Dick v Buildingwise Constructions Pty Ltd [2023] NSWCATAP 292 | Case summary

NCAT Appeal Panel|2023-11-02

Summary

These reasons assume a knowledge of our earlier decision in this appeal: Dick v Buildingwise Constructions Pty Ltd [2023] NSWCATAP 214 (Appeal Decision), including any defined terms.
For the reasons set out in the Appeal Decision, the appeal was dismissed, save for ground of appeal 4.2.
Appeal Ground 4.2 was in the following terms: 4 The learned Senior Member has erred in finding that there was an amount owing in respect of variation 5 of $36,723.47 …: … 4.2 relying on evidence of the costs of the Unit 1 pool on a quantum meruit basis that was against the weight of the evidence.
In relation to that ground, we directed the parties to file submissions as to: 1. whether the matters the subject of Ground 4.2 should be re-considered by the Appeal Panel or the Tribunal and the reasons why; 2. if the matters the subject of Ground 4.2 are to be re-considered by the Appeal Panel, which would require that the Appeal Panel calculate the costs of Pool 1 on a quantum meruit basis, submissions: 1. quantifying the amount of the quantum meruit and the reasons in support. These submissions must include references to the evidence before the Tribunal; and 2. setting proposed final orders of the Appeal Panel in substitution for the decision of the Tribunal of 29 March 2023.

Submissions of the parties

Consideration

As a preliminary matter, we note that both parties submitted that the Appeal Panel should determine the quantum meruit question, rather than returning that issue to the Tribunal.
We accept that we should do so. This is consistent with the guiding principle for the just, quick and cheap resolution of the real issues in the proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 36(1).
Turning now to the substantive issue, we prefer the appellant's submissions. We consider that there is substance in their submissions variously put that:

there is no proper evidence for the quantification of the Unit 1 pool on a quantum meruit basis;
there is no evidence of the costs for each of the pools separately;
there is no evidence of the fair and reasonable costs for the Unit 1 pool; and
it is not possible to assess the value of the Unit 1 pool in light of the finding that the Unit 1 pool is defective.

While their description of the Builder's calculation as a "mashed up amalgam" may be somewhat over blown, it is simply unknown whether the total cost stated applies to Unit 1 or Unit 2 or to both and if so in what proportion, with the labour costs not being dissected at all. And we agree that it is not possible to use a date as a demarcation as no clear basis to do so arises.
In our view, the appellants' reliance on Pavey v Matthews is understandable and appropriate, and the Builder's criticism (based on s 48O of the HB Act) misplaced.
We consider that the evidence supports a conclusion that there were significant differences between the two pools (and here we refer to the expert reports and photographs that were in evidence) such that there are real issues in any division of unspecified costs, including all labour costs, between the two pools. And the lack of evidence of rectification costs, underscores the complexity of assessing the quantum.
In short, there is no expert evidence of what a fair and reasonable cost for the Unit 1 pool is. Given the failure of the Builder to lead evidence on the issue, the appellants rightly submit that the Builder has failed to establish its case. What evidence there is suggests that that the two pools were of different sizes and configuration. Accordingly, it is not appropriate to infer that the unallocated costs should be divided between the two equally.
As to the Builder's submission based on s 48Oof the HB Act, we accept the appellants' arguments that the Tribunal found that there had been no quantification of rectification work, and to avoid this issue by reliance on s 48O does not justify the amount sought by the respondent.
As the Appeal Panel observed in Kora v Ian's Roofing Pty Ltd [2023] NSWCATAP 42 at [111], there is a difference between having "a good case" and having the evidence to prove that one has "a good case". The Builder's claim for damages on a quantum meruit basis fails for lack of probative evidence.

Conclusion

In proceedings HB 21/50499, we will set aside order (1) made on 29 March 2023 and in lieu thereof order that the appellants pay the respondent $50,196.32.
However, we decline to set aside order (2) made on 22 May 2023. That was an order relevantly ordering the Builder to pay the appellant's costs on the indemnity basis.
We decline to set that order aside as: 1. while we have reduced the amount the appellants are to pay the Builder from $86,919.79 to $50,196.32, we do not see why the costs order made by the Tribunal should not stand; 2. in any event, this matter was not argued before us or raised in the papers.
We will set a timetable for the costs of the appeal. We propose to deal with costs on the papers and without a hearing. If either party opposes that course they should address that issue in their submissions, which are to be limited to five pages.
As each party achieved a measure of success in the appeal, we will direct the simultaneous exchange of submissions, with each party having the opportunity to respond.

Orders

The Appeal Panel orders: 1. In proceedings HB 21/50499, order (1) made on 29 March 2023 is set aside and in lieu thereof the appellants pay the respondent $50,196.32. 2. In relation to costs: 1. each party is to file and serve submissions on or before 16 November 2023, 2. the other party may respond on or before 28 November 2023.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2023

Dick v Buildingwise Constructions Pty Ltd

At a glance

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Decision date

Source

Judgment (6 paragraphs)

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Legislation Cited (2)

Cases Cited (5)

Cited By (1)