Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99 | Case summary | Zoe

NSWNSWCATAP

Jannis v Ant-Hassa Pty Ltd

[2020] NSWCATAP 99

NCAT Appeal Panel|2020-02-18|Before: Armstrong J

At a glance

AI case summary

Result

appellant. Appeal allowed. The orders made on 10 October 2019 in application HB 19/26920 were set aside and the proceedings remitted for rehearing by a differently constituted Tribunal. The parties were given...

Key principles

Under ss 36(1) and 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), NCAT may manage its own procedure, but must take reasonably practicable measures to give...
Although cross-examination is not an essential feature of every administrative hearing and NCAT has power to dispense with it, denying a party the opportunity to cross-examine an...

Issues before the court

Whether the Tribunal denied procedural fairness by not allowing the appellants to cross-examine the respondent’s director.
Whether denying the appellants’ expert an opportunity to give additional oral evidence denied procedural fairness.
Whether the Tribunal’s case-management powers excluded any right to cross-examine.
Whether the other appeal grounds required determination.

Cited legislation

7 cited instruments linked from this judgment.

Plain English Summary

The appeal succeeded because the homeowners were not given a fair chance to question the contractor’s director about disputed evidence central to what the driveway contract required and what had been promised. The Appeal Panel did not rule on whether the driveway breached the contract or consumer guarantees. It set aside the earlier decision and sent the case back for a new hearing before a different Tribunal member, where further evidence may be given.

AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.

Deep Dive

2,304 words · generated 02/10/2026

What happened

Costa and Helen Jannis engaged Ant-Hassa Pty Ltd, through its director Mr Hassarati, to construct a driveway at their Dural property. The work was agreed to occur in two stages. Stage 1 was completed in December 2016 and stage 2 in August 2017. The homeowners paid the amounts owing. Their dispute concerned stage 1, which they said was not properly constructed, and for which they sought $18,889 in compensation [1].

There was a disagreement about the material and the performance promised. The homeowners said they initially wanted crushed granite and that Mr Hassarati recommended recycled road base, describing it as containing a binder, becoming “as hard as concrete”, not rutting or washing away, and coping with heavy trucks. Mr Hassarati’s account differed. He said he recommended concrete, that Mr Jannis considered it too expensive and disliked its appearance, that the driveway was not intended to be sealed, and that maintenance would be required. The parties ultimately agreed to use recycled road base with lime as a binding agent [5].

After stage 1 was completed, the homeowners complained that its surface was too loose. The parties agreed to a skim coat, applied in August 2017. The evidence also referred to different proportions of binding agent used in the two stages and testing of samples from the driveway [6]. The homeowners obtained a pavement investigation report. The original Tribunal found that the report did not establish that the materials were unsuitable or that the construction failed to comply with national standards. It also considered the report’s design parameters related to rehabilitation of a trafficked pavement, rather than establishing the applicable requirements for this rural driveway [8]. The Tribunal was not satisfied that the driveway was unfit for the purpose of a rural driveway where delivery trucks might visit several times a year [9].

The Tribunal dismissed the homeowners’ application. It treated the Home Building Act claim as outside its jurisdiction because it considered the alleged defects non-major and the claim out of time. The homeowners did not appeal that part of the decision. The Tribunal did consider the consumer claim under the Australian Consumer Law (NSW), including guarantees under ss 60 and 61, but was not satisfied that those guarantees had been breached [2]-[4].

The Appeal Panel did not determine whether the driveway was defective, whether the parties’ contract had been breached, or whether the ACL guarantees applied in the way the homeowners argued. It allowed the appeal because of the way the hearing had been conducted. The Tribunal had not allowed the homeowners to question Mr Hassarati about disputed evidence that mattered to the issues being decided. The Appeal Panel set aside the Tribunal’s orders and remitted the case for a rehearing before a differently constituted Tribunal, with liberty for the parties to adduce further or other evidence.

Why the court decided this way

The Appeal Panel’s central concern was the unequal opportunity to test relevant evidence. It accepted that the Tribunal controls its own procedure. Section 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) sets the guiding principle of resolving the real issues justly, quickly and cheaply. Section 38(5)(c) requires the Tribunal to take reasonably practicable measures to ensure parties have a reasonable opportunity to be heard or have their submissions considered [16]. The Tribunal also has power to question witnesses itself under s 46(1)(c) [16], [31].

Those powers do not mean that every party has an unconditional statutory right to cross-examine in every NCAT hearing. The Appeal Panel referred to the fact that the NCAT Act does not expressly provide a general right for parties to examine or cross-examine witnesses, unlike provisions identified in the Victorian and Queensland tribunal legislation [31]. It also explained that cross-examination is not essential to every oral hearing, and there is no rigid rule that fairness always requires it in administrative proceedings [30]. The governing question was therefore whether fairness required the opportunity in this particular case.

The evidence showed that the Tribunal had told both parties at the outset that they would have an opportunity to ask questions about, and test, evidence. However, the transcript did not show that the appellants were invited to question Mr Hassarati after his evidence. When Mrs Jannis sought to ask him about a matter, the Member said, “No, no it’s not about asking” and moved towards clarification and closing submissions. The appellants later referred to a handwritten set of questions concerning, among other things, the manufacturer’s guidelines Mr Hassarati said he had followed and whether his other witness had worked on both driveway stages [26]-[27].

The Appeal Panel connected that hearing sequence to the substance of the dispute. The parties’ evidence conflicted about the original request, what the contractor recommended, what performance was promised, and whether maintenance had been discussed [35]-[37]. The Tribunal needed to determine the contract’s terms and scope to decide the contractual and consumer-guarantee claims. The evidence about drainage, who provided it, and whether it was necessary could also matter [38]. In the Panel’s view, it was not a peripheral disagreement. The disputed evidence went to the obligations that the Tribunal had to assess.

The asymmetry mattered. Mr Hassarati had been given an opportunity to question the homeowners, but the homeowners could not question him about relevant disputed matters. The Appeal Panel concluded that this failure denied procedural fairness [39]. Because a denial of procedural fairness is an error of law, the Panel set aside the orders and remitted the case [15], [40]. It expressly left the other grounds of appeal undecided [41].

Before and after state of the law

The judgment describes the applicable procedural position as a balance between tribunal flexibility and the requirements of natural justice. Before this decision, the relevant framework already allowed NCAT to manage its hearings and to determine procedures where the Act and procedural rules did not prescribe them. The Tribunal could inquire into and inform itself as it saw fit, subject to natural justice [31]. Section 46 also authorised the Tribunal itself to call, examine and cross-examine witnesses [16], [31].

The Appeal Panel did not announce a general rule that parties must always be allowed to cross-examine. It expressly rejected that kind of rigid proposition, referring to authority that cross-examination is not essential to every oral hearing and that fairness does not invariably require it [30]. Nor did the Panel treat the absence of an express general party right in the NCAT Act as ending the fairness inquiry. Its analysis was contextual: the importance of the disputed evidence, the parties’ unequal opportunity to test it, and the Tribunal’s need to resolve the conflict were central.

The judgment therefore clarifies the application of existing procedural fairness principles in the circumstances before it. Where a tribunal is deciding material factual disputes, and one party has had an opportunity to question the other while being denied an opportunity to question that party’s witness, the denial may amount to procedural unfairness. The judgment’s conclusion rests on the evidence and hearing conduct in this case, not on an automatic entitlement to cross-examination in all tribunal proceedings.

The decision did not finally determine the homeowners’ claims or change the substantive tests under ss 60 and 61 of the ACL. It did not decide whether the services were performed with due care and skill, whether they were fit for a disclosed purpose, or whether the homeowners had established a contractual breach. Those issues remained for the rehearing, after the evidence and contract terms were properly considered.

Key passages with plain-English translation

At [30], the Appeal Panel said that “cross-examination is not an essential element of an oral hearing” and that fairness does not always require it in an administrative hearing. In plain English, a tribunal can use flexible procedures. The judgment does not create a rule that every witness must always be questioned by the other party.

At [31], the Panel explained that NCAT’s power to set its own procedure is subject to natural justice. In plain English, procedural flexibility has limits: the Tribunal must still conduct the hearing fairly.

At [33], the Panel stated that the Tribunal erred by “not allowing cross-examination and/or failing to offer the appellants with a chance to do so”. This identifies the procedural failure. The problem was not simply that the appellants did not ask questions; the Panel considered that they had not been given a fair opportunity to do so.

At [39], the Panel linked the unequal opportunity to the disputed issues and held that the failure constituted a denial of procedural fairness. In plain English, the appellants were denied a chance to test evidence that mattered to the decision, while the respondent’s director had been given a chance to question them.

At [40], the Panel said the decision should be set aside and the proceedings remitted for rehearing. This was a procedural remedy. It did not decide who was right about the driveway or whether compensation was payable.

The Panel also made observations about issues for the rehearing. At [43], it noted that the original Tribunal appeared not to have considered whether a breach-of-contract claim might be pursued under other provisions of s 48K of the Home Building Act, as distinct from the statutory-warranty claim. At [44], it identified the importance of clarifying what work the contract covered, whether any work such as drainage was excluded, and what warnings had been given about maintenance and performance. At [45], it noted photographs of a significant pothole and evidence of erosion that would need to be evaluated against the obligations said to have been assumed.

What fact patterns trigger this precedent

The judgment is relevant where an administrative tribunal decides a case involving material disputed evidence and one party is not given a reasonable opportunity to test the opposing party’s witness. The facts that mattered here included the director’s evidence about what the homeowners requested, what he promised, and the nature of the agreed work. Those matters were central to identifying the contract terms and assessing the consumer-guarantee claims [34]-[39].

The procedural imbalance was also significant. The respondent’s director had an opportunity to question the homeowners, but the homeowners were not offered an opportunity to question him. The transcript indicated that the Member moved on from their request to ask about his evidence [23]-[27]. The Panel did not treat every failure to permit cross-examination as unfair; it examined what the disputed evidence concerned and how necessary it was to deciding the claims.

The decision may therefore be pertinent to hearings where a party is self-represented, the tribunal controls questioning, and a party is unclear about whether or how they may challenge evidence. The Panel referred to cases recognising that failing to explain procedure to an unrepresented party, if requested, may also raise fairness concerns [29]. However, the judgment does not say that every procedural explanation must be given in every case. Its reasoning remains tied to the circumstances and the impact on the opportunity to be heard.

The decision is less directly concerned with a complaint that a party could not add new expert evidence where the expert report had already been filed and admitted. The Panel rejected that separate ground, noting the potential unfairness to the other party if additional oral expert evidence were introduced without a proper opportunity to consider and answer it [19]-[22].

How later courts have treated it

The supplied judgment contains no discussion of later decisions applying, distinguishing or reconsidering Jannis. It was decided on 29 May 2020, and the material provided does not include subsequent case law. The later treatment of the decision therefore cannot be established from this judgment alone.

The authorities discussed by the Appeal Panel are authorities it considered in reaching its own decision, not later treatment of Jannis. The Panel referred to Morgan v Shardlan and Gallo v Duflou for the possibility that failure to allow cross-examination can deny procedural fairness, and to Lee v Cha, Wilson and Renda concerning procedural explanations and unrepresented parties [28]-[29]. It also referred to O’Rourke v Miller and Sullivan v Civil Aviation Safety Authority for the qualification that cross-examination is not invariably required [30]. Cheung v Yang was cited in relation to the Tribunal’s power to dispense with cross-examination, provided procedural fairness is observed [31].

Still-open questions

The Appeal Panel did not resolve the merits of the driveway dispute. The rehearing would need to identify what the parties agreed the contractor would do, what material and performance characteristics were promised, and whether any work was excluded or to be undertaken by the homeowners or another supplier [35]-[38], [44].

The Panel also did not decide whether the evidence established a breach of ss 60 or 61 of the ACL. It identified the need to assess the contract and the service actually provided, including the significance of any warnings about maintenance and performance [44]. The effect, if any, of s 18F of the Home Building Act on such warnings was left for consideration at the rehearing.

The treatment of the Home Building Act claim remained an open issue. The Panel observed that the original Tribunal had described the claim as one for breach of statutory warranties, but appeared not to consider whether a breach-of-contract claim might otherwise be pursued under s 48K [43]. It did not decide that question.

Finally, the Panel did not determine how much weight should be given to the expert report, the photographs, the evidence of erosion, or the test results. It noted that the pothole and erosion evidence required evaluation against the obligations assumed by the contractor [45]. Those factual and legal questions were left to the differently constituted Tribunal.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.

Judgment (8 paragraphs)

[1]

Overview

Mr and Mrs Jannis had a verbal agreement with a contractor Ant-Hassa Pty Ltd (through its director Mr Hassarati) to construct a driveway at their residential property in Dural. It was agreed that the driveway would be constructed in two stages. The first stage was completed in December 2016 and the second stage was completed in August 2017. All monies owing were paid to the contractor company. Mr and Mrs Jannis complained that the first stage of the driveway was not properly constructed, and brought a claim to the Consumer and Commercial Division of the Tribunal seeking compensation in the amount of $18,889.
The Tribunal considered the application as effectively alleging breaches of the Home Building Act 1989 and of certain consumer guarantees under the Australian Consumer Law (NSW) (ACL), which applies as a law of New South Wales under s 28 of the Fair Trading Act 1987 (NSW). The Tribunal dismissed the Jannis' application. They now appeal to the Appeal Panel of the Tribunal in respect of part of the Tribunal's decision dated 10 October 2019 ("Decision").

[2]

The decision under appeal

The Tribunal concluded that any defects in the driveway were not major defects (in respect of which there is a six year limitation period), but were only capable of being characterised as non-major defects (in respect of which there is a two year limitation period). On the basis that a claim under the Home Building Act had not been lodged within two years of the date of completion of the work, the Tribunal dismissed the application for breach of the Home Building Act for lack of jurisdiction. Mr and Mrs Jannis do not appeal against this part of the Decision.
The Tribunal considered it did have jurisdiction to consider the dispute about the construction of the driveway as a consumer claim under the Fair Trading Act. The dispute was, and remains, limited to stage 1 of the construction of the driveway.
The Tribunal considered whether ss 60 or 61 of the ACL were breached by the respondent company in its provision of services to Mr and Mrs Jannis as consumers. Under s 60, a business must exercise due care and skill when providing services to consumers. Under s 61 the services provided must be reasonably fit for purpose (with some exceptions not presently relevant). In cases where consumers disclose they want services for a specified purpose, or to achieve a particular result, the business guarantees the services will be fit for the specified purpose. After consideration of the evidence before it, the Tribunal concluded it was not satisfied there had been a breach of ss 60 or 61 of the ACL.
The findings of fact are set out in the Decision dated 10 October 2019. It is not in dispute that Mr and Mrs Jannis initially wanted crushed granite for their driveway. The parties met on site on 16 September 2016. Mr and Mrs Jannis assert that Mr Hassarati told them, "you should use recycled road base, it will have a binder in it and will be as hard as concrete and won't rut or wash away and will cope with heavy trucks, 12 tonne". The respondent agrees the property owners initially asked for crushed granite, but maintains he told them concrete would be the best option. His version of the discussion was that Mr Jannis thought concrete was too expensive and did not like the concrete look. Mr Hassarati further said the driveway was not meant to be sealed and that this was made clear to Mr and Mrs Jannis. Mr Hassarati also gave evidence that he told them putting concrete with the road base would give it a better bind. He also told them such a driveway needs maintenance. The parties then came to an agreement that recycled road base would be used, with a binding agent (lime) in it.
When the construction of stage 1 of the driveway was completed in December 2016, Mr and Mrs Jannis made known on a number of occasions that they were not happy with the texture of the driveway as they considered it too loose. It was agreed that a skim coat (being a layer of gravel) would be applied to the stage 1 of the driveway, and this was done in August 2017 when work on stage 2 was being carried out. It was common ground that a higher percentage of binding agent was used for stage 2 of the driveway.
Various emails were exchanged from November 2017 and March 2018. Mr Hassarati came to inspect the driveway on 26 March 2018 and, according to Mr and Mrs Jannis, took photos and agreed the driveway should not look the way it did. Mr and Mrs Jannis obtained a report from the supplier Hanson, which tested samples for lime content. The lime content was 2% in the material purchased for the first part of the constructed driveway and 3% for the material purchased in the second stage. Tests conducted on the actual driveway showed a lime content of 2.6% for the first part and 4.2% for the second stage of the construction.
No resolution was reached by the parties in relation to the construction of stage 1 of the driveway. Mr and Mrs Jannis commissioned Durkin Constructions Pty Ltd to provide them with a report for the purposes of Tribunal proceedings. In a report entitled Pavement Investigation Report (issued on 15 July 2019), Mr Loney indicated that the purpose of the report was to: "assess the pavement and recommend treatment options to reduce issues occurring on site and to restore to its original intended state (unsealed and bound)".
The Tribunal found that that this report did not establish that the materials used for the driveway were not suitable, or that the construction failed to comply with national standards. It was noted that the author inspected the site in July 2019, and not when the work was completed in December 2016. The Tribunal continued at [35] of the Decision: Page 12 of the report sets the design parameters for "rehabilitation of the pavement as per minor trafficked pavement with a single lane traffic according to table 5.3 of AustStab Pavement Recycling and Standards Guide 2015 for 20-year design life". Firstly, the report sets out what is required for the rehabilitation of the driveway. It does not point to the respondent not rendering the service with due care and skill. Secondly, it's an association guide setting the parameters for roads, not rural driveways. The report does not establish that the materials used are not suitable for a rural driveway. It does not show that the construction does not comply with any national standards".
Mrs Jannis' own evidence was that a truck may need to visit the property a few times a year to make deliveries. The Tribunal found there was no evidence to suggest that the driveway was not reasonably fit for the purpose of a driveway on a rural property where trucks may make deliveries several times a year.

[3]

Grounds of appeal

In their Notice of Appeal dated 11 November 2019, Mr and Mrs Jannis contend that the Tribunal made the following errors: 1. Failed to allow them to put any evidence in reply before the Tribunal after the respondent closed its case; 2. Erred in not finding that they made known to the respondent the purpose for which the services were being acquired as envisaged in s 61 of the ACL; 3. Erred in failing to find that the product resulting from the services was not reasonably fit for the disclosed purpose; 4. Erred in not finding that the product resulting from the services is of such a nature, quality, state or condition that they might reasonably achieve the result that Mr and Mrs Jannis wished the services to achieve; 5. Erred in failing to take into account all available evidence, including the photographs tendered by them, that the driveway was not bound; 6. Erred in giving insufficient weight to the expert report of James Loney because he did not inspect the driveway in December 2016; 7. Erred by failing to give sufficient or any weight to their uncontested evidence and that of James Loney; 8. Erred by failing to give any weight to the respondent's admission that the driveway is not bound and will never be bound; 9. Erred in failing to make a Jones v Dunkel inference in the respondent's failure to put photos and video taken by Mr Hassarati into evidence.
Mr and Mrs Jannis have a right of appeal on a question of law, otherwise they require leave to appeal: s 80(2)(b), Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). In relation to their Notice of Appeal, they argue that: grounds 1, 5 and 9 are questions of law; grounds 2, 3 and 4 are mixed questions of law and fact; and grounds 6, 7 and 8 are questions of fact only.
We had before us at the appeal hearing the Notice of Appeal, Reply to Appeal, written submissions from the parties, copies of directions made on 19 November 2019 in the appeal proceedings, the Tribunal's decision dated 10 October 2019, original application to the Tribunal (with supporting materials), and an Appeal Book lodged with Tribunal on 23 December 2019 (referred to in these reasons as "AB"). Mr and Mrs Jannis were represented by a solicitor at the appeal hearing (but not in the Tribunal proceedings below); the respondent company appeared through its director, Mr Hassarati, and was not legally represented at the appeal hearing (or at the Tribunal proceedings below where Mr Hassarati also appeared).

[4]

Issues on appeal

The issues on appeal may be summarised as follows: 1. Did the Tribunal make any error of law identified by the appellants? In summary, those alleged errors are: 1. the Tribunal failed to afford procedural fairness to the appellants by not allowing them to put evidence in reply after the respondent closed its case; 2. the Tribunal failed to take into account all available evidence that the driveway was not 'bound'; 3. the Tribunal failed to draw an adverse inference from the company's failure to put photos and video taken by Mr Hassarati into evidence; 4. the Tribunal identified the wrong issue or asked the wrong question, and/or took into account an irrelevant consideration or failed to take into account a relevant consideration, in asking whether the driveway was 'fit for purpose' for a rural driveway, thus misdirecting itself as to the legal test in s 61 of the ACL; 5. the Tribunal erred by making a legally unreasonable decision. 1. Should leave be granted to appeal on questions other than questions of law, on the basis there has been a substantial miscarriage of justice in the Tribunal's evaluation of the evidence before it?

[5]

Whether Tribunal failed to afford procedural fairness

The appellants assert a denial of procedural fairness by reason of the manner in which certain aspects of the original hearing was conducted. In essence, they said they were denied an opportunity to adduce evidence in reply, both from their expert and by way of cross examination of the respondent's witnesses.
If made out, breach of procedural fairness is an error of law.
The Tribunal is entitled to exercise its discretion to direct how proceedings are managed and heard. In doing so the Tribunal must have regard to the guiding principle, namely the just, quick and cheap resolution of the real issues in dispute under s 36(1) of the NCAT Act. The Tribunal is also obliged to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (s 38(5)(c), NCAT Act). The Tribunal may, itself, cross-examine witnesses (s 46(1)(c)).
In the present case, directions were made for the filing and service of evidence by the parties.
Complaint is made about two matters. Firstly, the appellants complain that their expert was not permitted to lead evidence to clarify his report. This was said to be evidence in reply. We note that Mr Loney's report was provided to the respondent and the Tribunal prior to the Tribunal hearing, in accordance with written directions of the Tribunal. The Tribunal admitted the report into evidence.
Where that evidence should have been provided in written form in accordance with directions previously made, denying a party the opportunity to examine their own expert witness to adduce additional evidence, will not, as matter of course, constitute a denial of procedural fairness. Moreover, if the appellants' expert witness had been allowed to give additional oral expert evidence at the hearing, beyond what was already contained in the report, there would have been a manifest unfairness to the respondent, who would not have had an opportunity to properly consider that expert evidence and, if necessary, to adduce further evidence in reply: Amos v PPT Investments Pty Ltd [2019] NSWCATAP 226 at [30].
Mr Loney was made available at the hearing by the appellants for cross-examination in accordance with the usual practice in the Consumer and Commercial Division. However there is no obligation on a party to question another party's witnesses. The respondent did not question the appellant's expert witness and in so doing, the respondent did not challenge the evidence given by Mr Loney in his written report. As the expert's evidence was not challenged by the respondent, it is difficult to see how the appellants were denied procedural fairness or a reasonable opportunity to be heard on their case on the basis asserted.

[6]

Other matters

We make some brief observations about the reasons of the Tribunal and the matters which, in our opinion, will need to be considered at the rehearing:
First, the Tribunal determined the claim was a home building claim within the meaning of the Home Building Act, "residential building work" being work for which "the reasonable market cost of the labour and materials involved" is an amount greater than $5000.00 (Home Building Regulation, 2014 (NSW) cl 12) and being in respect of a dwelling which includes "driveways, paths and other paving" (Sch 1 cl 3(2)(k) Home Building Act). However, the Tribunal found that it had no jurisdiction to determine the claim which the Tribunal described as "proceedings for breach of statutory warranties" because the Tribunal said the claim did not relate to a major defect and had not been brought within the two year period as provided by s 18E of the Home Building Act.
This limit on the Tribunal's jurisdiction only operates in respect of claims for breach of statutory warranty: s 48K(7). Amongst other things, there appears to be no consideration by the Tribunal of the other provisions of s 48K of the Home Building Act and whether a claim for breach of contract might otherwise be pursued under that Act.
Secondly, in the absence of determining the exact services to be provided under the contract and what, if any work was expressly excluded (for instance drainage) and/or was to be carried out by the Mr and Mrs Jannis (personally or through another subcontractor/supplier), it is difficult to see how the claims under the ACL could be resolved. Similarly, having regard to the terms of the statutory warranties, and the fact they are implied terms in the contract, it may be necessary to consider the nature and effect of any warnings given by Mr Hassarati concerning the characteristics, need for maintenance and performance of the road surface provided, and whether such warnings are impacted by s 18F of the Home Building Act.
Thirdly, on the material provided to the Appeal Panel, there were photographs recording a significant pothole in the road. There was also evidence of erosion. It is unclear how this evidence was dealt with by the Tribunal and how it was evaluated against the obligations assumed by Mr Hassarati in terms of breach of contract and claims made under the ACL.
No doubt these, and any other issues raised by the parties, can be considered when the proceedings are reheard.

[7]

Orders

For the reasons above, the appeal is allowed and the following orders are made: 1. The orders made on 10 October 2019 in application HB 19/26920 are set aside and the proceedings are remitted for rehearing by a differently constituted Tribunal. 2. The parties have liberty to adduce further or other evidence. 3. The remitted proceedings should be listed for directions in the Consumer and Commercial Division as soon as possible.

[8]

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: 29 May 2020