Empre Construction Pty Ltd v Garg; Garg v Empre Construction Pty Ltd

1. The owner sought orders which would vary order 1 by increasing it and which would set aside order 2 and replace it with an order that the respondent (builder) pay the reasonable cost of demolition and rebuilding the bathroom to ensure waterproof compliance.
2. Alternatively, the owner sought an order that his application be remitted to the Consumer and Commercial division of the Tribunal for re-hearing on quantum and bathroom rectification.
3. The owner was self-represented in the appeal and at the hearing. In filling out the Notice of Appeal the owner referred to an 'Annexure to Notice to Appeal Form' in sections 5 A, B and C and 6 A and Bi and iii of the formal Notice of Appeal. It was indicated that the owner was seeking leave to appeal.
4. The owners Grounds of Appeal identified 2 errors of law, namely:

(1) s48MA of the HBA; and

(2) Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613.

(a) Failure to award compensation for proven defects;

(b) Failure to consider relevant evidence;

(c) failure to address incomplete works;

(d) order (2) was unworkable; and

(e) overall under-compensation.

1. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ('Prendergast') at [12] the Appeal Panel stated:

In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.

1. Such an approach was confirmed in Cominos v Di Rico [2016] NSWCATAP 5 where the Appeal Panel stated at [13]:

It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. However, this must be balanced against the obligation to act fairly and impartially.

1. It will be necessary for us to approach the appellant's Notice of Appeal in the way described above.

1. Since the owner identified two issues which he described as errors of law, we will deal with them first. We will treat these items as raising errors on questions of law.
2. The first question of law referred to by the owner is a reference to s48MA of the HBA. The substance of the alleged error is that:

'The Tribunal failed to order rectification or equivalent compensation contrary to statutory preference.'

1. Reference has been made to Cusumano in connection with what will be a question of law for the purposes of s80(2)(b) of the CAT Act. At [25(8)] the appeal panel stated:

'A mixed question of fact and law is not a question of law'

1. The way in which the owner has described this ground of appeal does not raise a question of law, but indicates dissatisfaction with that part of the decision which dealt with quantum at [70] - [81]. Because the owner is unrepresented, if we were to treat this ground as an application for leave to appeal on the basis that the owner may have suffered a substantial miscarriage of justice because the decision of the Tribunal was against the weight of evidence, we would not grant leave to appeal because the owner has not identified a conclusion reached by the Tribunal member and then referred to the evidence at the hearing which is said to 'preponderate(s) so strongly against' that conclusion.
2. The second question of law is stated to builder that the Tribunal member did not apply Bellgrove v Eldridge and:

'substituted its own "rough" estimate ($2,300 for bathroom works) instead of allowing reasonable rectification costs supported by an independent quotation ($15,800 + GST, Exhibit 35).

1. In our view this ground does not raise a pure question of law, rather a mixed question of fact and law which is not a question of law.
2. Bellgrove v Eldridge establishes that where there are defects caused by a breach of a contractual obligation, the damages to be awarded are the costs of rectification, provided the works to be carried out are both necessary under the contract, and reasonable. In making the orders for damages in favour of the owner, we find that the Tribunal member applied Bellgrove v Eldridge albeit without citing the decision_._ We understand the owner's complaint to be that the Tribunal member did not make an order for damages based on the quotes referred to in [70] of the decision.
3. If this ground were to be understood as an application for leave to appeal on the basis that the owner may have suffered a substantial miscarriage of justice because the decision of the Tribunal was against the weight of evidence, we would refuse leave to appeal on the basis that the owner has failed to demonstrate that he may have suffered a substantial miscarriage of justice. The Tribunal member referred to this evidence at [70] of the decision and at [71] provided compelling reasons for not accepting the quote tendered by the owner, namely that the quote included items of work which had been performed. Despite the Appeal panel orders of 15 August 2025, the owner did not lodge with the Appeal Registry the quotes which he tendered as referred to in [70] of the decision which would have allowed a more comprehensive understanding of this ground of appeal.
4. We refuse leave to appeal on this ground

Failure to award compensation for proven defects.

'Tribunal erred in excluding multiple bathroom defects/damages despite independent evidence (as per Building Commission NSW file 11252466 for Rectification Order 19 August 2024 (exhibit 19), Investigation Report 18 Oct 2024 (exhibit 27) and Exhibit 37 pages 209-277/351 of Applicant's 6 Jan 2025 submission)'

1. Despite the Appeal panel orders of 15 August 2025, the owner did not lodge with the Appeal Registry the Building Commission NSW file 11252466 for Rectification Order 19 August 2024 exhibit 19 or exhibit 37 pages 209-277/351 of his 6 Jan 2025 submission. The 18 October report has been provided to the appeal panel.
2. This complaint by the owner may be regarded as an application for leave to appeal because he may have suffered a substantial miscarriage of justice because the decision of the Tribunal was:

(a) not fair and equitable; or

(b) against the weight of evidence.

1. Without the owner identifying the multiple defects which are alleged to have been excluded by the Tribunal member or providing copies of the Building Commission NSW file 11252466 for Rectification Order 19 August 2024 exhibit 19, or exhibit 37 pages 209-277/351 of the owner's 6 Jan 2025 submission, the Appeal panel is unable to determine whether the owner may have suffered a substantial miscarriage of justice because of the matters referred to.
2. For this reason, we refuse to grant leave to appeal in connection with this ground.

'Tribunal accepted the Building Commission Report for some defects but arbitrarily rejected others without reasons producing inconsistent treatment.'

1. The owner has not identified the defects which he submits that the Tribunal arbitrarily rejected without reasons. Without providing this detail in support of his appeal we are unable to ascertain whether the owner may have suffered a substantial miscarriage of justice. For that reason, leave to appeal is refused.
2. A failure to provide reasons will raise a question of law. The owner has failed to identify the defects which were allegedly rejected without reasons. As a result, he has failed to identify a question of law.

'Tribunal failed to award compensation for construction waste removal and linen cupboard repair (Rectification Order items 1E and 9), which were within the contract scope.'

1. These items were included in the 18 October report which referred to the Rectification Order commencing at page 4 of 16. The 18 October report was referred to in the decision at [19].
2. At the hearing the owner submitted that in addition to items 1E and 9, the Tribunal member did not deal with items 2 - 8 of the 18 October report.
3. In Cusumano at [32(4)] the appeal panel stated:

'Whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice, that is, procedural unfairness. Alternatively, it may also constitute a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [6], [20]-[22] (Basten JA).'

1. A failure of a Tribunal member to deal with claims or matters before her were also considered in Jayasooriah v Wisdom Properties Group Pty Ltd [2020] NSWCATAP 81 where an appeal panel stated at [43:

'It will be an error of law if a Tribunal Member does not deal with an issue that was before him or her for determination. In Yong v Antworks Pty Ltd [2016] NSWCATAP 14 at [31- 34] an Appeal Panel cited the following authorities in support of this proposition:

31 In Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority 24 NSWLR 156 at 186 Handley JA stated:

'The duty of a judicial officer to hear and determine a claim made in judicial proceedings conducted before that officer is also an incident of the judicial process. Since breaches of the duty to give proper reasons and to observe procedural fairness involved errors of law, there seems every reason to hold that a breach of the duty to hear and determine a claim made in judicial proceedings also gives rise to such an error.

32 In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Gaudron J in context of the Migration Act (Cth) discussed a constructive failure to exercise jurisdiction stating:

'It follows from what has been written above that the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, failure to conduct a review as required by the Act.'

33 In Fox v Australian Industrial Relations Commission [2007] FCAFC 150 Marshall and Tracey JJ stated at paragraph 38:

'In the present case the complaint is not that the full bench ignored the evidence but rather that it did not deal with an important ground raised by Mr Fox. This case is more akin to one where there is a failure by a Tribunal to deal with necessary issues. Such a failure constitutes a jurisdictional error.'

34 In Khan v Kang (supra) the Appeal Panel found that the Tribunal had made an error of law by failing to consider a claim made by Mr Khan. The Appeal Panel observed at [28] as follows:

'It is possible to characterise what occurred either as a failure to give reasons for the Tribunal's decision or a failure to exercise the jurisdiction conferred on the Tribunal and invoked by the appellant in relation to this claim in respect of excess timber - see Waterways Authority v Fitzgibbon [2005] HCA 57 at [129] - [130] and Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [42]. Whichever way it should be Whichever way it should be characterised, the Tribunal's failure to consider such a claim at all in its Reasons for Decision amounted to an error of law by the Tribunal below'

1. The authorities referred to above establish that if the Tribunal member did not deal with items 2 - 9 of the 18 October report and that those issues were before her for determination, a question of law arises upon which the owner may appeal as of right.
2. At [24] of the decision the Tribunal found that on the balance of probabilities item 1E had been rectified. The owner's claim in respect of that item was dismissed. Insofar as the owner's grounds of appeal state that the Tribunal member did not address this item, that submission must be rejected as plainly incorrect. There is no other basis identified upon which the rejection of this item of the owner's claim may be challenged under s80(2) of the CAT Act. No question of law has been identified. The owner has failed to establish that he may have suffered a substantial miscarriage of justice on any of the grounds identified in Schedule 4 clause 12(1) of the CAT Act in connection with item 1E. Leave to appeal in connection with item 1E is refused.
3. At [13] and [14] of these reasons we described the effect of [18] and [19] of the decision. Importantly we stated that the Tribunal member accepted the defect findings and rectification methods listed in the 18 October report, with the exception of seven (sic -six) items listed in [18] which the Tribunal member addressed separately.
4. The 18 October report dealt with items 2- 9. Items 2- 7 were separate defects all relating to the main bathroom. Item 8 related to a cracked switch control and item 9 related to damaged gyprock inside a linen closet.
5. We have read the decision and find that the Tribunal member did not determine items 2 - 9 of the 18 October report. We find that the owner has identified a question of law in connection with the failure of the Tribunal member to determine items 2 - 9 of the 18 October report, namely a failure to exercise jurisdiction.

1. The builder has stated that order (2) of the of the decision has been complied with. That being the case, we find that there is no utility in dealing with an appeal against an order that has been complied with.

1. We reject this ground of appeal as a generalised complaint which does not specify the limited basis upon which an appeal may be made. Such a generalised complaint indicates a desire for the assessment of the owner's damages to be assessed for a second time, an impermissible course for us to undertake or to order without a proper basis.

1. We allow the owner's appeal in connection with the Tribunal member's failure to exercise jurisdiction and will make an order under s81(1)(c) of the CAT Act that items 2 - 9 of the 18 October report be reconsidered by the Tribunal as constituted at first instance without any further evidence.

1. We are of the view that each party to this appeal should bear their own costs. As it was unsuccessful in its appeal the builder will not be entitled to its costs. The owner being a self-represented litigant will have no entitlement to costs.
2. If either party seeks to be heard on a different costs order, the party seeking costs must file a costs application in the Appeal Panel registry and serve on/give such application to the costs respondent within 21 days of the date of these orders either attaching or referring to the documents relied upon in support of the application.
3. The costs respondent will have 21 days after the date it receives the application to file in the Appeal Panel registry and serve on/give to the costs applicant its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.
4. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties' written submissions and attached documents, if any, without the need for a hearing.
5. Subject to the parties' submissions, the Appeal Panel will determine any costs application made on the basis of the submissions and papers filed in the Appeal Panel without 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.