Ikona Developments Pty Ltd v Tierney

A question of law

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing a question of law giving rise to an appeal as of right. These include, but are not limited to: 1. whether there has been a failure to provide proper reasons where they are required; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account relevant (that is, mandatory) considerations; 6. whether the Tribunal took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; 8. whether the decision is so unreasonable that no reasonable decision-maker would make it.
2. The appellant, who was not legally represented at the appeal, did not claim that its appeal raised a question of law. However, its submissions were prepared by a lawyer, in which questions of law were raised.
3. As will be seen, we accept that questions of law were raised, and we consider these below. If a question of law is not raised, then an appellant needs leave to appeal. In short summary, generally leave will only be granted if the matter involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.

The appellant's documents and submissions

1. The appellant filed a Notice of Appeal on 15 June 2023, to which it attached various documents including submissions and a copy of the Primary Decision.

Notice of Appeal

1. The appellant stated in its grounds of appeal as follows: 1. The Tribunal erred by failing to accurately calculate loss to the respondent in it's action for detinue. 2. The Tribunal erred by ordering the appellant to build the alfresco that was not part of the contract or scope of work. 3. The Tribunal erred in finding that the the engineering plans constitute as part of works under the contract. 4. The Tribunal accurately found that the contract was up to the gyprock stage however erred in it's [sic] application of that finding by ordering the builder perform works which are after that stage and outside the scope of works. 5. That work order 3(12) was added in error and is not part of the contract and scope of works. 6. The Tribunal member erred in it's reasons for ordering the appellant to pay the respondents application fee. The dispute about the alfresco and french doors could not be resolved other than applying to the Tribunal. 7. The Tribunal member erred in it's reasons for ordering the appellant to pay the respondents window callout fee. This action by the respondent was not necessary or part of the contract and was not discussed with the appellant. The appellant was unfairly penalised. (Typographical and other errors as in original)
2. The appellant submitted that the Primary Decision was not fair and equitable because: 1. The Tribunal made a finding that the contract was only up to the gyprock stage and did not include any work after this stage. In the end without providing adequate reasons ordered the appellant to do the works outside the scope. 2. The respondent did not provide any evidence as to the cost of the second hand French doors. There was nothing to compare the cost and/or value of the doors that were stored and couldn't be retrieved. 3. The respondent cannot have an 'open chequebook' and the doors must be compared like for like. 4.The addition of order 3(12) was an error as the installation of insulation was not included in the contract and scope of work. 5. The Tribunal did not take into consideration that the respondent had not complied with the orders made on the 12/01/2023 by not providing an expert report whilst the appellant complied with the orders and incurred costs as a result. The expert report should have been relied upon as it was requested by the Tribunal. 6. The Tribunal member erred in it's reasons for ordering the appellant to pay the respondents application fee. The dispute about the alfresco and french doors could not be resolved other than applying to the Tribunal. Therefore the cost of the CAT application should be borne by the respondent. 7. The Tribunal member erred in it's reasons for ordering the appellant to pay the respondents window callout fee. This action by the respondent was not necessary or part of the contract and was not discussed with the appellant. The appellant was unfairly penalised. [8]. The cost of the call out should be borne by the respondent.
3. After describing the evidence before the hearing, the appellant, in answer to the question "What evidence should the Tribunal have given more weight to? Why?", stated: 1) The building contract and the scope of work listed in the contract because this formed the basis of the works onsite. 2) The appellants expert report 3) The legal implications and restrictions the appellant presented for not being able to retrieve the doors. The appellant requested that the Tribunal consider it's legal options given that the third party, where the doors were stored, acted maliciously by not providing the access for the door retrieval. 4) Whether the door issue is a civil matter as they were taken and kept by a third party.

Other documents

1. Attached to the Notice of Appeal was a copy of the appellant's written submissions for the Tribunal proceedings, a quotation issued by the appellant to the applicant dated 24 March 2022, and the expert report of Mr Elie Farah of Effective Building & Consultancy.
2. On 19 July 2023, the appellant provided further documents to the Appeal Panel, including a copy of the contract between the parties, a sound recording of the Tribunal proceedings, and some quotations for the replacement cost of the French doors, which quotations were not before the Tribunal.
3. Also provided to the Appeal Panel on 19 July 2023 were the appellant's outline of appeal submissions which refined the grounds of appeal. The grounds of appeal relied on by the appellant were: 1. the Tribunal erred in finding that the applicant's cause of action with respect to the French doors was in detinue (Ground 1); 2. the Tribunal erred in not finding that the correct legal principles applicable to the issue of the French doors was the principles of gratuitous bailment (Ground 2); 3. the Tribunal erred in not applying the correct legal tests associated with the legal principles of gratuitous bailment on the question of whether the appellant was liable to the Respondent for damages (Ground 3); 4. in the alternative, the Tribunal erred in its misapplication of the legal principles relating to the assessment of damages (Ground 4); 5. the Tribunal erred in its construction of the building contract between the parties when it determined that the rear deck (which is the subject of order 3(13)) was a part of the works under the contract (Ground 5).
4. The appellant's representative, Ms Cuk, confirmed at the hearing that these were the only ground being pursued. Therefore, it is unnecessary for us to consider the grounds set out in the Notice of Appeal.
5. In summary, the appellant now appeals in relation to: 1. the order that it pays the respondent $8,844.00 in relation to the French doors; and 2. the order that it is required to demolish the external deck and rebuild the same in accordance with Engineer's Floor and Footing Plan 322 S03 Rev A dated 22.10.2020 and the architects plan 01_16 Sheet 03 attached to Notice of Determination dated 5 December 2018 DA-2018/96 and Development condition 8, all in accordance with s 18B(1) of the HB Act.

Reply to Appeal

1. The respondent's Reply to Appeal was filed on 22 June 2023. The respondent replied to the appellant's grounds of appeal as follows: 1 IKONA failed to assess the loss and costs of replacement doors due to their negligence. Payment is justified. 2 ALFRESCO formed part of the rear additions per the architect/engineers plans IKONA agreed to. Director acknowledged the alfresco as included in the build, from the beginning. 4. Agree 3(12) added in error. 5 NCAT fees justified seeing works not completed with fair trading order. 6 Window call out fee justified, seeing IKONA installed substandard and were not truthful claiming Prestige installed loft windows. IKONA had already been informed of the window issues. Cost is justified. Separate sheet included
2. The respondent opposed a grant of leave to appeal. She stated: 1. NCAT ordered the appellant to complete works according to the engineers report they agreed to. 2. The lost doors were full cedar including frames in excellent condition. I sought emergency replacement doors and replaced like for like. [3] IKONAS expert building reporter advised me IKONA had conceded to complete obvious substandard work, and would only challenge disputed works, therefore I did not engage a Scott schedule based on his information, and cost issues associated. [4] NCAT fees are justified if IKONA had complied with Fair trading initially. [5] IKONA installed the Windows incorrectly and blamed Prestige for windows they did not install. (supply only) I felt no other remedy than they come to inspect (after IKONA called them lout having issues fitting them) for their expert opinion and summary of remedy. IKONA were aware of the issues. [6] Call out fee is justified. [7] I feel the weight of evidence is warranted in these circumstances.
3. In submissions attached to the Reply to Appeal, the respondent stated that she is "in full agreement with the determination of Detinue as it fulfills the criteria according to my loss and claim".
4. The respondent filed a second Reply to Appeal on 1 August 2022. This time the respondent replied to the appellant's grounds of appeal as follows: 1. would have been no loss to IKONA if my doors were taken to my property and not a third party. 2.Secretary failed to inform at the drawing of contract there was an alfresco they were not contracted to construct, if this was the case. I was not provided with full contract scope of works at its signing. I believed I had paid for it in the contract sum. Started construction of the alfresco, after gyprock stage, then inform me 17 months after signing contract, they 'didnt allow' for the alfresco 3.refer: General conditions of contract 3 Plans and specifications (a)(1) and 3 b (c) Secretary checked yes to Schedule 2 (111) b prior to pricing the work 4. Refer statutory declatration, works were verbally agreed to lock up by previous builder and present Sole Director. 5. 3(12) added in error. 6. Had IKONA complied with Fair Trading orders, we would not be at NCAT. Fee justified. 7. Emails were sent to IKONA re the windows. Director gave conflicting information on their installation and prestige/supplier confirmed otherwise. Call out fee was justified. Them being the supplier. Every issue arose from the poor installation by Ikona due to being Supply only. only. Call out fee was justified. They were not professionally fitted and is evidenced, along with many other issues in their Export witness Report. (typographical and other errors as in original).
5. In her second Reply to Appeal, the respondent opposed a grant of leave to appeal for the following reasons: IKONA have had ample time to correct these complaints. The Sole director failed to inform the secetray on a number of key contentions within my claims. Gratuitous bailment? (ground 2) I did not transfer my property to IKONA to be lent, used or stored, rather to deliver to my address at my request. This was neglegance on behalf of the Director for all reasons presented in my reply. While I may disagree with the wording of the tribuals finding, being a refusal by Ikona to return the goods, by the sheer non action over an extended period of time, the Sole director took NO ACTION at resolution and failed to inform myself or the secretary until April or May of 2022 where the doors were. Fair trading spoke to the 3rd party and he claimed they were already collected so this suggests there was no refusal to give them back. This is what raised questions as to where they are. The builders made the openings smaller than the lost doors so it also raises the question of them obviously not fitting if they were retrieved. That's embarrasing and a reason for cover, also the cost of correcting the brick work. The doors may have been gifted to me by a builder but they certainly didnt cost me nothing as suggested, seeing I needed to replace them due to IKONAs negligence. To suggest there were 2nd hand doors sitting in a warehouse the exact size and style ready to be fitted into my home is unreasonable to say the least. I searched for replacements to the best match possible. The director at one stage asked me if I wanted him to replace the doors to which I said yes , but I didnt have the time for him to find them, but I also didnt want to pay for them to then be chasing up the repayment, which is exactly whats happened. Judgement was awarded to me by the tribunal, fairly, in the first instance , with the evidence presented and further submitted in this reply. (typographical and other errors as in original).

The Primary Decision

1. It is appropriate to summarise the relevant contents of the Primary Decision.
2. Before doing so, we note that the Tribunal made two orders. The first was that the appellant undertake certain rectification works by 9 June 2023. There were 14 works to be undertaken, and the Tribunal stated: 5. Work orders 1 - 12 & 14 were made by consent. Oral reasons were provided for work order 13. 4.Oral reasons were given in connection with the applicant's claims not included in the above orders, except in connection with the French door claim. (paragraph numbering as in original)
3. As to the "French door claim" the Tribunal then stated: 5. The applicant pressed her claim for $8,844.00 under the heading 'French Doors'. The applicants case in relation to French doors is that she obtained a set of second hand French doors from a builder free of cost or at a minimal cost. She intended to use these doors in the renovation of her residence. The applicant further states that she requested the director of the respondent to collect the doors and take them to her residence where they would be stored. 6. It is common ground that the respondent did not charge the applicant for picking up the doors. The respondent's position is that by an agreement with the applicant it took the doors to a temporary storage facility because the applicant's residence was a cluttered building site which was not secure with little storage capacity. 7. Both parties agree that the respondent has fallen out with the owner of the storage facility or place where the French doors were stored and he has refused to deliver the French doors to the applicant or respondent, or to allow them access to his premises in order to collect the doors. The applicant's claim is for the amount that she has had to spend to have new French doors fabricated to replace the ones that she intended to use and which cannot be retrieved from the place where the respondent placed them.
4. After setting out relevant provisions of the HB Act, the Tribunal then stated: 11. I find that the action of the [appellant] in taking the applicant's French doors to a third party storage facility on a gratuitous basis was a service supplied for or in connection with the carrying out of residential building work since the purpose of the exercise was a temporary storage of the doors until the works were ready to receive them. The [respondent's] claim is therefore a building claim. 12. The next issue for me to resolve is the nature of the agreement by the parties as regards the storage of the doors. The [respondent] asserts that the doors were stored at the third-party storage facility without reference to her and that she asked the [appellant] to take the doors to her residence. The [appellant] states that it took the doors to the third-party facility with the agreement of the [respondent]. 13. In the documents that she filed with the Tribunal and subsequently re-filed up on a paginated basis, the [respondent] has included at page 69 a letter she wrote on 1 July 2022. She states: 'I asked these doors to be collected in November 2020 and taken to my home in southeast Sydney but they were taken to St Mary's until needed for fitting which was December 2021 or just prior. Sometime in the last 15 months I have been informed Nick and Andrew have parted and Nik has made no attempt to retrieve my doors which I needed for the completion of my home under contract with our IKONA developments.' 14. I accept this version of events in preference to the [appellant's] position which was set out in a statement filed with the Tribunal in April 2023. In that material the company secretary of the [appellant][ states at 6.4 there was a verbal agreement that the doors would be stored offsite. I prefer the [respondent's] version of events because it was set out in a contemporaneous letter before the proceedings were commenced in the Tribunal and on that basis more likely to be a straightforward accurate statement of the position. 15. I find that the [respondent's] cause of action is in detinue. The essence of detinue lies in a wrongful refusal to deliver up goods to a person having the immediate right to the possession of those goods: CHEP Australia Limited v Bunnings Group Limited [2010] NSWSC 301 (at [183]) per McDougall J. Similarly, the cause of action in detinue accrues once a lawful demand for the return of possession of the chattel is made and the demand is refused. The application in these proceedings contains I find a demand for the French doors and the [appellant's] statement in these proceedings constitutes a refusal, if the refusal was not made clear earlier. 16. I have found that the respondent must pay the applicant: 1. $8,844.00 for the French doors; 2. $200.00 being the window call out fee; and 3. $289.15 being the NCAT filing fee. Total $9,333.15.

Relevant principles

1. We note that during the hearing, we explained to both parties a number of principles that are applied in appeals. These were as follows.
2. The first principle is that an appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. And, as the Appeal Panel stated in Temple v AMR Motors Pty Limited [2017] NSWCATAP 221: 38. … Any decision to grant leave to appeal must be undertaken in a legally principled manner and not simply because, if we were hearing the matter anew on the evidence led before the Member, we might reach a different conclusion when considering that evidence (although in the present case that would not be so). 39. It is fundamental that an appeal on a question of fact does not provide and is not intended to provide an opportunity for an applicant dissatisfied by the result of a hearing at first instance to re-run the same case before an Appeal Panel. Yet, that is, in effect, what the present Appellants seek to do by identifying what they contend are contestable findings of fact by the Member.
3. To put the matter another way, as indicated in the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website): … an appeal is not an opportunity to have a second go at a hearing.
4. The second principle is that the applicable rule for presenting new evidence on appeal is that the materials sought to be relied upon was not reasonably available at the time of the Tribunal hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. As the Appeal Panel stated in Chapman v McLaughin [2016] NSWCATAP 212 at [37]: … The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.

Consideration of Ground 5 - the al fresco issue

1. It is convenient to deal with ground (5) first.
2. As noted above, only ground of appeal (5) deals with the "al fresco" issue. The ground of appeal is stated as: The Tribunal erred in its construction of the building contract between the parties when it determined that the rear deck (which is the subject of order 3(13)) was a part of the works under the contract.
3. Order 3(13) was: 13. Demolish the external deck and rebuild the same in accordance with Engineer's Floor and Footing Plan 322 S03 Rev. A dated 22.10.2020 and the architects plan 01_16 Sheet 03 attached to Notice of Determination dated 5 December 2018 DA-2018/96 and Development specific condition 8, all in accordance with section 18B(1) of the Home Building Act 1989.

The appellant's submissions

1. The argument was developed as follows. 1. the Tribunal made the following factual findings with respect to the building contract and the works to be completed by the appellant under it (appellant's written submissions at [21]): 1. the contract was to the Gyprock stage, and not to lock-up (as contended by the respondent) (sound recording at 1:28); 2. the contract comprised the written building contract dated 26 October 2020 and the inclusions and exclusions listed therein (sound recording 1:45); 3. the plans detailing the works to be completed by the builder and which formed part of the contract were the Engineering Plans 322 SOI Rev A dated 22 October 2020 referred to at Sch 2 to the contract (sound recording 1:50); 1. the description of the works at Sch 2 of the contract provided: "Alterations and additions to the existing dwelling including rear addition with attic space, and construction of new carport and outbuilding" (appellant's written submissions at [22]); 2. the drafting of the contract as a whole makes it clear that the Appellant was only contracted to construct the building structure, with internal works being completed to gyprock stage. This is evident in the description of the works at Sch 2(u), the exclusions at Sch 2(vi) and payment stages listed at Sch 4 (appellant's written submissions at [23]); 3. despite this, when determining the issue of whether the rear deck formed part of the works under the contract, the Tribunal referred to the engineering plans and found that the fact that the engineering plans required footings to be installed to the rear deck area was "conclusive evidence that the rear deck area was included in the builder's scope of works" (sound recording at 2:50). This reading of the contract is plainly wrong because it gives the engineering plans greater weight than the terms of the contract itself (appellant's written submissions at [24]); 4. had the appellant agreed to construct the rear deck, otherwise referred to as the rear outdoor alfresco area, it would have been included in the description of the works included at Sch 2 of the contract. It is an incorrect interpretation of the contract to conclude that the reference to "rear addition" includes the rear deck (appellant's written submissions at [25]); 5. the rear deck works were not necessary to complete the construction of the "rear addition with attic space" nor was it part of the "carport or outbuilding". It was not necessary to complete the deck to substantially complete any of the stages of payment referred to at Schedule 4. The "rear addition" is an entirely contained new building which is an addition to the existing dwelling, and on top of which the attic sits. Conversely, the appellant submits that the rear deck is external works, which was agreed as not being part of the contract works (appellant's written submissions at [26]); 6. there were numerous other items relating to external works which did not form part of the contract works. By way of example, the external plumbing works and construction of a new driveway were undertaken by the appellant as agreed variations to the contract (appellant's written submissions at [27]); 7. the Tribunal also referred to the general conditions at cl 3(b)(c) which required the work to comply with the conditions of any relevant development consent and stated that because it was a condition of the development approval (DA) consent that a 1.8m high privacy screen was to be constructed along the eastern elevation of the rear outdoor alfresco area, then the appellant had to construct the deck so as to comply with the DA condition. Again, this is an incorrect interpretation of the contract (appellant's written submissions at [28]); 8. the DA is not determinative of what constitutes the scope of works when dealing with a contract to only complete part of the works required to obtain an occupation certificate (a fact which is not disputed). It does not follow therefore that because there is a DA condition requiring a privacy screen to be installed to the rear outdoor alfresco area, then the deck must form part of the contract works. Clause 3(b)(c) does not compel the Appellant to comply with every condition of the DA. This simply does not make sense. Rather, the requirement to comply with the DA conditions must be read in the context of the actual works the Appellant is required to undertake under the terms of the contract (appellant's written submissions at [29]); 9. if the contract was interpreted in a way where the appellant was required to complete every condition of the DA, then the appellant would be required to complete numerous other items which would otherwise have been agreed between the parties under the contract to not form part of the works (appellant's written submissions at [30]).
2. Based on the above reasons, the appellant submitted, at [31], that the Tribunal erred in its construction of the contract when finding that the rear deck formed part of the works to be completed by the appellant.

The respondent's submissions

1. The respondent disagreed. In her written submissions, the respondent submitted: 1 … there was no question or issue with anyone at any time prior to an email from the secretary dated April 26 2022, that the Alfresco would not be included in the completion of those works for the contract price. 2. Ikona secretary prepared the contract schedule 2, 3b page 5 'Has the builder been provided with full approval terms prior to pricing the work?'. Secretary checked Yes. As per Clause 1 page 1 of the contract. Complete approval terms were provided. There was ONE DA complying condition, being the alfresco privacy screen 1.8meters. 3. No warning or notification was given to me that the alfresco did not form part of the scope of works … 4. No warning or notification was given to me per page 2 (1) of any amendments or as appropriate to the sum subject to the 'conditions' (1) or, that there was an alfresco which may change the contract price. … 6. Contract page 6 (vi) Work excluded from the contract work or contract sum. List here aspects of the work shown in the drawings or described in the specification or which may otherwise be expected to form part of the contract works BUT which WILL NOT be carried out by the builder. The alfresco is not specifically listed, therefore was expected to form part of the works. 7. I reiterate, as prior there most certainly was a verbal agreement with both builders the work would be done to lock up. This was communicated to the present builder by the failed builder and by conversations with myself and the sole director Nik Cuk on site. 8. The final progress payment for Gyprock was paid into their account 22/12/2021 9. The alfresco construction commenced between Jan-March 2022. 10. The dispute arose with their intended use of leftover flooring from another job, which I was told was 'my deck'. I refused as it was not pine per the plans. I then requested a quote for eco deck as an upgrade. This was received from the secretary 24/3/2022. The cost was too high and I declined. I decided to just go with the pine slats and a month passed. 11. 26/4/2022 an email from the secretary advising me they rechecked the contract and they did not allow for a deck "in the backyard" and its now a variation. I was stunned being told 18 months after signing the contract and the Al fresco's commencement, they now claimed they had not allowed for a deck. Ikona allude in their submissions that I asked to be quote[d] for a deck, and UI totally reject this as being untrue when I believed as with all involved that the deck was part of the works. 12. I believe this is clearly the secretary's oversight when preparing the contract … I fully believe the contract price included the al fresco deck, as did the secretary and the secretary until the questionable materials were attempted to be used to further reduce their costs.

Conclusion

1. We accept that this ground raises a question of law, and therefore leave is not required. The question of law raised is the construction of the contract. As the Appeal Panel noted in Carolan v Haghparast [2023] NSWCATAP 121 at [82], (followed in Tourism Integration Ltd t/as Jettzy v Hui [2023] NSWCATAP 146 at [44] and Dick v Buildingwise Constructions Pty Ltd [2023] NSWCATAP 214 at [21]), the interpretation of contractual terms is primarily a matter of law.
2. There were no written reasons on this issue, the Senior Member giving oral reasons. On 23 June 2023, the appellant was directed that, if oral reasons were given at the Tribunal hearing, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing.
3. While we have been provided with purported references to the sound recording for the Tribunal's findings of fact, save for one 15 word portion of what the Senior Member said during the hearing, we have not been provided with any transcript of the oral reasons given, as was ordered. The portion of the transcript we were provided is simply the Senior Member's finding that there was "conclusive evidence that the rear deck area was included in the builder's scope of works". That passage does not support the appellant's contention that the rear deck did not form part of the contract.
4. As for the references to the sound recording, in the absence of the transcript we do not feel constrained to listen to it, in any event it lasts for over three and a half hours, and selected individual references to the sound recording may not be representative of the totality of the oral reasons. We did listen to the sound recording around 1:28 which the appellant asserted established the Tribunal's finding that the contract was to the gyprock stage, and not to lock up, but the passage at 1:28, and for several minutes before and after does not show any finding by the Senior Member. At that point he is listening to the respective submissions of each party on the issue.
5. We make those comments by way of example. But the point is that as we have not been provided with a transcript of the oral reasons for decision on this issue. We can accept that the Member found that the rear deck works were part of the contract otherwise the Member would not have ordered the appellant to perform the work described in Order 3(13). We could make an independent assessment on the evidence filed in the appeal, as to whether we accept the rear works were, or were not, part of the contract works, however we are not conducting a new hearing we are conducting an appeal. What we do not have is the Member's reasons for finding the works were part of the contract and therefore it is not possible for us to decide if the Member correctly or incorrectly interpreted the contract.
6. While we accept that ground (5) raises a question of law, we discern no error and the appeal is dismissed in relation to this ground.

Consideration of Grounds (1) to (3) - the French doors

1. These grounds are stated as follows: 1. the Tribunal erred in finding that the respondent's cause of action with respect to the French doors was in detinue (Ground 1); 2. the Tribunal erred in not finding that the correct legal principles applicable to the issue of the French doors was the principles of gratuitous bailment (Ground 2); 3. the Tribunal erred in not applying the correct legal tests associated with the legal principles of gratuitous bailment on the question of whether the appellant was liable to the respondent for damages (Ground 3).

The appellant's submissions

1. The appellant's submissions deal with these submissions together as follows.
2. When considering the respondent's claim with respect to the French Doors at the hearing, the Tribunal observed that the claim could fall within the legal principles of bailment. However, in the reasons in the Primary Decision and by ordering that the appellant pay the respondent $8,844.00 for the French doors, the Tribunal found, incorrectly it is submitted, that the respondent's cause of action was in detinue.
3. The Tribunal explained at [15] of the Primary Decision: the cause of action in detinue accrues once a lawful demand for the return of possession of the chattel is made and the demand is refused. The application in these proceedings contains / find a demand for the French doors and the respondent's statement in these proceedings constitutes a refusal, if the refusal was not made clear earlier.
4. The "respondents [sic] statement" is the written submissions of the appellant filed in the proceedings below. The appellant submits that it has never "refused" to return the French doors, and it was accepted by all parties that the appellant was simply unable to return the French doors.
5. Contrary to the Tribunal's finding published in the Primary Decision, during the hearing the Tribunal summarised their case as it relates to the French doors as follows (which was accepted by each of the parties as accurate) (sound recording 2:11): I get it that no one intended for it to get badly wrong, but nonetheless it's wrong. And the applicant Mrs Tierney says as a result of this, I have lost these high quality, albeit second hand, doors and I don't have them anymore. I was to use them for my premises and I can't because I don't know where they are ... the builder lost your door and you have had to pay $8,844.00 for a new door.
6. As to the appellant's position, the Tribunal summarised it as follows, "you know all of this and it wasn't your fault" (sound recording 2:12).
7. The Tribunal then proceeded to contemplate, correctly the appellant submits, that the claim was in bailment, not detinue (appellant's written submissions at [9]).
8. The appellant submits that its liability ought to have been considered by reference to its duties as bailee, which in turn is determined by the classification of bailment. The appellant submits that as it was common ground that the appellant did not receive payment for retrieving and storing the French doors pending them being used for the works, the appellant was a gratuitous bailee (appellant's written submissions at [10]).
9. The appellant submits that a gratuitous bailee such as the appellant had a duty to take such care of the French doors as was reasonable in the circumstances: Dalgety & Co Ltd v Warden [1954] St R Qd 251. Where goods are damaged or stolen during the course of a gratuitous bailment, as was the case with the French Doors, as the appellant was unable to recover them from the premises at which they were stored, the onus rests with the respondent, as bailor, to prove negligence on the part of the bailee (appellant's written submissions at [6], citations omitted).
10. The appellant submitted that the respondent failed to discharge that onus. Alternatively, the appellant submits, "at the very least", the appellant submitted that the Tribunal failed to properly apply the correct legal test and consider whether the facts established that the respondent did discharge that onus (appellant's written submissions at [12]).
11. During the course of the appeal hearing, both Ms Cuk (who appeared for the appellant) and the respondent agreed that detinue was not mentioned by the Senior Member in the Tribunal and that it was not discussed at the hearing.

The respondent's submissions

1. As noted, in her Reply to Appeal, the respondent agreed with the Tribunal's findings as to detinue.
2. The respondent did not directly address us on whether the principles of bailment as opposed to detinue were applicable. She acknowledged at the appeal hearing that if the doors had been stolen from her premises "it would have been on me", but in circumstances where the appellant "picked them up" and took them to another builder for storage, that is "took them to mates", and where the appellant made no attempt to obtain her permission to do so, any liability for loss remains with the appellant.
3. In written submissions, she relevantly stated: The [appellant] failed to transport [the French doors] to my home as requested Failed to inform me he had not taken them to my home Took them to a facility not known to me other than 'a mate's garage' Failed to inform me he took them to the previous failed builder who I had already complained about to Fair Trading Failed to retrieve my doors from that person any time prior to me needing them fitted for lockup (again agreed with this director) Failed to inform me at any time that my doors were not going to be delivered for fixing, while for months I endured substandard temporary coverings, by this director, held in place with a wedge of wood, which repeatedly blew down with wind, allowing rain dust and dirt to cover my newly laid Cyprus floor. …

Conclusion

1. We accept that these grounds raise a question of law and leave is not required. The question of law is a denial of procedural fairness, in that the Tribunal did not afford the appellant the opportunity to address it on detinue.
2. We are satisfied that this is the case, and that the appeal ought to be allowed in relation to this ground.
3. As we explained at the appeal hearing, s 81 of the NCAT Act provides: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
4. As we further explained at the hearing, it was our view that it was in keeping with the guiding principle for the just, quick and cheap resolution of the issues in dispute (NCAT Act, s 36(1)), that the Appeal Panel redetermine this issue if it could.

The appellant's submissions

1. Put simply, the appellant submits that its liability should have been determined by reference to the principles of bailment. Bailment, it submits, is the correct legal principle to be applied to these facts, as opposed to detinue.
2. This, the appellant submits, is determined by the classification of the bailment. It submits that as the appellant did not receive payment for retrieving and storing the French doors pending them being used for the works, the appellant was a gratuitous bailee.
3. The appellant submits that as a gratuitous bailee it had a duty to take such care of the French doors as was reasonable in the circumstances. Where goods are damaged or stolen during the course of a gratuitous bailment, as was the case with the French Doors, as the appellant was unable to recover them from the premises at which they were stored, the onus rests with the respondent, as bailor, to prove negligence on the part of the bailee.
4. The appellant submits that the respondent failed to discharge that onus and, "at the very least", it submits that the Tribunal failed to properly apply the correct legal test and consider whether the facts established that the Respondent did discharge that onus.
5. In the alternative, even if it is found that the appellant was negligent and therefore liable to the respondent (whether as bailee, or in conversion or detinue), the appellant submits that the Tribunal misapplied the legal principles relating to the assessment of damages.
6. We will consider that later point below.

The respondent's submissions

1. The respondent's submissions are set out above at [57].

Consideration

1. The relevant findings of the Tribunal in relation to the French doors were as follows: 5 … The [respondent's] case in relation to French doors is that she obtained a set of second hand French doors from a builder free of cost or at a minimal cost. She intended to use these doors in the renovation of her residence. The applicant further states that she requested the director of the [appellant] to collect the doors and take them to her residence where they would be stored. 6. It is common ground that the [appellant] did not charge the [respondent] for picking up the doors. The [appellant's] position is that by an agreement with the [respondent] it took the doors to a temporary storage facility because the [respondent's] residence was a cluttered building site which was not secure with little storage capacity. 7. Both parties agree that the [appellant] has fallen out with the owner of the storage facility or place where the French doors were stored and he has refused to deliver the French doors to the [respondent] or [appellant], or to allow them access to his premises in order to collect the doors. The [respondent's] claim is for the amount that she has had to spend to have new French doors fabricated to replace the ones that she intended to use and which cannot be retrieved from the place where the [appellant] placed them.
2. After setting out relevant provisions of the HB Act, the Tribunal concluded at [11]: I find that the action of the [appellant] in taking the applicant's French doors to a third party storage facility on a gratuitous basis was a service supplied for or in connection with the carrying out of residential building work since the purpose of the exercise was a temporary storage of the doors until the works were ready to receive them. The [respondent's] claim is therefore a building claim.
3. The Tribunal then stated that the next issue for determination is the nature of the agreement by the parties as regards the storage of the doors. The Tribunal noted that the respondent asserted that the doors were stored at the third-party storage facility without reference to her and that she asked the respondent to take the doors to her residence. The Tribunal noted that the appellant stated that it took the doors to the third-party facility with the agreement of the applicant.
4. The Tribunal rejected the appellant's version of events and accepted the respondent as: the applicant's version of events … was set out in a contemporaneous letter before the proceedings were commenced in the Tribunal and on that basis more likely to be a straightforward accurate statement of the position.
5. We see no error in those findings by the Tribunal.
6. It is in light of those findings, we now consider how the Tribunal should characterise and determine the respondent's claim for compensation for the loss of her French door.
7. Bailment was considered by the South Australian Supreme Court in Al Zoubidi v Madadi [2023] SADC 20. The head note relevantly reads: The applicant sought to review a minor civil action in which the Magistrate dismissed his claim. The applicant had claimed the sum of $8194.37 for damage sustained to an Isuzu Truck (the Truck) owned by him when it collided with a power pole and another vehicle. No-one was in the Truck at the time of the accident. … Immediately prior to the accident, the Truck had been outside the respondent's house and had been parked there for about 2 months. The Truck had not been driven during that period. There was a dispute between the parties as to the circumstances in which the Truck had come to be parked outside the respondent's property. The Magistrate had found that at the time of the accident, the Truck was most likely outside the respondent's property for the purpose of storage, the respondent had no intention of purchasing the Truck and had not used the Truck during the period that it was parked outside his house. The Magistrate found that there was no evidence that the respondent had done anything to the Truck, deliberately or negligently. There was no evidence that the respondent had failed to apply the handbrake. Held: (1) The Magistrate's decision is affirmed and the review is dismissed. (2) There existed a bailment of the Truck between the applicant and the respondent: Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 applied. The Truck had been delivered by the applicant, as bailor, to the respondent, as bailee on the implied condition that when the purpose for which the Truck had been delivered had been fulfilled, it would be returned to the bailor or delivered according to his instructions. (3) In the circumstances of this case, the respondent was a gratuitous bailee: Coggs v Bernard (1703) 92 ER 107 applied. A gratuitous bailee such as the respondent had a duty to take such care of the Truck as was reasonable in the circumstances; Dalgety & Co Ltd v Warden [1954] St R Qd 251 applied. (4) Where goods are damaged or stolen during the course of a gratuitous bailment, the onus was on the applicant, as bailor, to prove negligence on the part of the bailee: O' Dea v O'Hara, Register Newspaper 17 May 1895, W,G.H Nominees Pty Ltd v Tomblin (1985) 39 SASR 117 applied: cf Port Swettenham Authority v TW Wu & Co [1979] AC 580, Graham v Voigt (1989) 89 ACTR 11. (5) The applicant had not discharged that onus. Even if the onus was on the respondent to prove that he was not negligent, in the circumstances the respondent had discharged that onus.
8. Al Zoubidi refers to many of the authorities cited by the appellant in its submissions. But the key point made by the appellant is that where goods are damaged or stolen during the course of a gratuitous bailment, the onus was on the respondent, as bailor, to prove negligence on the part of the bailee.
9. We accept the appellant's submission that the respondent, both below and before us, did not establish that the appellant was negligent. Where the respondent has not discharged the onus upon her, the cause of action in bailment must fail. This is a more persuasive argument than the submission that the doors were not damaged or stolen during the course of the gratuitous bailment.
10. It is true the appellant did not damage or steal the doors, but it cannot be said that the doors were not damaged or stolen whilst the appellant was bailee, even in circumstances whereby the appellant created a sub-bailment with the former builder in which the doors were sub-bailed to the former builder as sub-bailee. The appellant remained the bailee until it returned the doors to the respondent.
11. The doors cannot be retrieved from the former builder (the sub-bailee). They may have been stolen from the sub-bailee, they may have been sold or lost by the sub-bailee, or the sub-bailee may simply wish to keep the doors. Whatever happened to the doors they could not be returned and they have essentially been stolen from the bailee.
12. Nonetheless, the respondent has not proved negligence on the part of the bailee and so we dismiss the respondent's cause of action in bailment.
13. We turn then to consider the alternative cause of action which was the building claim arising under the HB Act.
14. The Senior Member found that the appellant took the doors without the agreement of the respondent and at [11] of the Primary Decision that the action of the appellant in taking the applicant's French doors to a third party storage facility on a gratuitous basis was a service supplied for or in connection with the carrying out of residential building work since the purpose of the exercise was a temporary storage of the doors until the works were ready to receive them.
15. We do not understand that finding to be the subject of the appeal and in any event we agree with it. The finding means the action of taking the doors for storage meets the definition of a building claim in s 48A of the HB Act.
16. As such, we find the delivery of the doors to the former builder's possession without sufficient ability to retrieve those doors to be a breach of s 18(1)(a) of the HB Act. The service supplied in connection with the residential building work being carried out was not exercised with due care and skill. The appellant should have more closely considered the reliability of the former builder to properly hold and store the respondent's doors. Delivering the respondent's doors to a person who had had a falling out with the respondent was not undertaking work in connection with the building works with due care and skill and is thus a breach of the statutory warranties.
17. The respondent is thus entitled to compensation to put her in a position she would have been had the appellant not breached s 18(1)(a) of the HB Act by delivering her doors to the former builder. We will consider the measure of damages under Ground 4 below.

Ground 4

1. In the alternative to Grounds 1 to 3, the appellant submitted that the Tribunal erred by misapplying the legal principles relating to the assessment of damages (Ground 4).
2. The appellant alternatively submitted that even if it was liable to the respondent (whether as bailee, in conversion or in detinue), the Tribunal misapplied the legal principles relating to the assessment of damages.
3. The appellant accepts that the Tribunal awarded the respondent damages in the sum of $8,844.00 being the amount paid by her for another set of doors to be installed in the opening where the French doors were allegedly to be installed.
4. However, the appellant submitted that there was no evidence before the Tribunal which suggested that the doors acquired by the respondent in replacement were of a like nature to the French doors which were lost.
5. The appellant submitted that the appropriate calculation of damages is the fair market value of the property at the time of the tort being committed. The only evidence before the Tribunal was that the French doors were acquired by the respondent for free, and that there was no other evidence of the market value of the doors.
6. The appellant submitted that, having lost the French doors which the respondent acquired for free, albeit with an intention to use those doors, the respondent cannot then go and seek to acquire any replacement doors she wishes, of whatever style and at whatever price, with the result that the appellant becomes liable for that cost.
7. To this end, the appellant sought leave to rely on additional evidence which it submitted more closely reflects the fair market value, or replacement cost, of the French doors which were lost.
8. The Tribunal gave written reasons why it found that the appellant was liable for the lost doors. The issue as we perceive it is the basis of the allowance of $8,844.00 for that loss. There was an invoice in that amount filed for the Tribunal hearing. The respondent told us at the appeal hearing that she had provided other invoices in higher amounts. The Tribunal file shows that these invoices were in the amounts of $12,497.00 plus GST and $9,530.00 including GST.
9. At the appeal hearing the respondent indicated that the range was even higher, extended to $18,000.00, but we were not taken to any evidence that supported that proposition.
10. The appellant's position was that nothing like that amount should have been awarded, but accepted that an amount in the range of $500.00 to $2,773.00 was appropriate, based on its new evidence. The former amount was based on a "Gumtree" internet search undertaken by the appellant; the latter amount on a quotation of Simply Doors & Windows dated 15 July 2023.
11. The respondent submitted that that quotation only related to one door, whereas she had lost two doors.
12. The Tribunal gave no written reasons for finding the appropriate amount was $8,844.00. As best we can determine, the Tribunal awarded $8,844.00 based on a tax invoice of Doors City of 4 August 2022, which was included in the respondent's materials filed in the proceedings before the Tribunal. See too the oral statement of the Senior Member set out at [48] above.
13. As noted above, an appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again, and the applicable rule for presenting new evidence on appeal is that the materials sought to be relied upon was not reasonably available at the time of the Tribunal hearing.
14. The usual principle relating to new evidence on appeal is that the appellant must demonstrate that the evidence was not reasonably available at the time of the hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. In that decision the Appeal Panel relevantly stated at [23] that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence.
15. We see no reason why quotations from other suppliers or advertisements on Gumtree and other social media could not have been obtained by the appellant prior to the Tribunal hearing.
16. In the circumstances, we will not allow the appellant to rely on the additional materials forming part of the appeal papers.
17. The authorities say that provided that some evidence of loss or damage has been produced, difficulty of assessment is not a bar to the assessment of damages: Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117; Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167.
18. It is tolerably clear that the Tribunal's award of $8,844.00 was based on evidence before it.
19. This is not a case in which the Senior Member ordered compensation "in the absence of any evidence of the quantum of damage" which would mean the money order could not be sustained: Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1977) 16 ALR 23 per Aickin J, in the majority, at 38. Nor is the assessment of loss based on "no material" in circumstances where it was reasonable for the respondent to call acceptable evidence to prove her loss: Ted Brown per Gibbs J, in the majority, at 37. See also, Newark Engineering (NZ) Ltd v Jenkin [1980] 1 NZLR 504; referred to in Troulis v Vamvoukakis [1998] NSWCA 237.
20. In Troulis, Gleeson CJ (with whom Mason P and Stein JA agreed) noted that Deane J observed in The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 118-119 that limitations of the curial process or the nature of the subject matter in question often meant that the task of assessing damages involves a pragmatic exercise of a kind traditionally left to the good sense of a jury. Where, however, there was an absence of the raw material to which good sense may be applied "[j]ustice does not dictate that, in such a case, a figure should be plucked out of the air".
21. This is not one of those cases.

Conclusion

1. In conclusion, to the extent Ground 4 raises a question of law, we would dismiss the appeal as we discern no error of law.
2. Furthermore, we accept the evidence of the respondent below that $8,844 was the fair and reasonable cost to the respondent to replace the doors misplaced by the appellant in breach of s 18(1)(a) of the HB Act. Thus, this is the amount we award the respondent on the redetermination of the French doors issue.

Other

1. We note that at the appeal hearing the appellant through Ms Cuk indicated that it was not pressing the appeal in relation to the Tribunal filing fee of $289.15 or the "window call out fee" of $200.00.
2. We also note that the respondent abandoned her request in her Reply to Appeal that the Appeal Panel "review the garage doors initially claimed", and her submission for her loss "for the day in court".
3. In relation to this second matter, we note that, in any event, costs are not awarded to compensate a litigant who is not a lawyer for time spent in preparing and conducting an application: see Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 405; followed by the Tribunal in such cases as eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94, Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales, and Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41.

Orders

1. The Appeal Panel orders: 1. In relation to the ground of appeal that the Tribunal erred in finding that the applicant's cause of action with respect to the French doors was in detinue, the appeal is allowed. 2. The appeal is otherwise dismissed. 3. Pursuant to s 81 of the Civil and Administrative Tribunal Act 2023 (NSW), in substitution for the orders of the Tribunal of 16 May 2023 in HB 22/53569, the Appeal Panel: 1. confirms order (1), noting that item (12) insulation was removed by consent and given effect in orders of the Appeal Panel of 26 June 2023. 2. confirms orders (2) and (3).

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: 19 October 2023