KASE INDUSTRIES PTY LTD v REVILL

Tribunal: Presidential Member J Lucy

Date of Orders: 31 October 2025 Date of Reasons for Decision: 31 October 2025 Date of Publication: 10 November 2025 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 44/2025

BETWEEN: KASE INDUSTRIES PTY LTD Appellant AND: PHILLIP REVILL Respondent

APPEAL TRIBUNAL: Presidential Member J Lucy

DATE: 31 October 2025

ORDER The Tribunal orders:

1. Appeal dismissed.

……………………………….. Presidential Member J Lucy REASONS FOR DECISION

Introduction 1. A concreting company appealed from a decision of the Original Tribunal to award damages to compensate a home owner for the cost of removing and replacing a concrete driveway installed by the company. It found that the concreting company had breached an essential term of the contract, requiring it to match the colour of the new driveway to the colour of existing concrete “as best possible.”

2. The concreting company appealed from that decision on a number of grounds, including that the tribunal had no jurisdiction to determine the application because the work was performed in New South Wales, that the contractual term was void for uncertainty and that the Original Tribunal erred in awarding damages for the cost of removing and replacing the concrete, where it should have limited any damages to the cost of painting and sealing the concrete.

3. The appellant has not established that any of its grounds of appeal should succeed and I have accordingly dismissed the appeal.

Background

4. Mr Revill, a home owner, entered into a contract with Kase Industries Pty Ltd (the Concreting Company) to undertake concreting works to construct a driveway at his property in New South Wales for a sum of $18,000. The parties agreed on the supply and installation of approximately 100 square metres of concrete to match the existing grey concrete at the property “as best possible.”

5. Concreting works commenced at Mr Revill’s property on 13 May 2024. When the pour was to take place, the Concreting Company arranged for a representative of his concrete colour supplier, known as Hansons, to attend the site, for the purposes of advising on the correct colour of the concrete.

6. On 17 May 2024, Mr Revill paid the Concreting Company $18,000 for concreting services undertaken on his property.

7. The concrete supplied to the property did not match the colour of the existing concrete, but was instead a pinkish colour.

8. On 22 October 2024, Mr Revill lodged a civil dispute application with the tribunal, claiming $24,828 from the Concreting Company, comprising $23,500 in damages and the remainder being for filing fees, search fees and other costs.

9. The Concreting Company conceded that the colour of the new concrete did not match the old concrete, and offered to have the new concrete recoloured, and to apply a sealant. Mr Revill opposed this, seeking compensation for the removal of the concrete and installation by another provider.

10. At the hearing on 11 April 2025, the Concreting Company also contended that, because the Hansons representative and Mr Revill had agreed upon a colour, the Concreting Company had fulfilled its obligations under the contract. Mr Revill denied that the Hansons representative had shown him a colour sample.

11. The Original Tribunal reserved its decision, then delivered oral reasons and made orders on 17 April 2025. It found that an essential term of the contract between the parties was “colour to be matched as best possible.” It found that the Concreting Company had breached the contract by failing to pour concrete of a colour matching the existing concrete.

12. As to remedy, it noted that Mr Revill was entitled to be placed in the same situation with respect to damages as if the contract had been properly performed. The Original Tribunal considered that Mr Revill had rejected the offer to recolour the concrete for good reason, because the warranty that would apply would be significantly less than if the job had been done correctly the first time.

13. Accordingly, on 17 April 2025, the Original Tribunal ordered the Concreting Company to pay Mr Revill the amount sought in the claim, namely $24,828.

Appeal

14. The Concreting Company lodged an appeal from the Original Tribunal’s decision on 14 May 2025.

15. In its application for appeal, the Concreting Company identified the following grounds of appeal: (a) The Original Tribunal did not have jurisdiction to deal with the application because the contract was formed in New South Wales and the works were completed in that state; (b) The Concreting Company was denied procedural fairness; (c) The Original Tribunal made errors in respect of findings concerning the evidence; (d) The Original Tribunal made findings of fact it was not able to make. (e) The Original Tribunal erred in respect of its determination of damages, including by finding that rectification required complete removal of the concrete, rather than a less expensive permanent rectification method.

16. The Concreting Company later provided a document identifying errors of fact, law or discretion affecting the decision, in accordance with the tribunal’s orders. In this document, the Concreting Company identified further alleged errors being: (a) The term requiring the colour to be matched “as best possible” should be severed from the contract because of uncertainty; and (b) The Original Tribunal assessed the evidence incorrectly, because the question is not whether the concrete matched the existing concrete, but whether there was evidence that the colour was not matched “as best possible.” It said that there was no evidence to support the conclusion that the concrete was matched “as best possible” so that the Original Tribunal should have rejected Mr Revill’s claims. Nature of the appeal

17. An appeal tribunal may, as it considers appropriate, deal with an appeal as a new 1 application or as a review of all or part of the Original Tribunal’s decision. Generally, the appeal tribunal determines how it is going to deal with an appeal 2 at the first directions hearing, as it did in this case. At the hearing of the appeal, I confirmed with the parties that the appeal was being dealt with as a review of the Original Tribunal’s decision and that the appellant had to establish an error of

1 ACT Civil and Administrative Tribunal Act 2008, s 82(1) 2 Mansour v Dangar [2017] ACAT 49 at [23]; See Order 10 of Directions made on 18 June 2025 3 fact, law or discretion. An appeal which is dealt with as a review is what is 4 usually called a rehearing.

18. When conducting an appeal as a review or a rehearing, “the role of the Tribunal is to undertake a thorough review with a view to determining whether the Original Tribunal fell into an error of law, made a finding of fact that is clearly in error, or exercised a discretion on a wrong principle or in a way that is clearly wrong and 5 that the error affected the result.”

19. In Mansour v Dangar [2017] ACAT 49, Presidential Member Daniel (as she then was) summarised the distinguishing features of the two different approaches to an appeal as follows: For a new hearing, established principles dictate that the hearing starts afresh, evidence is given again, and the appeal tribunal’s view on any question of fact or law is determinative of the issue. Any discretion to be exercised by the original tribunal is exercised anew by the appeal tribunal. By contrast, for a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal’s findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal’s primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal is not at liberty to interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion. (Footnotes omitted)

20. I have adopted that approach to an appeal by way of rehearing in this case.

Leave to rely on additional evidence

21. The Concreting Company applied for leave to rely on evidence which was not before the Original Tribunal. Section 82(2) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides that an appeal tribunal may, if leave is granted, receive further evidence about questions of fact, either orally in a hearing, by written statement or in another way.

3 Transcript of hearing dated 12 August 2025, page 5, lines 26 to 30; page 10, lines 11 to 15 4 Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207 at [13]-[14]; see also Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [36]-[37] 5 Khan v Filardo Ercan Architects Pty Ltd ACN 647 677 263 [2024] ACAT 22 at [6]. See also Zeng v Crane [2022] ACAT 70 at [27]; Feng v UP 840 [2023] ACAT 8 at [7]

22. The new evidence is a statement of Sam Paul, dated 7 July 2025. Mr Paul is a director of the Concreting Company, who represented the company at the hearing before the Original Tribunal. In that statement, Mr Paul gave evidence relevant to the company’s procedural fairness ground.

23. The overarching principle to be applied when considering whether to allow new 6 evidence on appeal is whether that would be in the interests of justice. Whilst it is not usually in the interests of justice to allow new evidence on appeal, in some cases it may be if there is an acceptable reason for the evidence not being brought 7 at the original hearing. A material consideration when deciding whether to give an appellant leave to rely on further evidence on an appeal conducted by way of a rehearing, is whether the evidence is likely to have affected the outcome of the 8 decision made at first instance.

24. In this case, I have decided to grant leave to the Concreting Company to rely upon the statement of Mr Paul. That is because it is relevant to its procedural fairness ground, setting out what happened at the hearing and what Mr Paul intended to do at the hearing. It is not the type of evidence which the Concreting Company could usefully have put before the Original Tribunal. It is therefore in the interests of justice to grant leave for the evidence to be relied upon in the appeal.

25. Mr Revill also sought leave to rely upon new evidence on appeal. He annexed to his submissions of 23 July 2025 a colour chart to support his position that the colour of the driveway was not the best possible match. I have decided not to admit this evidence. It is evidence which was available before the hearing and no satisfactory explanation has been provided for failing to provide it to the Original Tribunal.

Ground 1: Jurisdiction

26. The issue of jurisdiction was not raised before the Original Tribunal. Nevertheless, as the tribunal is obliged to satisfy itself as to its jurisdiction, and

6 Kolodzeij v Ali [2021] ACAT 114 at [12](f); Amer v Eriksson [2019] ACAT 108 at [19] 7 Amer v Eriksson [2019] ACAT 108 at [20] 8 Krutsky v Commissioner for Social Housing [2023] ACAT 68 at [7]; Amer v Eriksson [2019] ACAT 108 at [20] the facts relevant to determining jurisdiction are not in dispute, it is appropriate 9 to grant leave for this issue to be raised on appeal.

27. A company extract was annexed to the civil dispute application, showing the registered address and principal place of business address for the Concreting Company, both being addresses in the Australian Capital Territory (the ACT).

28. The relevant facts include that: (a) the work the subject of the contract was performed in New South Wales; (b) the Concreting Company is a company registered in the ACT; (c) the registered address and principal place of business address of the Concreting Company are both in the ACT.

29. It is not necessary to determine whether the contract was formed in New South Wales, as the Concreting Company claims, for the reasons which follow.

30. The ACAT Act provides, in section 17, that a person may make a civil dispute application to the tribunal. A “civil dispute application” includes a contract application, and a “contract application” means an application in relation to a 10 contract. Mr Revill’s application was a contract application.

31. The tribunal has, in relation to civil dispute applications, the same jurisdiction and powers as the Magistrates Court has under the Magistrates Court Act 1930, 11 Part 4.2 (Civil jurisdiction).

32. Section 262 of the Magistrates Court Act 1930, which is in Part 4.2 of that Act, provides as follows: 262 Cause of action arising, or defendant resident, outside ACT The Magistrates Court has jurisdiction to hear and decide a proceeding if—

9 See Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94 at [16]; O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 319; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7-8 10 ACAT Act, ss 15, 16(1) 11 ACAT Act, s 22(1) (a) the defendant was resident in the ACT when the claim was served on the defendant, even though all of the cause of action in the proceeding arose outside the ACT; or (b) both of the following apply, even though the defendant is not in the ACT: (i) a material part of the cause of action in the proceeding arose in the ACT, even though part of the cause of action arose outside the ACT; (ii) the claim is served on the defendant in Australia or an external territory.

33. The focus of the inquiry to determine the residence of a corporation is where its 12 activities are controlled from, or the location of its “central management and 13 control.” There was no evidence before the Original Tribunal as to where the Concreting Company’s activities were controlled from and it was not suggested on appeal that they were not controlled from its principal place of business. Accordingly, the evidence before the tribunal supports the conclusion that the Concreting Company was resident in the ACT when the claim was served on it.

34. The tribunal had jurisdiction to hear and determine the application, because the Magistrates Court would have had jurisdiction under section 262(a) of the Magistrates Court Act 1930 if the proceeding had been commenced in the Magistrates Court.

35. I note, for completeness, that I considered whether the Home Building Act 1989 (NSW) provided a discretionary basis for this tribunal to decline to exercise jurisdiction, even though that issue was not raised by the parties. That Act evinces an intention that the NSW Civil and Administrative Tribunal is to determine most building claims in New South Wales. However, I have concluded that that Act does not apply, because the work was not “residential building work” as defined in that Act, being work on a rural property which is not work on a “dwelling” as 14 defined. Accordingly, the issue does not arise.

12 Bywater Investments Ltd v Commissioner of Taxation [2015] FCAFC 176 at [7] 13 Bywater Investments Ltd v Commissioner of Taxation [2016] HCA 45 at [39]-[40] 14 Home Building Act 1989 (NSW), Schedule 1, clauses 2 and 3. See Transcript of hearing dated 12 August 2025, page 43, lines 25 to 45 Ground 2: Denial of procedural fairness

36. The Concreting Company claims that the Original Tribunal denied it procedural fairness on the basis that the tribunal: (a) refused to allow it to give oral evidence even though the appellant (by whom, I understand the Concreting Company to mean its representative, Mr Paul) was available and present; (b) refused to allow it the opportunity to adduce evidence from lay witnesses and expert witnesses who were available and present; (c) refused to allow it the opportunity to cross-examine any witness in Mr Revill’s case; (d) effectively decided the application on the papers, when the Concreting Company did not have witness statements prepared, but rather had provided very brief summaries of the evidence of lay and expert witnesses, in accordance with the tribunal’s directions.

37. Mr Paul’s evidence, in his statement, is that he had three witnesses present at the hearing who he wanted to call to give evidence at the hearing. He had submitted a brief outline of the evidence in accordance with the tribunal’s orders. He said that their evidence was relevant to issues involving the alleged contract, the colour match and what could be done to remedy the problem. His evidence was that he had an expert witness in concrete colouring present.

38. Mr Paul stated that he was nervous and intimidated, particularly in circumstances where a different tribunal member at a previous directions hearing had made a remark he considered to be racist and discriminatory. Mr Paul stated that he told the Original Tribunal that he had witnesses present to give evidence, but that after hearing from Mr Revill, the Original Tribunal made its findings and orders. He stated that he did not have an opportunity to call any witnesses to give evidence at the hearing.

39. Mr Revill submitted that Mr Paul was offered an opportunity by the Original Tribunal to ask questions of himself or his wife or to call any witness in support of the Concreting Company’s case. Mr Revill’s position is that the Concreting Company was afforded procedural fairness at the hearing.

40. The Concreting Company has provided a transcript of the hearing before the Original Tribunal on 17 April 2025, when the Original Tribunal delivered its reasons for decision. However, it has not provided a transcript of the hearing before the Original Tribunal on 11 April 2025.

41. Without a transcript of the hearing on 11 April 2025, the appeal tribunal is unable to assess the claims of procedural unfairness against objective evidence of what occurred at the hearing and cannot be satisfied that this ground is established.

42. For this reason, Ground 2 is dismissed.

Grounds 3 and 4: Errors concerning the Evidence and Factual Findings

43. Grounds 3 and 4 contend that the Original Tribunal made errors in respect of weighing the evidence and that it made findings of fact it was not able to make. These grounds partly overlap with the Concreting Company’s other grounds.

44. To the extent that the Concreting Company contends that the contract was discharged by full performance, such that Mr Revill cannot bring a claim, that is plainly wrong. Mr Revill is entitled to bring a claim for breach of contract.

45. Ms Kelly submitted that Mr Revill had waived his right to make a claim by 15 making payment and thereby accepting performance without reservation. Putting to one side the question of whether Ms Kelly has correctly stated the principle, there can be no waiver in circumstances where Mr Revill was told that the colour of the paint may change after it dried.

46. To the extent that the Concreting Company submits that the Original Tribunal should have given more weight to some evidence and less weight to other evidence, that does not identify an error of law.

47. The Concreting Company has not demonstrated that any of the findings of fact made by the Original Tribunal is clearly in error.

48. For these reasons, Grounds 3 and 4 are dismissed.

15 Transcript of hearing dated 12 August 2025, page 29, lines 36 to 37, and see Brambles Holdings v Bathurst City Council [2001] NSWCA 61 on which Ms Kelly relied Ground 5: Uncertainty

49. The Concreting Company submits that the term “colour to be matched as best possible” should be severed from the contract because of uncertainty. A contract or a contractual term may be void for uncertainty if the language used is incapable 16 of any precise or definite meaning.

50. As far as can be ascertained from the written materials, the Concreting Company did not submit before the Original Tribunal that the term “colour to be matched as best possible” was uncertain and void. I asked Ms Seal whether she had made this argument to the Original Tribunal, and she said she could not recall, whereas 17 Mr Revill said she had not done so. According to the Original Tribunal’s reasons, “Mr Paul fairly acknowledged that … the old and new concrete did not 18 and do not match at all in any relevant respect.” It did not deal with the question of whether the contract was void for uncertainty in its reasons. On this basis, I find that the Concreting Company did not submit to the Original Tribunal that the contractual term was void for uncertainty.

51. There is an issue as to whether leave should be given to argue that the term is uncertain on appeal, when the point was not taken before the Original Tribunal, and a form of concession was given in relation to the term.

52. The general principle is that a party is bound by the conduct of the party’s case and that, except in the most exceptional circumstances, a party would not be granted leave to raise a new argument which the party failed to put during the 19 hearing. However, in some cases where a question of law is raised on appeal, upon facts which are admitted or beyond controversy, it may be expedient in the 20 interests of justice that leave be granted to raise the issue.

53. A reason for the principle that parties are generally not granted leave to raise new points on appeal is the interest in finality in litigation. Parties should be

16 Thorby v Goldberg [1964] HCA 41; (1964) 112 CLR 597 and 607 17 Transcript of hearing dated 12 August 2025, page 16, lines 1 to 5 18 Transcript of hearing dated 17 April 2025, page 11, lines 23 to 25 19 Coulton v Holcombe (1986) 162 CLR 1 at 7–8 20 O’Brien v Komesaroff (1982) 150 CLR 310 at 319 encouraged to make all relevant submissions at first instance and discouraged from running the case again on appeal.

54. The Concreting Company did not provide a satisfactory reason for failing to raise its argument about uncertainty before the Original Tribunal. Accordingly, I have decided not to grant leave to the Concreting Company to raise the issue on appeal.

55. If I am wrong to refuse to grant leave, I would not find the term to be void for uncertainty in any event. Courts are generally very slow to find a term to be void 21 for uncertainty. As Barwick CJ has observed of a contractual term: “As long as it is capable of a meaning … the court … will decide its application … no narrow or pedantic approach is warranted.” Courts take the approach that commercial dealings should as far as possible be treated as effective and the law should not 22 be the destroyer of bargains.

56. Here, the term “colour to be matched as best possible” is capable of being given meaning. It means that the concreter is required to match the colour of the new concrete to the colour of the existing concrete as well as possible. What is possible is a question of fact.

57. For these reasons, this ground is dismissed.

Ground 6: No evidence that new concrete was not matched as best possible

58. The Concreting Company asserts, in effect, that the Original Tribunal applied the wrong test. Instead of asking whether the new concrete matched the old concrete, the Original Tribunal should have asked (in the Concreting Company’s submission) whether the new concrete matched the old “as best possible.” This was a different question, it submitted, from whether the concrete matched, and it required evidence as to what was possible. Because Mr Revill did not provide any such evidence, it is said, the Original Tribunal should have found against him.

59. At the appeal hearing, Ms Seal clarified that the Concreting Company’s case is that Mr Revill needed evidence from an expert witness to establish what sort of a

21 Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429 at 436-437 22 Alphington Developments Pty Ltd v Amcor Pty Ltd [2025] VSCA 48 at [487] 23 colour match was possible. Ms Seal said that “there was no evidence submitted 24 in the original hearing that there was a better match.”

60. This submission, like the previous one, was not put to the Original Tribunal. I therefore need to decide whether leave should be given to make the submission 25 on appeal. Mr Revill opposed the grant of leave.

61. I have decided to refuse leave. That is because, according to the Original Tribunal, Mr Paul acknowledged at the hearing that the old and new concrete do not match in any relevant respect. Having made that concession below, it would not be in the interests of justice to allow the Concreting Company to resile from that position on appeal, and to make a technical argument about the need for evidence to demonstrate what was or was not possible. Further, had the Concreting Company made that argument before the Original Tribunal, Mr Revill may have responded with evidence about the possibility of obtaining a better match (as he 26 attempted to do on appeal). In those circumstances, it would be unjust to grant leave to the Concreting Company to rely upon this ground of appeal.

Ground 7: Damages

62. The Concreting Company’s ground 7 is that the Original Tribunal erred in awarding the cost of replacement of the concrete, where it should have ordered costs of rectification by way of recolouring the concrete and sealing it.

63. The Concreting Company relied upon Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 (Bellgrove v Eldridge) for the proposition that damages for the rectification work must be both necessary and reasonable. That case, however, is not entirely favourable to the Concreting Company. In that case, a building owner brought an action against a builder on the basis that the builder had substantially departed from the specifications. The High Court held that the measure of damage was not the difference between the value of the building as erected and the value it would have borne if erected in accordance with the

23 Transcript of hearing dated 12 August 2025, page 21, line 5 24 Transcript of hearing dated 12 August 2025, page 23, lines 30 to 31 25 Transcript of hearing dated 12 August 2025, page 27, lines 38 to 41 26 See Transcript of hearing dated 12 August 2025, page 27, lines 17 to 22 and 38 to 41 contract, but the cost, in excess of any amount of the contract price unpaid, of reasonable and necessary work to make the building conform to the contract.

64. Dixon CJ, Webb and Taylor JJ held that the owner was “entitled to the reasonable cost of rectifying the departure [from the plans or specifications] or defect so far 27 as that is possible.” Their Honours observed that “the work necessary to remedy defects in a building and so produce conformity with the plans and specifications may, and frequently will, require the removal or demolition of some part of the 28 structure.” They noted (in the passage apparently relied upon by the Concreting Company) that “not only must the work undertaken be necessary to produce 29 conformity, but that also, it must be a reasonable course to adopt.”

65. The Concreting Company also relies upon Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8 (Tabcorp Holdings), for the proposition that courts must not award extravagant remedies for defects. That does not, however, accurately represent what the High Court said in that case.

66. In Tabcorp Holdings, a tenant made substantial alterations to the foyer of leased premises, in breach of the lease. The High Court held that the measure of damages was the loss sustained by the landlord from the tenant’s failure to perform its contractual obligation to preserve the premises without unapproved alterations. That loss was the cost of restoring the premises to the condition in which they would have been if the obligation had not been breached. Accordingly, the damages to be awarded were not $34,820, being the difference between the value of the premises at the end of the lease and the value at the start; they were $1.38 million, comprising $580,000 as the cost of restoring the premises to their original condition plus $800,000 for lost rent during the restoration period.

67. French CJ, Gummow, Heydon, Crennan and Kiefel JJ referred to the Court’s observation in Bellgrove v Eldridge that, for damages to be recoverable for rectification work, the work undertaken must be necessary to produce conformity, 30 and must also be a reasonable course to adopt. The plurality considered that the

27 Bellgrove v Eldridge at CLR 617 28 Bellgrove v Eldridge at CLR 618 29 Bellgrove v Eldridge at CLR 618 30 Tabcorp Holdings at [17], citing Bellgrove v Eldridge at CLR 618 Court’s judgment in Bellgrove v Eldridge indicated “that the test of 31 ‘unreasonableness’ is only to be satisfied by fairly exceptional circumstances.” That is, it would generally be reasonable to award damages for the cost of work undertaken to produce conformity with a contract.

68. The Court in Tabcorp Holdings considered the observation in Bellgrove v Eldridge that “work undertaken [must] be necessary to produce conformity” and said that those words “meant, in that case, apt to conform with the plans and specifications which had not been conformed with.” Applied to Tabcorp Holdings, their Honours observed, “the expression ‘necessary to produce conformity’ means ‘apt to bring about conformity between the foyer as it would become after the damages had been spent in rebuilding it and the foyer as it was at the start of the lease’.” Their Honours accepted the landlord’s submission that “the requirement of reasonableness did not mean that any excess over the amount 32 recoverable on a diminution in value was unreasonable.”

69. Tabcorp Holdings does not assist the Concreting Company. To the contrary, it supports the conclusion that the Original Tribunal was correct to award damages for the cost of replacing the concrete.

70. The work necessary to produce conformity with the term that the colour be matched as closely as possible to the existing concrete required, in the Original Tribunal’s opinion, the removal of the existing concrete. This was because staining the concrete came with a 10-year warranty, a significantly shorter time than the 25-year lifespan of the concrete. There was some discussion at the appeal hearing as to whether there was evidence before the Original Tribunal as to the relevant warranty periods. However, I cannot be satisfied that there was no evidence about this in circumstances where I do not have the transcript of the hearing. Further, even if the Original Tribunal was wrong about the warranty periods, that does not establish that replacement of the concrete was unreasonable.

31 Tabcorp Holdings at [17] 32 Tabcorp Holdings at [19]

71. The measure of damages awarded by the Original Tribunal is consistent with Bellgrove v Eldridge and Tabcorp Holdings, in that removal of the concrete is reasonable and necessary to make the works conform to the contract. In circumstances where “the test of unreasonableness is only to be satisfied by fairly 33 exceptional circumstances,” it was open to the Original Tribunal to find that replacement of the concrete was reasonable. No error has been established.

72. Ground 7 is dismissed.

Conclusion

73. As none of the Concreting Company’s grounds of appeal has succeeded, I have made an order dismissing the appeal.

……………………………….. Presidential Member J Lucy Date of hearing: 12 August 2025 Appellant: Ms K Seal, director Respondent: In person

33 Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27 at [186] (per Bathurst CJ, Beazley P and Gleeson JA agreeing), citing Tabcorp Holdings at [17]