Hawach v A & A Building Services Pty Ltd

Medium Neutral Citation: Hawach v A & A Building Services Pty Ltd [2025] NSWSC 1174

Hearing dates: 25 September 2025

Date of orders: 08 October 2025

Decision date: 08 October 2025

Jurisdiction: Common Law

Before: Stern J

Decision: (1) Leave to appeal is refused.
(2) The plaintiffs are to pay the defendant’s costs.

Catchwords: BUILDING AND CONSTRUCTION – leave to appeal from determination of the New South Wales Civil and Administrative Tribunal Appeal Panel – alleged contract with defendant to carry out or to arrange to carry out a range of building works – where defendant assisted the plaintiffs by recommending subcontractors to them and allowed the plaintiffs to use the defendant’s trade account to order materials – whether the Appeal Panel constructively failed to exercise jurisdiction in finding there was no evidence that there was a term of a contract that the defendant would provide a waterproofing certificate – whether Appeal Panel erred in law in finding that the Home Building Act 1989 (NSW) did not preclude the defendant’s entitlement to set off – principles applicable to partly oral contracts
APPEAL – leave to appeal from determination of the New South Wales Civil and Administrative Tribunal Appeal Panel – scope and construction of contract – post-contractual conduct – whether the Appeal Panel erred in law by failing to correctly apply the principles in relation to post-contractual conduct

Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 83
Design and Building Practitioners Act 2020 (NSW), s 36
Home Building Act 1989 (NSW), ss 7, 10, 18B, 92

Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1998) 5 BPR 11,110
Corcoran v Far [2020] NSWCA 140
Dokas v Gallagher (No 2) [2024] NSWCA 236
Hawach v A & A Building Services Pty Ltd [2023] NSWCATCD
Hawach v A & A Building Services Pty Ltd [2024] NSWCATAP 138
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36
O’Connor v O’Connor [2022] NSWCA 97
Re Dalco; Ex parte Dalco v Deputy Commissioner of Taxation [1986] FCA 357; 67 ALR 605
Targeted Property Investment Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416; 20 BPR 43,135
Tuck v White [2016] NSWCATAP 132

Texts Cited: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies, (5th ed, 2014, LexisNexis Butterworths)

Category: Principal judgment

Parties: Joseph Hawach (First Plaintiff)
Sarah Grace Reimers (Second Plaintiff)
A & A Building Services Pty Ltd (Defendant)

Representation: Counsel:
JR Young, M Klooster (Plaintiffs)
C Wood SC, MJH Waters (Defendant)
Solicitors:
G&S Law Group (Plaintiffs)
A Plus Law Group (Defendant)

File Number(s): 2024/314985

Publication restriction: Nil

JUDGMENT

1. The plaintiffs, Mr Hawach and Ms Reimers, live together in Lindfield, NSW. They decided to do building works at their home (the Property) and for this purpose Ms Reimers, as sole registered owner of the Property, obtained an owner-builder permit under the Home Building Act 1989 (NSW) (the Act). Mr Hawach organised the work on behalf of Ms Reimers. Mr Hawach was introduced to Mr Eassey, the director of the defendant, in around 2016. In 2021, the plaintiffs brought a claim in the NSW Civil and Administrative Tribunal (the Tribunal) contending that in October 2017 they contracted with the defendant for the defendant to carry out or to arrange to carry out a range of building works at the Property, that the defendant breached its obligations under this contract and that the defendant was accordingly liable to pay damages for breaches of warranties under s 18B of the Act, for breach of contract and for negligence and breach of the statutory duty of care in s 36 of the Design and Building Practitioners Act 2020 (NSW).

2. The defendant denied that it had entered into the alleged contract. The defendant contended, in its written submissions before the Tribunal, that there was an agreement between the plaintiffs and the defendant pursuant to which the defendant would order building products and undertake labour hire on behalf of the plaintiffs in circumstances where the plaintiffs retained their obligations to supervise and manage the works. The defendant submitted that monies were owing to it pursuant to that arrangement, which was not regulated by the Act. It sought that those sums be set off against any damages ordered against it. In this regard, the Tribunal found that the defendant assisted the plaintiffs by recommending subcontractors to them and allowed the plaintiffs to use the defendant’s trade account to order materials and to obtain trade discounts that would otherwise not be available to them (I will describe this as “the Arrangement”). There is no challenge in this Court to that finding.

3. On 13 June 2023 the Tribunal dismissed the plaintiffs’ claim with costs: Hawach v A & A Building Services Pty Ltd [2023] NSWCATCD. The Tribunal analysed each claim for defective work, considering whether there was a contract for the defendant to perform the relevant work, and found that the only residential building contract (falling under the Act) between the plaintiffs and the defendant was for the defendant to perform limited waterproofing works at the Property, specifically on the western balcony and in the bathrooms and ensuites. That work was found to be defective leading to losses of $25,595.76. That work was carried out by Mr Frew, an employee of the defendant.

4. The Tribunal rejected the defendant’s contention, as set out in its Response to the plaintiffs’ Amended Points of Claim at [42], that Mr Hawach had entered into an agreement with the defendant where Mr Hawach agreed that he would pay the defendant for the costs associated with the defendant ordering goods and services on his behalf and that the plaintiffs had paid $303,377.89 pursuant to that contract. The Tribunal found, however, that the defendant was entitled to set off the sum of $30,000 (the set off) which was an amount expended by the defendant for the benefit of the plaintiffs, which the Tribunal said was “the lowest amount” that the plaintiffs had conceded they owed to the defendant. The Tribunal rejected the plaintiffs’ contention that the set off was precluded by ss 10 or 92 of the Act.

(1) There is no appeal to this Court from a decision of the Appeal Panel as of right. The applicant must persuade the Court that leave should be granted.

(2) An appeal is limited to “an appeal on a question of law”.

(3) As was recently emphasised in [Thomaz and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40] at [32], “it is not sufficient merely to assert that the Tribunal erred in law in order to satisfy the limited conferral of jurisdiction”. (To similar effect, see Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; (2014) 96 ATR 875 at [6] and [22]; and Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]). Accordingly, it is well-settled that a challenge which is wholly or partly factual cannot be converted into a question of law merely by asserting that a question of law is involved or merely by asserting error itself.

(4) What constitutes a question of law is “vexed and context dependent” in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises (see Thomas and Naaz at [52] and Da Costa v The Queen (1968) 118 CLR 186 at 194; [1968] HCA 51).

(5) Although there is no clear test of what constitutes a question of law for the purposes of s 83 of the CAT Act, it is important not to lose sight of the continuing binding authority in this State of the Court of Appeal’s decision (by majority) in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. Azzopardi stands for the proposition that a particular finding which is alleged to be “perverse” or “unreasonable” or “not reasonably open” is not ordinarily a question of law. At pp 155–156, Glass JA (with whom Samuels JA agreed, Kirby P dissenting) said:

It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers’ Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654.

Furthermore, at p 157, Glass JA said:

…when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the [course] of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council; Australian Gas Light Co v Valuer-General.

See also Thomas and Naaz at [53].

(7) It is unnecessary to decide for the purposes of this appeal whether a “question of law” encompasses a mixed question of fact and law (see generally, at the federal level, the decisions of the Full Court of the Federal Court in Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 and May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397; [2015] FCAFC 93 and contrast the position at the State level, which is reflected in cases such as Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [44]; Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60]; and Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 at [45] per Chen J).

(8) The existence of a question of law is not merely a qualifying condition to the statutory right of appeal; rather, the question of law alone is the subject matter of the appeal (see Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21] per French CJ, Gummow and Bell JJ and Davis v NSW Land and Housing Corporation [2016] NSWCA 325; (2016) 18 BPR 36,459 at [77] per McColl JA, with whom Meagher and Leeming JJA agreed).

(9) Whether or not an appeal is on a question of law should be approached as a matter of substance and not merely form. As the Full Court of the Federal Court said in Haritos at [107], if, as a matter of substance, there exists a question of law, the Court has “a procedural discretion, to be exercised judicially and where it is in the interests of justice to do so, to direct its formal identification in an amended notice of appeal even where the question of law has not been identified before the primary judge”. It is notable that the Court there viewed this approach as consistent with that of the Court of Criminal Appeal in R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 at [57]–[69] per Spigelman CJ (with whom Mason P, McClellan CJ at CL, Hidden and Howie JJ agreed). Where an appellant is unrepresented, it may be appropriate to adopt a more generous or benevolent approach in assessing whether the notice of appeal identifies a question of law (see, for example, Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75]–[77] per Mortimer J, as approved in Haritos at [104] and see also Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]).

(10) A s 83 appeal to this Court is confined to a decision of the Appeal Panel and does not extend to the NCAT at first instance (see Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 at [10]).

8. There was no issue about the principles governing the question of leave. Leave to appeal will ordinarily only be granted “concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what [is] merely arguable”: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; see also Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[37]; Corcoran v Far [2020] NSWCA 140 at [12].

9. None of the plaintiffs’ proposed grounds of appeal are made out. Leave to appeal should be refused. As is clear from my reasons below, the plaintiffs’ contentions do not go beyond the merely arguable and there is no reasonably clear injustice, nor is any matter of public importance raised.

Question one – alleged errors of law in relation to the Appeal Panel’s conclusions as regards the set off

10. As alluded to above, the plaintiffs alleged two errors of law as regards the Appeal Panel’s conclusion that the defendant was entitled to set off the sum of $30,000 against the sum of $25,595.76 which the Appeal Panel found the plaintiffs were entitled to as damages in respect of the defective waterproofing works. The first, in ground one of the summons, was that the Appeal Panel erred in law by adopting an incorrect interpretation or construction of ss 7, 10 and 92 of the Act. The second, in ground eight of the summons, was that the Appeal Panel erred in law by misconstruing or misunderstanding the basis of a concession given by the plaintiffs in relation to monies owed to the defendant which the plaintiffs contend was the only basis on which a set off was awarded. There was no contention that the Tribunal did not have power to order the set off if the contention set out above were rejected.

Ground eight: did the Appeal Panel err in law in misconstruing and misunderstanding concessions by the plaintiffs?

11. It is convenient to deal first with the contention that the Appeal Panel erred in law in misconstruing or misunderstanding concessions made in the plaintiffs’ submissions before the Tribunal. As advanced before this Court, this ground was largely premised upon a contention that neither the Tribunal nor the Appeal Panel found that the defendant had a legal right to reimbursement as against the plaintiffs, and that the plaintiffs’ concessions could not support a conclusion that the defendant was entitled to a set off. On that basis, the plaintiffs contended that it was an error of law for the Tribunal to uphold the set off and for the Appeal Panel to have dismissed the appeal against that finding. To the extent that this contention focussed upon the decision of the Tribunal, consistent with the principles set out above at [7], the relevance of the Tribunal’s decision goes only to whether or not there is a question of law arising from the decision of the Appeal Panel and whether the Appeal Panel relevantly erred.

12. Broadly, the plaintiffs’ contention was that the Tribunal expressly eschewed the defendant having any contractual entitlement to be reimbursed for monies it expended pursuant to the Arrangement. In these circumstances, the plaintiffs contended there was no legal basis for the Tribunal to order a set off. They submitted, further, that this lacuna was not cured by the Appeal Panel’s decision. The plaintiffs contended in this regard that the concessions made in their written submissions (which I discuss below at [16]-[18]) related solely to amounts owing under the residential building contract which they alleged had been entered into between the plaintiffs and the defendant. They submitted that the concessions could not be relied upon by the Tribunal or the Appeal Panel in any way once the Tribunal had rejected the plaintiffs’ contention that this residential building contract was entered into.

13. The defendant’s contention, by contrast, was that on a fair reading of the decisions of both the Tribunal and the Appeal Panel, both were satisfied that there was at least a debt due from the plaintiffs to the defendant, such that the plaintiffs had a legal obligation to repay the defendant for monies it had expended pursuant to the Arrangement. The defendant contended, further, that the plaintiffs’ concessions were factual contentions as to amounts that were outstanding from the plaintiffs to the defendant, made in a context where the amount outstanding was hotly contested.

The parties’ positions before the Tribunal

14. The starting point for consideration of these submissions is the defendant’s contention, referred to above, in [42] of its Response to the plaintiffs’ Amended Points of Claim. This provided:

In answer to the entire Application, if the Respondent is found to be liable for loss or damages (which is denied) the Respondent says:

(i) The Applicant entered into an Agreement with the Respondent whereby the Applicant agreed that he would pay the Respondent for the costs associated with the Respondent ordering goods and services on behalf of the Applicant;

(ii) Pursuant to this Agreement the Respondent paid for labour and goods that the Applicant took the benefit of and used to undertake the building works the subject of these proceedings;

(iii) Pursuant to this Agreement the Applicant paid the Respondent the amount of $303,377.89 for the goods and services but has failed/neglected to pay the Respondent the sum of $126,553.14 for the remainder of the goods and services paid for by the Respondent on behalf of the Applicant;

(iv) The Respondent claims this amount against the Applicant by way of equitable set-off should the Respondent be held liable for the damages claimed by the Applicant.

15. As set out above, in its written submissions before the Tribunal, the defendant also made a broad contention that monies were owing to it under the Arrangement, which was not a contract regulated by the Act.

16. In their opening submissions before the Tribunal at [59], the plaintiffs submitted, under the heading “Outstanding moneys pursuant to the Contract”, that they “acknowledge[d] an amount outstanding of $45,000”. They submitted that the defendant said that this amount was significantly higher at around $130,000, but that the defendant had not provided any contemporaneous documentation “to that effect” other than a spreadsheet which set out amounts paid, respectively, by the plaintiffs and the defendant. The plaintiffs contended that the defendant could not enforce a set off having regard to ss 7, 10 and 92 of the Act, but in the alternative acknowledged that the amount of $45,000 could be set off against any amounts for which the defendant was liable.

17. In closing written submissions before the Tribunal, the plaintiffs contended, again under the heading “Outstanding moneys pursuant to the Contract”, that:

[190] Notwithstanding that the Applicants acknowledge and [sic] outstanding amount of $30,000, in entering into the Agreement without-a written contract or the requisite insurances, the Builder has not complied with sections 7 and 92 of the HBA, and accordingly, pursuant to s.10, “is not entitled to damages or to enforce any other remedy in respect of the breach of the contract committed by any other party to the contract, and the contract is unenforceable by the person who contracted to do the work.”

…

[192] In any event, the Applicants submit that there is no contemporaneous or other information available to the Tribunal to determine that any higher amount is due and owing. The Builder simply has not discharged its onus in that regard.

18. These are the concessions which the plaintiffs contend the Appeal Panel misconstrued and misunderstood and which they submitted was the only basis upon which the Tribunal ordered a set off.

The Tribunal decision as to the set off

19. In its reasons for decision at [32], the Tribunal said of the defendant’s contention in its Response to the plaintiffs’ Amended Points of Claim at [42]:

This allegation is made if the respondent is found to be liable. I do not accept that such an agreement was ever made. There is no evidence that [sic] of a mutual agreement regarding these matters. The substance of what is alleged is I find more of a summary of what the respondent actually did over a period of time. Critically [42] of the Amended Points of Defence states that the applicants paid the respondent $303,377.89 but failed to pay $126,553.14 which the respondent seeks to set off.

20. At [33], the Tribunal added:

I find that in accordance with the matters stated by Mr Eassey the respondent did assist the applicants as owner builders by recommending sub-contractors to them and allowing them to order building material through its accounts. For example when Mr Hawach was unable to take quantities off the drawings for the ordering of besser blocks, he asked Mr Eassey for help. Refer [17] of Mr Hawach’s statement. I find that Mr Eassey helped Mr Hawach as he said he would, by assessing the quantities and allowed Mr Hawach to use the respondent’s accounts as he said he would. The fact that Mr Hawach paid the respondent for the besser blocks does not establish that there was a contract between the parties. I find that the payment was to re-imburse the respondent for the amount it had paid for the besser blocks used by the applicants and that the purpose of using the respondent’s account for the purchase of the blocks was to provide a benefit to the applicants in that they obtained a builder’s discount on the cost of the blocks. The applicants make no claim against the respondent in connection with besser blocks.

21. Whilst there is some opacity in the Tribunal’s reasons, I read the Tribunal in these passages as rejecting the contention that there was a mutual agreement reached between the plaintiffs and the defendant at the outset of the Arrangement in the terms described in the Response to the plaintiffs’ Amended Points of Claim at [42]. In this regard it is of some significance that the claim there made by the defendant was both that an agreement was “entered into”, which the Tribunal appears to have interpreted as an allegation that there was an oral agreement (described by the Tribunal as a “mutual agreement”), and that the claim was not just for reimbursement, but was for payment of costs associated with the matters there set out. The reference in the Tribunal’s reasons at [33] to payment for the besser blocks not establishing a contract should, on this reading, be seen as a finding that it did not establish the existence of the contract as alleged by the defendant in [42] of its Response to the plaintiffs’ Amended Points of Claim. It should not be read as a finding that the defendant had no contractual right to reimbursement. That is consistent with the structure of the reasons, whereby the Tribunal at [33] appears to be explaining its earlier conclusion at [32].

22. Thus, on a fair reading of its reasons at [32]-[33], the Tribunal was not making any finding as to whether or not there was any contractual entitlement in the defendant to reimbursement of monies actually expended pursuant to the Arrangement. The Tribunal had, at [27] of its reasons, cited an extract from the judgment of an appeal panel in Tuck v White [2016] NSWCATAP 132, which in turn cited the well-known passage in the judgment of McHugh JA in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1998) 5 BPR 11,110 at [16]. His Honour there set out that there may be contracts which are inferred from the acts and conduct of the parties where the parties’ conduct, viewed in the light of surrounding circumstances, shows a tacit understanding or agreement. Contrary to the plaintiffs’ contention, the rejection of the agreement alleged in the defendant’s Response to the plaintiffs’ Amended Points of Claim at [42] did not preclude the Tribunal inferring an agreement from the conduct of the parties.

23. In its reasons at [143]-[155], the Tribunal then upheld the defendant’s claim to a set off and found that that extinguished the plaintiffs’ claim for damages. In those paragraphs, the Tribunal made no express finding as to the jurisprudential basis for the defendant’s claim for reimbursement, upon which the set off was predicated. However, at [149] the Tribunal characterised the defendant’s set off as a claim for amounts it “expended for the benefit of the [plaintiffs] as referred to at [32]”. Whilst this is not made express in the Tribunal’s reasons, I would read the Tribunal as having characterised this claim as one premised on a contract inferred from the parties’ conduct. It is that claim that the Tribunal should be understood to have found to be the jurisprudential basis for the set off. In these circumstances, the plaintiffs’ contention that the Tribunal’s finding at [32] (extracted at [19] above) is inconsistent with it having upheld the set off must be rejected.

The only contract that I have found between the parties whereby the respondent contracted to do residential building work is, as stated, the waterproofing contract.

25. In this paragraph the Tribunal was simply dealing with the question whether the defendant’s claim to be entitled to the set off was a claim for breach of a residential building contract, so as to fall within the ambit of the prohibition (discussed below) in s 10 of the Act. The Tribunal was not saying anything in this paragraph about whether the defendant had a contractual right to reimbursement of moneys it had paid for the benefit of the plaintiffs pursuant to the Arrangement.

26. Finally, contrary to the plaintiffs’ contention, I would not infer that the Tribunal’s decision to uphold the set off was premised solely upon the concessions made by the plaintiffs in their written submissions before the Tribunal. The Tribunal, at [136]-[138], considered the defendant’s contention that the amount of the set off to which it was entitled was an amount of $126,553.14 which was said to be shown as the balance outstanding on a spreadsheet of expenses that the defendant said that it had incurred. In that context, at [137]-[138], the Tribunal observed that the plaintiffs’ “outline [of] submissions dated 17 August 2022 state that they acknowledge that an amount of $45,000.00 is outstanding to the [defendant]” and that the plaintiffs stated in their closing submissions that “the amount they acknowledge is $30,000.00”. In this respect, it is significant that the focus in these paragraphs is upon the “amount” reflected in the plaintiffs’ concessions and that the Tribunal refers to those amounts as being acknowledged to be “outstanding”, rather than to the plaintiffs having made any concession that they had a liability to reimburse the defendant.

27. The Tribunal then, at [139], referred to the plaintiffs’ position being that the set off claim was “based on inadequate evidence to support the amount claimed” and observed that that “submission contradicts the previous concession that the applicants owed the respondent either $45,000.00 or $30,000.00”. Again, the focus of the Tribunal’s analysis here was upon the amount claimed by the defendant and whether it was backed by the evidence. Moreover, the plaintiffs did, in their submissions, concede that those amounts were owed, albeit that their submissions framed that concession by reference to those amounts being owed pursuant to a residential building contract (the existence of which was rejected by the Tribunal).

28. At [140], the Tribunal said:

I will proceed with the respondent’s set off claim on the basis that the applicants have conceded in writing that they owe the respondent between $30,000.00 or $45,000.00. Otherwise I find that exhibit EXEDY2 to Mr Younes’ statement does not provide a reliable form of recording expenditure to form the basis of providing a balance that can be used with confidence.

29. Again, as is apparent, the focus of the Tribunal in this paragraph is upon the amount reflected in the plaintiffs’ concession. Again, the description of the concession is accurate, albeit that the concession referred to the residential building contract that the plaintiffs contended had been entered into.

30. Then, at [141], the Tribunal said:

Without anything more I would set the amounts conceded off against any amount found in favour of the applicants. The fact that the Tribunal has jurisdiction in connection with set off as referred to in the respondent’s written submissions is not in dispute. The applicants raise ss10 and 92 of the Act in answer to the respondent’s set off claim.

31. Read in isolation this suggests that the Tribunal relied upon the plaintiffs’ concessions as to both the liability of the plaintiffs to make payment to the defendant and the amount of that liability. However, read in the context of the reasons as a whole, the better view is that the Tribunal was satisfied that the plaintiffs were liable to reimburse the defendant for amounts paid by the defendant for their benefit, and that the Tribunal’s ultimate conclusion as to set off was premised upon that conclusion together with the plaintiffs’ concessions as to the amount outstanding. Further, at [150], the Tribunal found that the set off was not seeking to enforce a remedy in respect of a breach of the waterproofing contract, confirming that the amounts sought to be set off were not amounts owing under that contract. It follows that the plaintiffs’ contentions of error on the part of the Tribunal in its conclusion as to the set off must be rejected.

32. In reaching my conclusions as set out above, I have approached the Tribunal’s reasons consistently with the approach described by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 that “the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.

Did the Appeal Panel err as alleged?

33. The plaintiffs’ grounds of appeal before the Appeal Panel included a ground that the Tribunal had denied the plaintiffs procedural fairness by misconstruing and misapplying the concessions. In their written submissions before the Appeal Panel, the plaintiffs submitted that the Tribunal had misunderstood and accordingly misapplied the ambit and nature of the concessions, because they were only made as to amounts owing under the residential building contract that the plaintiffs alleged they had entered into with the defendant. They contended that in these circumstances the Tribunal erred in relying upon the concessions and nothing more in allowing the set off in favour of the defendant. I have already explained why that contention is erroneous.

34. In oral argument before the Appeal Panel, the case as put by Mr Klooster, counsel for the plaintiffs, was:

SENIOR MEMBER ROBERTSON: I think we’re going a bit - starting to go around in circles in relation to the waterproofing contract. What do you say in relation to the circumstance, the alternative - and it’s a you say hypothetical - that the moneys are not owing under the waterproofing contract but under the arrangement, which I would call a contract but the Member hasn’t used the term?

KLOOSTER: I agree with the Senior Member’s characterisation that the arrangement is another form of contract.

SENIOR MEMBER ROBERTSON: But it’s not a building contract. It’s a supply contract.

KLOOSTER: Correct. We don’t say it’s--

SENIOR MEMBER ROBERTSON: Or in fact it may very well be a contract simply to reimburse moneys, debts incurred on behalf of the owners.

KLOOSTER: I accept it’s not a contract to do residential building works but our position is that you can’t be in breach of the - if you’re in breach of the builder’s arrangement, you must be in breach of the waterproofing contract - as night follows day - because the builder’s arrangement involves the supply of labour and materials, which included, in part, waterproofing and other works, but it certainly included those works, and the objective evidence from the builder, entirely from the builder without any input from my clients whatsoever, is that there were moneys owed for waterproofing materials and for waterproofing labour.

35. That is an unequivocal acceptance, by counsel for the plaintiffs, that the Arrangement was contractual. Whilst (consistent with his submission set out above) Mr Klooster did contend before the Appeal Panel that the Arrangement could not give rise to a set off because of s 10 of the Act (and I consider that issue below), the following exchanges occurred shortly after that set out above:

SENIOR MEMBER ROBERTSON: What is wrong with the proposition that to the extent that the moneys owed did not relate to the waterproofing contract or were not owed under the waterproofing contract, section 10 has nothing to say?

KLOOSTER: I accept that.

…

SENIOR MEMBER ROBERTSON: Are you saying that there was a reason why the builder could not claim by way of set-off the moneys owed under the arrangement?

KLOOSTER: No. No, I don’t go that high.

36. These exchanges are significant given that the plaintiffs are bound by the conduct of their counsel below: Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [46]; O*’Connor v O’*Connor [2022] NSWCA 97 at [66]. The plaintiffs should not be permitted, in this Court, to criticise a finding by the Appeal Panel, consistent with the submission of Mr Klooster, that the Arrangement was contractual in nature.

37. Turning to the Appeal Panel’s reasons, at [80] the Appeal Panel held that the concession by the plaintiffs as to the amount owing to the defendant were factual concessions that were not dependent upon the contractual context within which that money was outstanding. As to this, the Appeal Panel at [79] said that the factual context for the concessions was that “[t]here was diverse and contested evidence between the parties as to what payments had been made” by the plaintiffs and the defendant respectively. There is no error of law in that characterisation of the concessions. That is sufficient to dispose of the contention before this Court that there was legal error in the Appeal Panel’s treatment of the concessions as to the amount outstanding to the defendant. In any event, I agree with the Appeal Panel’s characterisation.

38. It follows that there was no legal error in the Appeal Panel’s conclusion at [81] and [83] that it was open to the Tribunal to make a factual finding, based upon the plaintiffs’ concessions, that the plaintiffs owed the defendant $30,000 “irrespective of the precise terms of the contract or nature of the agreement between the parties” and that this relieved the Tribunal from having to make a factual finding as to how much was paid by the plaintiffs to the defendant and what was outstanding. Whilst the Appeal Panel here used the language of an amount being “owed”, in context, it is clear that this was a conclusion as to the amount of money outstanding rather than as to the legal basis upon which the plaintiffs were obliged to pay that amount to the defendant. Having regard to this conclusion, the plaintiffs’ contention that it was necessary that there be some additional evidentiary foundation for the Tribunal and Appeal Panel’s conclusions as to this amount should be rejected.

39. The Appeal Panel then considered the plaintiffs’ contention that the Tribunal had not identified a proper basis in principle upon which that amount was in fact liable to be paid by the plaintiffs to the defendant and that there was a denial of procedural fairness (a contention that is not pressed before this Court). At [95] the Appeal Panel said that the Tribunal had found that the monies sought to be set off were owed by the plaintiffs to the defendant on the basis that the plaintiffs had agreed with the defendant that the defendant would assist them to procure materials at a discounted cost and to identify contractors for the plaintiffs to engage, for which, ultimately, the plaintiffs were obliged to pay. At [99] the Appeal Panel said that the Tribunal had found “that there was an ‘agreement’ between the parties that the [plaintiffs] could use the [defendant’s] trade accounts for the purchase of materials and ‘expenditure’ incurred”. Given that, save for their contentions as to ss 7, 10 and 92 of the Act (which the Tribunal rejected), the plaintiffs did not otherwise contest that a set off was available, the Appeal Panel found that the Tribunal did not err in upholding the defendant’s claim to a set off. The Appeal Panel later, at [100], characterised the defendant’s claim as “an amount owed by way of debt or in restitution”. It is unnecessary to consider whether or not the claim was appropriately described as one in restitution. The findings of the Appeal Panel make it clear that it was satisfied that the claim was contractual.

Ground one: did the Appeal Panel err in law in relation to the construction or application of ss 7, 10 and 92 of the Act?

42. The essence of the plaintiffs’ contention on ground one was that the set off was precluded by s 10 of the Act because it was the enforcement of a remedy for a breach of the contract to perform the waterproofing works, which was a residential building contract which did not comply with s 7(1) of the Act. As to this, it was common ground that the contract to perform the waterproofing works at the Property was a residential building contract which was not in writing, and that it thus did not comply with s 7(1) of the Act which requires a residential building contract to be in writing and signed by or on behalf of each of the parties to it. The plaintiffs contended that s 10 should be read in a beneficial way as it is remedial legislation. The defendant contended that s 10 does not preclude a set off being ordered where the set off is not sought as a remedy for a breach of residential building contract falling within the ambit of the Act.

43. Section 10 of the Act provides as follows:

10 Enforceability of contracts and other rights

(1) A person who contracts to do any residential building work, or any specialist work, and who so contracts—

(a) in contravention of section 4 (Unlicensed contracting), or

(b) under a contract to which the requirements of section 7 apply that is not in writing or that does not have sufficient description of the work to which it relates (not being a contract entered into in the circumstances described in section 6(2)), or

(c) in contravention of any other provision of this Act or the regulations that is prescribed for the purposes of this paragraph,

is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, and the contract is unenforceable by the person who contracted to do the work. However, the person is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person.

(2), (3) (Repealed)

(4) This section does not affect the liability of the person for an offence against a provision of or made under this or any other Act.

44. The plaintiffs’ contention can be dealt with briefly. There is no reasonably available construction of s 10 of the Act that would preclude the Tribunal upholding the set off. The defendant was not, in the set off, seeking to enforce any remedy in respect of a breach of a residential building contract to which the Act applied. It was seeking to enforce a remedy in respect of the contractual obligation to repay amounts owing pursuant to the Arrangement, to which the Act did not apply. As is explained in JD Heydon, MJ Leeming and PG Turner, Meagher*,* Gummow & Lehane*’s Equity:* Doctrines & Remedies, (5th ed, 2014, LexisNexis Butterworths) at [39-005], a set off is an answer to a plaintiff’s claim which absolves a defendant of liability to satisfy the plaintiff’s claim. To similar effect, in Re Dalco; Ex parte Dalco v Deputy Commissioner of Taxation [1986] FCA 357; 67 ALR 605 at 612, Neaves J said:

The essential nature of a set-off is that it is a countervailing claim: the debtor, in effect, admits the existence of the creditor’s debt but sets up a countervailing claim as excusing him from paying the creditor’s debt either wholly or in part depending upon the amount of the countervailing claim.

45. Properly understood, consistent with these authorities, the set off was not a remedy sought in respect of the plaintiffs’ claim or a remedy in respect of the defendant’s breach of contract. In these circumstances, s 10 of the Act did not preclude the set off being awarded by the Tribunal.

46. This is effectively what the Appeal Panel held at [94]-[95]:

[94] As the Tribunal correctly identified, s 10 of the [Act] means that a builder who performs unlicensed contracting, or does not comply with s 7 of the [Act] “is not entitled to damages or to enforce any other remedy in respect of the breach of contract committed by any other party to the contract, and the contract is unenforceable by the person who contracts to do the work”. The respondent, on the basis of the findings of the Tribunal, was not seeking damages in respect of any breach of the waterproofing contract by the appellants, nor enforcing any other remedy in respect of a breach by the appellants of the waterproofing contract.

[95] What the Tribunal did, consistently with the issues that had been raised in the proceedings, was find that there were monies owed to the respondent by the appellants outside the terms of the waterproofing contract. As discussed previously, those findings were based on the Tribunal being satisfied that the appellants (as owner-builder) had agreed with the respondent that the respondent would assist the appellants to procure materials at a discounted cost, and to identify appropriate contractors for the appellants to engage, for which, ultimately, the appellants were obliged to pay.

(Emphasis in original.)

47. I also observe that the plaintiffs made no contention in this Court that the amounts claimed by way of set off were in fact owing under the contract for waterproofing works and not pursuant to the Arrangement.

48. In the circumstances, ground one must be rejected.

Question two: was there a constructive failure to exercise jurisdiction as regards the contractual obligation to provide a waterproofing certificate or was the Appeal Panel’s finding unreasonable or perverse?

49. The essential contention of the plaintiffs as to this question, which is addressed by grounds two and three of the summons, was, twofold. First, that the Tribunal failed even to consider the claim for an order that a waterproofing certificate be provided. Second, that there was cogent evidence before the Appeal Panel that the plaintiffs and defendant had agreed that the defendant would certify the waterproofing works and the Appeal Panel overlooked that evidence. This, the plaintiffs contended, was a constructive failure by the Appeal Panel to exercise jurisdiction and thus an error of law (ground two) or, in the alternative, the Appeal Panel’s decision was unreasonable or perverse (ground three).

50. These contentions must fail as they misunderstand the findings of the Appeal Panel.

51. The submissions of the plaintiffs before the Appeal Panel extracted the following exchange during Mr Eassey’s cross-examination:

1794. Ms Anderson: You said to my client that you would provide a Certification for the Bathroom Waterproofing?

1795. Mr Eassey: I did.

1796. Ms Anderson: You never gave that Certification, did you?

1797. Mr Eassey: No, not yet.

52. An earlier exchange during Mr Eassey’s cross-examination was also referred to by Mr Klooster in oral submissions before the Appeal Panel:

1562. Mr Eassey: He asked me, do I know anybody to waterproof the Bathrooms and I said yes, if you can’t find anyone, I’m happy to provide one (1) of my guys to do the Waterproofing. Yes. That was specific about the Bathrooms.

1563. Ms Anderson: You agreed that you would certify that work?

1564. Mr Eassey: certify the Waterproofing of the Bathroom, yes.

1565. Ms Anderson: Your employee, Kerry did the Waterproofing of the Bathrooms, is that correct?

53. The defendant’s written submissions before the Appeal Panel noted the expert evidence of the plaintiffs’ expert, Mr Frizzell, at “Item 9” of the defects identified:

Showers in Bathrooms, Ensuites and WC allowing water to penetrate into concealed spaces. Shower walls in the 4 wet areas are not tiled apart from skirting tile at base,, there are water stains to the base of the walls and I obtained high moisture readings above skirting. Wall boards in shower are absorbing moisture and other showers have same construction and therefore same defects.

54. Whilst ultimately, as the defendant also recorded in its written submissions before the Appeal Panel, Item 9 was withdrawn by the plaintiffs, this evidence shows that there were issues of water penetration in the bathrooms, which were at least in part waterproofed by the defendant. The defendant’s written submissions also noted that Mr Hawach had accepted in cross-examination that the defendant was not responsible for the “bulk of the tiling”.

55. In response to the plaintiffs’ contention that the Tribunal should have made a “work order” that the defendant provide a waterproofing certificate, the defendant contended in its written submissions before the Appeal Panel that:

The jurisdiction of the Tribunal to make a work order was not invoked by the Appellants. There was no evidence put on by either party regarding the scope of the order and this was particularly relevant when the Respondent’s position in the matter was that it did limited waterproofing to 3 bathrooms, that other waterproofing done by the Applicants themselves or by persons under their supervision and some of this work itself was defective.

A submission was made after the hearing that the Tribunal make orders under [ss] 48O and 48M [of the Act] that ‘The Builder to provide a waterproofing certificate certifying the works undertaken by the Builder within 14 days.[‘] This submission was made without the Tribunal being asked to determine the scope of this work order or if it was even appropriate in the circumstances. Accordingly the fact the Tribunal did not make a work order is not a jurisdictional error as the jurisdiction was not invoked.

(Footnotes omitted, emphasis in original.)

56. One of the footnotes to this submission was as follows:

Page 179 Court V2. Hawach texts that he is doing bathroom walls. The walls were listed as defective item in the initial Expert Report of Applicants at Item 12 which states (insert) [sic].

57. The defendant also contended that:

[T]he issue of waterproofing certification by the Respondent when it only did part of the waterproofing is not a reasonable order for production for the Appellants to now seek. The onus is on the Appellant not only to prove breach but that the terms and scope of the works order are reasonable. The Respondent cannot issue certification for work that it did not do, for work that is defective and for bathroom works where other trades have also impacted on the integrity of the membrane which is the finding made by the Appellants experts at item 12 in the list of defects.

(Footnotes omitted.)

58. One of the footnotes to this submission said that:

The onus is on the [plaintiffs] to prove the work order should be issued.

59. As is apparent, what the defendant was putting in issue before the Appeal Panel was not whether Mr Eassey had accepted that he had said that he would provide a waterproofing certificate, but whether there was an obligation to provide such a certificate in circumstances in which the work on the bathroom walls was completed by Mr Hawach and not the defendant and where the bathroom walls had been identified as having water ingress.

60. The Appeal Panel observed at [101] that the plaintiffs’ submission was that Mr Eassey had conceded in cross-examination that the defendant had not provided a waterproofing certificate for the waterproofing works it performed for the plaintiffs. The Appeal Panel also noted at [103] that the defendant conceded that the issue of the failure to provide a waterproofing certificate was raised during the hearing before the Tribunal. The Appeal Panel went on to record at [103] the defendant’s submission as being that:

Firstly, the appellants did not seek a work order. Secondly, the appellants would need to prove it was a term of the waterproofing contract as found by the Tribunal that the respondent provide a waterproofing certificate to the appellants before the failure to provide a certificate could constitute a breach of contract by the respondent. The respondent submits that the evidence, assessed objectively, could not establish, on the balance of probabilities, that there was such a term, in circumstances where the respondent only performed a limited amount of waterproofing work, and the Tribunal found that significant other waterproofing works were performed by others.

61. As is apparent, that submission was highly factual. It was, in effect, a contention that the plaintiffs needed to prove that there was an obligation upon the defendant to provide a waterproofing certificate in the circumstances that transpired, namely where the defendant completed only some of the relevant works.

62. The Appeal Panel noted at [108] that Mr Eassey accepted in cross-examination that the defendant had not provided a waterproofing certificate.

63. The Appeal Panel accepted at [110] that before the Tribunal the plaintiffs had raised a claim to an order that the defendant provide a waterproofing certificate.

64. The reasons of the Appeal Panel for rejecting the claim were then set out:

[112] However, in our view, there was no basis in the evidence before the Tribunal upon which it might have found that the failure of the respondent to provide a waterproofing certificate was a breach of contract.

[113] No argument was raised that the failure to provide a waterproofing certificate was a breach of the statutory warranties under s 18B of the HB Act; nor is there evidence that, assessed objectively, could establish on the balance of probabilities that it was a term of the contract for the performance of waterproofing work found by the Tribunal that certification would be provided. The concession by Mr Eassey that a waterproofing certificate had not been provided does not relieve the appellants from proving that it was a term of the contract (as found by the Tribunal, rather than the entirely different contract that the appellants were arguing existed), that a waterproofing certificate be provided for the works performed by the respondent.

65. The Appeal Panel’s conclusion is readily explicable having regard to the limited waterproofing works in fact completed by the defendant and the fact that, as set out in the defendant’s submissions, other work had impacted upon the integrity of the waterproofing.

66. Nor would I infer that the Appeal Panel overlooked Mr Eassey’s evidence that he had agreed to provide a waterproofing certificate. That did not, however, go to the Appeal Panel’s fundamental reason for rejecting the plaintiffs’ contention, which was that the plaintiffs had simply not discharged their onus of showing that the defendant was contractually required to provide a waterproofing certificate having regard to the actual circumstances which arose. In this regard, it is of some significance that the Tribunal found at [48] that, whilst there was agreement by the defendant to carry out waterproofing works, “[t]he precise scope of the water proofing work was not discussed or agreed between the parties”. That finding significantly undermines the plaintiffs’ contention that their claim was made good simply on the basis of Mr Eassey’s evidence that, when he was asked to carry out waterproofing works, he agreed that he would provide a waterproofing certificate.

67. In these circumstances, there was no constructive failure to exercise jurisdiction, nor any unreasonableness or perversity in the Appeal Panel’s decision. Grounds two and three must be rejected.

68. It is, in any event, difficult to see how the Appeal Panel could properly have ordered that a waterproofing certificate be provided by the defendant (which was the order sought by the plaintiffs) given the matters relied upon by the defendant in its submissions before the Appeal Panel (as set out above) and in the absence of any expert or other evidence that it would have been proper for the defendant to issue a waterproofing certificate in the circumstances.

69. I would add that it is far from clear that the contentions in grounds two and three constitute a question of law within s 83 of the CAT Act. Consistent with the principles set out above this is something which must be approached as a matter of substance. A question of law is not constituted merely by the use of phraseology associated with a question of law.

Question three: was there any error by the Appeal Panel in its application of the principles in relation to post-contractual documents, conduct and admissions where a contract is not wholly in writing?

70. In ground four, the plaintiffs contended that the Appeal Panel erred by failing to consider whether the Tribunal had correctly applied the principles of law in relation to contracts partly oral, partly in writing and partly through conduct, and that it also erred by not having regard to important admissions made by the defendant’s witnesses in relation to what works were contracted to be done. In ground five, the plaintiffs contended that the Appeal Panel erred in law in finding that the Tribunal had not so erred and/or finding that if the Tribunal had erred, its error was not material. In ground seven, the plaintiffs contended that the Appeal Panel failed to consider evidence pleaded as being evidence of an oral contract that was partly in writing. In oral submissions, these three grounds were said to be related to whether there was an error in the application of principles of law where contracts are partly in writing or partly oral and ground seven was advanced as being derivative upon grounds four and five.

71. The relevant principles governing the relevance of post-contractual material where a contract is not wholly in writing were set out in Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [143]:

By contrast, the task in ascertaining what are the terms of a contract that is not wholly in writing is quite different - the task is finding as a fact what the parties have agreed. A range of post-contractual conduct could be relevant to ascertaining what the parties have agreed. For example, their conduct in carrying out the contract could itself be objective evidence of what they had agreed, an admission of one of the parties could assist in ascertaining what they have agreed, and business records created to record or report on the contract rather than carry it out could also assist in that task.

72. The plaintiffs’ claim before the Tribunal, as set out in its Amended Points of Claim at [6], was that a contract was entered into in or around October 2017, pursuant to which the defendant agreed to provide a range of residential building services at the Property. The plaintiffs particularised this contract by alleging that the contract was “partly express, partly implied, partly written and partly oral” and that to the extent that the contract was in writing, it was comprised in 41 communications in the period between October 2017 and March 2021, and to the extent it was oral, it was comprised in 11 conversations between January 2018 and January 2019.

73. The key finding of the Tribunal, responding to this claim, is at [19] of its reasons:

The particulars to the Amended Points of Claim state that to the extent that the contract was express and written, it was comprised in 41 written communications which were dated, commencing from 27 October 2017 to March 2021. I find that documents which came into existence after October 2017 cannot be a document which evidences a contract entered into in October 2017, unless the document expressly states that it is a contract document. Otherwise a document which comes into existence after October 2017 may be an acknowledgement of the contract or evidence of the contract in the sense that the document clearly came into existence because of the October 2017 contract. The documents particularised in the Amended Points of Claim are not relied on in the applicants’ final submissions.

74. The plaintiffs contended that the Tribunal erred in finding that documents which came into existence after October 2017 (when the contract was said to have been entered into) could not evidence a contract unless stated to be a contract document. This paragraph of the Tribunal’s reasons must, however, be read as a whole. Once it is read in that way, it is clear that the Tribunal was well aware that post-contractual material could be relevant to the task of identification of the existence or terms of the contract. That is entirely consistent with the approach as set out in the passage from Marcolongo at [71] above.

75. That is sufficient to dispose of grounds four and five of the summons. I would add that it is far from clear that the contentions under these grounds are sufficient to constitute questions of law within s 83 of the CAT Act. The contentions are in reality a disagreement with the Appeal Panel’s conclusions on the issues raised. The Appeal Panel’s reasoning plainly did not suggest that it had overlooked a substantial clearly articulated claim, nor even that it had overlooked Mr Eassey’s evidence in cross-examination. The plaintiffs’ invocation of descriptions such as a constructive failure to exercise jurisdiction or unreasonableness does not suffice to constitute a question of law for the purposes of s 83 of the CAT Act.

76. In any event, the key reasoning of the Appeal Panel is in its reasons at [115]-[117]:

[115] The appellants submit that the Tribunal failed to apply the correct legal principles because:

“[A]t [19] [it] refused to consider any document that came into existence after October 2017 and in so doing did not apply the correct principles ... to determine whether or not an agreement that was partly oral, partly in writing and partly through conduct had been entered into on or after October 2017”

[116] That submission does not accurately characterise the Tribunal’s findings at [19] which were:

“The particulars to the Amended Points of Claim state that to the extent that the contract was express and written, it was comprised in 41 written communications which were dated, commencing from 27 October 2017 to March 2021. I find that documents which came into existence after October 2017 cannot be a document which evidences a contract entered into in October 2017, unless the document expressly states that it is a contract document. Otherwise a document which comes into existence after October 2017 may be an acknowledgement of the contract or evidence of the contract in the sense that the document clearly came into existence because of the October 2017 contract. The documents particularised in the Amended Points of Claim are not relied on in the applicants’ final submissions.”

[117] We find no error in those statements. It is simple logic that a document coming into existence after a contract was supposedly formed cannot constitute part of the contract. The Tribunal acknowledged the possibility, which we accept, that documents (such as emails and text messages) and conduct that occurred after October 2017 may be taken into account - to the extent that they throw light on the surrounding circumstances or what the parties have agreed - in construing, objectively, the terms of a contract not wholly in writing (Cherry v Steele-Park (2017) NSWLR 548; [2017] NSWCA 295 at [57]- [90]; Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [141] - [144]).

77. The Appeal Panel added at [119]-[120]:

[119] Even if the Tribunal misstated the legal principles for construing a contract at paragraph [19] of its reasons, that error made no difference to the outcome.

[120] The Tribunal gave extensive and detailed reasons as to why it did not accept the evidence of the appellants (relevantly, the evidence of Mr Hawach) that the respondent was the builder for the majority of the works; as distinct from Ms Reimers being the owner-builder responsible for the works and Mr Hawach being involved in the direction and performance of the work on behalf of Ms Reimers.

78. There is no error of law in the Appeal Panel’s analysis. Nor, contrary to ground seven, is there any substance to the contention that the Tribunal failed to consider critically important evidence, noting that this ground was advanced in oral submissions as being derivative upon the contentions that the Appeal Panel misapplied the relevant principles of law.

79. In these circumstances, grounds four, five and seven must be dismissed.

Conclusion

80. In light of my conclusions as set out above, my orders are:

81. Leave to appeal is refused.

82. The plaintiffs are to pay the defendant’s costs.

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