Cheung v Yang

Statutory framework 9The Consumer, Trader and Tenancy Tribunal Act governed the proceedings in the Tribunal and requires consideration in this Court. At least the following provisions are presently relevant and should be noted: "3 Objects of Act The objects of this Act are as follows: (a) to establish a Consumer, Trader and Tenancy Tribunal to determine disputes in relation to matters over which it has jurisdiction, (b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair, (c) to enable proceedings to be determined in an informal, expeditious and inexpensive manner, (d) to ensure the quality and consistency of the Tribunal's decision-making. 28 Procedure of Tribunal generally (1) The Tribunal may, subject to this Act, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand: (a) the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings. (5) The Tribunal: ... (d) in the case of a hearing-may require the presentation of the respective cases of the parties in proceedings to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases... 35 Opportunity for parties to present case The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity: (a) to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise), and (b) to make submissions in relation to the issues in the proceedings. 39 Powers in relation to witnesses (1) The Tribunal may: (a) call any witness of its own motion, and (b) examine any witness on oath, or require evidence to be verified by a statutory declaration, and (c) examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings, and (d) compel any witness to answer questions which the Tribunal considers to be relevant in any proceedings. (2)... 65 Review by prerogative writ etc generally excluded (1) Except as provided by this section, a court has no jurisdiction to grant relief or a remedy by way of: (a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or (b) a declaratory judgment or order, or (c) an injunction, in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter. (2)... (3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that: (a) ... (b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness." 10In the events that occurred, reference to the Home Building Act 1989 is also required. The following sections of that Act are relevant: "4 Unlicensed contracting (1) A person must not contract to do: (a) any residential building work, or (b) any specialist work, except as or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work. (2)... 10 Enforceability of contracts and other rights (1) A person who contracts to do any residential building work, or any specialist work, and who so contracts: (a) in contravention of section 4 (Unlicensed contracting), or (b) under a contract to which the requirements of section 7 apply that is not in writing or that does not have sufficient description of the work to which it relates (not being a contract entered into in the circumstances described in section 6 (2)), or (c) in contravention of any other provision of this Act or the regulations that is prescribed for the purposes of this paragraph, is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, and the contract is unenforceable by the person who contracted to do the work. However, the person is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person. 92 Contract work must be insured (1) A person must not do residential building work under a contract unless: (a) a contract of insurance that complies with this Act is in force in relation to that work in the name of the person who contracted to do the work, and (b) a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, has been provided to the other party (or one of the other parties) to the contract. (2)... 94 Effect of failure to insure residential building work (1) If a contract of insurance required by section 92 is not in force, in the name of the person who contracted to do the work, in relation to any residential building work done under a contract (the "uninsured work"), the contractor who did the work: (a) is not entitled to damages, or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, in relation to that work, and (b) is not entitled to recover money in respect of that work under any other right of action (including a quantum meruit). (1A) Despite section 92(2) and subsection (1), if a court or tribunal considers it just and equitable, the contractor, despite the absence of the required contract of insurance, is entitled to recover money in respect of that work on a quantum meruit basis." 11These provisions are referred to in more detail later in these reasons.

The Tribunal's Reasons for Decision 12It is convenient to record some of the significant portions of the Tribunal's decision. They are relevantly as follows: "9. It was agreed at the outset that each party would rely on its documentary evidence without any witness being required for cross-examination. 10. It was claimed by the builder that he had not received the affidavit evidence of the homeowners although he did receive the expert evidence. The homeowners claimed to have served the builder but only as late as the previous week. The builder indicated that if he was provided sufficient time to peruse the evidence he would be able and prepared to proceed with the hearing. As the matter was set down for two days, which would not be required in the absence of cross-examination of witnesses, the matter was adjourned on the first day quite early in the morning, and resumed on the second day. The builder indicated he had received the evidence and was ready to proceed. Both parties thereafter made their oral submissions. CONSIDERATION 11. The project, it is not disputed, came into being when the owners were considering how to renovate their garage into a granny flat. (There was a dispute as to whether their original plan was to rent the flat or to use it for their disabled daughter to live independently, but that is not relevant except as a matter of credit to be discussed below.) The owners were acquainted with the wife of the builder through their church and casual conversation led to the builder being asked whether he could perform the works. The owners had obtained a fairly informal quotation and that was used as the basis for a scope of works. The builder was asked if he could do the work for no more than $30,000.00 and he agreed to do so. The builder stated in submissions that at least at that early stage he did not understand the full scope of the work involved and that if he had done so, he would not have agreed to do the work for $30,000.00. In any event the builder agreed to commence the works on payment of $5,000.00 'deposit'. 12. It is also agreed that there was no written contract, not even in the form of a note or scribble - nothing in writing. It is also agreed that the builder is unlicensed and has never held a New South Wales licence for any kind of trade or contractor. At the time it appears, and I accept, that the builder was accustomed to using the licence number of another contractor with whom it is alleged he used to work. 13. Both parties proceeded on the basis of affidavit evidence from themselves and other witnesses, and two expert reports from the owners and one from the builder. 14. The parties were represented by solicitors for a considerable period and both applications were prepared in a competent and detailed manner, however, the builder's solicitors ceased acting for him about two weeks prior to the hearing, at a time when the owners affidavit evidence was being served. On the basis of that evidence, the parties agreed at the commencement of the hearing to proceed by tendering all their written evidence and then making submissions, rather than requiring witnesses for cross-examination." 13The Tribunal then continued to examine the affidavit evidence, identifying many conflicts between the two sides. There was scant written material to support Mr Cheung's claims. The amount paid to him by the Yangs was in contest. No Council approval was sought or obtained and each side blamed the other for that. The work that the Council ultimately permitted remains unauthorised. Even the scope of the works was in doubt. 14Mr Cheung's case was that from time to time he would request money from the Yangs but was told continually that they did not have money to pay him. They maintained that they were awaiting the receipt of funds from which Mr Cheung would be paid. The Yangs asked Mr Cheung to improve the standard of the finish. He agreed to do so and to expend significant additional sums. He said that he kept the Yangs informed from time to time about the cost increases upon the basis that he would be paid at the conclusion of the job. The Yangs maintained that the total price was never to exceed $30,000. They never wrote anything that could be used to support the claims Mr Cheung now makes and neither did he. 15At [22], the Tribunal expressed the following opinion: "[22] In my opinion, it is most unlikely that people in the position of the owners, on being told on a number of occasions that costs were increasing and that they would have to pay more, would not have sought proper information and records of increasing expense. There is no doubt the owners were always stating they were short of funds and no evidence to suggest that was not accurate. It is beyond belief that they would not be sufficiently concerned at the advice of increasing costs to ask for details. One explanation of not doing so, is that they were in fact assuming the original agreed sum of $30,000.00 was still in place. Another possibility, suggested in submissions by the builder, that the owners never had any intention of paying for the work but believed they could obtain a "free" granny flat by threatening the builder with legal action of some kind, including in relation to his visa status. No evidence was provided in that regard and it did not arise at all until final submissions by the builder." 16The Tribunal went on to note that in about mid-June 2011 there was "something of a confrontation" on site when Mr Cheung demanded the sum of $18,000. He did not explain how that sum was calculated. The Tribunal found that the Yangs had no knowledge of the alleged final costs of the work until they received a letter of demand from Mr Cheung after the work was completed. In particular, the Tribunal found that they had no knowledge that the cost of the work had increased either at all or substantially over the original estimate of $30,000. 17The Tribunal went on to observe that because there was no agreement in writing, Mr Cheung's claim was necessarily one based on a claim for the fair value of the work performed. Sections 7 (contract must be in writing) and 92 (contract work must be insured) of the Home Building Act had been breached. Notwithstanding those breaches, the Tribunal considered that it could proceed to assess Mr Cheung's claim in accordance with s 94 of that Act. 18The Tribunal referred in particular to Scott v Dimov [2011] NSWCTTT 565 at [63]-[67]. It noted that there was little dispute about the competing contentions concerning either the value of the work performed by Mr Cheung or the cost of rectifying its defects. It described Mr Cheung's entitlement to recover money from the Yangs as "another story". It posed the question whether or not in the particular circumstances of this case it was fair that Mr Cheung was entitled to a quantum meruit or that the Yangs pay him for the reasonable cost of the work. 19The Tribunal examined and disposed of this aspect of the case at [31]-[36] as follows: "[31] In the particular circumstances of these cases, is it fair that the builder receives a quantum meruit and that the owners pay it? [32] The builder submits that he did not realise he could not contract using the licence number of a licensed tradesperson with whom he used to, or sometimes did, work. I reject this submission. In other submissions, the builder also stated that when he arrived in Australia some 7 years ago he did not seek a licence because he was aware (in some unspecified way) of problems in obtaining a licence. There is also undisputed evidence that the builder's van actually carried signage containing the licence number of another person with no reference to that person or the relationship between the builder and that person. I find that the builder deliberately misled the owners as to his licence status. [33] The builder also did not obtain home warranty insurance. The builder at no time maintained that he was ignorant of the necessity to obtain such insurance but made no attempt to do so, either before, during or even after the work was completed. To refer to Scott v Dimov again, Senior Member Smith noted that: '75 It is the conduct of the party in breach that is an important consideration arising from the analysis in Eddy Lau (per Hall J in Pender v Rowenphi). 'In that respect, ignorance or oversight of the statutory requirement under the Act stands in marked contrast to a contravention that is wilful or deliberate.' [34] In this case, I find that the failure to obtain the necessary licence or the necessary insurance was wilful and deliberate and (at least in relation to the licence) done with the intent to mislead potential clients and the owners in this case in particular. [35] Furthermore, the builder has made no attempt, even in the knowledge that it was squarely in issue in this application, to provide any evidence as to his experience or qualifications either in Australia or previously. [36] In my opinion it is also of crucial importance in this particular case, that the builder made no attempt to advise the owners of the actual mounting costs as the work proceeded. On his own evidence, he did no more than state that costs were increasing and on one or two occasions only suggested a figure in excess of $40,000.00, but never did he present any kind of progress invoice or calculation. His submission is that when the work was finally completed he expected the parties to sit down and settle the total amount. That simply beggars belief and I reject that submission. It is not credible that people in the position of the owners, who made no secret of their lack of funds or their hope to receive funds from an informal community arrangement (referred to as "Gye" which apparently operates in the Korean community) at some imprecisely specified time in the future, could be expected to calmly accept an increase in costs from the original estimate of $30,000.00 to a sum approaching or even exceeding $80,000.00." 20The Tribunal concluded that Mr Cheung was not entitled to succeed on his quantum meruit claim. It determined that he was liable to the Yangs for $19,795.88, including a 25 percent builder's margin, for rectification costs, and ordered him to pay them that sum. It observed that as Mr Cheung was unlicensed it could not order him to rectify the defective works, even if it had been inclined to that course.

Grounds for relief 21It was in these circumstances that Mr Cheung contended that he was entitled to certain relief. His first proposition was that he had been denied procedural fairness. He submitted that he received the lay affidavits only the day before the hearing, was self-represented, could not read English, and was not given a reasonable opportunity to present his case contrary to s 35. He was also allegedly not given sufficient time to consider the late served evidence or to respond to it. 22Next, Mr Cheung submitted that the Tribunal had erred in directing that there was to be no cross-examination of any witnesses in the proceedings and that this also constituted a denial of procedural fairness. This contention is linked to a further submission that the Tribunal failed contrary to s 28(4)(b) of the Act to give Mr Cheung an opportunity to make submissions about this and accordingly failed to ensure that he understood that the usual practice of the Tribunal was not to permit cross-examination. Mr Cheung expressly requested an opportunity to cross-examine Sang Duk Bae and the Tribunal is said by him to have erred in denying his request without giving sufficient reasons. 23Mr Cheung also says that the Tribunal erred in refusing to allow him to call his wife as a witness in reply and therefore denied him procedural fairness. 24Mr Cheung next contends that the Tribunal erroneously failed to take measures to ensure that he was aware of the nature of the assertion that he had deliberately and contumeliously misled the Yangs by representing that he had a licence in circumstances where he did not, as well as the legal implications of that assertion. This was said to offend s 28(4)(a) of the Act. Mr Cheung was also denied the opportunity to give evidence and make submissions concerning that assertion and its legal implications and accordingly failed to comply with s 35 of the Act. 25Mr Cheung contended that the Tribunal's findings at [32] and [34] of its reasons should have been arrived at applying Briginshaw v Briginshaw principles. 26Finally, the Tribunal is also said to have denied Mr Cheung procedural fairness in finding at [34] that his failure to obtain the required insurance was wilful and deliberate. That proposition was never put to him and he was never given any proper opportunity to respond to it or to deny it.

The hearing 27Mr Cheung's complaints essentially rest upon what happened to him on the second day of the hearing. Although the adjournment of proceedings on the previous day was occasioned by the fact that he had not by then received the Yangs' lay affidavits, the important associated opportunity to read and understand them produced consequences that really only materialised on the following day. 28The Tribunal observed on the first day that Mr Cheung could cross-examine any of the Yangs witnesses if he wished to do so. The Tribunal then went on to explain the process in the following terms: "The way these cases run is that the evidence will be given to the Tribunal. Unless it is especially challenged by the other side, the Tribunal will accept the evidence unless, of course, it's obviously nonsense just on the face or for some other reason it's clear that it shouldn't be accepted. The parties should also be aware that, in cases where there are conflicts in the versions between the two sides, it becomes quite important, if possible, to relate what people are saying what happened to anything else which may support what they're saying." 29Counsel for the Yangs proceeded to open the case. He indicated that he proposed to establish that Mr Cheung was unqualified and unlicensed and that the labourers that were employed by him to work on the job were also unlicensed. He indicated that Mr Cheung had represented to the Yangs that he held proper qualifications as a builder, was experienced in building work and was appropriately licensed. 30Counsel outlined the Yangs' case as one in which the parties entered into an agreement to carry out renovation work to the Yangs' garage in order to convert it into a granny flat. The agreed price was said to be $30,000. Mr Cheung proceeded to do the work but he ultimately claimed in excess of $80,000. He did not refer this increase in price to the Yangs for their agreement in advance or as the job progressed, and presented them with an account for the final amount that exceeded both their expectations and their ability to pay. Counsel for the Yangs posed at an early stage the rhetorical question of whether in the circumstances it was just and reasonable for his clients to be required to pay the larger sum in the circumstances. There was never anything provided to the Yangs in writing from Mr Cheung that referred to or foreshadowed the higher amount. There was no dispute that the Yangs had acknowledged in writing a promise to pay the smaller amount of $30,000 for the proposed work. 31At the conclusion of that opening the Tribunal asked whether Mr Cheung or his solicitors had ever written to the Tribunal or to the Yangs requiring any of their experts or lay witnesses for cross-examination. With the aid of an interpreter Mr Cheung responded that he did not know them "so I guess I thought I could have a right to have access to them for the purpose of such." The Tribunal then commented as follows: "I have no information and nor do I require any as to why the builder's solicitors ceased to act for him. However, it is clear from the file that the former solicitor for the builder was aware of the issue in relation to lay evidence. I am prepared to infer that he would have been aware that lay evidence had been filed and served and no request has been received from the builder for the attendance of any of the witnesses for cross-examination. I note that some of the witnesses are available; some are not for specified reasons. I propose on that basis that I will listen to submissions from Mr Cheung in relation to the evidence which has been reduced to writing, but that we will not proceed through a formal cross-examination." 32The Yangs proceeded thereafter to read their evidence. It emerged within a short time that Mr Cheung did not have this written material, a consequence apparently flowing from the withdrawal of his former solicitors. The Tribunal quite quickly came to the view that the matter could not proceed in those circumstances. The position was described in these terms: "It's an unsatisfactory situation without the usual records of formal service and so on. Mr Cheung says that he has not received some of the critical evidence and I don't have any explanation of why that might be the case, but I can't allow the hearing to proceed in case it is the truth. So I want copies of all of the statements and the expert evidence made today and given to Mr Cheung as soon as possible. Can that be arranged by lunchtime today?" 33The Tribunal then adjourned the matter until the following day. It also went on to observe that "we should be able to finish the matter tomorrow anyway if there will not be formal cross-examination." Mr Cheung responded saying, "if I will be given the extra documents at lunchtime today I will take it home and I will have some time to prepare a response to that, would I be able to do that?" Mr Cheung was told that he could then make any response or comment that he wished. 34The proceedings resumed the following day. It is not in contest that the previous day Mr Cheung had been given all of the Yangs' evidence to examine beforehand. The events that led to the adjournment provoked the following comments from the Tribunal early on the second day: "Now I just want to make some comments on the record. There are some aspects of the preparation of this case which are of potential concern, and particularly in relation to the late withdrawal of [the solicitors] acting for the builder. However, both parties have very well prepared cases with extensive evidence and I am satisfied that it is reasonable to proceed to determine the claim today. I have confirmed that both parties have presented all of their evidence and what I propose to do is to move to submissions on behalf of the home owners first and then on behalf of the builder. And when that is over, the homeowners may wish to comment on what the builder has said, and then the builder may wish to comment on what the homeowners have said, and then I will make my decision. Are both sides happy with that process?" 35Both sides agreed. Counsel for the Yangs then proceeded at length to make submissions on their behalf. It is unnecessary to refer to these submissions in detail. The Tribunal eventually asked counsel what he wanted to say "in relation to the justice of allowing [Mr Cheung] payment for any [of the sums] that he says he's spent?" Before that question was answered, the Tribunal also posed the following question: "Is the fact that he has breached a whole swathe of sections of the Act sufficient to make him bear that cost [of what he has spent] or is there any other thing that I should take into account in your opinion? I think you've probably covered it all anyway because it's the [Yangs'] case that it doesn't matter how much he's spent, the contract was 30,000." 36Counsel for the Yangs agreed with the Tribunal's assessment of the way in which they put their case. The Tribunal then concluded this discussion with counsel for the Yangs in the following terms, with which he also agreed: "And there is nothing in the evidence which would persuade me that he has advised the home owner that it's going to cost more than 30,000 and that they have said, 'Never mind the cost. Spend what you have to and just build us a good granny flat'... There is nothing in the evidence that would support that." 37Mr Cheung then proceeded to make submissions in support of his case. He did so with the aid of an interpreter in the Korean language. It became evident that Mr Cheung was not legally trained and that his submissions were not prepared or presented with the benefit of any legal advice or assistance. 38Mr Cheung recounted how he had been a builder in Japan for more than 34 years. He became aware of the need to have a licence to build houses in Australia but he never acquired one. He had only ever worked on jobs in Australia that had been given to a licensed builder. He maintained that he was a carpenter and as such did not require a licence. He maintained that he told the Yangs this and that he did not hold home warranty insurance. Mr Cheung said that the whole project materialised as the result of discussions between friends at their local church. It would appear that his wife and Mrs Yang discussed the possibility of converting the Yangs' garage into a granny flat for occupation by their disabled daughter, and he agreed to do it. 39Mr Cheung put it this way: "So I started as a simple renovation job based on the friendship, and all the money and extra work that needed to go into that renovation work - renovation work - was between ladies. So that was part of their thing how friends talk, that I was never fully involved in the costs. And the way it's been set out in the contract, the fact that their side bringing - saying I did not comply with such and such legislation and Act and different sections, well, as a lay person and because of the very fact that this renovation started off based on our friendship, it did not just go that way." 40He continued a little later as follows: "I did not sufficiently know that I had to set out all of these different section and different legislations to follow to sign a contract. It was very simple $5,000 renovation work and, during that, the council were brought in and all of this stuff - all these matters snowballed around it. And I guess I was very vulnerable rather than them being vulnerable. I really feel that the version of the story that's been put out to you today before me is quite unfair for my side of understanding, because there was a friendship-based quick renovation that I decided to help by getting $5,000. ... For $30,000 that's a very basic and minimum amount to do anything about this granny flat renovations by construction. All I had at initial stage - two of them - was good intention to help and build my wife's friend's granny flat. But, as the payment was not coming, I had to add my labour and GST tax. That's how it - how I came to the total amount. As you can see in assessment of expert report - as you can see, it's not just $30,000 job. As you can tell, it's about $80,000 worth of work. ... So when they bring in their new solicitor I can really see that a significant change of tone - this job started as friends' work, a simple renovation as good friendship-based, but now we're talking about specific sections of legislations, what I've done wrong, who did right. It was just really big change of its tone." 41Mr Cheung's submissions continued. He then arrived at a point where he indicated to the Tribunal that he wished to cross-examine Mr Bae. This was apparently to be directed at some relatively small amounts paid to him for plumbing and electrical work. In addition, Mr Cheung indicated that he wished to call his wife as a witness, "because she was the one who was dealing with Mrs Yang when it [came] to setting up this renovation idea." 42The Tribunal responded: "Well, in response to that, and also in response to your request to cross-examine Mr Bae, Mr Cheung, you will remember yesterday that we discussed how we were going to proceed with the hearing, and the idea was that all the statements would go in and there would be no cross-examination. And Mr Cheung's wife's evidence is contained in her affidavit which is already in evidence so, in that sense, I have heard from her. And can I ask how much longer Mr Cheung thinks he will be?" 43Counsel for the Yangs then responded at some length. The underpinning theme of his submissions remained that Mr Cheung was not entitled to recover any money for the work that he performed because he was aware from the outset that the job was going to cost more than $30,000 and did not inform the Yangs of this fact or give them regular reports on the increases in costs as they occurred. He left it all until the end by which time the Yangs were being presented with what amounted to a fait accompli. It would not be just and equitable to permit him to recover anything in the circumstances.

Mr Cheung's submissions 44Mr Cheung submitted in this Court that the Tribunal had an obligation to ensure that he understood the procedural aspects of the case so that he received a fair hearing. This was particularly so in the present case as he was unrepresented and needed the assistance of an interpreter. In Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362, Beazley JA observed at [54]-[55] as follows: "[54] The obligations of a court or tribunal to ensure that an unrepresented party understands the procedural aspects of the matter was discussed by the High Court in MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512. In that case, the High Court stated that giving full weight to the adversary character of a criminal proceeding, the trial judge's primary obligation remained to ensure that the accused had a fair trial: per Mason J at 534. See also King v The Queen [2003] HCA 42; (2003) 215 CLR 150 at 179-180 [95] per Kirby J. [55] In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 July 1986, unreported), Samuels JA stated that: 'In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.'" 45Mr Cheung contended that the Tribunal failed to explain to him the requisite procedures for hearing, including that he might seek to cross-examine witnesses, or seek an appropriate adjournment in order to consider the written evidence that he only received on the first day of the proceedings. He referred to Italiano v Carbone [2005] NSWCA 177 where Basten JA at [105]-[106] explained the proper approach as follows: "[105] The remaining question is thus whether, on the evidence, the Tribunal was under an independent obligation to take particular steps which it did not do. If so, the consequent question is whether its failure invalidated the resulting orders. There is statutory support in the CTTT Act for such obligations. Thus, s.35 ... provides that the Tribunal 'must ensure' that each party is given 'a reasonable opportunity' to present its case. Where necessary this will entail offering an appropriate adjournment, whether sought or not. In addition, s.28(4)... requires the Tribunal to 'take such measures as are reasonably practicable' to ensure that the parties understand not only the nature of the assertions made in the proceedings, but also 'the legal implications of those assertions'. [106] There are, as already noted, provisions which allow the Tribunal a significant degree of flexibility in adapting its procedures to the exigencies of the case in determining the manner in which the proceedings will be conducted. Nevertheless, those provisions should not be construed so as to derogate from other provisions cast in obligatory language which constitute core elements of procedural fairness..." 46Mr Cheung contended that the Tribunal was wrong if it had made or operated upon an assumption that he could master the evidence before the following day without legal assistance or an interpreter. He submitted that there was a failure to conform to s 35 of the Act. Even if he had been able to read and understand the material, he was not given sufficient time to prepare his case in response. He maintained that the Tribunal's failure to offer or grant him an adequate adjournment and a reasonable opportunity to present his case constituted a denial of procedural fairness. 47Mr Cheung also maintained that the Tribunal's approach to cross-examination was flawed. That submission was made particularly with respect to the nature of the findings that the Tribunal arrived at, which were to the effect that Mr Cheung had committed a fraud upon the Yangs concerning his failure to disclose the facts that he was both unlicensed and uninsured. He referred to what was said by O'Keefe J in Wakim v Mathiew Pty Ltd [2002] NSWSC 405 at [30] as follows: "[30] There may, however, be cases in which the denial of an oral hearing or of the right to cross-examine may constitute a denial of natural justice. In determining whether or not that is so in a given case, it is necessary to consider the whole of the circumstances including the legislation, the general practice as understood by the parties and any acceptance by them as to the way in which the proceedings are to be conducted..." 48In Williams v NSW Land and Housing [2012] NSWSC 1022 at [47]-[48], Schmidt J cited the above passage and explained: "[47] While the proceedings here in question came before the Tribunal, rather than a court, given that this statutory scheme requires the Tribunal to adhere to rules of procedural fairness, and to act according to equity, good consciousness and the substantial merits of the case, the importance of ensuring that Ms Williams had a fair opportunity to cross-examine the defendant's witnesses is apparent. At the least, she needed to be given some explanation of what the process was and why it was important. [48] That is underscored when consideration is given to the fact that the power to examine and cross-examine witnesses given by s 39 of the Consumer, Trader and Tenancy Tribunal Act was one which the Tribunal Member plainly exercised in relation to witnesses Ms Williams called, but without explaining that this power was available to be exercised by the Tribunal. It is also relevant that it was not one exercised in the same way, in relation to the witnesses called by the defendant, a matter about which Ms Williams complained. The result of the approach adopted was that the evidence given by the defendant's witnesses was not explored or challenged, but the evidence which she called was closely examined by the Tribunal Member." 49Mr Cheung contended that if cross-examination had been permitted, he could have challenged the Yangs' evidence that appears to have been accepted by the Tribunal to support a number of disputed assertions. These included that he held himself out as a licensed builder (judgment [33]), that he agreed to handle the council planning issues (judgment [32]) that his van carried signage displaying a licence number and the quantum of the amounts allegedly paid to him by the Yangs. The Tribunal should also only have arrived at any findings of fraud against him if comfortably satisfied of the position. Even though not bound by the rules of evidence, Mr Cheung contended that the Tribunal ought to have considered itself bound to conform to considerations of the type exemplified in Briginshaw v Briginshaw. 50Counsel for the Yangs in the Tribunal had contended that Mr Cheung had been disingenuous in his explanations, knowing from the start of the work that it was bound to cost more than $30,000 and that his explanations were recent inventions. He made the following submission: "Not only is [Mr Cheung] misleading these people but he's misleading an independent person as well, and whether it be for the purposes of getting work for himself, one doesn't know, but the reality is that he's not telling the truth...And this is a case of credibility. There are certain credibility issues that need to be considered... and...it seems to be a situation that Mr Cheung says what will assist him, and some of these things...may be regarded as recent inventions because they don't appear in his affidavit; there's nothing there to support it." 51Mr Cheung contended in this Court that that submission was tantamount to an allegation that he had committed a fraud upon the Yangs. Mr Cheung therefore submitted in this Court that "it was a manifest denial of procedural fairness to proceed to determine the case, and make the requisite findings of fraud, without any cross-examination." 52Mr Cheung submitted finally that he should have been confronted with propositions that were adverse to his interests in order that he might have been given an opportunity to deny them. Mr Cheung characterised this failure as a "process of reasoning [that] violated the rule in Browne v Dunn". He complained that the Tribunal "inverted" that rule by proceeding upon the assumption that because Mr Cheung did not deny a fact in issue, the absence of a denial constituted evidence supporting the finding against him on that particular fact. That submission was generally based upon the proposition that, even though the evidence was in the form of affidavits sworn by each side and served in advance of the hearing, Mr Cheung was nevertheless denied, or not afforded, the opportunity to confront his accuser in a proper fashion. That was said to be because the Yangs' affidavits only came to him late and, by implication, without affording him sufficient time to answer them or to reply.

Consideration 53The circumstances in which Mr Cheung found himself on the first day of the hearing were obviously unenviable. He was by then without legal representation, even though that unfortunate position had only just occurred. He spoke and understood only limited English, and could not be expected to have been equipped to master the detail of the case against him easily or quickly, if at all. He was not himself legally trained or experienced. In the events that occurred, the Yangs' affidavits had not come into his personal possession until approximately lunchtime on that day. His case in chief had presumably been well prepared by his former solicitors, but they do not appear to have arranged for any affidavits or other evidence in reply, assuming that any were necessary or permitted. It is difficult in the circumstances to feel confident that the adjournment, that was quite properly afforded him, could have been of any real assistance or benefit to him. 54The first issue to be determined is therefore whether Mr Cheung was given a reasonable opportunity to call or give evidence or otherwise present his case and to make submissions in relation to the issues in the proceedings. There does not appear to be any question that the relevant opportunity was given to him in relation to the calling and giving of evidence. I put aside for the moment the related issue concerning cross-examination, and the related question of what Mr Cheung might reasonably have considered or believed were in fact the critical issues upon which the case would ultimately be determined. When the case commenced before the Tribunal on the first day, both sides had prepared and served their lay and expert evidence. The departure of Mr Cheung's legal team meant that he had not personally seen it. 55At a purely factual level, Mr Cheung was also given an opportunity to make submissions. The transcript bears witness to the fact that he did so, with the benefit of an interpreter, and that he had a detailed understanding of the factual issues, even if his appreciation of the legal implications was less acute. 56The question calling for consideration is whether the expression "reasonable opportunity" encompasses more than matters of timing. If Mr Cheung had retained his original lawyers for the hearing, there can be little doubt that he could have made no complaint that he had not been given a reasonable opportunity in any relevant respect. The expression only attracts attention in this case now by reason of the particular suboptimal characteristics of Mr Cheung's predicament at the time. 57In my opinion Mr Cheung was given a reasonable opportunity of the type specifically contemplated by s 35 of the Act. It should be noted that the Tribunal sought confirmation on the second day of the hearing that both parties had presented all of their evidence and that they were happy to proceed to submissions. Mr Cheung agreed that he was happy to adopt that course. It might be thought or assumed that his appreciation of what that entailed was affected by his lack of English or his lack of legal representation or experience. However, the Tribunal was faced with what must be a regularly reoccurring situation and was required to approach the matter in the circumstances as they were then known. Mr Cheung had not sought to contend that he was disadvantaged by his lack of English. He did not ask the Tribunal to give him an adjournment to obtain alternative legal assistance. He appears readily, at least to all outward appearances at the time, to have accepted the Tribunal's proposed method of proceeding. He did not give an indication that he did not comprehend what was to follow. It cannot therefore be assumed that his implicit suggestion, that he should have received somewhat more beneficial treatment by the Tribunal in the circumstances and was therefore not relevantly given a reasonable opportunity, should be accepted. 58Nor do I consider that the Tribunal erred in directing that there was to be no cross-examination. Once again, this issue has potential to emerge as part of Mr Cheung's other concerns. This is referred to later in these reasons. However, strictly and narrowly construed, the issue is not of assistance to Mr Cheung in this case. 59Mr Cheung's complaint can only be that he was not given an opportunity to cross-examine the Yangs or their witnesses, not that he was not tested in cross-examination. The only witnesses that Mr Cheung identified as a potential candidate for cross-examination was Mr Bae, and then only on the question of some relatively small amounts paid to him for plumbing and electrical work. Denying Mr Cheung the opportunity to cross-examine him would not attract a legitimate complaint in the circumstances, as well for the reason that the contest about the quantum of the cost of the works effectively disappeared in the wake of the Tribunal's acceptance of the value of the works performed by Mr Cheung. 60It was wholly within the legitimate power of the Tribunal to dispense with cross-examination if it thought fit in accordance with the terms of s 28 of the Act. The only limitation upon its power to do so consists in its obligation to conform to the rules of procedural fairness. Refusing to permit Mr Cheung to cross-examine Mr Bae did not offend those rules. 61Denying Mr Cheung the opportunity to call his wife to give further (oral) evidence also did not offend any rule of procedure or fairness. Mrs Cheung had sworn an affidavit in support of his case in chief. Everything that she might have been expected to contribute to the proceedings was no doubt contained in that document. Mr Cheung did not identify a late emerging issue to which her proposed further evidence was to be directed. An application to expand her evidence fell to be determined by the Tribunal having regard to the equal opportunities that both sides had had prior to that time to formulate their respective cases. Once again it seems highly likely that no criticism of the Tribunal could ever have been made of its decision not to allow Mr Cheung to call his wife if lawyers had continued to represent Mr Cheung. No different result should follow only because Mr Cheung appeared for himself or required an interpreter. 62The only possibly viable basis upon which Mr Cheung could seek to impugn the Tribunal's procedures consists in the proposition that its decision was based upon a finding of fraud against him, or what for all relevant purposes was the equivalent of such a finding, requiring or demanding that he should have been confronted directly with the relevant allegation and have been given an opportunity to deny it. The corollary of this contention is that the Tribunal could not have arrived at any legitimate conclusion on the point adverse to the interests of Mr Cheung unless comfortably satisfied of the matters put against him. It is in this context that the issue of cross-examination, being cross-examination of Mr Cheung rather than cross-examination by him, re-emerges for consideration. 63It will be recalled that the decision of the Tribunal adverse to Mr Cheung turned upon the question of whether or not it was "just and equitable" for him to recover money in respect of work performed by him despite the fact that he failed to arrange the required insurance as a prerequisite to the performance of residential building work. The Tribunal must have found that it was not just and equitable in the circumstances of this case. That is because there is no absolute impediment to a contractor, such as Mr Cheung, recovering the cost of work performed upon a quantum meruit basis, other than a court or tribunal considering that such recovery was not just and equitable. Senior Member Smith put it this way at [67] in Scott v Dimov: "[67] The effect of s 94(1)... is to remove any right by a builder to claim in quantum meruit (even if otherwise meritorious) if the necessary insurance is not in place. Section 94(1A) reinstates the right in circumstances where it is 'just and equitable' to do so." 64In this case the Tribunal specifically determined the value of the work performed by Mr Cheung to which amount it seems apparent he would otherwise have been entitled. 65It does not appear to be controversial that the Tribunal would not have been required to find that Mr Cheung's conduct was fraudulent or dishonest before it could have come to the conclusion that it was not just and equitable for him to recover the costs of the work he performed. A determination of what is just and equitable is not necessarily coextensive with the presence of absence of fraud or dishonesty. It is perfectly plausible that a Tribunal might conclude, in the absence of any allegation or evidence of fraud or dishonesty, that a particular builder was nonetheless not entitled to recover because it did not consider it otherwise just and equitable that he should do so. 66Mr Cheung's submissions in this case appear to invite a consideration of two matters. First, the extent to which, if at all, it was the Tribunal's decision that it was not just and equitable in the circumstances of this case that he should recover money in respect of the work he performed on a quantum meruit basis. Secondly, the extent to which, if at all, that decision proceeded or was based upon a finding that Mr Cheung was also fraudulent or dishonest. It is at the heart of Mr Cheung's contentions in this Court that he was unfairly denied the opportunity to put the question of his alleged fraudulent conduct and his honesty in issue. Implicit in this approach is that the exercise of the Tribunal's discretion was or may arguably have been adversely affected by its failure to afford Mr Cheung procedural fairness. 67It is tolerably clear that the Tribunal's decision, in finding that he was "not entitled to a quantum meruit claim", was a decision made in accordance with s 94(1A) of the Act, that the Tribunal did not consider it just and equitable that Mr Cheung should recover on that basis. It was based in terms upon the Tribunal's concern that Mr Cheung performed work knowing that the cost exceeded the agreed price without forewarning the Yangs of that fact or of his intention to claim an amount representing nearly three times the amount of the original price. As the Tribunal emphasised, it was "of crucial importance in this particular case, that [Mr Cheung] made no attempt to advise the [Yangs] of the actual mounting costs as the work proceeded." The Tribunal effectively determined that it was not just and equitable that Mr Cheung could expect or require the Yangs simply "to sit down and settle the total amount" or to "calmly accept an increase in costs from the original estimate of $30,000 to a sum approaching or even exceeding $80,000." Whether or not that conclusion is capable of successful challenge is neither presently relevant nor a justiciable issue in this Court. Proceedings between the parties commenced in the District Court that presumably raise that issue are currently stayed. 68The Tribunal's decision is also apparently based upon its finding at [32] "that [Mr Cheung] deliberately misled the [Yangs] as to his licence status" and its finding at [34] "that the failure to obtain the necessary licence or the necessary insurance was wilful and deliberate and (at least in relation to the licence) done with the intent to mislead potential clients and the [Yangs] in this case in particular." Was Mr Cheung denied a proper opportunity to present his case on the matters that supported these findings and thereby denied procedural fairness? 69Mr Cheung relied in the Tribunal upon his affidavit sworn 11 November 2011. Paragraph 61 of that affidavit is in these terms: "61. I have worked as a builder since 1985. I started working in Japan in 1985 and commenced working in Korea in 2003. Exhibited to me at the time of swearing this affidavit and marked 'AI' is a copy of a Business Registration Certificate in respect of my work in Korea, together with a translation. I entered into Australia on or about 17 January 2004 and commenced working with Chul Dong Park, whose licence number is 152062C. I worked with Mr Park until about 2007. I have now had it explained to me that I need to be licensed in my own right. I did not understand that I could not trade because of my association with Mr Park." 70A material order form on the stationery of Universal Roofing and Accessories Pty Ltd is exhibited to Mr Cheung's affidavit. His stamped details are on that document, including "Carpenter Lic. No. 152062C." 71On 29 June 2012 Mrs Yang swore an affidavit for use in the Tribunal. She referred at paragraph 4 of her affidavit to a conversation with Mrs Cheung in the course of which Mrs Cheung told her that Mr Cheung was "qualified in Australia as a builder and also holds a carpenter's licence." Paragraph 8 of that affidavit is in these terms: "8 After this meeting Mr and Mrs Cheung would visit our home more frequently. They would come in Mr Cheung's work vehicle, on which I noticed a sign containing the name 'Oohirahome Interior Japan', an ABN number and his carpentry licence number. This confirmed my initial opinion of Mr Cheung as an accomplished and qualified builder in Australia as had been represented to me by his wife. It was only much later on that I came to be aware that Mr Cheung did not in fact have a carpentry licence at any time while he was undertaking the building work for us." 72Mr Yang swore two affidavits in effectively identical terms dated 30 June 2012 and 2 July 2012. Neither affidavit referred to the issue of Mr Cheung's unlicensed status, apart from what his wife had told him concerning her conversation with Mrs Cheung, or to the question of insurance. 73It can be seen that the original affidavit evidence upon which the parties relied placed very little emphasis upon the fact that Mr Cheung did not have a licence. Although the two issues are necessarily linked, the affidavit evidence also failed to refer at all to the fact that he did not have insurance. The emphasis and apparent importance that these issues received in the Tribunal's decision are therefore disproportionate to the attention it received in the parties' respective cases in chief. It would appear to have been given somewhat more emphatic attention during the course of final submissions, with the consequence that it also became prominent in the final result. It was not, however, an issue that was obviously central to the way in which the parties conducted the case, which instead revolved around what occurred when Mr Cheung presented the Yangs with a large and unexpected invoice, rather than around their original decision to choose Mr Cheung as their builder in the first place because they understood him to have been, and placed reliance upon the fact that he was, both licensed and insured. 74Mr Cheung's complaint distils to the contention that the Tribunal decided the case against him without indicating that it was minded to treat the issues of his licence or his insurance as important or significant, or at least as important or significant as it ultimately appears to have become, and in those circumstances without inviting a response from Mr Cheung about it before doing so. 75The modern statement of the hearing rule appears in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584-5 as follows: "The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention... In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations... When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?" 76One aspect of the hearing rule is that a person should have matters adverse to that person or that person's interest put to that person for comment or evidence before an adverse decision is made. A decision-maker should not make a decision having had regard to undisclosed material adverse to a party that was credible, relevant and significant to the decision to be made without first putting that material to that person: Kioa v West at 629; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57; Muin v Refugee Tribunal [2002] HCA 30; (2002) 76 ALJR 966. Furthermore, a decision maker should bring the critical issue or factor on which the decision is likely to, or may possibly, turn to the person's attention so that he or she might have an opportunity to deal with it: for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [81]. Finally, a decision-maker should not wittingly or unwittingly mislead a party as to the importance, or possible importance, of a factor to the decision-maker: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah; Muin v Refugee Tribunal. 77For all anyone knows, the Tribunal may well have been satisfied that it was not just and equitable for Mr Cheung to recover on a quantum meruit basis, even without proceeding to find that he had deliberately misled the Yangs as to his licence status or that he had wilfully and deliberately failed to obtain the necessary licence or insurance with the intention of misleading them. Be that as it may, the Tribunal made those findings. They cannot be quarantined or excised from the Tribunal's decision. The findings apparently underpinned the ultimate decision to some extent. Nor were they issues that were obvious or apparent from the evidence upon which the case was determined or issues that were put to Mr Cheung during his submissions at the end of the hearing. They were not identified from the content of any cross-examination because there was none. At best the issues arose, as I have intimated, at the end of the proceedings and only then from the way in which counsel for the Yangs sought to characterise the fact that Mr Cheung was neither licensed nor insured. 78As unfortunate as it is to extend or add to the time and cost of this litigation, it seems to me that Mr Cheung was denied a fair and reasonable opportunity to know and understand, and thereby to deal with, the prospect or possibility that the Tribunal was considering finding against him on any of the bases referred to in [32] or [34] of its decision. As I have indicated, whether or not the same conclusions at which the Tribunal arrived would or could have followed without such findings is wholly beside the point. They form part of the Tribunal's decision and Mr Cheung could be forgiven for being surprised by them. He was in my opinion denied procedural fairness in the sense contemplated by s 65(3)(b) of the Act.

Orders 79In these circumstances I consider that the following orders should be made:

1. Quash the decision and orders made by the Consumer, Trader and Tenancy Tribunal in matters HB 11/36933 and HB 11/43338 on 15 August 2012.
2. Remit each matter to the Tribunal to be determined according to law.
3. Order that the costs of the proceedings in this Court abide the outcome of the proceedings in the Tribunal.
4. Grant liberty to the parties to apply to this Court limited to the question of costs if required.

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: 20 November 2013