JE Flaherty and DC McMullen t/as DM Construct v King [2026] NSWCATAP 106;

Collins v Urban [2014] NSWCATAP 17

Dranichnikov v Minister for Immigration, Multicultural and Indigenous Affairs [2003] HCA 26

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Haritos v Commissioner of Taxation [2015] FCAFC 92

Housing Commission of New South Wales v Tatmar Pastoral Co (1983) 3 NSWLR 378

Lee v Huo [2026] NSWCA 15

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231

Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

Ruscoe v Walker [2001] FamCA 268

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8

Unique Commercial Group v Cusumano [2024] NSWCATAP 204

West v Mead [2003] NSWSC 161

Jennifer Ellen Flaherty and Daniel Craig McMullen t/as DM Construct (Appellants)

1. By Amended Notice of Appeal filed on 10 February 2026 Jennifer Ellen Flaherty and Daniel Craig McMullen t/as DM Construct (the builders) appealed against orders made by the Tribunal on 4 November 2025 in proceedings between Daniel Robert King and Melissa Anne King (the homeowners). The builders also sought leave to appeal.
2. The Tribunal awarded the homeowners compensation in the sum of $10,148.93. In lieu of that order, the builders sought that the homeowners be ordered to pay them the sum of $36,788.19. The parties' dispute arose from an oral building contract between the parties, pursuant to which the builders performed work, the quality of which the homeowners challenged.
3. On 5 January 2026 the homeowners filed a Reply to the appeal, seeking its dismissal, and the refusal of a grant of leave to appeal. On 5 January 2026 the homeowners filed submissions in support of their Reply.
4. On 13 February 2026 the builders filed written submissions and a number of volumes of documents and a sound recording of the hearing before the Tribunal on 1 and 2 July 2025.
5. On 25 February 2026 the homeowners filed submissions in reply to the builders' submissions and a bundle of documents.
6. The Appeal Panel had before it all the documents which were before the Tribunal at first instance. The Appeal was heard on 5 March 2026. The builders were represented by Counsel. Mr King represented the homeowners. The Appeal Panel reserved its decision at the conclusion of the hearing. These are the reasons for the Appeal Panel's decision.

1. The proceedings at first instance were heard by the Tribunal on 1 and 2 July 2025. On 4 November 2025 the Tribunal published to parties the reasons for its decision (Reasons).
2. The Tribunal recorded by way of background at [6] that the homeowners engaged the builders to "undertake significant renovation works of their home".
3. The parties entered into a verbal "cost plus" contract. A formal written contract pursuant to the provisions of the Home Building Act 1989 (NSW) (HBA) was never executed (Reasons, [7]). Work commenced in March 2021, ceased shortly thereafter as a result of a stop work order issued by the local council and resumed in August 2023 when a Construction Certificate was issued (Reasons, [8]).
4. From August 2023 the builders performed work and issued invoices, which the homeowners paid. The Tribunal found at [9] that their relationship "broke down in December 2023 when the homeowners became concerned about the quality and increasing cost of the works and shortly thereafter, payments from the homeowners ceased. As a result, the builder stopped work on the site". It is not in dispute that the builders had not then completed work pursuant to the contract.
5. The Tribunal recorded at [10] that the builders commenced the proceedings, seeking payment for work performed in the sum of $34,616.04, and compensation for the value of site fencing which had not been returned by the homeowners. By cross-application, the homeowners sought damages at the jurisdictional limit of the Tribunal of $500,000 (Reasons, [11]) for what they alleged was defective and incomplete work of the builders, together with financing costs and other expenses.
6. The Tribunal identified at [12] its jurisdiction to determine the proceedings as deriving from ss 28 and 29 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and at [13] the "enabling" legislative provisions of the HBA. There is no suggestion that the Tribunal misconceived that it had jurisdiction to determine the proceedings, or the legislative provisions which governed the exercise of its jurisdiction.
7. The Tribunal recorded at [14] that the work the subject of the dispute was "residential building work" within the meaning of clause 2(1)(b) of Schedule 1 of the HBA, and [15] that the claims made by both parties were "building claims" within s 48A of the HBA. None of those findings is controversial. Nor was the finding at [16] that, by abandoning any claim in excess of $500,000, the homeowners were able to invoke the jurisdiction of the Tribunal.
8. The Tribunal recorded the "evidence tendered and considered" at [18]. Under the heading "Summary of Relevant Law", the Tribunal identified the statutory and other legal principles governing the proceedings. The Tribunal identified at [21] the statutory warranties implied by Part 2C of the HBA with respect to contracts for the performance of building works and recorded, accurately, the warranties provided by s 18B(1)(a)-(d) of the HBA which were relied on by the homeowners. The Tribunal identified at [23]-[25] the provisions of s 7 and s 10(1) of the HBA, the effect of the latter being that the builders were not entitled to damages or to enforce any other remedy in respect of a breach of the parties' agreement by reason of the failure to provide a contract in writing for the works being performed. The Tribunal recorded that s 11 of the HBA preserved any right or remedy that a person may have apart from the Act.
9. The Tribunal referred at [24] to the decision of the High Court in Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5, and at [25] to the builders' ability to bring a claim for restitution on a quantum meruit basis for the fair and reasonable value of the work performed, to prevent the homeowners being unjustly enriched.
10. The Tribunal accepted that, if they were entitled to recovery, the builders made out their case for $34,616.04. The homeowners have not cross appealed or otherwise challenged that finding. The Tribunal arrived at the compensation order made by it after offsetting against the sum of $34,616.04 with the sum of $45,027.71 to which if held that the homeowners were entitled as compensation for defective work performed by the builders. Having not been challenged, it is unnecessary to engage with the Tribunal's reasons with respect to the builders' quantum meruit claim.
11. Under the heading "Measure of Damages for Defects", the Tribunal identified the principles which were relevant to that issue at [26]. There is no dispute that the Tribunal accurately recorded those principles, particularly by reference to the decisions in Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613; [1954] HCA, and Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA. The builders' challenge the Tribunal's finding that the homeowners were entitled to damages in the sum of $45,027.71. The Tribunal rejected the homeowners' claim for consequential loss. There being no cross appeal in relation to the Tribunal having done so, it is unnecessary to refer to the Tribunal's recording at [27] of the principles governing that claim.
12. The Tribunal considered the builders' claim for payment at [28]-[29], noting that, at first instance, the homeowners submitted that the builders' claim should be "dismissed entirely", in reliance on the decision in Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238. For the reasons which it recorded, the Tribunal was satisfied at [32] that the sum of $34,616.04 represented a "fair and reasonable value for the work performed (by the builders) and for which payment has not been made", and further found at [33] that the builders were entitled to damages in conversion for the value of site fencing, a sum of $2,172.15 being allowed in that regard.
13. With respect to the homeowners' cross claim, the Tribunal identified at [35] the first of two heads of damage relied upon by them as being "for significant consequential financial loss, including a 'Property Value Loss' and finance costs associated with their St George home loan and a separate, high interest 'Flipro' renovation loan". The Tribunal rejected those claims. As those findings have not been challenged by a cross appeal, it is unnecessary to engage with the Tribunal's reasons in relation for rejecting those claims.
14. The Tribunal identified at [36] the second head of damages claimed by the homeowners as being for breaches of multiple statutory warranties implied in the verbal building contract by s 18B of the HBA. The Tribunal recorded, accurately, that, although the homeowners alleged a number of defects, their "primary submission relates to the structural steelwork" which was alleged to have breached the implied warranty provided by s 18B(1)(b) of the HBA. The homeowners sought a compensation order to cover the cost of rectification (Reasons, [37]), asserting that a work order was inappropriate "due to a complete loss of trust and confidence in the builder's competence". The Tribunal recorded [38] that the builders denied that the work was defective and submitted that many of the items claimed by the homeowners were "incomplete work" resulting from their suspension of work following the homeowners ceasing to make payments to the builders. For the reasons which it recorded, the Tribunal rejected the homeowners' claim for "Property Value Loss" and for "Consequential Finance Costs". There has been no cross appeal with respect to the Tribunal's decision in those respects.
15. The present focus of attention is on the Tribunal's reasons with respect to the homeowners' claim for the costs of rectifying allegedly defective works. The Tribunal referred at [49] to the expert evidence of Mr Goodwin (homeowners' expert) and Mr Sharman (builders' expert) each of whom provided written reports, jointly prepared a Scott Schedule recording the areas of disagreement between them and gave concurrent oral evidence at the hearing.
16. The Tribunal recorded, accurately there is no issue (Reasons, [50]), about the principles governing the evaluation of expert opinion evidence (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705). The expertise of both experts was not controversial either at first instance, or in the appeal. The Tribunal found at [51] that the evidence of Mr Sharman was "more persuasive and of greater assistance" than was that of Mr Goodwin. The homeowners have not, by cross appeal or otherwise, challenged that finding. In those circumstances, it is necessary to the limited extent discussed later in these reasons, to refer to the extensive reasons provided by the Tribunal at [52]-[54] for its preference for Mr Sharman's opinions to those of Mr Goodwin.
17. The Tribunal recorded, accurately, at [56] that the homeowners bore the onus of proving, on the balance of probabilities, that the builders had breached a statutory warranty, and that the loss they claimed was caused by such breach. The Tribunal also identified that, if a breach and causality were established, there was a dispute as to the appropriate cost of rectification work.
18. The Tribunal found at [57] that, in the circumstances which it recorded, the builders' cessation of work was lawful. The first disputed item, the alleged overcharging for ground floor window installation, was dismissed by the Tribunal for the reasons which it recorded at [58]-[59]. As the homeowners have not challenged that finding, by cross appeal or otherwise, it is unnecessary to say more about that. Nor is it necessary to say more with respect to the Tribunal's rejection at [60]-[61] of the homeowners' claim with respect to slab edge protection.
19. The Tribunal referred at [62] to the homeowners' claim for $2,565.20 for the cost to repair electrical cables severed by the builders' activities. The Tribunal recorded that the builders "did not dispute liability for that damage" and found that it constituted a clear breach of the implied warranty of s 18B(1)(a) of the HBA to perform work with due care and skill. The builders challenge that finding.
20. The Tribunal found, for reasons which it recorded at [63] that the sum of $459.06 identified by Mr Sharman should be preferred to Mr Goodwin's higher estimate. Although the builders disputed that any sum should have been allowed, sensibly in the Appeal Panel's view, in oral submissions having regard to the de minimis sum involved, Counsel for the builders did not extensively further agitate his clients' complaint about that finding.
21. The Tribunal dismissed at [64] and [66] the homeowners' claim for a "relocated kitchen wall" and "tie down strapping". There being no cross appeal or other challenge by the homeowners to those findings, no more need be said about them.
22. The Tribunal rejected at [67] the homeowners' claim for $2,649.90 for repairs to cracked render around the ground floor windows and found, contrary to the builders' contentions, that they had breached the implied warranty pursuant to s 18B(1)(a) of the HBA to perform the work with due care and skill. The Tribunal, however, preferred Mr Sharman's evidence in relation to the cost of rectification, being $1,450.35. Although challenging that finding, Counsel for the builders, sensibly in the Appeal Panel's view, did not engage extensively with the issue in oral submissions, relying on the written submissions made in that regard.
23. In the passages of its reasons which assume critical significance in these. proceedings, the Tribunal considered the homeowners' claim for "structural steelwork remediation" (Reasons, [68]-[74]). The Tribunal recorded, accurately, the quantum and basis of the homeowners' claim at [68] and identified the issues requiring determination as "causation and appropriate remedy for the extensive corrosion visible on the steel members". The builders submit that there was no evidence establishing that the corrosion was "extensive".
24. The Tribunal recorded at [69] that it was "common ground" that the homeowners' property is in a "'severe' coastal environment" and that "significant corrosion is present, particularly where on site welding or drilling has occurred". Although not challenging the former finding, the builders contend that the Tribunal erred by recording that it was common ground that the corrosion was "significant". The Tribunal referred at [70] to the experts agreeing in concurrent evidence that "on site hot work, such as welding, will cause significant damage to the integrity of any pre-applied protective coating, whether it be a paint system or galvanisation" and further found that "[g]iven the undisputed fact that extensive on site welding took place to connect the steel members, I find that the Builder's method of installation rendered the protective system ineffective at its most critical points", the steel, as installed, being found to not have been "good and suitable for the purpose", contrary to s 18(1)(b) of the HBA. The builders challenge the latter finding.
25. The Tribunal recorded at [71], uncontroversially, that if the homeowners established an entitlement to the cost of rectification, it would be for necessary and reasonable work. For the reasons which the Tribunal recorded [72]-[74], Mr Sharman's methodology was preferred, as the "more reasonable course to adopt under the principles of Bellgrove". The Tribunal thus found that the quantum opined by Mr Sharman, $45,027.71, should be the sum allowed pursuant to the homeowners' claim, rather than the sum of $258,033.60 opined by Mr Goodwin. The homeowners have not, by cross appeal or otherwise, challenged the Tribunal's finding with respect to the structural steelwork remediation. The builders maintain that the Tribunal erred in allowing any sum pursuant to that claim.

1. The principles governing the appeal are not in doubt and do not require extensive restatement.
2. Pursuant to s 80(1)(b) of the CAT Act, the builders are entitled to appeal as of right on questions of law. Although it is theoretically possible, having regard to the builders' amended grounds of appeal and to the authorities (Collins v Urban [2014] NSWCATAP 17), it is difficult to see how, if none of those grounds finds favour, the builders would be granted leave to appeal.
3. The builders' grounds of appeal include challenges to the Tribunal's findings of fact. In Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, it was accepted that questions of law included decisions made in reliance upon erroneous findings of material facts. In Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54, at [17] Barwick CJ said that an appeal court should not reverse a finding unless it is "convinced that it is wrong", and that "merely differing views" do not establish that a finding at first instance was wrong. The builders' challenges assert that there was no evidence upon which the challenged findings of the Tribunal at first instance could have been based (Haritos v Commissioner of Taxation [2015] FCAFC 92).
4. The builders' grounds of appeal include challenges to the adequacy of the Tribunal's reasons for its decision. So called "reasons" challenges have long been recognised as raising questions of law (Housing Commission of New South Wales v Tatmar Pastoral Co (1983) 3 NSWLR 378; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 (Resource Pacific).
5. Each of the builders' challenges raise questions of law.
6. The homeowners have been represented by Mr King. Although, both by his written and oral submissions, Mr King has demonstrated considerable mastery of the subject matter of the proceedings, he is a litigant in person. The Tribunal has, consistent with the authorities (Lee v Huo [2026] NSWCA 15) explained to Mr King matters pertaining to procedural fairness and explained why the Appeal Panel is unable to advise him as to how the homeowners might best advance their case. Although endeavouring to provide a "level playing field", in the context of the present appeal, the Appeal Panel cannot permissibly "even up" the contest.

1. Ground 4(a) of the builders' Amended Notice of Appeal asserts that the Tribunal at first instance erred in law by "failing to give proper reasons for decision for its findings on the defects in the structural steel". Ground 4(b) asserts that the Tribunal erred by "failing to address the pleaded case in relation to the defects in the structural steel", and thereby "identified the wrong issue or asked the wrong question", although pleaded somewhat differently, involves essentially the same issue as ground 4(a). So does ground 4(c), which was pleaded in the alternative to ground 4(b), and asserts that the Tribunal erred in law in "failing to afford natural justice to the builder in its approach to the alleged defect in the structural steel". As the written and oral submissions of the builders confirm, basal to each of these grounds is their contention that, in a number of paragraphs in the reasons for its decision, the Tribunal made erroneous findings of material facts. The first of the assertedly erroneous findings at [68] of the Reasons, was the reference to "extensive" corrosion. The second, at [69] of the Reasons was the finding that it was "common ground" that "significant" corrosion was present in the steelwork at the homeowners' premises. The third, at [70], was that the steel as installed was "not good and suitable for the purpose" of providing long term structural integrity in the (uncontroversially) known severe corrosive environment in which the homeowners' premises were located.
2. Written submissions on behalf of the builders (10 February 2026) (submissions) engaged with the alleged errors of the Tribunal at [62]-[63] with respect to electrical repairs and the decision at [67] with respect to cracked render. It was accepted by Counsel for the builders that to succeed on questions of law, each of these complaints required the Appeal Panel to uphold "no evidence" contentions. Although not conceding that a weight challenge would not succeed, other than pursuant to leave to appeal, in oral submissions, sensibly, Counsel, did not materially develop the builders' case beyond the written submissions made in that regard. In written submissions with respect to each of these complaints, the builders referred extensively to the experts' reports and their oral evidence.
3. The homeowners submitted that the findings with respect to the electrical defect and cracked render claims were open to the Tribunal, as there was evidence which was able to be accepted. The Appeal Panel agrees with that contention. As explained later in these reasons, the difficulty which confronts the homeowners is that, to the extent that the Tribunal's reasons engaged with the evidence of the experts, it provided extensive and persuasive reasons for preferring the builders' expert's opinions to theirs, as reflected by the findings with respect to the reasonable costs of rectification, but, the builders contend without explanation, preferred the homeowners' expert's opinions to those of the builders' expert's opinion with respect to liability for the cost of such rectification.
4. Counsel for the builders correctly submitted that the "most significant" aspect of the homeowners' defect claim related to the steelwork installed by the builders. In written submissions, the builders identified the asserted basis of the homeowners' claim with respect to the structural steel defect claim at [20] of their submission, and Mr Goodwin's view as to the cause for rectification work, and its cost. As submitted on behalf of the builders at [21] of their submissions, the defective structural steel claim "occupied significant time" and expert evidence at the hearing. The Tribunal was submitted to have failed to "grapple" with the issue raised by the homeowners, or with the builders' response, and thereby have fallen into jurisdictional error by failing to address the pleaded controversy. In the alternative, the Tribunal's asserted failure was submitted to have constituted a denial of natural justice to the parties by not addressing their controversy (Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26).
5. The builders submitted [23] of their submissions that "[t]he Reasons consider defects in the steel not on the basis of the coating to the steel, but rather on an issue not fully engaged at hearing, being that of 'causation and appropriate remedy for the extensive corrosion visible on the steel members' (Reasons [68]). Even if this is accepted as a proper decision making process, the Tribunal's reasoning on the issue of corrosion still displays errors which require the setting aside (of) the findings of a defect". The builders submitted at [24] that the Tribunal failed to identify the evidence on which the finding of extensive corrosion at [68] was based (NSW Land and Housing Corporation v Orr [2019] NSWCA 231) or alternatively, by drawing inferences which were not available from the facts as led (Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204).
6. The builders referred at [25] of their submissions, to the homeowners' expert evidence as to the limited extent to which he could see corrosion in the steel in parts of the homeowners' building and absence of knowledge of the condition of the steel which was not visible. The builders relied, at [27], on evidence from their expert that, during a site visit he observed "one instance of early signs of corrosion where steel columns forming part of the internal walls of the property had been left exposed to the elements and not covered up" but, as was Mr Goodwin, was unable to observe the state of the steel which was obscured by wall cladding or other materials. It was accordingly submitted at [28] of the submissions that on no basis could any of the evidence be classified as "extensive corrosion". In support of the claim for leave to appeal, it was submitted that, pursuant to Collins v Urban [2014] NSWCATAP 17, the finding was against the weight of evidence. The builders further submitted at [31] that the transcript revealed "no such agreement between the experts" as the Tribunal recorded at [70] of the Reasons.
7. It is not in contest that there was on site "hot work", such as welding, on the homeowners' property. It was open to the Tribunal to find that such work would cause "damage to the integrity of any pre-applied protective coating, whether it be a pain system or galvanisation". Whether the damage was significant or otherwise, was the subject of disagreement between the parties' experts. The Tribunal preferred the evidence of the builders' expert with respect to the reasonable cost of rectification to that of the homeowners' expert. As the Tribunal's reasons reveal, that involved accepting the builders' expert's opinion with respect to the nature, degree and cost of rectification of the damage to the protective coating of steelwork resulting from the need to do "on site hot work, such as welding" over that of the homeowners' expert by a margin of approximately 6 to 1.
8. With no disrespect to them, particularly with respect to the builders' reasons challenge, the homeowners were unable to do materially more than rely on the findings of the Tribunal at first instance, and reiterate, accurately, that each of its challenged findings had an evidentiary foundation.

The evidence with respect to the findings challenged by the builders

1. To better understand and evaluate the builders' grounds of appeal, and challenges to the critical findings identified above, it is necessary to examine the evidence of the parties' experts in their original reports, in the Scott Schedule prepared by them after their conclave, and in their oral evidence during concurrent examination during the hearing.
2. The builders' expert, Mr Sharman, said in his report of 21 May 2025, at para 133, page 45, that at the time of his inspection he:

"did observe some areas where corrosion was beginning to the steelwork. As the majority of the steelwork is concealed within the building, this was limited to steel columns still exposed to the elements between the level 1 living room windows. In my opinion, this corrosion is typical to:

(i) minor damage caused during construction whereby the paint is scratched or chipped; and

(ii) external exposure."

1. Mr Sharman opined (para 135, page 46) that "[p]resently, as the corrosion is a known occurrence, the truss should be mechanically removed to bare steel and suitability touched up with paint (at least to the NCC requirements)." He further opined (para 136, page 46) that he considered the "external glazing works to the level 1 windows where steel columns are currently exposed to be incomplete building work. This subsequently exposes what should be enclosed internal steel columns because the continued building works did not install the aluminium cover plates that are traditionally fitted between adjoining window frames".
2. Mr Sharman's opinion, page 47, was that:

"137 Given these windows were in the process of being installed when the Builder ceased works, I consider that the cover plates were incomplete works, and not a defect attributable to the builder;

138 I cannot logically ascertain why these posts are still exposed, and that no cover plates have been fitted, knowing that corrosion is occurring. There is no mitigative measures to prevent the corrosion from continuing to occur."

"140 I consider that the remediation to known corrosion are Owner maintenance, especially to the extent that the corrosion has continued where steelwork has knowingly remained exposed to the elements. Is [sic] should not be just left exposed to continue to corrode. Maintenance work would involve what I have noted in paragraph 133 above;

141 I consider that the building work is incomplete without appropriate aluminium cover plates being fitted between the adjacent windows to conceal these steel columns, as previously stated."

1. Mr Sharman then addressed (page 48) his estimate on the basis that "if found" to be the fault of the builders, which he disputed was the case, of the reasonable cost to perform the works which he considered would be appropriate to be undertaken. As submitted on behalf of the builders, nowhere in Mr Sharman's report with respect to the cost of rectification work on an "if found" basis did he resile from, or qualify anything stated in his report with respect to the standard of work done by the builders up to the time when the builders ceased working on the homeowners' property.
2. In his report on behalf of the homeowners, Mr Goodwin opined (para 7.12, page 16) that core drilling by the builders to the bathroom and ensuite floor slabs "had caused damage to the embedded electrical wiring to the floor slabs" which had "necessitated extra electrical works to the ground level garage areas to remediate the damage". Mr Goodwin's opinion was that the builders had not "instigated any cable identification by a qualified electrician, prior to demolition and core drilling process".
3. Mr Goodwin opined (para 7.15, page 16) that the damage to the internal cavity brick walls and render was "evident around the lower level windows' openings", his opinion being that it was "highly likely that these cracks were a result of poor demolition practises" by the builders during the window removal and the process of fitting the new windows.
4. In his report of 18 December 2024, Mr Goodwin said (para 7.6, page 17) that there was "a severe fault in relation to all of the structural steel components" in the building. Mr Goodwin set out in detail why he was of that opinion. Mr Goodwin added (para 7.17, page 18) his opinion that "the installation of the windows to the eastern wall of the kitchen, dining and family room areas is faulty".
5. On 28 May 2025 Mr Goodwin and Mr Sharman conducted a conclave at the homeowners' premises, and on 17 June 2025 produced a Scott Schedule which recorded the outcome of the conclave. Relevantly for present purposes, the conclave report recorded (item 7.12) that the experts were "unable to agree" with respect to the issue of repairs and rewiring to damaged embedded electrical cabling to the suspended floor slab. That disagreement was not qualified by any of the comments by Mr Goodwin or Mr Sharman which were set out in the Schedule.
6. The Schedule recorded (item 7.15) that the experts were "unable to agree" with respect to the issue of repairs to cracked internal cavity brick skins and render associated with window installation to lower level throughout. The comments of each expert with respect to the issue were consistent with their inability to agree.
7. The Schedule recorded, items 7.16 and 7.17, which were concerned with the structural steel dispute, that the experts were "unable to agree", save with respect to recommending that "in an attempt to settle this item that correspondence from a mutually acceptable, reputable Structural Engineer (with a preference for the project Engineer SQS) be sought about the suitability of the PUR5 paint system provided to the steel rather than galvanising. The experts agreed that depending on the receipt of such documentation and its content, that if there are any rectification costs then they be jointly costed in accordance with the advice received". Save to that extent, the experts did not agree as to the liability of the builders for remedial works or, if the builders were liable for the cost of such works, the nature and cost of those works.
8. Counsel for the builders submitted that, nowhere in their concurrent oral evidence did Mr Sharman expressly or impliedly make the concessions which informed the findings of the Tribunal which the builders' grounds of appeal challenge. The Appeal Panel has closely reviewed the transcript of the proceedings, and particularly the oral evidence of Mr Goodwin and Mr Sharman. Perhaps understandably in view of the homeowners' absence of legal training, and without suggesting that compliance with the rule in Browne v Dunn (1893) 6 R 67 was required (West v Mead [2003] NSWSC161), Mr Sharman's opinions were not seriously challenged by the homeowners during his oral evidence. As will be seen, that absence does not ultimately adversely impact the homeowners' case. Without exceeding the permissible limits of doing so in the interests of procedural fairness, to the extent that Mr Sharman's evidence was tested, that occurred in the context of questions put to him by the Tribunal. Properly, Counsel for the builders does not suggest that the Tribunal's questions of either expert were other than appropriate, and in the interests of procedural fairness.
9. The concurrent oral evidence of Mr Goodwin and Mr Sharman with respect to item 7.12, the electrical cabling issue, commenced at page 127 of the transcript of 1 July 2025. The oral evidence concluded at page 131 of the transcript. Nowhere during that evidence did Mr Sharman make the concessions to which the Tribunal referred in the reasons which the builders challenge.
10. The oral evidence of the experts with respect to item 7.15, the render cracking issue, commenced at page 148 of the transcript of 1 July 2025 and continued until page 152. Nowhere in that oral evidence did Mr Sharman expressly or impliedly concede the matter which the Tribunal found with respect to this issue.
11. The oral examination with respect to item 7.16 commenced at page 152 of the transcript and concluded on page 182. Mr Sharman acknowledged, page 161, that the homeowners' property was in a "severe environment", it apparently being at most a few hundred metres from the seashore. Mr Goodwin conceded with respect to the disputed issue that the issue of galvanised or epoxy coatings on steel in those circumstances was a "grey area" (page 174). Mr Sharman said (page 175) "I do not fully agree with Mr Goodwin's methodology. What I saw as important was we had an occupied house - and I'm talking on an if found basis here of course". Nowhere in his oral evidence did Mr Sharman expressly or impliedly concede the findings of the Tribunal which the builders challenge.

1. As recorded earlier in these reasons, a number of the builders' challenges necessarily overlap. If the builders establish their inadequate reasons challenge, it is likely that other challenges would also be successful. Where the reasons for a decision are found to be inadequate, it is difficult to discern what has or has not been, rightly or wrongly, taken into consideration by the Tribunal in reaching its decision. Inadequate reasons may demonstrate a constructive failure to exercise jurisdiction, as explained in Resource Pacific. If the builders establish that the reasons for the decision of the Tribunal at first instance were inadequate, it is unnecessary to consider any other of their challenges or subsets of the reasons challenge.
2. The law with respect to the adequacy of reasons in Tribunal decisions is not in doubt and does not require extensive reiteration. Given however that the homeowners are not legally represented, it is appropriate to engage in somewhat more details with the principles than would be the case if they had been.
3. In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr), under the heading "Relevant principles", Bell P (as Bell CJ then was), with whom Ward JA (as Ward P then was) and McCallum J (as the Chief Justice of the Supreme Court of the ACT then was) agreed, said at [62]:

"The quality of a court or tribunal's reasons can vary immensely, of course, depending upon a range of considerations including the experience and skill of a judicial officer or tribunal member, the complexity of the subject matter, the quality of the submissions made before the court or tribunal, the availability of transcript, the urgency of the matter and the time the judicial officer or tribunal member has to compose his or her reasons."

1. Members of the Consumer and Commercial Division of the Tribunal, and the present is such a case, are required to deal with complex matters, in which not all parties are legally represented, and a transcript of the proceedings is not readily available within the limited timeframe in which the Tribunal must produce a decision. Bell P said, at [66] that "[i]n the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard", adding that "[t]he standard is not one of perfection". His Honour accepted [67] that, as suggested by Gleeson CJ writing extra-curially, and Basten JA in Resource Pacific "[t]ransparency in decision making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality". His Honour suggested that the identification of separate parameters of quantity and quality was "a useful one".
2. In order for them to be adequate, the quantity or detail of reasons was described by Bell P, at [68] as varying with the "nature of the decision maker, whether or not it is a court or tribunal and the nature of the question being decided". His Honour identified at [69] that the case raised an important question with respect to the detail of reasons required of NCAT for a discretionary decision.
3. The decision presently under appeal did not involve the exercise of discretion but was rather an evaluative determination. Nevertheless, the Appeal Panel does not understand that the Court of Appeal's exposition of the principles governing the adequacy of the reasons for Tribunal decisions should be limited to discretionary decisions.
4. Bell P recorded at [70] that "[i]t is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons, with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court". His Honour added at [71]:

"[t]hat having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a tribunal's reasons must possess. These are really supplied, in relation to the tribunal, by s 62(3) of the CAT Act which ... requires there to be set out in reasons (when requested by a party) the matters identified in s 62(3)(a) (b) and (c)".

For present purposes the requirements of s 62(3)(a) and (c) of the CAT Act are relevant.

1. Section 62(3)(a) of the CAT Act requires reasons to record "the findings on material questions of fact, referring to the evidence or other material on which those findings were based". Section 62(3)(c) provides that the reasons must disclose "the reasoning process that led the Tribunal to the conclusions it made". His Honour observed in Orr at [72] that, whilst s 62(3) of the CAT Act provides a "useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed".
2. In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112, at [46], Basten JA said that "[g]enerally, the concept of 'reasons' requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgement, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint". In Orr, at [75], Bell P endorsed Basten JA's observations and added at [76] that what "constitutes adequate reasoning on the part of a tribunal is also informed ... by statements from well known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context".
3. By reference to the authorities to which he referred Bell P, at [77], summarised the principles with respect to the adequacy of reasons as including (citations omitted):

"(i) decision makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expressions of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole;

(ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related;

(iii) the reasons must be read fairly and as a whole;

(iv) the reasons recorded ought not to be inspected with a fine tooth comb attuned to identifying error; and

(v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips."

1. As is clear from the Tribunal's reasons, the findings with respect to liability for item 7.12 - electrical repairs, 7.15 - cracked render and items 7.16 and 7.17 - structural steel framework, were based on the Tribunal's finding that there was no issue that the builders were liable for the cost of rectifying their defective work, the issue being the reasonable costs for rectification of that defective work. If the builders' challenges to the findings with respect to liability are unsuccessful, then the reasons of the Tribunal with respect to that issue are not inadequate. If, as the Tribunal recorded, there was either an absence of dispute with respect to liability, or agreement between the experts in that regard, the Tribunal was able to make those findings and did not need to do more than record that it had found those facts. Conversely, if, as the builders contend, the parties' experts were not in agreement about those issues, the Tribunal needed to engage with them, resolve their disputes, and provide reasons for its findings in that regard.
2. At [52]-[55] of the Reasons, the Tribunal adequately revealed the process of reasoning which led it to conclude at [55] that "where the opinions of the experts conflict on questions of methodology and quantum, the Tribunal has largely preferred the evidence of Mr Sharman, as his reports and sworn oral evidence better satisfy the expert's duty to assist the Tribunal by providing a transparent and reasoned basis for his conclusion." Whilst that finding did not preclude the Tribunal from preferring the evidence of the homeowners' expert with respect to "methodology" and/or liability, unless by agreement or the absence of dispute about them which obviated the need to do so, the Tribunal was obliged to expose the process of reasoning which led it to prefer the evidence of Mr Goodwin to that of Mr Sharman as to liability with respect to items 7.12, 7.15, 7.16 and 7.17.
3. The builders submitted that, nowhere in the written or oral evidence before the Tribunal at first instance did the builders' expert either not dispute liability with respect to any of these items or concede that the homeowners' claims had merit. The Appeal Panel has set out above the written and oral evidence in that regard. With respect to the Tribunal at first instance, the evidence does not reveal that the builders "did not dispute liability" for the damage claimed pursuant to item 7.12.
4. The Tribunal's finding with respect to item 7.15 at [67] records the submission of the builders that the cracked render around the ground floor windows was "'minor' collateral damage". The Tribunal recorded its acceptance of Mr Sharman's evidence with respect to the cause of the cracking. As Mr Sharman's evidence made clear, he did not accept that the builders were responsible for that cracking. The Tribunal found, inferentially in reliance upon Mr Goodwin's opinion that the cracking "goes beyond what is reasonable and constitutes a breach" of the builders' obligation to perform work with due care and skill.
5. The Tribunal recorded with respect to item 7.15 that it "again" preferred Mr Sharman's "itemised and transparently explained costing for the repair". Although less than entirely clear, it appears that, notwithstanding the previous reference to Mr Sharman, the Tribunal accepted the evidence of Mr Goodwin with respect to liability.
6. With respect to items 7.16 and 7.17, the Tribunal recorded [69], accurately, that it was common ground that the homeowners' property was in a "severe" coastal environment. With respect to the Tribunal at first instance, the Appeal Panel's review of the evidence demonstrates that it was not "common ground" that "significant" corrosion was present. The common ground was that there was "some" corrosion. The Tribunal was obliged to resolve the dispute, which was relevant to the question of the liability of the builders.
7. The Tribunal found at [70] that the builders' "method of installation rendered the protective system ineffective at its most critical points", thus finding that the steel as installed was not "good and suitable for the purpose" of providing long term structural integrity in this known severe corrosive environment. Inferentially, the Tribunal proceeded, as the final sentence of [68] suggests, on the basis that it was agreed that there was "extensive" corrosion visible on the steel members. That was not the evidence.
8. Notwithstanding its earlier general findings at [51]-[55] of the Reasons, the Tribunal was not precluded from preferring Mr Goodwin's evidence with respect to liability on these issues to that of Mr Sharman but, in the circumstances, where the parties' experts were in dispute, the Tribunal needed to expose the process of reasoning which led it to inferentially prefer Mr Goodwin's opinion to that of Mr Sharman with respect to the builders' liability for the cost of rectification work. Given that the material findings upon which the Tribunal relied were wrong (Edwards v Noble) the Tribunal needed to engage with each of the issues raised by the parties' experts and provide reasons for its decision with respect to them.
9. In all the circumstances, the Tribunal erred by failing to adequately expose the process of reasoning which led it to find for the homeowners on their cross-claim. As commonly occurs when reasons challenges are advanced, there was little which the homeowners could realistically have submitted in support of their resistance to the builders' challenge. The reasons of the Tribunal speak for themselves. If they are inadequate, as they are in this case, there is generally little which a respondent can submit to change that. The converse is also true.
10. The builders' reasons challenge having been made out, it is unnecessary to further consider the builders' challenges to the decision of the Tribunal at first instance.

1. Counsel for the builders submitted that the Appeal Panel could set aside the decision of the Tribunal at first instance and re-exercise the jurisdiction of the Tribunal at first instance. The Tribunal could do so, as s 81(1)(d) of the CAT Act clearly provides. The Appeal Panel raised with Counsel for the builders the impediments to acceding to the builder's application.
2. The first impediment is that, the appeal having been allowed on the basis that the reasons for the decision at first instance were inadequate, there is a dearth of findings of fact by reference to which the Appeal Panel could properly redetermine the proceedings.
3. The second impediment is that, before the matter is redetermined, either by the Appeal Panel or a member of the Consumer and Commercial Division of the Tribunal other than the Member who decided the proceedings on 4 November 2025, as a matter of natural justice, as the re-hearing would be a hearing de novo, the parties would be afforded the opportunity to adduce further evidence (see Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40).
4. The third impediment is that, if, as appears likely, the evidence in support of the rectification claim by the homeowners remains controversial, the Appeal Panel would need to make findings of fact. Unlike a hearing at first instance, having two Members, the Appeal Panel could potentially have different views with respect to disputed issues of fact.
5. Finally, if the Appeal Panel redetermines the proceedings, and either party is aggrieved by our decision, it would be necessary for that party to challenge the decision in the Supreme Court. The cost of doing so would be not insignificant. Conversely, if the matter is re-determined by a Member of the Tribunal, and a party is aggrieved by the outcome of the rehearing, a further appeal to the Appeal Panel lies as of right on questions of law.
6. There is no reason in principle why the Appeal Panel cannot limit the scope of the re-hearing of the proceedings (Ruscoe v Walker [2001] FamCA 268). There having been no cross appeal challenging the findings of the Tribunal at first instance with respect to the builders' claim, or the Tribunal's findings with respect to the homeowners' claims, it would be unfair to the builders if, at a re-hearing, the homeowners were able to re-agitate those claims which the Tribunal at first instance rejected, or the quantum of the claims which it found proved. Had the homeowners been legally represented, the Appeal Panel would have raised the asserted ambit of the re-hearing with them. In the interests of procedural fairness, the Appeal Panel declined to do so. In the circumstances, the preferrable course is to defer the ambit of the re-hearing to the Tribunal Member who conducts that hearing.
7. Costs will be reserved.

(2) The orders of the Tribunal of 4 November 2025 are set aside.

(3) The respondents' cross-claim is remitted for re-hearing by a Tribunal Member other than the Tribunal Member who decided the proceedings on 4 November 2025.

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.