this appeal is whether it was an error of law for the Tribunal at first instance to determine that GB Electrical had established that BGL had obtained or accepted the benefit of the additional electrical work performed by GB Electrical.
The Tribunal at first instance, on p 6, said: I find that the builder, having been paid $500,000 by the owner has retained the amount or amounts which should be paid to the contractor by way of quantum meruit. In that sense the builder has been unjustly enriched and should be ordered to pay the sum assessed to the contractor.
No basis in fact for the finding that the contract sum included money paid by the landowner for the additional electrical works is identified in the reasons of the Tribunal at first instance.
Furthermore, we can find no basis in the evidence which was before the Tribunal at first instance for that finding.
The evidence before the Tribunal at first instance does not support the finding of facts from which an inference could be drawn that the contract price of $500,000, by the time it was paid to BGL, included any allowance for payment for the additional electrical works.
GB Electrical made submissions that it had worked as a subcontractor of BLG on three previous projects, and had undertaken work which was additional to the work originally agreed with BLG on those projects, and BLG had paid it for that work on those occasions. There was, however, no evidence to that effect. Even if there had been evidence to that effect, it would not assist GB Electrical in its claim for quantum meruit.
GB Electrical suggested that BLG had requested it to perform some of the additional electrical work, perhaps implying that such a request would be evidence of a benefit to BLG arising from the work. There was no evidence of such a request before the Tribunal at first instance, and the suggestion of it was contrary to the evidence of BLG, which GB Electrical did not challenge. In addition, that was not the basis on which the matter was argued before the Tribunal at first instance, and formed no part of the Tribunal's reasons. The Tribunal expressly found, on p 3 of its reasons: It is not disputed that the owner requested significant additional works from the contractor and that the contractor performed and charged for those works as variations.
GB Electrical argued that BLG must have known about the additional electrical work that it was doing at the request of the owner at the time that it was doing the work. GB Electrical's submissions on this point were at odds with the evidence of BLG, which GB Electrical accepted in the Tribunal at first instance. BLG said that he became aware of the additional electrical work late in the project. Even if it were true, however, that BLG had actual knowledge of each piece of additional electrical work performed by GB Electrical at the landowner's request, at the time that the work was performed, that does not amount to an acceptance of a benefit on the part of BLG.
There is no evidence to support GB Electrical's assertion that the landowner requested GB Electrical to perform some of the additional electrical work on behalf of BLG.
In its submissions to the Appeal Panel dated 17 January 2020, GB Electrical said: 30. In light of the lump sum purchase price in the Building Contract not being apportioned between these different work streams, the Respondent submits that, viewed objectively, the Owner would have proceeded on the basis that the purchase price would have covered all building work that was not excluded under the Building Contract that was required to be undertaken to meet the Owner's requirements for the new luxury home that he desired including any and all additional electrical and lighting equipment and work that he requested of the Respondent. In other words, the Owner's expectation in making the payment of the $500,000 to the Appellant would be that it would cover all building work including variation work required to be performed to achieve his desired outcome of a new luxury home. 31 Based on the Appellant's own evidence (see clause 16 of the Building Contract and the document entitled "Part 3 Project Budget") the Appellant in receiving full payment of the lump sum price of $500,000 received a windfall gain for: a. work and material that was specifically excluded in the contract (ie gyprock ($29,700), painting ($13,200) ("Excluded Items"); and b. items for the new home that were purchased by the Owner from China, namely, windows ($27,500) and doors and door hardware ($10,450) ("Owner Purchases"). but which he budgeted for (circa $80,850 for the Excluded Items and the Owner Purchases) in determining the $500,000 purchase price. The Appellant was in that sense unjustly enriched since he recovered money from the Owner for work and material that he did not perform under the Building Contract.
There was no evidence whatsoever before the Tribunal at first instance to substantiate the assertion in paragraph [30] of GB Electrical's submissions as to what the landowner's expectation would have been in making the $500,000 payment to BLG.
There was no evidence to support the inferences drawn from the Building Contract and 'Part 3 Project Budget' in paragraph 31 of GB Electrical's submission. There was no evidence of the factual assertions made in that paragraph.
In any event, if, hypothetically, BLG was unjustly enriched by receiving the price agreed with the landowner, on account, for example, of not having provided items that had formed part of the basis for the calculation of the contract price which was then agreed, that unjust enrichment does not relate in any way to the additional electrical work performed by GB Electrical. In order to establish a claim for quantum meruit against BLG, GB Electrical must establish as a matter of fact that BLG has been unjustly enriched at the expense of GB Electrical. This it has failed to do.

Summary and Conclusion

We have determined that the application by GB Electrical to tender two affidavits to the Appeal Panel should be refused.
The Tribunal at first instance determined that BLG had been unjustly enriched on account of the additional electrical works performed by GB Electrical at the request of the landowner, in the absence of any evidence supporting that conclusion. GB Electrical failed to establish, by adducing any probative evidence, that BLG was unjustly enriched at its expense in relation to the performance of the additional electrical work. The making of the determination that BLG had been unjustly enriched by the additional electrical works performed by GB Electrical without any evidentiary basis constitutes an error of law by the Tribunal at first instance (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ and The Queen v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Pty Ltd [1953] 88 CLR 100 at 117).
The appeal must be allowed.
We understand that our decision leaves GB Electrical in the invidious position of having performed work of significant value, namely the additional electrical work, and not having been paid for that work. On the evidence before the Tribunal, however, BLG is not liable to GB Electrical with respect to that work.
We understand that BLG has now paid GB Electrical the sum due to it under its contract with BLG, with a minor deduction for the work completed by Airlectro. That deduction is less than the value GB Electrical agreed should be attributed to Airlectro's work. We will not, therefore, make any orders in relation to the contract amount.

Orders

We make the following orders: 1. In relation to the application for miscellaneous matters filed by GB Electrical Services Pty Limited on 17 February 2020, a hearing is dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The application for the orders set out in the application for miscellaneous matters is refused. 3. The appeal by Bao Long Guo trading as GD Brother Projects is allowed. 4. Orders 1 and 2 made by the Tribunal at first instance are set aside. 5. Within seven days of the expiration of 28 days from the publication of this decision, in the event that no appeal from this decision has been filed in the Supreme Court (such filing to include the payment or waiver by the Court of the filing fee), the Registrar of the Tribunal is to pay to Bao Long Guo the sum of $25,877 which is the sum paid in to the Tribunal by him pursuant to the order made on 28 November 2019.

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: 02 July 2020

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