Hamed v Borg

NCAT Appeal Panel|2018-10-30|Before: Dr J

REASONS FOR DECISION

These proceedings concern a dispute between a builder and a home owner over a water tank which toppled over about four months after the builder had installed it. The Tribunal found that the home owner had not established that the builder was responsible for the tank's collapse.
In coming to its decision, the Tribunal overlooked evidence that the builder had failed to construct the base on which the tank was placed in accordance with the engineering plans. We have granted the home owner leave to appeal on this ground, as we are satisfied that the home owner may have suffered a substantial miscarriage of justice because the Tribunal's decision was against the weight of evidence. The evidence as a whole establishes that the builder is responsible for the tank falling over.
We have allowed the appeal, set aside the decision of the Tribunal and ordered the builder to pay the home owner damages for breach of contract.

Nature of an appeal

An appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), s 80(2)(b)).

A question of law

The Appeal Panel considered a number of questions of law which would give rise to an appeal as of right in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]. These include: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
The Appeal Panel stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to look at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any procedural fairness considerations that might arise to the respondent) (Prendergast at [12]).

Leave to appeal

For the appeal grounds which do not raise errors of law, leave to appeal is required. In appeals from a decision of the Consumer and Commercial Division, an Appeal Panel may grant leave only if the Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) (NCAT Act, Sch 4, cl 12).
The principles to be applied by an Appeal Panel in determining whether to grant leave to appeal are well settled. In Collins v Urban [2014] NSWCATAP 17, an Appeal Panel of the Tribunal conducted a review of the relevant authorities at [65]-[79] and concluded at 84 that: "Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
Even if the appellant establishes that he or she may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the NCAT Act, the Appeal Panel has a discretion whether to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]).

Grounds which do not identify errors

Grounds 1 to 3 and 6 to 8 do not identify any errors made by the Tribunal member and do not identify any questions of law. They are not proper grounds of appeal.
We dismiss these grounds.

Ground 4: Unreasonableness

Ground 4, that the Tribunal unreasonably assumed that the tank could have collapsed as a result of human intervention, could be characterised as raising a question of law. The question of law is whether the decision that the builder was not responsible for the tank's collapse was legally unreasonable because it was based upon an assumption that the collapse was, or could have been, caused by human intervention.
A decision may be legally unreasonable if no reasonable tribunal could have come to it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 364 [68]). A failure to properly exercise a statutory discretion may be legally unreasonable if, upon the facts, the result is unreasonable or plainly unjust (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 367 [76]).
The Tribunal was determining a civil dispute by making findings of fact, not exercising a statutory discretion as it does in administrative review proceedings. However, there is a close analogy between the principle in House v The King (1936) 55 CLR 499 at 505 that an appellate court may infer that in some way there has been a failure properly to exercise a discretion "if upon the facts [the result] is unreasonable or plainly unjust" and legal unreasonableness as a ground of judicial review (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Hayne, Kiefel and Bell JJ at 367 [76]). Further, there is some authority to the effect that unreasonableness as a ground of review may apply to factual findings, although this has not been finally resolved (see Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 at [153]; Wehi v Minister for Immigration and Border Protection [2018] FCA 1176 at [29]; Legal Profession Complaints Committee v Rayney [2017] WASCA 78 at [193]).
We have assumed, for the purposes of this appeal ground, that the home owner is entitled to rely upon legal unreasonableness in the circumstances of this case; that is, on an appeal from a finding of fact. However, we are not satisfied that the Tribunal's comment about the possibility of human intervention causing the tank to fall makes its decision legally unreasonable.
We agree with the home owner that it appears very unlikely that a 3000L tank was pushed over by human beings, and that there was no evidence that this occurred. However, the Tribunal's comment that it "must also be born [sic] in mind that the tank could have been pushed over by human intervention" was made after the Tribunal had indicated that the home owner bore the burden of proof and that there was no evidence before the Tribunal about the correct way to install plastic water tanks. The Tribunal's conclusion that the home owner had not established that the builder's work had caused the tank to fall over was not dependent upon its assumption that human beings could have pushed it over.
We do not consider that the home owner has demonstrated that the Tribunal made an error of law by stating that the tank could have been pushed over by human beings. Nor do we consider that this is a matter which, on its own, would justify the grant of leave to appeal.

Ground 5: Electrical work

Ground 5 relies upon material which was not before the Tribunal. We have decided not to admit the new evidence from the electrician which the home owner sought to rely upon, as it is evidence that was reasonably available at the time the proceedings under appeal were being dealt with (see NCAT Act, Sch 4, cl 12(c)). In addition, the evidence about the alleged deficiencies in the electrical work is not probative of the question of whether the builder was responsible for the tank falling over (the issue raised in the home owner's application and the real issue in the proceedings: see NCAT Act, s 36(1)).
Accordingly, we have dismissed Ground 5.

Grounds 9 and 10: Failure to take into account expert report

Ground 9 alleges that the Tribunal failed to take into account a report the home owner put before the Tribunal by a company called Rustic Plumbing Solutions Pty Ltd, dated 1 May 2018 ("Report"). That company reinstalled the rainwater tank after it had fallen over. Ground 10 is that the Tribunal member did not mention in its decision the "other defects" referred to in the Report.
The home owner said in his Notice of Appeal that the decision was not fair and equitable because no weight was given in the decision to the Report. He also said that the decision was against the weight of evidence, because the Tribunal should have given more weight to the Report which was independent, rather than to the builder's own evidence which was not independent.
The Report, insofar as it is typed, states as follows: "REPORT AS REQUESTED BY CUSTOMER STRUCTURAL INTEGRITY OF HOT WATER SYSTEM AND RAIN WATER TANK Support plynth [sic] that was installed to support a 3000ltr rain water tank and hot water system defective and unable to support such weight, causing tank to fall over POTABLE DRINKING SUPPLY CROSS CONTAMINATION Upon inspection of continual running of pump attached to rain water tank found the following issues, Tank water line to be hooked up to laundry washing machine and toilet provision to be provided. Tank water should be on its own individual line and separated from entering potable drinking water, tank water line was cut into main potable line."
A further page of the Report, which is handwritten, states: "Steps to pursue rectification of works carried out by 'All Purpose Homes' which in my opinion have not been carried out in a proffesional (sic) manner or to AS/3500 and Australian builders code. - Issues - Structual (sic) bases for water tank & hot water system have not been structurally supportive of the weight needed to support such fixtures. Eg. Hot water system and Rain tank. - Tank water supply hooked into town drinking supply Causing Cross Contamination…."
The handwritten part of the Report appears to have been signed by a Chris Scheller.
The Tribunal member did not refer to the Report in his reasons. As indicated earlier, he noted that "to attribute liability to the builder there would have to be some evidence of fault by the builder" and said that there was "no evidence before me about the correct way to install plastic water tanks." He referred to the evidence that the home owner "had a plumber construct a small concrete slab under the tank" but said that "there was no evidence that this was the method approved by the manufacturer or required by the council, the certifier, the specifications or anything else." This is a matter to which we will return.
The builder submitted at the hearing of the appeal that there was no evidence that Chris Scheller exists. He also said that Rustic Plumbing was quoting to do a job for the home owner and had not been engaged to certify the work the builder did.
It is unfortunate that the Tribunal member did not refer to the Report. However, we do not consider that the failure to give any weight to it means that the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was against the weight of evidence. The evidence from the writer of the Report was not independent expert evidence, because the company providing the Report had earlier quoted to do repair work for the home owner and the home owner engaged that company to do the work. There is no evidence of the expertise or experience of the Report writer, although it may be inferred that he is a plumber. The expertise necessary to determine the cause of a tank falling over was not the subject of submissions but, on its face, is an issue which might need engineering experience. In the absence of any evidence of the writer's expertise, and given that the company with which the writer was associated was not independent, the Report has little probative value insofar as it goes to the cause of the tank falling over.
The Report could potentially be given more weight in relation to the issue of the tank water line wrongly being cut into the main potable line, as the correct way of doing this could be expected to be within the expertise of a plumber. However, this is not a matter which was raised in the original application and it is not apparent that the application was amended or that this issue was agitated before the Tribunal below.
For these reasons, it could not be said that the home owner may have suffered a substantial miscarriage of justice because of the Tribunal's failure to give any weight to the Report.

Ground 11: No evidence of tank height

Ground 11, that the Tribunal wrongly stated the tank height without evidence, raises the "no evidence ground" on its face, and thus identifies a question of law. However, a finding of fact based on no evidence must be of a "critical" or an "ultimate" fact in order to constitute a jurisdictional error: AAI Ltd T/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 at [81]; Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263; [2001] FCA 865 at [52]-[56]. The height of the tank was not a critical fact.
We are not satisfied that the Tribunal made an error of law when stating that the tank was "about 1.5m high." Nor is the statement about the height of the tank a matter which may have led to the home owner suffering a substantial miscarriage of justice.
This ground is dismissed.

Failure to refer to lack of compliance with plans

The home owner raised an issue in his "Reply to the Respondent's Reply to the Appeal" and at the hearing about the builder's alleged lack of compliance with the contractual plans when constructing the base on which the tank was placed. As formulated in the documentary material, the ground (not included in the Notice of Appeal) was: 1. "The installation method and instructions were either misread or completely ignored. 2. The engineering details clearly note that the tank should be installed on a 100mm minimum thickness concrete slab with SL 82 reinforcement mesh."
The home owner submitted at the hearing of the appeal that the tank was not installed in accordance with the plans as it was placed on pavers rather than on a concrete slab and that this was a reason that the Tribunal's decision was wrong.
We understand this to be a proposed new ground of appeal. As the Appeal Panel discussed in Prendergast, it is appropriate for us to consider whether this raises a question of law, given that the appellant is self-represented. We consider that it does, the question being whether the Tribunal erred in failing to have regard to a relevant consideration, or to critical evidence, being the engineering details on the stormwater plan.

Should the home owner be permitted to raise this new ground at the hearing?

The home owner acknowledged that he did not bring the stormwater plan, nor the words on it requiring the tank to be built on a concrete slab, to the Tribunal's attention. Nor did he identify this as a ground in his Notice of Appeal.
We have decided to allow the home owner to raise this ground on appeal, even though it was raised late. This is for the following reasons.
The ground is strong. The lack of compliance with the engineering plans for the construction of the base of the tank is highly relevant to the cause of the tank falling over. This suggests, contrary to the Tribunal's findings, that the builder was responsible for the collapse because he did not build a base which would support the tank as required by the plans. The relevant part of the engineering plans appears to have been completely overlooked by the member, as the home owner alleges. This is evident from the member's comment that there was no evidence that the construction of a concrete slab under the water tank was "required by the council, the certifier, the specifications or anything else."
We do not consider that to grant leave to appeal on this ground would deny procedural fairness to the builder. The home owner identified in the appeal documents that he contested the findings as to the cause of the tank falling over. The appeal grounds brought into question the Tribunal's findings as to the cause of the tank's fall, even though the grounds were not all expressed so as to identify errors (see especially Grounds 1-4 and 9). The challenge to the failure to take into account the Report (Ground 9) clearly alerted the builder to an inadequate base to support the tank's weight.
The engineering plans are explicitly referred to and relied upon in the home owner's "Reply to the Respondent's reply to the Appeal," filed before the hearing. The home owner states, in relation to the "approved engineering details," that "[t]he installation method and instructions were either misread or completely ignored" and that "[t]he engineering details clearly note that the tank should be installed on a 100mm minimum thickness concrete slab with SL 82 reinforcement mesh." Reference is made to the engineering plan, a copy of which is provided in a separate tab of the home owner's reply materials. This placed the builder on notice of this issue before the hearing. We gave the builder a reasonable opportunity to deal with the ground at the hearing and we have taken into account his submissions.
For these reasons, we consider that the builder has had a reasonable opportunity to be heard in relation to the new ground and, given that it has merit, the home owner should be given leave to rely upon it.

Did the plans form part of the contract?

The builder did not dispute that the plans, on their face, required the tank to be constructed on a concrete pad of at least 100mm thick.
We consider that the plans formed part of the contract. The builder said at the hearing that he had discussed the plans with the home owner prior to entering into the contract. There is nothing in the written agreement (prepared by the builder) to indicate that those plans would not be used. An "exclusion" from the contract is "Architectural / Engineer/ Hydraulic Plans" and Engineers fees were also contractually excluded. This infers that the home owner was required to obtain and provide such items for the purposes of the contract. That is what the home owner had done, to the builder's knowledge, prior to entering into the contract. The contract also refers to an occupational certificate, suggesting the need for compliance with plans. It is thus more likely than not that the parties agreed that the granny flat would be constructed in accordance with the plans.
The next question is whether the contract was varied so as to permit the builder to depart from the plans by using concrete pavers as a base for the tank. The builder indicated at the appeal hearing that he had talked to the home owner about the cost of putting down a concrete slab for the tank, suggesting (as we understand it) that the home owner may have agreed to the use of a base of pavers instead. However, the builder acknowledged that there was no evidence of this alleged discussion or agreement before the Tribunal.
There is no evidence of the alleged variation to the contract (such that the tank could be installed otherwise than on a concrete slab) and the home owner denies agreeing to such a variation. We find that the contract was not varied as claimed by the builder.
There is no doubt that the work of building the granny flat (and installing the water tank) was "residential building work" within the Home Building Act 1989, being "work involved in, or involved in co-ordinating or supervising any work involved in:… the construction of a dwelling" (s 3, Sch 1 cl 2(1)(a)). A warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract, was implied into the contract by s 18B(1)(a) of the Home Building Act. Any provision of an agreement that purports to restrict or remove the rights of a person in respect of any statutory warranty is void (Home Building Act, s 18G). Thus, even if the parties had agreed that the builder could place the tank on a bed of pavers, this would not affect the home owner's rights in relation to the warranty that the work would be done in accordance with the plans and specifications in the contract.
It follows that we consider that the builder was under a contractual obligation to place the rainwater tank on a concrete slab, as indicated on the stormwater plan.

Did the Tribunal make an error of law by overlooking the plans?

The Tribunal's failure to deal with the evidence may be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence (see Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing)). However, by s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes, as we see it, an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
The engineering requirements on the stormwater plan were critical to the issues of whether the builder breached the contract, and whether the builder's conduct caused the fall of the water tank. This evidence was contrary to the assertion of the builder, which the Tribunal accepted, that he had constructed the base correctly and that he was not responsible for the tank falling over. In circumstances where the Tribunal expressly considered whether there was any requirement to construct a concrete slab under the tank (and found there was not), we consider that it was required to take the evidence of the engineering plans into account.
The Tribunal's failure to do so was an error of law. We have therefore decided to allow the appeal.

Substantial miscarriage of justice

Even if there was no error of law, as we have found, we consider that the new ground is one which would warrant the grant of leave to appeal. In light of the evidence that the construction of the base for the tank did not comply with the plans, we are satisfied that the home owner may have suffered a substantial miscarriage of justice because the Tribunal's decision was against the weight of evidence. There was no evidence to suggest human intervention after construction of the base on which the tank stood, there was photographic evidence that the lean was not present at time of installation and also that the tank was leaning prior to its fall, and the tank fell some months after the date of installation. Given that the plans required the tank to be placed on a concrete base, we consider that the failure to construct an adequate base for the tank is the most likely cause of the tank's collapse. The Tribunal's finding to the contrary could fairly be described as "an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand" (Collins v Urban [2014] NSWCATAP 17 at [84]).
We accept that the home owner's failure to draw the Tribunal's attention to the plans made its task more difficult. Nevertheless, the plans were before the Tribunal and, given that the parties were self-represented, it was incumbent upon the Tribunal to examine them before concluding that there was no evidence of fault on the part of the builder. This is particularly so given that it expressly stated that there was no evidence that a concrete slab was required. It was not a case in which the evidence was so extensive that the Tribunal was justified in declining to look at material not expressly brought to its attention.
There was little evidence before the Tribunal that the builder's construction of the base for the water tank was sound. The builder gave evidence of what he described as "the Builder Standard Practice," being to construct water tanks on a paver base. This was evidence of his own practice, not independent evidence of industry practice. As the primary member acknowledged, there was no other evidence of standard building practice and no installation instructions. Whilst a final occupation certificate was issued for the granny flat on 20 November 2017, there is no reference in that document to the departure from the plans in the construction of the base of the water tank. Accordingly, we do not consider that the occupation certificate constitutes reliable evidence that the base of the tank was properly constructed.
Had we not found that the Tribunal had made an error of law, we would have granted leave to appeal pursuant to the NCAT Act, s 80(2)(b) and Sch 4, cl 12(1)(b).

Appropriate orders

The Appeal Panel has a broad discretion as to the orders it may make if it considers that an appeal should be allowed. These include remitting the matter to the Tribunal for reconsideration and setting aside the decision under appeal and substituting another decision for it (NCAT Act, s 81(1)(d)).
We have decided not to remit the matter. This would be inconsistent with the object in s 3(d) of the NCAT Act, "to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible" (see Lee v Commissioner of Police, NSW Police Force [2017] NSWSC 1849 at [47]), and would not give effect to the guiding principle (NCAT Act, s 36(1)). There is evidence before us for us to determine the appropriate decision to be substituted for the decision made by the Tribunal. That evidence included the engineering plans which the builder had the opportunity to deal with at the primary hearing.
We find that the builder has breached the contract between the parties by failing to build the base for the water tank in accordance with the plans. We also find, on the balance of probabilities, that this failure was the cause of the tank falling over. This is for the reasons given at paragraphs 46, 59 and 61 above. Given that the plans required the tank to be placed on a concrete base, we consider that the failure to construct an adequate base for the tank is the most likely cause of the tank's collapse.
The home owner is therefore entitled to damages for breach of contract.
The home owner provided evidence of the cost of replacement of damaged items (including the neighbours' shed and goods in the neighbours' shed). He also sought to rely upon new evidence to prove he had paid for the reinstallation of the tank.
The home owner filed and served bank statements, which had not been before the Tribunal below and which showed payments that he said related to remedying damage caused by the fall of the tank. We have decided to admit the evidence. The home owner had provided quotations for the work at the initial Tribunal hearing and had the work done later, and as discussed below the payments were consistent with or less than the quotations. There is no prejudice to the builder in allowing the home owner to provide evidence of actual costs incurred in that circumstance.
In the reply to the Notice of Appeal, the builder submitted that the costs claimed by the home owner were excessive. However, he did not provide any independent evidence as to what the appropriate costs of the work should be. The builder also said that "[a]ll the other items referring to the Fence and Neighbour stuff would not be any of my responsibility, as it is to do with the Applicant and his neighbour and not me as the Builder." He wrote in his submissions (effectively seeking to provide new evidence) that he had met with the home owner's neighbour since the first hearing and offered to help him reassemble the garden shed and help him replace some damaged items. The builder wrote that he had not heard from the neighbour since.
The home owner is not entitled to compensation in respect of the loss caused by the fall of the tank to the neighbours' shed and their goods. There is no evidence that the neighbours intend to pursue a claim against the home owner for the damage or that the home owner has paid for the damage.
The home owner provided evidence that he paid $3826.90 to have the tank reinstalled correctly, including $375 cash deposit. The bank statement shows an internet withdrawal of $3,352.90 with the notation "Pay for Falling Tank." With the cash deposit added this totals $3,727.90. Whilst it is true that there is no evidence of the recipient of these payments, we accept the home owner's evidence (which accords with the amount on the quotation) that he was required to pay $3,389 plus GST (being $3727.90) plus a callout fee of $90 plus GST (a total of $3826.90) and that he did so.
We also find that the builder is liable for the cost of fixing the fence. The home owner has provided evidence, which we accept, that this cost is $822.50. The damaged fence directly affects his property and he is entitled to be compensated for the cost of repairing the damage.
The home owner claimed $890 to fix "defects found in the report." This report is presumably the post completion defects report for which Jim's Building Inspections charged $385. The home owner has provided an emailed quotation for $890 to "fix footpath, replace one tile, concrete pad for aircon, top timbers for two windows and paint the tops and bottoms of 6 doors." There is no evidence that any of these defects were caused by the fall of the tank and they do not appear to us to have been the subject of the application, let alone any ground of appeal. We do not allow the claim for $890 to fix these defects.
Nor do we allow the $385 claimed for the post completion defects report. It was a reasonably foreseeable consequence of the fall of the tank that the owner would pay for a defects report after completion of the remediation work, at the least to check that work (whether or not other defects were found). However, the content of the report is not sufficiently specific to identify it as arising from the remediation work, so we do not allow the cost of the report.
The home owner is not entitled to the $330 claimed for electrical works as these were not the subject of the application to the Tribunal.
The home owner has provided evidence that he has paid $45 on 30 May 2018 to Plumbing Detectives Pty Ltd. He has described this in his Notice of Appeal as "plumbing third quote." He has also claimed $39 for "plumbing second quote." It is not apparent to us, from the evidence, that these expenses were incurred as a result of the tank falling. There appears to be no documentary evidence to explain what these quotations were for. We have not allowed these claims.
The home owner is not entitled to costs, which are stated as legal fees of $693, unless he can establish that there are there are special circumstances warranting an award of costs, within s 60(2) of the NCAT Act.
Our preliminary view is that there are no special circumstances warranting an award of costs in this case. However, if either party wishes to make an application for costs, that party should do so within 28 days of the date of these reasons.
We have considered whether the home owner's damages should be reduced on the basis that the home owner failed to mitigate his loss. He noticed the tank was leaning but did not inform the builder of this, informing the certifier instead. The builder said that the home owner should have called him. However, the builder also said that, had the home owner called him, the builder would have emptied the water tank and fixed any issues with the pavers, "but at no time would I have installed a Concrete Slab because this was never included in the Costs of the Scope of Work."
We have already found that, contrary to the builder's position, the contract required him to install a concrete slab beneath the tank. We are not satisfied that fixing any "issues" with the pavers would have prevented the tank from falling; it is a proposed response which involves continuing the breach of contract. Accordingly, we do not consider that the home owner's damages should be reduced on the basis of the home owner's failure to mitigate.
The home owner has established that he is entitled to damages from the builder of $4,649.40 (comprised of $3826.90 for the reinstallation of the tank and $822.50 to fix the fence).

Orders

We make the following orders: 1. The appellant is granted leave to rely upon a ground of appeal which was not included in his Notice of Appeal. 2. The appeal is allowed. 3. The Tribunal's order of 18 July 2018 is set aside and, in substitution for that order, the respondent is to pay the appellant $4,649.40 within 21 days of this decision.

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: 08 February 2019

(Civil and Administrative Tribunal Act 2013(NSW)

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