Douglas t/as D&C Pool & Landscape Creations v Luscombe

NCAT Appeal Panel|2020-12-17

Solicitors: Adams & Partners Lawyers (appellant) Bateman Battersby Lawyers (respondents) File Number(s): 2020/371075 formerly AP 20/42031 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 1 September 2020 Before: S Thode, Senior Member File Number(s): HB 18/47246

Introduction

This an internal appeal against a decision made in the Consumer and Commercial Division of the Tribunal on 1 September 2020, concerning an application filed 2 November 2018 brought by the respondent homeowners, Mr and Mrs Luscombe (owners), against the appellant, Mr Douglas trading as D&C Pools and Landscaping Creations (builder) under the Home Building Act 1989 (NSW) (HBA). The claim related to the installation of a swimming pool and spa supplied by Narellan Pools.
The Tribunal found the pool had not been properly installed and awarded the owners $68,057.50 for the cost to remove and reinstall the pool shell. The Tribunal provided written reasons for its decision (reasons).
The proceedings were heard with HB 18/42272 filed 26 September 2018. In those proceedings the owners had also sought a money order against Mr Romeo, a concreter and tiler (the concreter/tiler) for defective work relating to the pool surrounds and paving work. Mr Romeo did not appeal the orders made against him in the proceedings at first instance and for present purposes it is unnecessary to consider these proceedings any further.

History of proceedings and grounds of appeal

The owners and the builder entered into a written contract dated 26 February 2017 for residential building work at the owners' home in Castlereagh in Western Sydney, NSW, for a contract price of $14,309 to install a swimming pool and spa. The owners separately paid Narellan Pools, a pool supplier, $50,248 for the pool and spa shells.
As stated above, Tribunal made a money order for $68,057.50 against the builder. This was for $68,007.50 being net remediation cost plus 30% overheads and 10% GST, and $50 for a missing skimmer lid. The builder was not found responsible for any defective concreting (or tiling) work including a defective bond beam. The rectification work found by the Tribunal was for pool shell removal in order to replace defective backfill, reinstatement of the shell and backfilling and associated remedial work to the concrete surrounds arising from the foregoing. An order for costs of the proceedings was made against the builder. In reaching its conclusion Tribunal said that there was no evidence before it of damage by cracking or other compromising event to the three-year old pool shell itself.
The builder's grounds of appeal are as follows: Grounds: I. The Tribunal erred in law by failing to provide adequate reasons as to why it found the pool "floated" and was therefore defective. The Tribunal failed to refer to evidence critical to the issue of whether the pool "floated" that contradicted the ultimate finding that the pool was "floating" and therefore defective. The Tribunal should have referred to the conflicting evidence and explained what the Tribunal made of it and why it was not to be accepted. II. The Tribunal erred in law by taking into account an irrelevant consideration when it "concluded that the appropriate aggregate was not used because it was not "appropriately mixed with sufficient cement ratio", see para (108) AB42. The Tribunal should have found there was nothing wrong with the aggregate having already accepted that 10mm aggregate was suitable for the works, see para (108) AB42. Ill. The Tribunal erred in law by taking into account an irrelevant consideration when it concluded that defect 2 should be dealt in conjunction with defects 3 and 4 because they are "impossible to separate forensically". The Tribunal should have found that defect 2 had nothing to do with the question of whether the pool floats or the suitability of the backfill. IV. The Tribunal erred in law because there was no evidence to support the finding that "Mr Galea could not recollect whether the materials were mixed or not" at para (106) A342. V. The Tribunal erred in law because there was no evidence to support the finding that Galea conceded that "the materials" were "not mixed by machine". The Tribunal failed to give adequate reasons as to why it found that the backfill was not mixed by machine. VI. The Tribunal erred in law because there is no evidence to support the finding that Rickard had given an opinion that the "pool has buckled upward", para (114) at AB44. The Tribunal failed to give adequate reasons to support the finding that Rickard gave an opinion that the "pool has buckled upwards". It was procedurally unfair for the Tribunal to place reliance on a document that had never been tendered and had concluded at hearing that it "didn't know what to make of". VII. The Tribunal erred in law by failing to give adequate reasons as to why defect item 5 the spillway, was properly attributable to the appellant. The Tribunal should have considered the appellants argument that it was not responsible for the spill way and that was works undertaken by, and part of the contract with, Mr Romeo (Romeo). VII. The Tribunal erred in law by failing to give reasons as to why it did not accept the appellants argument that the respondents had failed to undertake the appropriate testing to prove that the pool floated. The Tribunal erred in law when it reversed the onus of proof such that it did not require the moving party to undertake the appropriate testing to make out their case resulting in an error of law. IX. There Tribunal erred in law because there was no evidence to support the finding that ANS had provided a structural engineering opinion. The Tribunal should have found that ANS had never held himself out to be a structural engineer and never titled any of his reports "structural engineering reports". The Tribunal denied the appellant procedural fairness by determining that the ANS report was a structural engineering report when that position had never been contended for at hearing resulting in an error of law. Leave: The appellant will seek leave for the reasons outlined in its outline of submissions.

Consideration

There is a right of appeal on a question of law. Otherwise leave to appeal is required. Sch 4 cl 12(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) regulates the grant of leave from a decision of the Consumer and Commercial Division.
There is no dispute as to the principles applicable to the grant of leave.
There was further evidence attached to the builder's and owners' submissions. None of it was the subject of an application for leave. Consequently, it will not be considered in the appeal.
It will be seen in the appeal grounds that the builder contests his liability but not the amount found by the Tribunal if the challenge to liability is not accepted. This challenge relates to three matters arising from the installation of the pool and spa: 1. That the pool was "spongy", not properly founded and/or had deformed; 2. That the base material was not in accordance with the contract specification and had not been properly placed underneath the pool shell; and 3. That backfill material around the walls of the pool and spa was not in accordance with the contract specification and had not been properly placed.
The installation of the pool and spa was required to be in accordance with Australian Standard AS/NZ 1839:1994 (Australian Standard). The specification for the pool and spa each required the shells supplied by Narellan Pools to be placed on a base of aggregate and for the pool and spa to be backfilled with a specified material compacted and stabilised by cement.
Relevantly, the specifications and Australian Standard required: 1. In respect of the base material it was to be non-cohesive, porous, evenly graded screed double and of a maximum aggregate size of 6 mm. Where practical, the base should have a 50 mm concave screed into the bedding material: reasons at [23] and [26] and the evidence referred to therein. 2. In respect of the backfill material it was to be: 1. cement sand or suitably graded fine crushed rock of maximum size 12 mm of minimum ratio 1:10 by volume, dry mix by machine on-site; or 2. dry hand-mixed cement/sand of minimum ratio 1:6 by volume, suitably placed in layers: Reasons at [105].
In part the challenge is to the adequacy of the Tribunal's reasons.
The question of adequacy of reasons was dealt with by the Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; 100 NSWLR 578. Section 62 of the NCAT Act is relevant to this assessment. The principles are succinctly stated by Bell P at [65]-[77]. Again, there is no dispute concerning these principles.

The Tribunal's reasons

The Tribunal dealt with the above matters under three headings: Issue 2 - 10 mm aggregate Issue 3 - pool floor floating Issue 4 - backfill
The Tribunal said at [96] of the reasons: I have considered these three items together as they are in my view impossible to separate forensically. For the reasons that follow I find liability established and as the pool requires re-installation, damages are awarded in respect of items 2, 3 and 4.
On these issues, the evidence before the Tribunal included evidence from the following witnesses: 1. for the owners: 1. Mr Luscombe; 2. Mr Wiesemes (Australian Pool & Spa Consulting), a pool and spa building consultant; 3. Mr Nash-Smith (Habitat Consulting), a building consultant 1. for the builder: 1. Mr Douglas, the builder; 2. Mr Galea from D & C Pool and Landscape Creations, the supplier of the backfill material; 3. Mr Rickard (Rickard Engineering), an engineer; and 4. Mr Nakhla (SJN Building Consultants).
Prior to dealing with the grounds of appeal, it is convenient to set out the Tribunal's reasons on each of the three issues.

Issue 2 - 10 mm aggregate

There was a dispute concerning whether the base material aggregate was of the correct dimensions, whether it could damage the base of the pool shell and whether it was properly placed with a concave finish to receive the pool shell.
On the evidence on this issue the Tribunal said at [100]: 100 Two soil analyses dated 23 March 2018 and 27 March 2018 commence at CB 1178, prepared by Australian Soil and Concrete Testing ASCT Sydney South laboratory. The samples are prepared for a client by the name of "Eco Resources Recovery Pty Ltd". This company appears to have not (sic) relationship with any of the parties. On 28 March 2019, RJ Showers, Director of Engineering, who is retained by Narellan Pools, reviews both soil analyses and provides a letter to the respondent identifying a "10mm aggregate" stating "we have reviewed the base material sieve analysis for the fibreglass pool and spa installation and confirm that this is suitable and approved for this installation." The soil analyses provided to RJ Showers were prepared 9 months after the respondent last attended the site. Following cross examination of Mr Galea and the respondent it is unclear from the face of the two analyses whether these soil samples are samples taken from the subject site or some other site. No reference is made on the face of the soil analyses that they relate to the applicant's premises, or that they were taken at a pool site relevant to the respondent or Narellan Pools. I cannot come to a conclusion that the soil analyses or the conclusions reached by Mr Showers based on the two analyses are relevant to these proceedings.
At [108] the Tribunal reached the following conclusion: In any event on 2 June and 17 June 2020 the experts convened for a further conclave discussing among other things the issue of the backfill. The expert for the respondent Mr Rickard "pointed out that he himself had questioned the aggregate size at the conclave" but was subsequently assured by Mr Douglas that Showers Engineering have approved 10mm aggregate for general use for Narellan Pools. I accept that Showers Engineering approved 10mm aggregate, but on balance, I do not accept that there is evidence to establish that 10mm aggregate appropriately mixed with sufficient cement ratio was delivered to site.
We note at this point that the base material was to be free draining and did not require cement, whereas the backfill had to meet different requirements as noted above.
We also note that the placement of the base material and whether it had a concave finish was, in combination with the backfill issue, said to give rise to the pool floor being spongy and/or contributed to the buckling of the pool shell and the risk of cracking.

Issue 3 - pool floor floating

On the issue of the pool floor floating (or being spongy to stand on) the Tribunal accepted on balance Mr Luscombe's evidence in his statutory declaration of 3 April 2019 that the pool bottom felt "all spongy like a trampoline", a situation that continued even when the relative external water level had been reduced, a matter about which Mr Luscombe was not cross-examined (reasons [26], [115]). It did so having noted the evidence of Messrs Nash-Smith, Wiesemes and Nakhla concerning observations of the pool floor and the need to drain the pool for further testing: reasons at [101]-[103].
However, the Tribunal did not refer to Mr Wiesemes' evidence that he could visually see a slight buckle upwards in the floor (Appeal Bundle AB 511) and that the floor did not have a free-draining concave drainage bed installed prior to the pool being placed in position (AB 512).
In connection with the pool floating, the Tribunal also referred to: 1. the evidence of Mr Wiesemes concerning the pool shell being drummy on tapping the pool wall on the top of the coping and the inside face near the waterline (reasons at [26]). 2. the evidence of Mr Nash-Smith that the pool wall was drummy half a metre below the waterline: reasons at [101]; and 3. The evidence of Mr Nakhla, the builder's expert, who disagreed with the observations and opinions of Messrs Wiesemes and Nash-Smith and said of Mr Nash-Smith's reports they were speculative in nature: reasons at [102]. Of Mr Nakhla's evidence the Tribunal said at [103]: 103 Mr Nakhla takes issue with the fact that Mr Nash-Smith could not observe any discernible concaving to the bottom of the swimming pool himself and relies instead on the observations of the applicants communicated to Mr Wiesemes. Mr Nakhla states "during my inspection I could not see any concaving issues to the bottom of the pool and the pool was full of water at the time." Mr Nakhla states he checked the bottom of the pool with the same method as Mr Nash-Smith and concurs that there are no drummy spots at the bottom of the pool. The expert for the respondent also agrees that further investigations are required with the pool emptied as per Mr Wiesemes' comments. In respect of drummy or hollow tiles on the horizontal surface of the safety ledge approximately half a metre below the surface, the expert opines the safety ledge of the pool being drummy is not a defect. He concludes "there is no evidence provided that the backfill of the swimming pool has been inadequately installed." In respect of the three findings by Mr Nash-Smith in paragraph 96 (i), (ii) and (iii) set out above, Mr Nakhla states that these "are mere assumptions" and no evidence has been provided to confirm the issue of backfill. (CB 1074). 1. The evidence of Mr Rickard that he "checked the contour of the pool and could not identify any noticeable upward deformation or unevenness in the floor": reasons at [62].
This evidence was also relevant to the findings about backfill and whether the material used complied with the Australian standards and had been properly placed. In this regard, there was evidence that a lack of stability in the pool walls due to inadequate backfilling could cause the pool floor to buckle and the corners of the pool to move inwards.

Backfill

This issue concerned whether there was a failure to use appropriate backfill or properly place the material which would permit the pool to deform, buckle or crack. The issue was said to relate to both the pool floor being spongy and the drumminess of the side walls.
This issue had a number of sub-issues.
First was whether the material supplied complied with the specification as to cement content. The Australian Standard required different cement/ aggregate ratios depending on whether the material was mixed by hand or machine. There was a dispute about whether mixing using a front-end loader bucket was machine mixing.
Second was the placement of that material, whether it was suitably compacted around the pool shell.
Third was whether the backfill material had moved or settled.
The Tribunal referred to and considered the evidence of each of the parties on these issues.
In respect of the builder's position, in addition to the evidence of Mr Nakhla we referred to above: 1. The Tribunal referred to the evidence of the builder concerning the material ordered and its delivery to site. At [110] the Tribunal said: The builder is cross-examined on 18 July 2020 and states that he ordered 10mm recycled aggregate from Rygal and that the ratio is 1:16 "because that is about 6%". He is cross examined at length whether the recycled aggregate needs to be delivered to site by an agitator to achieve better compaction. The proposition is denied. 1. The Tribunal reviewed the statement dated 19 May 2020 and the cross-examination of Mr Galea, the cement and sand supplier, which the builder relied upon to show that the backfill material was sufficiently mixed or agitated and was suitable for purpose. The following was recorded in the reasons at [106], [109]: 1. A statutory declaration made from Mr Galea on 19 May 2020 stated that the invoiced materials "were mixed together before delivered to site". 2. The Tribunal found there was no relationship between the soil analyses and the invoices despite their insertion in the middle of the statutory declaration. 3. The Tribunal said that in oral evidence "Mr Galea could not recollect whether the materials were mixed or not, other than to say they were not mixed by machine ". 4. The Tribunal was not satisfied that "the mere reference to the two invoices establishes the materials were suitably mixed". 5. On 9 July 2020 Mr Galea said to Mrs Luscombe, in response to her questions about the pre-mixed "bedding" and his statement, "that would be 6% stabilised mix", which equated to a 1:16 ratio prescribed by the standard described above for hand-mix. We add that such was self-evidently inconsistent with his statement in chief that the invoiced materials were mixed by machine. 1. The Tribunal set out the evidence of Mr Rickard, the builder's engineer concerning the backfill material. At [67] the Tribunal said: The lack of adequate testing was identified by the respondent's expert Charles Rickard in his report at CB 1166 (at (g)): "Mr Wiesemes makes no qualitative assessment of the backfill except to say that he put his hand through a core hole and found the material 'loose'. It is quite likely that the loose material is granular fill placed over the pool sand cement backfill when the general site level was being made good. I respectfully suggest therefore that there is no technically valid content to his current assessment of the backfill around the pool. Mr Douglas has supplied paperwork in his affidavit to show that premix sand cement mix was supplied (see attached annexure marked 'B'): "Inspected the profile of the pool walls and are satisfied that the as-built profile is comfortably within tolerance allowed by AS1839." 1. At [107] the Tribunal said of the evidence of Mr Rickard: 1. Mr Rickard recorded his instruction from the builder that the "backfill" was delivered to site pre-mixed. 2. The Tribunal concluded that the builder had the opportunity to provide an engineering opinion "concerning the backfill" and that it was not clear why the builder's engineering expert was not asked about "the quality of the backfill" in response to the allegations in the original Habitat report of Mr Nash-Smith (Habitat) in April 2019. 1. The Tribunal also referred to a conclave on 2 and 17 June 2020 (already mentioned above on other aspects), where the experts were "discussing among other things the issue of the backfill". Mr Rickard pointed out that he had questioned the builder about the size of the aggregate but was assured by the builder's principal that 10mm aggregate had been approved by an engineer for general use for the supplied pool. As we indicated above, the certificate from Showers Engineering appears to relate to the base material and size of the aggregate (which under the Australian Standard was to be a maximum of 6mm but in relation to which Mr Showers on behalf of Narellan Pools had approved the use of 10mm aggregate), not backfill material and whether it had the required cement content: reasons at [108]. 2. In cross-examination the builder stated that he ordered 10mm recycled aggregate and the ratio was 1:16 because that is about 6%. He denied that recycled aggregate needed to be delivered to site by an agitator to achieve better compaction: reasons [110]. 3. The Tribunal rejected the builder's claim that the issue of backfill had not been raised by the owners in their Scott schedule as there was no defect entitled "backfill" and that the builder could not have known the case that it had to meet and would have obtained an additional engineering opinion. The Tribunal referred to the first report of Mr Wiesemes dated 22 February 2018 that "the backfill appears to be non-compliant with AS/NZ 1839:1994" and to Mr Wiesemes' supplementary report dated 5 March 2020 on "the unstable backfill collapsing further causing the ledges and top of pool walls to be unsupported". The Tribunal concluded: "I am satisfied that the issue of adequacy of backfill was raised between 2018 and 2020 and that the [builder] had ample opportunity to obtain evidence in response": reasons at [111]. 4. At [112] the Tribunal also noted that Mr Douglas [the builder] clearly turned his mind to the backfill defect as he served Mr Galea's statutory declaration of 9 June 2020 referred to above. 5. In recording these matters, the Tribunal noted at [112] that it had differentiated between reports served in each of these proceedings and those against Mr Romeo relating to the slab and tiling work. The Tribunal said: Both proceedings raise allegations of inadequate backfill, but the issue of inadequate substratum under the slab and tiles installed by Mr Romeo [the tiler] is separate and distinct from the allegations raised against Mr Douglas [the builder]".
Further relevant evidence was of materials testing provided by the owners, the observations of the backfill and its placement by the owners' experts and the cross-examination of Mr Galea on the question of hand and machine mixing. This evidence included the following: 1. Mr Wiesemes' observations that he "was able to put [his] hand into the core holes and freely remove what I considered unstable backfill" (reasons at [31]) and the opinions of Mr Wiesemes concerning the materials used and the mechanism of failure. On this last aspect the Tribunal said at [33]: Mr Wiesemes also indicated in his report at pages 512 and 513 of the court bundle: "on further studying the photos I question the type of backfill used, it appeared to be a product called crusher dust.… It has been my experience that once the pool floor has buckled upwards it will not go back due to the bottom of the walls having been pulled in towards the centre of the pool, which will cause the backfill to collapse. Therefore, the floor cannot go back down. In my opinion the water table should be removed, and the floor of the pool then tested, should it not return to its original position, then the pool should be removed and reinstalled to comply with AS/NZ 1839:1994. I would further recommend that the pool shell be inspected for any damage that may have occurred when the pool has been sitting on a bed of 10 mm gravel." 1. The observations of Mr Nash-Smith concerning drumminess and the cause therefore. At [32] the Tribunal said of this evidence: The expert Mr Nash-Smith corroborates Mr Wiesemes' expert evidence. Mr Nash-Smith says "the horizontal surface of the safety ledge approximately 1/2 metres below the surface, was drummy sounding commensurate with this area being unsupported by backfill and/or backfill material having compacted and sunk/dropped. This could be attributable to a number or combinations of the following: (i) unsuitable backfill being used, either with or without cement being used to stiffen the backfill; (ii) The backfill being poorly installed ie not being installed in 300 mm thick layers and adequately compacted, whilst being co-ordinated with filling the pool; (iii) a combination of both the above, together with water beneath the pool which has led to the backfill compacting/settling, which has resulted in the convex bottom observed by Mr Manfred Wiesemes and the bottom of the pool billowing and lifting when stepped on as reported by the owners." 1. The opinions of Mr Nash-Smith, based in part on test results from Boral concerning the backfill material and its cement content. Of this evidence, which was contained in Mr Nash-Smith's report in reply dated 7 April 2020, the Tribunal said at [105]: 105 Those backfill samples dug out from under the pool were provided to Boral on 17 October 2019 for "Testing of backfill materials from swimming pool for Cement Content". The Boral test result states that the cement content is about 14.3% or 1:7 cement:sand ratio. Mr Nash -Smith was not specifically cross-examined on the content of his 7 April 2020 report. He concludes (CB 693-695): "In my opinion, the billowing and lifting of the lining at the base of the pool is attributable to, and will likely only occur when the water table is raised in the area local to the swimming pool saturated for a prolonged period (sic), causing the pool floor to float. Mr Manfred Wiesemes also states in his report that the "floor flexing would have been avoided if the pool had been installed in compliance with AS/ NZ 1839: 1994 7.4 Notes: 3. Where practicable a 50 mm concave should be screeded into the bedding material - 'the floor flexing would have been avoided'. The owners have informed me that they believe that the material used in backfill to the sides of the pool and under the terrace slab local to the pool was road base, comprised of crushed concrete and brick work, which was stored on site before being placed. Therefore it would be reasonable to assume that the sub-base material used was not premixed i.e. delivered in a mixer truck but would have been mixed on site. I note that image number 8 on page 19 and item image number 9 page 20 of the Mr Manfred Wiesemes report of photos taken by the owners during the installation of the swimming pool and show the mounds of grey coloured road base or crusher dust. AS/NZ 1839:1994 5.2 states for backfill that is mixed on site i.e. not premixed to be as follows: (c) Cement sand or suitably grated fine crushed rock of maximum size 12 mm of minimum ratio 1:10 by volume, dry mix by machine on site. Or (d) Dry hand mixed cement/sand of minimum ratio 1:6 by volume. The results of the analysis on the samples extracted by hand from the sides of the swimming pool are that the samples contained a low percentage of calcium oxide and cement content commensurate with there being minimal cement content present in both of the samples. In my opinion, the fact that the sub-base material was loose and I was able to easily scoop the loose sub-base material out by hand, is conclusive that the subbase does not have sufficient cement content to even bind the sub base material together. Refer to photos number 16 & 24 showing the subbase exposed at the core hole locations. Furthermore, as the material used was crushed concrete, it is likely that the low cement content recorded in the samples tested is from the cement contained in the original crushed concrete, or at least a significant contribution instead of from cement actually being added to the backfill materials mixed on site. Consequently with the subbase being loose and not sufficiently bound together… unsupported areas of the pool would put strain on the actual pool lining section, which will affect the longevity and integrity of the pool lining and likely lead to irreparable damage, namely premature deterioration typically tearing or perforations forming. To conclude, the backfill used around the swimming pool is not in accordance with a AS/NZ 1839:1994. The materials used for the backfill do not have sufficient cement content as determined by the analysis of the samples taken from site. Refer to appendix B for the Boral test results on the analysis of the subbase materials extracted from adjacent to the swimming pool.
On this last report of Mr Nash-Smith dated 7 April 2020, we note it was provided before a further report of Mr Rickard dated 28 May 2020. In this regard Mr Rickard's report also deals with the nature of the back fill material and Mr Wiesemes' opinions but does not respond to Mr Nash-Smith's April report. The Tribunal said at [107] Mr Rickard was not provided with Mr Nash-Smith's further report and did not provide an opinion.
Of this evidence, the Tribunal's ultimate conclusions are found at [113]-[115]. There the Tribunal said: 113 On balance I accept the opinion of Mr Wiesemes and Mr Nash Smith over that of Mr Nakhla. Mr Wiesemes and Mr Nash Smith provide a comprehensively explained opinion that the pool is "floating" and is likely going to be "irreparably" damaged in future if the inadequate or substandard backfill is left in situ. Mr Wiesemes states in his addendum report of December 2019 that the backfill was loose and that he was able to "put my hand into the core holes and freely remove what I consider unstable backfill" CB 537. I have had particular regard to the structural engineering opinion of Mr Nash-Smith who states that the backfill was not sufficiently compacted and had a poor cement to sand ratio based on the Boral test analysis. Mr Nakhla's short opinion tendered on behalf of the builder is not persuasively argued and does little more than to state his disagreement. For example, Mr Nakhla does not disagree that tonal changes near the waterline are evidence that the backfill has moved and settled he does not attempt to dispel that opinion. He just states "this is not a defect". 114 I also refer to the conclave notes of Mr Wiesemes and Mr Rickard prepared on 17 June 2020. On the assumption of Mr Luscombe entering the pool and finding the floor still to be "floating" even though the external water level had been reduced, Mr Rickard for the respondent agreed that this would suggest the radii (the corners) of the pool have move inward. Mr Rickard later considered that the floor would have gone hard and probably rippled. Regardless of Mr Rickard's later consideration, on balance I accept Mr Luscombes' observation that the pool buckles or floats underfoot and make a finding based on the opinion of Messrs Wieseman and Rickard that the pool has buckled upward. Quantum 115 On balance I accept Mr Luscombe's observation that the pool floor floats and prefer and accept the evidence of the applicants' experts Messrs Wiesemes and Nash-Smith that the backfill has moved and settled and that as a result the pool is buckling upward. …
A fair reading of the reasons as a whole shows that: 1. the Tribunal was not satisfied that the backfill material had the required cement content or had been mixed appropriately; 2. the Tribunal was satisfied that: 1. that the pool floor was spongy underfoot and that the walls of the pool were drummy above, at and below the waterline; 2. the backfill material was loose and not properly compacted; and 3. the pool shell and spa needed to be removed and reinstalled with appropriate backfill.
In this regard it is clear the Tribunal accepted the evidence of the owners being: 1. The evidence of Mr Luscombe, that upon entering the pool, the pool floor was spongy, that is, moving and not properly founded; 2. The evidence from Mr Nash-Smith concerning the testing of the backfill material and its cement content and the requirements of the Australian Standard regarding this material; 3. The evidence of Mssrs Wiesemes and Nash-Smith concerning: 1. the testing of the backfill; 2. their observations of the backfill material, its placement around the pool and the fact that the material was loose and not compacted; and 3. the effect on the pool shell and the likelihood of failure both immediately and over time.
In reaching these conclusions, the Tribunal also recorded that the builder did not offer any evidence concerning the backfill material in response to that provided by Mr Nash-Smith.

Grounds of appeal

The grounds of appeal raise issues of inadequate or no reasons, taking into account irrelevant considerations, no evidence to support various conclusions and denial of procedural fairness. Ground 1 - Inadequate reasons on the findings that the pool floated Ground 2 - Irrelevant consideration- inappropriate aggregate used (reasons at [108]) Ground 3 - irrelevant consideration - inappropriately dealing with defects 3 and 4 on the basis they are "impossible to separate forensically". Ground 4 - no evidence to support the finding that Mr Galea conceded the backfill material was mixed or not Ground 5 - no evidence to support the finding Mr Galea conceded the materials were not mixed by machine. It is convenient to deal with these grounds of appeal together. This is because they relate to the Tribunal's findings concerning whether the pool was floating and whether the backfill material was inappropriate or not properly placed in the manner in which the Tribunal treated evidence on these topics.
In his submissions in support of ground 1, the builder asserts that the Tribunal failed to refer to evidence critical to the issue of whether the pool "floated" that contradicted the ultimate finding that the pool was floating and therefore defective.
Having expressed a view that it was hard to understand why issue 2 (aggregate) was inseparable from issues 3 and 4 (pool floating and backfill), the builder said: As the [builder] understands it the decision of the Tribunal that the pool floats is based on the proposition that the backfill was not properly mixed and the statement of the respondents in person, see para (115) AB 44-45.
The builder dealt with this ground under two headings. First was a failure to give reasons concerning the backfill defect. Second was the failure to give reasons concerning the pool floating.
The builder referred to evidence from Mr Nash-Smith that the pool could be lifting because of unsuitable backfill where he recorded information received from the owners concerning the material used as backfill. Reference was also made to the evidence of Mr Wiesemes concerning the loose fill he observed in core holes. The builder also referred to the evidence of Mr Galea on the issue of mixing.
The builder then made the following submission: The question of backfill being properly mixed is critical to the dispute because it was the factual basis upon which the Tribunal found that the pool floated.
The builder referred to cross examination of Mr Wiesemes, where the witness was said to have conceded that the defective backfill issue falls away if it is proven that the backfill was machine mixed, and then made the following submission: The problem with the reasons given is that they do not confront the evidence of the appellant that was directed to the question of whether the backfill had been machine mixed and therefore suitable on the respondents' own case. The Tribunal did not deal with the contrary evidence of Galea that the backfill was indeed machine mixed. The Tribunal concluded that it was not satisfied that the "mere reference" to the two invoices establish that the materials were suitably mixed, and under cross examination Galea could not recollect whether the materials were mixed or not, and that he had actually stated that they were not mixed by machine.
The builder then set out the evidence of Mr Galea and said it was never put to Mr Galea, in fairness, that the backfill was not suitably mixed.
Similarly, the builder submitted the Tribunal never reconciled the evidence of Mr Rickard that directly criticised Mr Wiesemes' finding that the backfill was loose. While reference was made to the evidence of Mr Rickard at [67] of the reasons, no explanation was provided as to why such evidence should be excluded in favour of Mr Wiesemes' conclusion that there was loose backfill.
Consequently, the appellant submitted, the Tribunal was required to explain its conclusions if it was "going to proceed on the basis that the alleged loose or improperly mixed backfill was critical to its finding that the pool floated and was defective".
In relation to ground 2, the builder said the Tribunal erred in law in taking into account irrelevant considerations, namely, that "appropriate aggregate was not used because it was not 'appropriately mixed with sufficient cement ratio'". This challenge concerned the Tribunal's reasons at [108].
The builder said that "no one ever alleges that the aggregate should have been mixed with cement" and that the Tribunal's findings "confuse the aggregate with the backfill".
Ground 3 was that the Tribunal had taken account of an irrelevant consideration when it concluded at [96] that issue 2 (aggregate) should be dealt with issues 3 and 4 (pool floating and backfill) because these issues were impossible to separate forensically.
Again, the builder submitted that the size of the aggregate had nothing to do with the pool floating or the suitability of the backfill. Reference was again made to the fact that the base material under the pool was not required to have any cement mix with it. The ultimate finding of the Tribunal erroneously included the failure to mix the aggregate with cement as a reason to find in favour of the owners for all of the defects (namely aggregate, floating floor and backfill) and therefore the decision should be set aside.
Ground 4 and 5 concerned the evidence of Mr Galea.
First the builder says that the Tribunal's finding at [106] that Mr Galea could not recollect whether the materials were mixed or not was contrary to the evidence in his statement and in cross examination. The builder submitted there was no evidence to support the contention Mr Galea could not remember.
Secondly, the builder submitted the Tribunal was in error because there was no evidence to support a finding that Mr Galea conceded the backfill was not mixed by machine. In this regard the builder submitted: Galea's position was that the use of the loader was a machine mix. He never made the concession that the Tribunal ultimately found that he did. Nowhere in his evidence does he concede that the method he used was not a machine mix. The finding that it was not machine mixed was simply based on the proposition that Galea had made a concession specifically to that effect. He never did.
We shall first deal with the submission regarding the global challenge said to arise from the intermingling of issues and the statement at [96] of the reasons.
In our view, it is clear that the Tribunal distinguished between the base aggregate and the suitability of the backfill and the cause of floating. The Tribunal set out the competing arguments and evidence of the parties.
Considering the issues together was of itself not an error; rather, any error must be found in the way they were considered. The reason for treating them together was apparent in the way the expert and other evidence was presented. There was a contest as to whether or not either or both of the base materials under the pool shell and the backfill around the pool shell caused the floating and/or damage to the pool. In addition, considering the issues together does not require that conclusions need to be drawn from all the elements to support the conclusion that the installation of the pool shell was defective.
Focus is made on the Tribunal's statement at [108], last sentence, where the Tribunal said: … I do not accept that there is evidence to establish that 10 mm aggregate appropriately mixed was sufficient cement ratio was delivered to site.
It would seem that this statement is in error, the comment being made in the context of a letter from Mr Shower dated 28 March 2019 that dealt with the "base material sieve analysis" and the comments of Mr Rickards at the conclave held on 17 June 2020 concerning it not being 6 mm as required for base material by the Australian Standard.
However, this error seems of no moment when the reasons are considered as a whole.
The Tribunal made findings in respect of expert opinion concerning the inadequate cement:sand ratio, its mixing and laying of the backfill at [113]. These findings were, in part, based on the test reports of Boral in the opinion of Mr Nash-Smith, not the comments recorded at [108] concerning the lack of cement in any base material.
The matters pointed to by the builder on appeal where cement references were made in connection with the aggregate base material were not taken up as part of the Tribunal's findings and focus on the backfill. The reference at [105] to samples dug out "from under the pool" were described as testing of "backfill" materials in the test results and were for cement:sand ratio which applied only to backfill from the sides of the pool, not under it. This is clear from the report of Mr Nash-Smith quoted at [105] that we have set out above. Referring to samples "dug out from under the pool" is of itself not exclusionary of the sides of the pool where the backfill was located that was sampled. As said in Orr at [77], an analysis "with a fine tooth-comb attuned to identifying error" is inappropriate.
The Tribunal drew inferences from Mr Nash-Smith's report and the Boral soil analyses. The report indicated a cement ratio near to but still about 1.7% below the Australian standard for cement:sand with hand-mixing. It pointed, uncontradicted and without objection, to the contribution to that percentage from the crushed concrete itself rather than bonding cement. This was consistent with Mr Galea's revised evidence in cross-examination and contrary to the builder's instruction to its engineer, Mr Rickard, about machine mixing (and Mr Galea's original evidence), but was independent of that evidence.
In the absence of contradictory evidence, there was no need to explain such differences and, in any event, the reason for the conclusion is obvious.
Consequently, taking the Tribunal's findings as a whole, in our view the Tribunal's references to the base material did not infect its findings concerning the backfill. Those references did not intrude an irrelevant consideration or constitute inadequate reasons.
Next we shall deal with the submissions that the Tribunal did not give adequate reasons relating to the evidence of Mr Galea and its conclusions that: 1. Mr Galea could not recollect whether the materials were mixed or not (it was said that there was no evidence to support such finding); and 2. A concessions was made by Mr Galea that backfill cement and sand were not suitably mixed by machine;
As to the first ground concerning recollection of mixing, in our view the Tribunal's reasons might appear confusing. First the Tribunal said at [106] that Mr Galea had no independent recollection of mixing the material together. Later in that paragraph the Tribunal said "Mr Galea could not recollect whether the materials were mixed or not, other than to say they were not mixed by machine". However, reading paragraph [106] as a whole, it is clear the Tribunal recognised, correctly, Mr Galea had a recollection of the materials being mixed, the issue being one of the materials being suitably mixed. The fact of recollection is evidenced by Mr Galea's oral testimony referred to below.
In support of the ground concerning suitable mixing by machine, passages from the transcript of cross-examination of Mr Galea were cited. In our view the passages referred to omitted the critical passage immediately prior to the passages set out in the submissions.
The omitted passage was at tscpt AB 164 lines 14-16: Mr Moschoudis: Right. Now at your site where you store your sand and your cement is it correct that you don't have a machine that mixes the cement and the sand? - Mr Galea: That's correct.
The cross-examination then went on with the passages relied upon by the builder at lines18-28: Mr Moschoudis: Right. And for all intents and purposes it's essentially done, what , effectively by hand. You open the bag, you put the bag - the contents of the bag out and then you mix it with the sand, is that right? - Mr Galea: Sorry, the signal cut out. We - sorry, the signal's cutting in and out. We mix the - we put the cement in the loader bucket and we use the loader to mix the sand and cement together, we don't use like a shovel, we use a machine. You don't have an agitator, do you? Mr Galea: No. No. And you've worked out that you're able to mix it using the loader and a bucket or a number of buckets, is that right? - Mr Galea: Yes.
The omitted passage gives a very different meaning to the exchange. There was a clear contrast drawn in the question and answer between using a mixing machine and what happened, even if the witness saw a loader bucket or buckets as a "machine" in contrast to a shovel.
Further, the builder in cross-examination (tscpt pp AB 128-130) said he did not know if the supplier had an agitator. He described a process with the loader that was very different from a mechanical agitator, although he said "it blends as good as an agitator would". At AB 129 line 4 and following: Member: Would you refer to a loader as an agitator or not? Mr Douglas: I would say it blends it as good as an agitator would. You understand it's mixed, it's picked up, it's put in a truck which is mixed again, it comes to the site, gets dumped, we pick it up with our Kanga, we mix it again and it goes into the backfill, it gets mixed again". I can assure you the backfill is exactly what we need around the pool. Member: Sorry, no, I think that the answer to my question that is no, a loader of itself is not an agitator but you by the fact that it is loaded and unloaded that it gets agitated? Mr Douglas: Correct. Member: But a loader itself is not an agitator? Mr Douglas: No. … Mr Moschoudis: And I'm suggesting to you a loader and an agitator do different things, don't they? Mr Douglas: Yes. Mr Moschoudis: So they're not the same and you don't get the same result, you accept that? Mr Douglas: I don't know if you get the same result. Mr Moschoudis: You don't know. Okay? Mr Douglas: No. … Mr Moschoudis: The question was if it was done by hand you would accept that the ratio should've been one to six. Member: Thank you Mr Moschoudis: I think, Mr Douglas, you agreed with that proposition? Mr Douglas: Correct." [This repeated in substance a preceding question and answer that the Tribunal could not hear.]
The conclusion made by the Tribunal was that what happened was not machine-mixing in the relevant sense for the purposes of the lower cement:sand ratio under the relevant Australian Standard to which the Tribunal referred at [105]. Further, it was clear that it was not within the Standard's requirement of "dry mix by machine on site" for the lower cement:sand ratio to apply.
In the light of the exchange, the Tribunal's finding concerning Mr Galea's evidence was a reasonable conclusion, and the reasons were adequate in explaining why Mr Galea's evidence in chief on machine-mixing was not accepted. While ideally the Tribunal might have made reference to the particular evidence in cross-examination to which we have referred, as recorded in the Tribunal's reasons, a transcript of the hearing was not provided to the Tribunal.
Further, in the light of the answers given, there was no need directly to put to Mr Galea that the materials were not suitably mixed as the builder went on to submit. That was the import of Mr Galea's answers when compared with the Australian Standard. Mr Galea did not deal with suitability under the Australian Standard or whether compliance was required, only with the fact of what he said had been done and how it had been done, which was the subject of his cross-examination.
The next issue arising under ground 1 is the manner in which the Tribunal dealt with the evidence of Mr Rickards.
The builder said of the Tribunal's decision: It seems to the appellant that the best way to sum up the Tribunal's findings on this is, that, because it accepted the backfill was not fit for purpose, therefore, the Tribunal was more inclined to believe the testimony of Mr Luscombe.
The builder then made reference to the evidence of Messrs Rickard, Nakhla and Wiesemes. Of this evidence the builder submitted "the Tribunal made no attempt to reconcile any of it with the finding that the pool actually was floating".
The evidence identified included the following oral evidence:

Mr Rickard's evidence: Mr O'Connor: And is it your view that the pool is or is not floating or lifting? Mr Rickard: it is my view that the pool is not floating or lifting but I, like all of the other experts on this case, have not actually been in the pool and tested it (emphasis added) when the water table is high and tested it when the water table is low. Mr O'Connor: So you're saying that there's really been no testing to establish one way or another? Mr Rickard: The pool walls are perfectly-perfectly within standard and when I ran a broom across the floor which sounds a bit crude but that's all you can do unless you get in the pool (emphasis added), there was no indication to me that there was any sort of movement or billowing of the floor.

Mr Nakhla's evidence: Mr O'Connor: And, Mr Nakhla, can I just address a question to you? In your experience if the pool is lifting or floating would you say it's fairly obvious? Mr Nakhla: I think it would be very obvious, yes. Mr O'Connor: Why do you say that? Mr Nakhla: Because there would be obvious signs of damage and misalignment in the structural bond beam above it, in the walls of the pool and you would hear a definite, very obvious drumming that's … around and we didn't find evidence of any of that in our testing. … Mr Nakhla: I had requested the applicant's expert to provide what evidence they were relying on for the pool lining lifting. No one had actually tested that swimming pool or entered it while it was empty to inspect it as I would expect - to inspect that. So the main point that they were relying on is that the homeowner had informed them but there was no testing that I could respond (emphasis added) in (sic).

Mr Wiesemes' evidence: Mr O'Connor: And it's true, isn't it, that you've never done any comprehensive testing to prove one way or another whether the pool is lifted? Mr Wiesemes: No, I haven't jumped into the pool, I wasn't prepared to jump into the pool on that day. … Mr O'Connor: You've heard what Mr Nakhla said about the lack of testing to show that the pool was lifting or floating, did you accept that at the 2 June conclave that there was no testing done that proves the pool was floating or lifting? Mr Wiesemes: No, there was no testing done. Mr O'Connor: it is true that the basis of your conclusion is the opinion of the - sorry, I'll withdraw that. That the basis of your opinion that the pool was floating or lifting is really the observation of Mr and Mrs Luscombe or their friends and family? Mr Wiesemes: yes, certainly Mr and Mrs Luscombe and of course, my experience.

Leaving aside for the moment the fact that the Tribunal was not provided with a transcript for the purpose of preparing its reasons, the approach taken by the builder in making these submissions is to select elements of oral evidence to which the Tribunal has not referred as a basis for criticising the reasons provided. In effect, the builder says particular evidence should have been referred to and expressly dealt with by the Tribunal in its reasons and the failure to do so render the reasons inadequate.
However, this approach is not consistent with what the Court of Appeal said in Orr. In this regard the following comments of Bell P are relevant: 73 In this context, in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 477; [1995] QCA 187, Fitzgerald P said of the Queensland Retail Shop Leases Tribunal, adapting the language of Samuels JA in the unreported decision of this Court in Strbak v Newton (Court of Appeal (NSW), Samuels JA, 18 July 1989, unrep) (Strbak), cited in Xuereb v Viola (1988) 18 NSWLR 453 at 469, that, while such a tribunal: "might not be required to 'submit the material before [it] to the most meticulous analysis and carry into [the reasons for its decisions] a detailed exposition of every aspect of the evidence and the arguments ...' or '... incorporate an extended intellectual dissertation upon the chain of reasoning ...', at least 'a basic explanation of the fundamental reasons which led the [Tribunal] to [its] conclusion ...' is necessary". It should be noted that Samuels JA in Strbak had been describing the duty of a District Court judge to give reasons as opposed to that of a tribunal member. 74 In Tatmar at 386, Mahoney JA (as he then was) observed in the context of the obligation to give reasons for a discretionary judgment that it was not necessary for a judge: "who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemi[s]e, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O'Hara v Evans (Court of Appeal, 23rd September, 1976, unreported; Colacicco v Colacicco (Court of Appeal, 15th March, 1977, unreported). ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824 at 826. But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it." 75 To like effect, in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46], Basten JA said: "Generally, the concept of 'reasons' requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. (A different question arises if mandatory considerations have not been identified.)" (emphasis added) 76 What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context: Pozzolanic at 287. 77 These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291.
In the present case the Tribunal: 1. accepted the evidence of Mr Luscombe. The observations made by Mr Luscombe concerning the pool floor being spongy did not require specialist expertise. He was not challenged about those matters. 2. accepted the evidence of Mr Wiesemes and Mr Nash-Smith that the walls above, at and below the waterline were drummy when tested in a method none of the experts criticised. Indeed, all experts appear to have applied the same testing methods. In this context, the Tribunal reviewed the evidence of Mr Nakhla and noted this expert "does not disagree the tonal changes near the waterline are evidence that the backfill has moved and settled" and that Mr Nakhla "does not attempt to dispel that opinion". 3. The Tribunal identified evidence of unsuitable material being the observations made by Mr Wiesemes as to the loose, uncompacted backfill and the evidence concerning the constituency of the backfill core samples taken by Mr Nash-Smith and subject of the Boral report and a further report of Mr Nash-Smith. This supported those experts' opinions concerning their observations and assessment. The evidence of Mr Rickard in response, referred to the Tribunal at [67], commenting on some of this material, was no more than a disagreement with the opinions expressed, based on what Mr Rickard had been told by the builder and otherwise unsupported by any relevant testing. Certainly, in this appeal, we have not been referred to any evidence of Mr Rickard where he himself carried out an inspection of the backfill material, either by hand or by core sampling. 4. These findings were sufficient to justify a conclusion that the backfill had displaced and was no longer providing support. 5. As to the spongy floor, the Tribunal identified both the evidence concerning absence of any discernible concave deflection (as might be present if the base material had not been appropriately screed) and the mechanism of the side walls of the pool floor moving as explaining this defect. 6. It was not otherwise suggested that removal and replacement of the pool shell was unnecessary to rectify the defects found.
While the evidence the builder refers to suggest that the pool had not "floated", this evidence is somewhat ambiguous in nature. In one sense, if the pool shell is unsupported either underneath or on its sides, it is floating even if the whole of the shell is not displaced around the bond beams or has not come out of the ground. Whether or not this semantic analysis has any validity, the short point is that the Tribunal clearly accepted that 1. the pool floor was spongy; 2. the walls of the pool were drummy; and 3. the backfill material was insufficient both as to its constitution and placement.
In relation to the first matter, there was no evidence to contradict Mr Luscombe, the experts accepting that no expert had entered the pool to test whether Mr Luscombe's observations were correct. In the absence of any other evidence, including from an expert getting into the swimming pool, it was entitled to accept Mr Luscombe's observations and there is no relevant absence of reasoning.
In relation to the second and third matters, the evidence referred to by the builder in its submissions did not contradict the findings concerning the constitution of the backfill. Further, the observations made did not displace the conclusions concerning the placement of the backfill, and that it was not compacted. Lastly, the Tribunal explained why it preferred the evidence of the owners' experts about drumminess at [115].
It was not submitted that what was said by the Tribunal at [115] about those experts' opinions was wrong. Rather, the challenge is ultimately a criticism that there was some evidence that was not referred to, but there is no explanation why this evidence would displace the evidence of Mr Luscombe or that of the owners' experts concerning sponginess of the pool floor, drumminess of the pool walls and the use of non-conforming backfill which had not been adequately compacted. Having regard to the principles in Orr set out above, the conclusions reached did not require an analysis or explanation of the evidence to which the builder refers in the manner contended.
In relation to ground 2, which relates to the Tribunal statement at [108] concerning cement in the aggregate base material, this issue was dealt with above.
In relation to ground 3, which relates to the Tribunal statement of the Tribunal at [96] that it was "impossible to separate forensically" issues 2, 3 and 4, as we explained above this statement, even if erroneous, had no relevance to the Tribunal's conclusions.
In relation to grounds 4 and 5, which concern the evidence of Mr Galea, for the reasons stated above, these grounds are not made out.

Ground 6 - no evidence to support the finding that Mr Rickard had given an opinion that the pool had buckled upward (reasons at [114])

The builder contends the Tribunal made a finding at [114], unsupported by evidence, that Mr Rickard gave an opinion that the "pool has buckled upward".
In fact what the Tribunal said at [114] was that, on the assumption Mr Luscombe's observations were accepted, Mr Rickards had said this would suggest the radii (pool corners) of the pool had moved inward.
The statement of Mr Rickard was made in a report of a meeting of experts held on 17 June 2020. The minutes of that meeting are found at AB 304. They are not signed. At item 1, the following is recorded: 1. Pool lining billowing and lifting - Integrity of the Pool lining 1.1 MW [Mr Wiesemes] presented new information of significance. At the suggestion of MW, Mr Luscombe entered the pool having made sure that the external water level around the pool was low. He found the floor to be still "floating", even though the external water level had been reduced. If this is the case, MW/CR [Mr Rickard] agree that this would suggest that the radii (corners of the pool) have moved inwards. (On reconsideration when preparing the notes, CR suggested the floor would have gone hard and probably rippled).
The builder says these minutes were never tendered in evidence.
It is clear from reading [114] the Tribunal took account of the conclave notes in reaching the view concerning Mr Rickard expressed in that paragraph.
The issue of the minutes was addressed by the Tribunal in several locations in the transcript. The first was at the commencement of day 2 of the hearing, on 18 June 2020. At AB Vol 1 183, commencing at line 24 and following the following was said: Mr Moschoudis: … The second issue that I have is in relation to the minutes of a meeting [that] was conducted yesterday between some of the experts. Further material, I understand, has been added this morning that isn't agreed to. Just so that I understand the situation I just don't want to misunderstand what was expected of this meeting. As I understand it, it was to identify the matters that were either agreed to or the matters that were in dispute, is that right, Senior Member? Tribunal: Yes, and on top of that Mr O'Connor was keen to have some sort of list of defects. Mr O'Connor: I think my position was I just wanted to nail everybody down as to what it was we were arguing about in terms of a defect list and I think we've, at the very least, achieve that, Member, so we can go through it in a fairly orderly fashion hopefully. Tribunal: Well, I think the point being that there was a document last night that was agreed and this morning there is a document that is not agreed? Mr Moschoudis: Right.
The second occasion was in the context of the builder's counsel making a submission that the owners should "be held to a list of the defects that they were pressing for these proceedings": AB Vol 1 p 238 lines 8-18.
In the course of the Tribunal ruling that the owners were not limited to the defects about which they could claim by reference to the content of the minutes, the Tribunal at AB Vol 1 p 238 lines 24-36 said 1. that the document had not been tendered, it was not understood that the conclave meant that the experts resiled from everything that they did not write into the three-page document, 2. Mr Wiesemes was not limiting himself to the eight defects in the document; and 3. the document was not recognised as a conclave report. Therefore, the Tribunal concluded, the "document does not limit the scope of the [owners'] case". On this basis, the Tribunal noted that the builder's Counsel would be permitted to cross-examine on other issues.
It does not appear the minutes were subsequently tendered. Given experts' obligations to review and state any revision to their opinion, ideally this document should have been dealt with more formally. Notwithstanding this observation, it does seem from the exchanges to which we have referred that the parties and the Tribunal used this document to identify what were some of the issues that the Tribunal was required to resolve. As such, it is difficult to see what the current challenge is about, particularly as it was not suggested that the note, prepared by Mr Rickard, did not record his views.
Irrespective of the status of the meeting notes, in our view the content of the notes was not the foundation for the Tribunal's decision.
As already considered, at [113] the Tribunal preferred the opinions of the owners' experts over that of the builder's building expert. At [115] the Tribunal said: "On balance I accept Mr Luscombe's observation that the pool floor floats and prefer and accept the evidence of the Messrs Wiesemes and Nash-Smith that the backfill has moved and settled and that as a result the pool is buckling upwards." The acceptance of Mr Luscombe's observations, and of the owners' experts, was properly grounded in a manner we have already discussed. In this regard the builder agreed (AB Vol 1 p 133 line 39) that the pool floating would be a major defect requiring removal and re-installation of the pool shell. That appeared to be common ground.
On one view, the discussion and finding at [114] was ancillary to those findings. The meeting note was used to reinforce the opinion of the owners' pool building experts, in support of Mr Luscombe's observation concerning the buckling of the pool, to show that Mr Rickard expressed a view concerning the failure mechanism consistent with that conclusion if Mr Luscombe's observation was accepted.
In this regard, the whole purpose of the meeting of experts on 17 June 2020 was to assist the parties and the Tribunal in understanding matters of common ground and matters in dispute although, as explained above, the Tribunal did not accept the minutes limited the owners to claiming only for defects dealt with by those minutes.
Further, subject to the rules of natural justice (a matter not raised by this ground of appeal), the Tribunal was entitled to inform itself in such manner as it thought fit: s 38(2) NCAT Act.
Finally, even if what was said by Mr Rickard at the meeting on 17 June 2020 was not in evidence, we were not referred to evidence other material to suggest Mr Rickard held a view or had provided evidence that would contradict the opinion of Mr Wiesemes that, if the pool floor was spongy, this could cause the side walls and the pool radii to move inward: see eg Mr Wiesemes' oral evidence (AB Vol 1 p 216 line 17-27) and his report (AB 513).
In these circumstances, this ground of appeal is not made out.

Ground 8 - failure to give reasons why the Tribunal rejected the builder's argument that the respondents had failed to undertake appropriate testing to prove the pool floated

The builder submitted that the Tribunal had "reversed the onus of proof such that it did not require the moving party to undertake the appropriate testing to make out their case resulting in an error of law".
The builder said that it had maintained throughout the proceedings that the owners' case must fail because they did not undertake testing. Reference was made to the evidence of Mr Nash-Smith and his concession that the only way to find out if the pool was lifting or billowing was to get in the pool. Reference was also made to the evidence of Mr Nash-Smith that he could not see any evidence of billowing or lifting and that neither of the experts could detect any defect.
The builder says that, despite correctly identifying the arguments that the appellant put forward, the Tribunal did nothing to resolve this matter. In short the builder says: … the Tribunal found the defect existed based on the word of the owners' lay opinion. This is despite the fact that the [owners'] experts conceded that proper testing would require them to get into the pool and to empty the pool. They did neither.
There was no submission that the Tribunal was incorrect in stating that Mr Luscombe was not cross-examined on his evidence that the pool bottom felt spongy. We have reviewed the transcript and confirmed that there was no such cross-examination. Rather, the builder focused on the absence of testing by the parties' experts, which was available to be done by all parties and would provide objective support for the owners' evidence of observation and allegations.
In the proceedings at first instance it was submitted by the builder that Mr Luscombe's evidence should be given little or no weight in the context of self-interest. There was an absence of testing which could have been done by the experts, the evidence of the builder's expert that there would be "very" clear evidence of damage and misalignment of the bond beam and the evidence of the builder's engineer that he checked the contour of the pool floor with a broom and could not identify any noticeable upward deformation or unevenness in the floor. Also, there was evidence from the builder's expert that the loose material felt by the owners' pool building expert was "quite likely" granular fill placed over the cement-sand backfill when the general site level was being made good (Reasons [60]-[64], [67]).
The builder submitted that in effect the Tribunal had reversed the onus of proof by its findings thereby requiring the builder to conduct testing to refute the owners' lay observation evidence.
The submission concerning the weight to be given to the evidence of Mr Luscombe demonstrates there was some evidence as to the floor of the pool being spongy. Indeed, the evidence of Mr Luscombe was the only evidence of any person who had actually got in the pool to test the floor in the manner suggested as necessary by all experts.
The Tribunal at [115] accepted the evidence (uncontradicted in the case of Mr Luscombe's observations) of the owners and their experts over that of the builder and its experts. This of itself did not constitute a reversal of the onus of proof. That acceptance included the owners' experts' evidence which provided a reasoned expert basis or diagnosis for what the owner observed as the effect, in part arising from the experts' observations of drumminess, the lack of a conclave pool floor, the loose backfill, the testing of the backfill and the mechanism for failure.
In these circumstances there was no reversal of proof and this ground of appeal is not made out.

Ground 9 - no evidence to support finding that Mr Nash-Smith had provided a structural engineering opinion

The builder challenges the Tribunal's statement at [113] that the Tribunal "had particular regard to the structural engineering opinion of Mr Nash-Smith who states that the backfill was not sufficiently compacted and had a poor cement sand ratio based on the Boral test".
The builder says that the Tribunal should have found Mr Nash-Smith never held himself out as a structural engineer, never titled any report "structural engineering report" and that the Tribunal, in relying upon Mr Nash-Smith's opinion in the manner it did, denied the builder procedural fairness.
On one view, the distinction between consultant and structural engineer appears to be a submission based on semantics. While the rules of evidence do not apply to proceedings in the Tribunal, s 79 of the Evidence Act 2005 (NSW), which defines the exception to the opinion rule based on specialised knowledge, clearly indicates that the question is not one of labelling, but rather of substance. Section 79(1) states: 79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
Otherwise, the general requirements for the content of an expert's opinion are to furnish the trier of fact with criteria enabling the evaluation of the expert's conclusions by: 1. Explaining and proving the expert's qualification and /or experience enabling the expressions of an opinion. 2. Stating the facts and assumptions about which an opinion is being offered, including identifying relevant documents. 3. Providing an explanation of the analysis of the facts to which any special learning has been applied. 4. Providing a conclusion based on the foregoing.
As said by Macfarlan JA at [30]-[31] in Forster v Hunter New England Area Health Service [2010] NSWCA 106, referring to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705: 30 As Heydon JA (as his Honour then was) indicated in Makita, for an expert report to be useful it is necessary for it "to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions" (at [59]). Heydon JA referred to the observations of Lord President Cooper in Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh [1953] SC 34 at 39-40 which included the following: "The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole of other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert" (cited in Makita at [59]). 31 To like effect are the statements, also quoted by Heydon JA, in Makita of Sir Owen Dixon in an extra-judicial address that "[c]ourts cannot be expected to act upon opinions the basis of which is unexplained" (Makita at [60]) and of the authors of Phipson on Evidence, 15th edition (2000) London Sweet & Maxwell, that "[i]n general, an expert may give evidence in chief as to the grounds on which he has reached his opinion, and it may be said that, without the grounds, the opinion is valueless" (Makita at [63]).
In the present case, in his report, Mr Nash-Smith sets out his qualifications: AB 614 and following. They include qualifications in civil engineering as well as working as an engineer technician, assistant engineer, structural engineer and the contract structural engineer for various companies and partnerships in the United Kingdom: AB 616. At AB 614 Mr Nash-Smith described himself as: A Building Consultant with qualifications and wide experience in Structural Engineering, Construction, Remedial Building and Building Assessment industries.
At AB 614, of his work with Demlakian Consulting Engineers as a senior project engineer/team leader, he says his work included: Building assessments and inspections, forensic and diagnostic engineering, remedial works and project management on a variety of projects including new and existing domestic, commercial and industrial buildings.
It seems to us that the description of his skills and the expertise he brought to the opinions expressed in his report made adequately clear the nature of his expertise in terms of both learning and experience. Whether one calls him a consultant with structural engineering qualifications and experience or a structural engineer is of no significance.
The short point is that Mr Nash-Smith offered opinions of a technical nature in an area associated with his expertise. He explained the basis for his claim that he was an expert and it was open to the builder to challenge that claim and the opinions expressed by cross-examination. As is evident from the transcript, Mr Nash-Smith was cross-examined about his opinions.
Further, it seems to us that the Tribunal attributed no importance to the description or status of Mr Nash-Smith in its findings. It accepted his report, particularly the second report. This included his reasoning and direct observation on drumminess. His opinions concerning inadequate backfilling are supported by the Boral test results for the core samples taken from the side of the pool.
None of these matters depended in any relevant sense on the fact of Mr Nash-Smith being a qualified engineer as the reason that the Tribunal accepted his opinions and the claims made by the owners.
In summary, Mr Nash-Smith's qualifications were disclosed and the builder had every opportunity to ask the witness any questions it wished concerning his qualifications and/or his observations and opinions.
Consequently, this ground of appeal is not made out.

Ground 7 - inadequate reasons that defect item 5 (the spillway) was attributable to the builder

Given our conclusion that the appeal fails on the other grounds concerning the pool floating and backfill, it is unnecessary to consider this ground for the same reason the Tribunal expressed at [116].

Leave to appeal

As noted by the owners, the builder recast its grounds of appeal to raise questions of law. It also sought leave to appeal to the extent necessary.
Reference was made to Sch 4 cl 12(1) (concerning the requirements for the grant of leave from a decision of the Consumer and Commercial Division) and Collins v Urban [2014] NSWCATAP 17 where the Tribunal set out the principles relevant to the grant of leave.
Reference was made to the same matters said to constitute errors of law, including the Tribunal's finding concerning the aggregate base material and its cement content, the evidence of Mr Galea concerning mixing of the backfill and the findings concerning the pool lifting and billowing.
Emphasis was placed on the finding concerning the 10 mm aggregate being defective because it was not mixed with cement which was described as "an error that is plain, and readily apparent" and "which was central to the Tribunal's decision that the pool was lifting and floating". Consequently the builder says: It is difficult to see how the decision can stand when the Tribunal has unquestionably confused an issue that goes straight to the heart of its reasons for finding the pool to be defective.
Having regard to our analysis above, the issue of the 10 mm aggregate and its cement content and the conclusion at [108] did not affect the Tribunal's findings concerning the pool being spongy, the fact that the pool walls were drummy or the backfill being inadequate both in content and placement.
We are not satisfied that the builder otherwise may have suffered a substantial miscarriage of justice because the decision was against the weight of evidence or not fair and equitable. Even if the finding at [108] was a clear mistake, it bore no significance to the substantive findings concerning the defects and the reasons therefor.
As such, leave to appeal should be refused.

Costs of appeal

Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (Rules) applied to costs in the proceedings at first instance. Consequently, pursuant to r 38A of the Rules requires s 38 to be applied to this appeal.
The amount claimed or in dispute in this appeal was greater than $30,000. Therefore there is no need for a party to establish special circumstances and there is a general discretion to award costs. The starting point for exercise of the discretion is the usual principle that costs follow the event.
Here there appears to be no reason not to apply the usual principle that costs follow the event. As the builder has failed in its claim, it should pay the owners' costs. We will make this order but permit the parties to apply for a different order if the wish to do so.

Orders

The orders we accordingly make are as follows: 1. Grant leave to the appellants to rely on the amended grounds of appeal filed with the appellant's written submissions in chief on 18 November 2020. 2. Leave to appeal is refused and the appeal is dismissed. 3. The stay of the Tribunal's orders made 1 September 2020 is lifted. 4. Subject to order 5, the appellant is to pay the respondents' costs of the appeal on the ordinary basis as agreed or assessed. 5. In the event a party contends for a different costs order in the following applies: 1. Any application for a different costs order (costs application, together with evidence and submissions in support of the application, is to be filed and served by the applicant (costs applicant) within 14 days of the date of these orders. 2. Any evidence and submissions in response to the costs application is to be filed and served within 28 days of the date of these orders. 3. Any evidence and submissions in reply is to be filed and served within 35 days from the date of these orders. 4. Upon the filing of a costs application in accordance with these directions, order 4 will cease to have effect. 5. The parties submissions are to include submissions about whether an order should be made dispensing with a hearing

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: 14 December 2021

Civil and Administrative Tribunal Regulation 2013(NSW)

Evidence Act 2005(NSW)

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