Curtis v GRC Property Maintenance Pty Ltd

(1) $150.00 for rubbish removal;

(2) $1,250.00 to remedy poor workmanship in respect of the replacement of a door and door frame;

(3) $550.00 for the cost of installing an architrave the respondent failed to install;

(4) $850.00 to replace interior particleboard flooring which the appellant claimed had had been exposed to external elements for 14 months;

(5) $1067.00 to investigate and repair a short circuit following the removal of a fountain and water pump by the respondent; and

(6) Damages for the cost to remedy defective work in respect of the replacement of a strip drain. This included a claim for the cost to install paving.

(1) Ordered that the claim, which had been filed as a building claim under the HB Act be determined as consumer claim under the FT Act and the ACL because the value of the work performed by the respondent was less than $5000.00;

(2) Found in favour of the appellant for amounts of:

(a) $500.00 for the cost to repair damaged brickwork, caused by the defective instillation of a door and door frame;

(b) $20.00 for silicon to be applied to a gap between the door frame and an internal wall;

(c) $1,250.00 for rectification work in respect of a defectively installed door;

(d) $250.00 for a missing architrave;

(e) $250.00 in respect of a damages particle board flooring; and

(3) Otherwise rejected the amounts claimed by the appellant and ordered the respondent to pay the appellant $2,270.00.

(1) the decision to determine the matter as a consumer claim rather than a building claim;

(2) the acceptance into evidence of documents served by the respondent the evening before the hearing; and

(3) the rejection by the Tribunal of amounts the appellant says were claimed.

1. For the reasons set out below, save for increasing the amount ordered to be paid by $150.00 for the rubbish removal claim, to $2,410.00, we have decided that to the extent leave is required it be refused, and the appeal be dismissed.

1. The Notice of Appeal identified two grounds of appeal, being:

Ground 0: ... that the case should not have been moved from the Home Building Division to the General Division as a Consumer Claim as the condition of the move was not valid;

Ground 1: ...procedural fairness was not afforded to the Applicant.

1. It otherwise sought leave to appeal on the basis that the Decision was not fair and equitable or was against the weight of evidence.
2. "Addendum 1" to the Notice of Appeal, provided more detail of Grounds 0 and 1 and the reasons in support of the application for leave to appeal, which were identified as:

Ground 2: Abandoned Strip Drain Installed in Sandstone Landing - The claim was rejected for lack of evidence, despite two detailed quotations and supporting documentation being submitted specifically addressing the issue.

Ground 3: Electrical Repair Arising from Guarantee Breach of Duty of Care and Skill - Claim rejected Based on Unverified and Late information provided by [the Respondent].

Ground 4: Rubbish removal - claim was referred to but overlooked in Final Orders.

Ground 5: Leaking shower seals - Claim overlooked in Final Orders. Value: $1,263.90.

1. "Addendum 2" to the Notice of Appeal identified the money orders sought by the appellant in addition to the amounts ordered by the Tribunal, $1,067.00 in respect of the electrical repairs, $170.00 for rubbish removal, $1,061.50 for shower seal repairs and $7,583.40 to reinstate sandstone pavement which related to the strip drain claim.
2. The appellant filed a bundle of documents on 10 June (AB) that comprised:

1 Section A - Evidence Given to the Tribunal at First Instance...

2 Section B - Evidence Not Provided to the Tribunal at First Instance...

3 Section C - Appellant's Written Submissions...

4 Section D - Typed transcript of the Relevant Parts of the Hearing...

5 Section E - Leave Requested to Amend Claim...

1. The respondent did not contend that the transcript extracts produced by the appellant did not accurately record what was said at the hearing.
2. The appellant's written submissions, save for what is referred to as "Ground 7 - Refund account credit - overlooked in order", which appears to be a new issue, identified and numbered the appellant's grounds of appeal and contentions slightly differently:

Ground 1: Question of Law - case moved from home building division to the general division;

Ground 2: Failure to provide procedural fairness by Tribunal accepting untested evidence;

Ground 3: Rejection of [appellant's] claim for the strip drain in the Sandstone landing area was not fair and equitable;

Ground 4: Dismissing the electrical repair claim, based on late untested evidence from [the respondent] was not fair and equitable;

Ground 5: Rubbish removal - overlooked despite acknowledgement in Tribunal orders;

Ground 6: Leaking shower seals;

Ground 7: Refund account credit - overlooked in order

1. The respondent did not file a reply to the appeal or any other documents including written submissions.

1. An appeal to the Tribunal's Appeal Panel does not provide an unsuccessful party in the Tribunal below with the opportunity to run its case again, nor is it sufficient for an appellant to disagree with the outcome and to contend there should have been a different outcome: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
2. To succeed in an appeal from a decision of the Consumer and Commercial Division, an appellant must demonstrate either an error by the Tribunal on a question of law, which may be argued as of right; or that leave (permission) be granted to bring the appeal for a reason under clause 12(1) of Schedule 4 of the NCAT Act (which is expanded on below).
3. The Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25] provided further guidance in relation to what is a question of law. In summary:

(1) A question of law should be articulated with precision;

(2) Absent leave to appeal, the question of law is the subject of the appeal;

(3) A question of law means a "pure question of law" which is not dependent on facts not found and is not dependent on the answer to the question;

(4) A party contending that a question of law was wrongly decided must identify the question in abstract terms;

(5) A mixed question of fact and law is not a question of law, and a question of law must not be hypothetical or arid;

(6) A question of law must be capable of affecting orders the subject of the appeal, not purely the reasons; and

(7) There may be disclosed an error of law but this of itself does not necessarily raise a question of law.

1. Where the grounds of appeal do not raise a pure question of law, an appellant may seek leave to appeal.
2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division of this Tribunal under s 80(2)(b) of the NCAT Act are limited to those set out in cl 12 (1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(1) 12(1)(a) - the decision of the Tribunal under appeal was not fair and equitable; or

(2) 12(1)(b) - the decision of the Tribunal under appeal was against the weight of evidence; or

(3) 12(1)(c) - significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12 (1) of Sch 4 may have been suffered where:

"... there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."

1. It is not sufficient merely to show that the Tribunal below was arguably wrong or that there is a bona fide challenge to an issue of fact. Collins v Urban at [84],
2. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
3. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. Consistent with the practise that procedural fairness challenges as a question of law are to be considered before any other challenges, (YHY v YHZ [2024] NSWCATAP 117 at [54] & Boreland v Brewis [2024] NSWCATAP 140), we will firstly consider the appellant's procedural fairness challenge to the admission into evidence of documents served by the respondent on the evening before the hearing.
2. We will then consider what the appellant refers to ground 0 or ground 1, being in respect of the matter being determined as a consumer claim, and then the application to rely on the evidence in AB section B which had not been provided to the Tribunal, and then finally each of the other grounds or contentions in the order they are raised in the appellant's submissions in respect of the application for leave to appeal.

Ground 1 (also referred to as ground 2) Failure to provide Procedural fairness in respect of evidence which the respondent served late.

1. The appellant contends that, in circumstances where in breach of previous case management directions, the respondent sought and was granted leave to rely on evidence served the night before hearing, that he was denied procedural fairness because he was not given a reasonable opportunity to understand and respond to the late served evidence.
2. The respondent's evidence comprised a two-page statement and 5 pages of text messages.
3. The transcript records the following:

General Member (GM): OK. Could you hand that to Mr Curtis? Mr Curtis, same procedure. I will ask you if you have got any objection to it. Take your time.

Curtis: I do have an objection.

...

Curtis: Sorry, when I am objecting, am I objecting to the accuracy of it or am I objecting to -

GM: OK. Your first objection might be is filed out of time...There might be others, I don't k now.

Curtis: Okay, I understand.

GM: ... Now, if you disagree with something that is said in the statement, that is something you can ask a question about. But that does not mean that the document's inadmissible.

...

Curtis: The first objection is I only got it last night.

...

Curtis: 9:00 pm. It is well outside the limits. It is the first time I have seen anything from the -

GM: Well, that's late, isn't it?

GM: I will ask you some questions about that in a second. Anything else?

Curtis: There are inaccuracies in here from my...

GM: Well, you can ask him questions about that if you disagree with something that he said. If it gets in. But you have got to ask him anyway. But anyway. So, that is not an objection to the tender. Sorry, it is not an objection. It is something that you might want to test.

Curtis: Right. Okay. Then, perhaps, that is it then. I have not had a chance to digest...

GM: ...Having received it last night, at about 9:00 pm, you said, and it is two substantive pages, and then there is some texts, something about payments, more texts, more texts, something, and just more texts. How would you be prejudiced if I allowed this to go in, albeit it's late? ... And what usually the question is, is are you going to suffer any prejudice as a result of if it gets in...You might have to go and get a document or something. And so you would need extra time to think about and respond to something that was in here. So that would be a question of prejudice. ....So how would you be prejudiced?

Curtis: Look, I really could not even answer that question at this point because I have not had a chance to see...

GM: In any case, were you. I will give you 10 minutes and then I will come back. I am going to take a break. I will come back and you can tell me that prejudice you are going to suffer. So that is how it is done clearly, Mr Curtis.

Curtis: I do appreciate this.

[There was then an adjournment for a short period]

GM: Alright, so, back to the question. What is the prejudice?

Curtis: I am not too sure I have got this right, but there are dates in there that are a sequence with the actual events.

GM: You can ask questions about that, of course.

Curtis: Yes. I am only raising that I may not have the information easily available to me now.

GM: What does it go to? What are the dates about?

Curtis: The dates are about, again, I did not want to give a pre-emptive answer.

GM: What is the topic, is it when work was done when payments were made?

Curtis: The suggestion that I actually organised something but before the event could have happened.

GM: You can ask questions about that...I do not think you would be prejudiced by that.... that is just something that you can ask questions about if you wish to. Ultimately, I am just going to look at the documents. I mean, I think largely this is a documentary case, but that is not my decision on it. But that is an indication, I think, that there may be some things that appear to be important that probably are not important.

Curtis: Alright.

GM: Okay well thank you for telling me about that prejudice it seems to me though you would be able to cope with it or deal with it rather than me adjourning the matter, because that is what I have to do. I did not have to not let it in or I' have to adjourn to give you the chance to respond to it.

Curtis: Let's struggle our way through.

GM: Thank you. Good decision. Mr Mav, I support that. How about you?

Respondent's solicitor: Yes

1. Principles relevant to a lack of procedural fairness ground of appeal, were summarised by the Appeal Panel at [59] to [67] in Boreland v Brewis [2024] NSWCATAP 140 (References to authorities removed):

59 In determining proceedings before it, the Tribunal is under a duty to afford procedural fairness to the parties. .... Procedural fairness requires that the Tribunal give the parties a fair hearing, and that it be free from actual or apprehended bias. The term "procedural fairness" is synonymous with natural justice (the latter term is used in s 38(2) of the NCAT Act).

60 It is well established that the Tribunal must conduct a hearing that gives procedural fairness to both parties, even taking into account the less formal nature of Tribunal proceedings (s 38(4) and subs (5) of the NCAT Act). What is necessary and appropriate to ensure a fair hearing depends on the particular facts and statutory context, rules of procedural fairness being flexible and adaptable so as to be appropriate in a given case so as to avoid practical injustice ....

62 Where there has been a breach of the requirement to afford the appellant procedural fairness, the question arises whether that error was material to the Tribunal's decision. A breach of procedural fairness will constitute jurisdictional error, if the error is material to the Tribunal's decision: .... Materiality is established if the procedural unfairness deprived the appellant of a realistic possibility of a different outcome on the application lodged in the Consumer and Commercial Division.

63 If the appellant succeeds on his ground of appeal which asserts a denial of procedural fairness, it is unnecessary to consider any other issues raised in the grounds of appeal as to whether they can be formulated in substance to identify any other error on a question of law (or if not, whether leave to appeal should be granted under s 80(2)(b) and bearing in mind the limitations set out in cl 12 of Sch 4 to the NCAT Act with respect to internal appeals from decisions made by the Consumer and Commercial Division).

64 As recently noted in the Appeal Panel decision in YHY v YHZ [2024] NSWCATAP 117 at [54], authority dictates that we hear and determine a procedural unfairness challenge prior to any other challenges and that "whenever a matter is remitted for a retrial, it is preferable that the appellate court restrict its assessment of the evidence to matters necessary to the finding of error": ...

Consideration

65 Procedural fairness requires that parties have an adequate opportunity to put their case and test the case against them. By s 38(5)(c) of the NCAT Act, the Tribunal is required to take "reasonably practicable measures" "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".

66 As Justice Basten stated in Italiano v Carbone & Ors [2005] NSWCA 177 at [88]:

"An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment," as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]:

'"A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations." at [37].'"

67 If it is established that there was a denial of procedural fairness, it must then be considered whether there exists a realistic possibility that the outcome of the decision could have been different had the error not been made .... Finding that a properly conducted application would have inevitably produced the same result is not done lightly: ....

1. It is clear from the relevant transcript extract that the Tribunal explained the options available to the appellant, considered the nature and extent of the evidence in the context of the issues and gave the appellant the opportunity to make submissions as to whether the respondent ought to be granted leave to rely on the late served material and more particularly, whether the appellant would suffer any prejudice if the respondent was granted leave to rely on it, and that ultimately the appellant did not maintain an objection to the evidence.
2. Because:
   • the documents only comprise a two-page statement with five pages of text messages;
   • the transcript shows that the Senior Member clearly went through the options available to the appellant, including the basis on which an objection might be raised, gave the appellant further time to consider the late served documents (which the appellant had had since 9.00pm the night before) and whether he would suffer any prejudice and any objection to be raised; and that
   • ultimately the appellant responded, "let's struggle our way through",

we are not satisfied that the appellant has been denied an adequate opportunity to put their case in respect of the respondent's evidence being allowed into evidence or test the respondent's case against him.

1. We are therefore not satisfied that the appellant was denied procedural fairness and accordingly reject ground 1 of the Appeal.
2. To the extent that the appellant also contends that after the hearing he noticed that it contained incorrect and misleading information which he is concerned was relied on by the Tribunal, that is not a matter of procedural fairness but is a matter that goes to where leave should be granted.

Ground 0 (also referred to as ground 1) - Moving the application from the Home Building Division to the general division.

2. The tribunal orders the application to be transferred from the Home Building Division to the General Division as a consumer claim.

Reasons The amount in dispute today is less than the threshold amount of $5000 for a home building dispute and the matter is to be determined under the Fair-Trading act and the Australian Consumer Law (ACL) ss 60 and 236.

1 This is an application filed 23/8/24 by Mr Curtis as a homeowner (the Owner) alleging a breach of contract by the respondent GRC Property Maintenance Pty Ltd (GRC) as a Builder, concerning a 'building claim' Under the home building act 1989(NSW) s 48a ('HBA') with claims for the payment of a specified sum of money under HBA s 48O (Powers of Tribunal). The Amount in dispute is $4600 which is less than the $5000 threshold for an HBA claim and there is no jurisdiction to determine this dispute under HBA.

2 However, the claim can be determined under the Fair-Trading Act 1987 (FTA) and the Australian Consumer law (ACL) where the amount is not more than $100,000.00.

Curtis: Well, I did have Gian come to my property and have a look at a whole variety of work and ultimately there was a quotation of eleven projects. Now, our relationship was looking much longer term than that and also at other projects into the future... And I selected for jobs in the beginning to have a scope that we could have a look at and see how he was going to be able to progress through the other projects. I didn't want to sort of give him an order for eleven because I wouldn't know which ones are being done and which ones are not being done yet...

GM: What was the value of those four jobs?

Curtis: The four jobs were about $4600.00

GM: OK. That immediately creates a jurisdictional issue. Because it's less than $5000. $5000 is a threshold for a building claim.

Curtis: Yes

GM: So, it means that we can't deal with it under the home building legislation, which means I switch it to the Australian Consumer Law.

1. The definition of Residential Building Work for the purposes of bringing proceedings in the Tribunal under the HBA excludes work (other than specialist work) where the reasonable market cost of the labour and materials involved does not exceed $5000.00. See Cl 2(3) (a) Schedule 1 of the HBA and Regulation 12 of the Home Building Regulations 2014 (NSW).
2. It follows that, although there may have been further work under contemplation between the parties, because the value of the work for the "four jobs" which the appellant says he selected in the beginning, was according to the appellant, $4,600.00, or less than $5,000.00, the matter could not be determined in the Tribunal as a residential building claim under the HBA.
3. In so far as this ground is raised in respect of a question of law, it is rejected.
4. In so far as this ground is also relied on to seek leave, where the claim concerned the failure to perform work with due care and skill, and such a claim is available under the HB Act or as a consumer claim under the ACL, and the jurisdictional limit of the Tribunal in respect of a consumer claim is $100,00.00 (being far more than the amount claimed) we do not see how:

(1) the appellant was prejudiced by the matter being determined as a consumer claim rather than as a building claim under the HB Act; or

(2) having regard to the Tribunals findings, the matter being determined as a consumer claim, rather than a building claim, made any difference to the result.

1. We are therefore not satisfied that any error has been demonstrated in respect of the Tribunal's decision to consider the matter as a consumer claim, or that the appellant may have suffered a substantial miscarriage of justice for a reason set out in clause 12(1)(a) or (b) of Schedule IV, and to the extent leave to appeal is sought , it is refused.

Documents the appellant seeks to rely on that were not before Tribunal

(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 -

...

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. The new evidence sought to be relied on by the appellant at AB pages 83 to 102 is identified as follows:

B1: Response to inaccurate and unsubstantiated claims in the applicants hearing statement;

B2: evidence refuting para 12 and 13 of the [Respondent's] statement that was core to my claim of procedural fairness;

B3: evidence refuting [the respondent's] claim: contract continued until 7 April 202 four and no record of engagement by Sam the paving man;

B4: Mr Caputo misled saying he had sold GRC;

B5: ASIC extract shows Mr Caputo continues to own GRC at 14/4/2025

B5: Constantly plumbing - BBQ gas connection

B7: Shower seals

1. The appellant contends that the new evidence is necessary to fairly respond to "factual inaccuracies and unsubstantiated allegations" in the respondent's evidence.
2. The proposed new evidence includes:

(1) a statement of the appellant taking issue with paragraphs in the statement relied on by the respondent and describing events concerning the appellant's engagement of the respondent, work performed by or arranged by the respondent and payments made by the appellant to the respondent;

(2) photos taken in June 2022;

(3) text messages exchanged in 2022, 2023 and 2024;

(4) a tax invoice from Constantly Plumbing Pty Ltd to the appellant dated 24 June 2022 for $693.00.

1. All the evidence, save for a Current Company Extract dated 14 April 2025, predates or was information available to the appellant before the hearing.
2. Although the appellant argues that the new evidence is necessary to fairly respond to the respondent's statement to rectify an unfairness, there is no evidence to suggest that the material was not reasonably available at the time of the proceedings. In fact, apart from the Company extract, we cannot see how any of the evidence was not reasonably available to the appellant prior to the hearing.
3. We are therefore not satisfied that the material at pages 83 to 102 was not reasonably available to the appellant at the time the proceedings under appeal were being dealt with.
4. The appellant's application to rely on the material at page 83 to 102 of the appellant's bundle is therefore rejected, and to the extent the appellant seeks leave to appeal on the basis that he may have suffered a substantial miscarriage of justice, because significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with), for the reasons set out above, we are not satisfied the material sought to be relied on is new evidence, and leave to appeal is refused.

Ground 2 (also referred to as ground 3) Rejection of claim for $7,583.40 in respect of strip drain and reinstatement of paving in strip drain area

1. The Decision records the following in respect of the strip drain:

7 Mr Curtis contends for the following alleged breaches: ...

(4) Replacement of sandstone pavers and rectification of strip drain channel cut for installation of a stainless-steel drain, $7583.40

8 GRC contends: ...

(6) GRC contends that Mr Curtis has not proved any defect in the preparatory work done by it consisting of cutting a channel in the sandstone pavers, and denies it as liable for the cost of rectification work consisting of filling the channel and replacing the sandstone pavers;

...

19 Mr Curtis did not obtain any report from a person with relevant knowledge (even if not an expert report) as he was concerned about the cost and whether or not he will be able to recover any cost. Instead, he largely relies on his own assertions although he says he has some experience as an owner builder. In addition, Mr Curtis relies on photographs showing:

...

(5) Showing the strip drain cut it out it is alleged not to be square, the base is rough and not flat, and the sides are not vertical. But there is no independent builders (including any experts) evidence about whether or not a stainless-steel drain can be fitted.

26 The Tribunal has listened to the evidence and arguments and read and considered Mr Curtis' many contentions and has distilled the material facts for determination of the dispute. It has considered the parties' submissions. Even in reasons of this length the Tribunal cannot sensibly summarise everything which has been argued or determine each and every dispute a fact however tangential its relevance. If the Tribunal has not mentioned a particular matter this should not be treated as that matter having been overlooked. The Tribunal has taken into account everything that was before it and has distilled those matters into these reasons only such as is necessary for the parties to understand what the Tribunal has decided and why.

...

27 The Tribunal finds there is a breach of ACL s 60, and the remedy is damages ACL s 236, determined as follows:

...

(7) The Tribunal is not persuaded that the cut out for the strip drain is defective as alleged in the absence of expert evidence. This claim fails.

1. The appellant says that he relied on two quotations from licenced contractors being "Sam, the Paving Man" ( AB p 47) who gave multiple solutions and "Civil Built" (AB p 45), and submits that each contractor understood the job was to complete the drain and quoted in two parts, being: reinstatement of the poor work; and supplying and installing the stainless-steel strip drain.
2. The Sam, the Paving Man quote, provides prices for "sandstone paving options" to supply and install new paving, supply and install patchwork paving and supply and install patchwork paving and install drain. It also includes a quote for "Backyard Paving repair works", including "lift up existing pavers", "Removal and clean-up of subbase," "supply of sand bedding up to 30 MM" and "Relay of existing pavers" for the "total price $7,382.20 GST."
3. The quote from Civil Built says "Scope of Works: Strip Drain/Paving Repair" and then provides prices for removal and supply of pavers and the installation of strip drain.
4. Consistent with the reasons given by the Tribunal, neither quote includes evidence that could be relied on for a finding that work performed by the respondent was defective. The highest point in respect of identifying defective work is the "Sam the Paving Man" quote stating, "Backyard Paving repair works". That does not assist the Tribunal to understand what it was about the work performed by the respondent that was not performed with due care and skill or why rectification work is required.
5. We therefore find that it was open to the Tribunal to find that it was not persuaded that the cutout for the strip drain is defective as alleged in the absence of expert evidence, and are therefore not satisfied that any error has been demonstrated in respect of the strip drain issue or that the appellant may have suffered a substantial miscarriage of justice for a reason set out in clause 12(1)(a) or (b) of Schedule IV.
6. Leave to appeal in respect of what the appellant refers to as ground 2 is therefore refused.

Ground 3 (also referred to as ground 4) Rejection of electrical claim for $1,067.00

1. The appellant contended that after demolishing a fountain in the rear yard of the property, the respondent left live wires from an electric pump that was attached to or formed part of the fountain, that sometime later an electrician engaged by the appellant when electricity in the house cut out, located and fixed the issue at a cost of $1,067.00.
2. The Decision records:

7 Mr Curtis contends for the following alleged breaches: ...

(3) Electrical work to investigate and repair short circuit following removal of fountain and water pump $1,067;

8 GRC contends: ...

(5) GRC disputes it was to supply electrical work to disconnect a pump from the fountain as this was to be arranged by Mr Curtis, and the cost of the electrical work is to Mr Curtis' account; ...

16 Of this Work only items 1, 3 are in dispute. In addition, GRC was to remove a fountain which had an electrical pump. The plumbing and electrical work was to be organised by Mr Cutrtis as evidenced by a text of 2/6/23 in which Mr Curtis relevantly stated:

... Hi Guan, plumber and electrician will be out Monday...

27 The Tribunal finds there is a breach of ACL s60, and the remedy is in damages ACL s236, determined as follows: ...

(6) The claim for the electrical work fails as this work was to be arranged by Mr Curtis, and in any case, many of the items in the Rooklyn Electrical Tax Invoice 0673 dated 25/2/23 relate to other work, eg the faulty extension board in the back bedroom. This claim fails.

1. We have not been provided with any transcript extract of any discussion of this claim before the Tribunal, and on the face of the text message referred to at paragraph [16] of the Decision; and the quote dated 2 June 2022 (AB p 24), the applicants 28 June email (AB p 27), and the tax invoice dated 2 September 2022 (AB p 28), none of which identify any electrical work to be performed or having been performed, we are satisfied that it was open to the Tribunal to find that any electrical work was to be performed by the appellant.
2. Further, the relevant tax invoice referred to:

(1) an attendance to test for a power outage and being informed of water damage in a back bedroom and power tripping off when an extension board was used;

(2) an attendance for "fault finding" including in respect of a junction box in the rear garden, searching all junction boxes under the house, testing all outside power points and replacing a broke power point; and

(3) an attendance to dig through the back yard to locate buried junctions at which time a single junction box was located between "post and fountain location", disconnected and removed, repairing a junction box in the back yard.

1. It was therefore also open to the Tribunal to reject the claim for electrical works on the basis that the electrical invoice relied on by the appellant (AB p 34) related to "other electrical work".
2. We therefore find that it was open to the Tribunal to find that the electrical work was to be arranged by Mr Curtis and that the electrical invoice related to other work.
3. We are therefore not satisfied that any error has been demonstrated in respect of the electrical work claim or that the appellant may have suffered a substantial miscarriage of justice for a reason set out in clause 12(1)(a) or (b) of Schedule IV_._
4. Leave to appeal in respect of what the appellant refers to as ground 3 is therefore refused.

Ground 4 (Also referred to as Ground 5) Rubbish removal.

7 Mr Curtis contends for the following alleged breaches:

(1) Rubbish not removed, some removed by Mr Curtis with other items in a skip hired by him, in mitigation and a door which is still on site. The estimated cost of removing the rubbish is $150;

8 GRC contends:

(3) GRC concedes $170 to remove rubbish, including

1. The transcript also records the following (AB 132):

GM: Anyway, I'm thinking $150 all up for rubbish removal. Agree or disagree?

Curtis: I think I'll have to agree.

Solicitor [for respondent]: We're happy to consent

1. This item however is not dealt with in the "Determination of the claims" at paragraphs [26] and [27] of the decision.
2. It appears to us that it has been overlooked and is likely to have been remedied under s 63 NCAT Act if an application had been made.
3. In the circumstances, we grant leave to appeal on this issue as there is "an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral", so that it would be unjust to allow the finding to stand in circumstances where the issue was clearly run, considered and determined (effectively by consent) at the hearing.
4. In re-determining the matter, we find that, having regard to the decision and the transcript, the amount the respondent is ordered to pay the appellant is to be increased by $150.00 for rubbish removal.

Ground 5 (also referred to as ground 6) Shower seals

1. The appellant contends on appeal that this item was work in respect of leaking shower screens that the respondent was to do for free, that although work was performed, the screens still leaked, and the item was overlooked in final orders.
2. Relevantly:

(1) The application states "REPLACE SHOWER SCREENS - SEALS DO NOT WORK 11. Promised as part of the quote"

(2) This item is not identified at paragraph [7] of the Decision where the breaches contended for by the appellant are identified, nor paragraph [8] where the respondent's contentions is respect of each item are identified.

(3) The Decision otherwise states:

(a) At paragraph [15] under the heading material facts, the Decision states:

15 By an email on 18/6/22 Mr Curtis accepted part of the quote to do the following work, relevantly:

...

8 Main bathroom has leaking under shower panel. seems to have been happening for a while and minor damage to the vanity base. Nees sealing or something to stop water leaving shower base. Same room has water marks on the ceiling. Not sure if new or old stains. Please check next visit.

9 The minor jobs, drawers, shower seal, wardrobe door etc. please try to do these soon so tenant can see some quick progress.

Of this Work only items 1, 3 are in dispute. In addition, GRC was to remove a fountain which had an electrical pump. ....

Mr Curtis did not obtain any report from a person with relevant knowledge (even if not an expert report) as he was concerned about the cost and whether or not he will be able to recover any cost. Instead, he largely relies on his own assertions although he says he has some experience as an owner builder....

The Tribunal has listened to the evidence and arguments and read and considered Mr Curtis' many contentions and has distilled the material facts for determination of the dispute. It has considered the parties' submissions. Even in reasons of this length the Tribunal cannot sensibly summarise everything which has been argued or determine each and every dispute a fact however tangential its relevance. If the Tribunal has not mentioned a particular matter this should not be treated as that matter having been overlooked. The Tribunal has taken into account everything that was before it and has distilled those matters into these reasons only such as is necessary for the parties to understand what the Tribunal has decided and why.

(4) None of the photos referred to at [19] as also having been relied on by the appellant include any showers.

(5) The transcript extract (AB 133) records a reference to item 8 on the appellant's email at (AB 27) which states

Main bathroom has leaking under shower panel. seems to have been happening for a while and minor damage to the vanity base. Nees sealing or something to stop water leaving shower base. Same room has water marks on the ceiling. Not sure if new or old stains. Please check next visit.

(6) We were not provided with any other transcript extract which included any discussion of this item, including whether any payment was to be made for the work and if so, whether it was made, if work was performed whether it was defective and the cost to rectify it, or the quotes the appellant refers to at (AB 53 and 55).

(7) The appellant refers to a quote from Friendly Plumbing dated 23 September 2024 (at AB p 53) for $1,263.90 which is the amount the appellant says should be ordered to be paid, and Constantly Plumbing Py Ltd dated 27 Sep 2024 (at AB p 55) for $1,061.50.

(8) Both quotes relied on by the appellant appear to refer to work in three bathrooms and include work that cannot be clearly correlated with what is identified at 8 and 9 of the email at (AB 27).

1. Because of the lack of any transcript of this item being discussed and the lack of evidence to support a finding of any defective work having been performed by the respondent or the respondent not having performed work which it either agreed to perform for free or for which it has been paid, we are not satisfied that this claim has been over looked or otherwise any error has been demonstrated in respect of this item or that the appellant may have suffered a substantial miscarriage of justice for a reason set out in clause 12(1)(a) or (b) of Schedule IV_._

Ground 7: refund Account credit - overlooked claim - $1927.50.

1. This item was not included in the Application, Notice of Appeal or Addendums 1 and 2 to the Notice of Appeal and is raised for the first time in the appellant's submissions.
2. The appellant's submissions refer to the transcript reference from (AB 129 to AB 131).
3. Although the transcript refers to an amount of $3,000.00 and the Member seeking to enquire about a claim for any money to be repaid for strip drain not installed, and the appellant stating that he had paid $290.00 towards the strip drain, the transcript does not record a claim by the appellant for a credit refund and more particularly a credit refund of $1,927.50.
4. Because the claim of the credit refund for $1,927.50 did not form part of the Application as filed and we have not been taken to any transcript references identifying it as having been part of the case run at hearing, we are not satisfied that this claim has been over looked or otherwise any error has been demonstrated in respect of this item or that the appellant may have suffered a substantial miscarriage of justice for a reason set out in clause 12(1)(a) or (b) of Schedule IV_._

Application for leave to amend primary claim (AB - Section E p 135)

1. At (AB 135), although not referred to in the Notice of Appeal, or otherwise in his submissions, the appellant, contingent on the Appeal Panel finding in favour of the appellant in respect of Ground 1 that the Tribunal erred as to a question of law in respect of determining the matter as a consumer claim rather than a building claim under the HB Act, seeks leave to amend his claim to claim a further amount of $12,540.00 as the cost for incomplete work.
2. In circumstances where we have rejected Ground 1 of the appeal, the application for leave to amend does not arise.

(1) To the extent required, leave to appeal is granted.

(2) The appeal is allowed so as to increase the amount payable by the respondent to the applicant by $150.00 for "rubbish removal", being "Ground 4" in addendum 2 to the Notice of Appeal.

(3) Order 4 made 18 March 2025 is varied from $2,270.00 to $2,420.00, on the basis that the balance due to the appellant is to be paid within 7 days.

(4) Save as provided above, leave to appeal is refused and the appeal is dismissed.

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.