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[2026] NSWCA 15
appellant. Appeal allowed. The primary judge's decision was set aside and the matter remitted to the District Court for rehearing. Costs of the appeal and the first trial were made costs in the cause.
The Court of Appeal agreed that the evidence supported a finding that Mr Lee personally made the statements about building licensing and insurance. It also found that the primary judge had generally given him adequate procedural information as an unrepresented litigant. However, the trial was unfair because he was not allowed to cross-examine Ms Huo when she was present and available, and the judge did not take relevant expert evidence about completed work into account when assessing damages. Because those errors could have affected the result, the Court set aside the judgment and ordered a rehearing. It rejected the claim that the primary judge appeared biased.
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Lee v Huo [2026] NSWCA 15 concerned a building project at Ms Huo's property in Ultimo and representations made during negotiations with Super Shepherd Pty Ltd. Mr Lee was an employee of Super Shepherd at the relevant time. He had been a director and secretary years earlier, but not when the events occurred ([2]).
The proposed works followed development approval obtained in late 2020. Ms Huo had considered another builder, Macquarie Constructions Group Pty Ltd (MCG), whose quoted fee was $558,503, but did not engage it ([5]-[6]). After a neighbour introduced Mr Lee, he met Ms Huo, her mother and the neighbour at the property. Their affidavit evidence was that Mr Lee said, “We are a licenced builder” and “All of our work is insured with HBCF insurance” ([7]-[8]).
The Court's account records that neither Mr Lee nor Super Shepherd held a building licence at the time. Super Shepherd's earlier licence had been cancelled in 2018, and the company had no HBCF policy for the works ([8], [16]-[17]). Mr Lee later supplied a Fee Proposal signed in his name on behalf of Super Shepherd. It included “Builder Lic: 312951C” ([15]). The parties proceeded with an arrangement, and Ms Huo paid Super Shepherd for work. When the project stopped, she engaged Felixland to carry out the remaining works ([17]-[24]).
Ms Huo sued Super Shepherd and Mr Lee, alleging misleading or deceptive conduct under s 18 of the Australian Consumer Law. She obtained default judgment against Super Shepherd, leaving Mr Lee as the defendant at trial ([27], [31]-[32]). He represented himself at the trial. The primary judge found that he had contravened s 18 and awarded $944,271.25 ([3], [46], [49]).
A central feature of the appeal was that Ms Huo was in court and available for cross-examination, but the primary judge refused Mr Lee permission to question her. The Court of Appeal allowed the appeal, set aside the judgment and remitted the case to the District Court for rehearing ([93]-[106], [122]). It did not reverse the primary judge's finding that Mr Lee personally made the representations; it rejected his challenge to that finding ([63]-[69]).
The Court dealt with the representation-maker question by examining what Mr Lee said and did, rather than treating his employment status as decisive. It accepted that whether a representation is made by an intermediary or by the company can depend on the context and how the recipient would understand it ([64]). But the evidence, as recorded in the judgment, was not simply that Mr Lee passed on someone else's document. Three witnesses attributed direct oral statements to him, and the Fee Proposal was signed by him on behalf of Super Shepherd ([66]-[68]).
The Court distinguished Butcher v Lachlan Elder Realty Pty Ltd. In that case, the relevant realtor handed over a document that on its face had not been prepared by the realtor. Here, Mr Lee made direct oral statements and signed the Fee Proposal on behalf of the company ([67]). It was also reasonable, in the Court's view, for the recipients to assume that he was familiar with the licensing and insurance status of the company whose proposal he was presenting ([68]). The Court therefore rejected ground 2.
The Court also rejected the argument that the primary judge did not give sufficient procedural assistance to an unrepresented litigant. Its account of the governing approach was bounded: a judge should provide reasonably practicable information about practice and procedure to support a fair trial, but should not advise an unrepresented party how to exercise rights or run their case ([70]-[72]). The Court considered Mr Lee articulate and well educated. It also relied on the transcript, which showed the primary judge explaining possible evidentiary objections and inviting Mr Lee to make submissions after the other side's counsel ([73]-[77]). The Court was not persuaded that Mr Lee misunderstood the invitation to make oral submissions.
The Court identified two successful aspects of the appeal. First, the primary judge did not account for expert evidence estimating the value of the work completed by Super Shepherd. The reports put that value at $41,615.89 or $57,449.74, depending on the report ([80]). The Court held that the value of work completed was relevant to loss and damages and should have been considered ([83]).
Second, the refusal to permit cross-examination of Ms Huo was a denial of procedural fairness. The Court distinguished her position from that of two other lay witnesses, who were absent because they had not been required to attend. Their attendance would have required an adjournment and arrangements for interpreters ([91]-[92]). Ms Huo, by contrast, was present. The trial had been set down for three days, and her counsel did not identify prejudice that would result from her being cross-examined ([99]-[100]).
The Court considered the error material, not merely procedural in a technical sense. Ms Huo's evidence was central to reliance, and cross-examination could affect the assessment of credibility or reveal evidence relevant to reliance or damages ([100], [106]). Applying the materiality discussion in Stead, MZAPC and LPDT, the Court asked whether the outcome could realistically have been different, rather than whether it would have been different. It was not possible to conclude that the result would inevitably have been the same without the cross-examination ([104]-[106]).
The bias ground did not succeed. The Court held that the primary judge's comments and rulings, including the erroneous blanket approach to cross-examination, did not lead a fair-minded observer to apprehend bias. The cross-examination error was characterised as a miscarriage of discretion, not evidence of bias ([108]-[112]).
The judgment did not announce a general entitlement to cross-examine every affidavit witness in every civil proceeding. It restated that the ultimate question is whether the party had a fair trial, and drew on authorities recognising cross-examination's importance in adversarial proceedings ([87]-[88], [97]). The Court also identified exceptions, including interlocutory settings, a witness's death or unavailability, and cases where the circumstances make cross-examination unnecessary or impracticable ([98]).
In this case, UCPR r 35.2 did not answer the fairness question by itself. The rule allows a party to require a deponent's attendance by written notice given a reasonable time beforehand. As the Court explained, it does not prohibit cross-examination of a witness who was not previously required to attend. Failing to give notice may mean a witness is not available, as happened with Mr He and Ms Long. But Ms Huo was already present ([89]-[92]).
The judgment also confirms the limited role of the court in helping an unrepresented party. The obligation is to provide sufficient procedural information, not to give legal advice or conduct the party's case ([71]-[78]). The decision turned on the individual circumstances: the trial judge had explained evidentiary objections, and the appellant was assessed as capable of understanding the hearing. The separate failure was refusing cross-examination of a present witness in circumstances where it could have occurred without identified prejudice.
On attribution of representations, the judgment applies a contextual approach to whether an employee spoke for themselves or merely transmitted information for an employer. It does not hold that an employee is automatically liable whenever they communicate for a company. The facts that mattered here were the positive, unqualified oral statements and the employee's signature on the proposal ([66]-[69]).
On damages, the case reinforces the need to consider relevant evidence about the value of work already performed. The Court found that the expert evidence should have been taken into account, while leaving other contested questions about the damages method for the rehearing ([80]-[83], [118]-[121]). Because the Court ordered a new trial, it did not decide every argument raised about the MCG quote, Felixland's contract, rent, settlements or the treatment of new points on appeal.
At [66], Bell CJ said that, regardless of whether “we” referred to Mr Lee and Super Shepherd or only to the company, “it was the Appellant who was making the misleading and deceptive representations” in a positive and unqualified way. In plain English, the Court treated the direct statements as Mr Lee's own representations, not as neutral repetition of information from another source.
At [67], the Court said that the Fee Proposal was signed by Mr Lee on behalf of Super Shepherd and distinguished that situation from a person merely handing over a document prepared by someone else. In practical terms, the document formed part of the context supporting personal attribution.
At [90], the Court explained that r 35.2 does not prevent cross-examination of a witness who was not previously required to attend. The rule sets out a notice process and consequences when a required witness fails to attend. It did not make Ms Huo's presence irrelevant.
At [100], Bell CJ said fairness required an opportunity to cross-examine Ms Huo because she was present, there was no logistical obstacle within the time set aside, and no other prejudice was identified. This is a fact-sensitive explanation, not an unconditional rule for every trial.
At [106], the Court concluded that it could not be said the outcome would “inevitably have been the same” without cross-examination. The possibility that questioning might affect credibility, reliance or damages was enough to make the error material under the standard described in the judgment.
The reasoning on cross-examination is most directly relevant to cases where a party relies on affidavit evidence for final relief, the opposing party seeks to test that evidence, and the witness is already present and available. The particular factors identified here were that the witness was central to an issue, the trial timetable allowed for questioning, and no specific prejudice from permitting it was identified ([99]-[100]).
The result may differ where the witness is absent because the requesting party did not give reasonable notice, and attendance would require an adjournment or impose prejudice. The Court treated Mr He and Ms Long differently from Ms Huo because they were not present and their attendance would have required an adjournment and Mandarin interpreters ([91]-[92], [98]). The judgment therefore distinguishes practical unavailability from a present witness whom the court can hear within the allocated trial time.
The representation reasoning may be relevant where an employee makes direct assurances about a matter connected with their work and also signs or presents a company document containing the same claim. It is less directly applicable where an employee simply passes on a clearly identified document prepared by another, because the Court distinguished that situation ([64]-[68]).
The decision also matters in damages disputes involving incomplete work where expert evidence assigns a value to the work already done. The Court held that this evidence was relevant and should be considered, even though the primary judge had described the claimed sums as unchallenged ([79]-[83]).
The supplied judgment contains no subsequent decisions discussing Lee v Huo. It was decided on 26 February 2026, and the text provides no later treatment. It would therefore be unsupported to say that a later court has followed, applied, distinguished or questioned it.
The decision itself refers to earlier authorities. For employee or intermediary representations, it discusses Anchorage Capital Master Offshore Ltd v Sparkes, Care A2 Plus Pty Ltd v Pichardo, Borzi Smythe Pty Ltd v Campbell Holdings (NSW) Pty Ltd and other cases, and distinguishes Butcher v Lachlan Elder Realty Pty Ltd ([64]-[68]). For assistance to self-represented litigants, it refers to Rajski v Scitec Corporation Pty Ltd and Chalik v Chalik ([70]-[78]). For cross-examination and materiality, it considers GPI Leisure, Stead, MZAPC and LPDT ([87]-[106]). Those are authorities the Court used in its own reasoning, not later treatment of Lee v Huo.
The decision did not settle every issue concerning damages. The Court identified criticisms of the primary judge's approach, including the treatment of completed work and the adoption of reasoning from the default judgment against Super Shepherd, but found it unnecessary to resolve the full set of damages arguments because the matter was being remitted for a new trial ([113]-[121]).
It also left unresolved whether the appellant could advance certain damages arguments for the first time on appeal. The judgment notes the general principle that a party is ordinarily bound by the conduct of their case, while also identifying the possible relevance of whether new issues are legal questions unaffected by evidence ([119]-[121]). The Court did not decide how that tension would apply at the rehearing.
The precise scope of cross-examination required for procedural fairness remains context-dependent. The Court's reasons identify important considerations, including the witness's presence, the importance of the evidence, trial logistics and prejudice, but do not prescribe a fixed rule for every civil trial ([98]-[106]). Nor did the judgment determine whether the same reasoning would apply where a party had given reasonable advance notice, where the witness was absent for reasons beyond the requesting party's control, or where cross-examination would cause a materially different form of delay or prejudice.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Lee v Huo [2026] NSWCA 15
Hearing dates: 09 February 2026
Date of orders: 26 February 2026
Decision date: 26 February 2026
Before: Bell CJ at [1]
Mitchelmore JA at [124]
Stern JA at [125]
Decision: (1) Appeal allowed.
(2) Set aside the decision of the primary judge.
(3) Remit the matter to the District Court for rehearing.
(4) Costs of the appeal and costs of the first trial to be costs in the cause.
Catchwords: APPEALS — practice and procedure — appellant unrepresented — consideration of extent of court’s role in relation to unrepresented parties
APPEALS — procedural fairness — where primary judge refused to allow cross-examination of lay witness present in court — where no prejudice to witness in allowing cross-examination — denial of procedural fairness
CONSUMER LAW — misleading or deceptive conduct — liability of intermediaries — where employee personally made misleading oral statements — where employee personally gave misleading document signed by employee on behalf of employer to representee — employee liable
Legislation Cited: Competition and Consumer Act 2010 (Cth), sch 2 – Australian Consumer Law s 18
Evidence Act 1995 (NSW) s 41
Home Building Act 1989 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) r 35.2
Cases Cited: Abadom v Abadom (1857) 24 Beav 243; 53 ER 351
Allen v Allen [1894] P 248
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Anchorage Capital Master Offshore Ltd v Sparkes (2023) 111 NSWLR 304; [2023] NSWCA 88
B v R [2015] NSWCCA 103
Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200
Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37
Borzi Smythe Pty Ltd v Campbell Holdings (NSW) Pty Ltd [2008] NSWCA 233
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60
Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35
CH Real Estate Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37
Chalik v Chalik [2025] NSWCA 136
Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd (No 2) [2009] FCA 1153; (2009) 74 ACSR 373
de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard (No 2) [2024] NSWCA 299
GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15
Granitigard Pty Ltd v Termicide Pest Control Pty Ltd [2011] FCAFC 81; (2011) 281 ALR 1
Havyn Pty Ltd v Webster [2005] NSWCA 182
House v The King (1936) 55 CLR 499; [1936] HCA 40
Huo v Super Shepherd Pty Ltd [2025] NSWDC 286
Larsen as trustee for the Larsen Superannuation Fund v Tastec Pty Ltd (formerly Wonders Building Company Pty Ltd) (No 2) [2025] NSWCA 210
Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Mechanical and General Inventions Co Ltd v Austin [1935] AC 346
Mills v Walsh [2022] NSWCA 255
Morley v Morley (1855) 5 De GM & G 609; 43 ER 1007
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
NMFM Property Pty Ltd v Citibank Ltd (No 8) [1999] FCA 266; (1999) 161 ALR 581
Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36
Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep)
Richard v Gendore Enterprises Pty Ltd [2004] NSWCA 116
Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31
Schrader v Broach [2024] NSWCA 14
Stack v Western Australia (2004) 29 WAR 526; [2004] WASCA 300
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462
TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481
Texts Cited: Cross on Evidence (online ed, July 2024, Lexis Advance)
Category: Principal judgment
Parties: Chun Ting Lee (Appellant)
Jingmin Huo (Respondent)
Representation: Counsel:
AE Hopkins (Appellant)
A Rizk (Respondent)
Solicitors:
Bailey Law (Appellant)
Kammoun Sukari Lawyers (Respondent)
File Number(s): 2025/364401
Publication restriction: N/A
[This headnote is not to be read as part of the judgment]
On 27 May 2021, Ms Jingmin Huo (the Respondent) entered into a contractual arrangement with Super Shepherd Pty Ltd (Super Shepherd) following a conversation with Mr Lee (the Appellant), who was an employee of Super Shepherd.
Under the contractual arrangement, Super Shepherd agreed to perform building works at the Respondent’s property. Super Shepherd only partially completed the works before the Respondent discovered that Super Shepherd did not hold a building licence or Home Building Compensation Fund (HBCF) insurance.
The Respondent brought proceedings in the District Court of New South Wales against Super Shepherd (against which she obtained default judgment) and the Appellant in which she alleged that they had engaged in misleading or deceptive conduct. She alleged that the Appellant had given her a document representing that Super Shepherd held a building licence and that he had made an oral statement representing that Super Shepherd held a building licence and HBCF insurance.
During the trial, the primary judge refused to permit the Appellant, who was unrepresented, to cross-examine the Respondent, who was present in court.
The primary judge held that the Appellant engaged in misleading or deceptive conduct in representing to the Respondent that Super Shepherd held a building licence and HBCF insurance. Her Honour awarded $944,271.25 in damages.
The appeal challenged the primary judgment on a number of grounds including a lack of procedural fairness in refusing to permit the Appellant to cross-examine the Respondent.
The Court (Bell CJ, Mitchelmore JA and Stern JA agreeing) held, allowing the appeal:
Anchorage Capital Master Offshore Ltd v Sparkes (2023) 111 NSWLR 304; [2023] NSWCA 88; Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35; Borzi Smythe Pty Ltd v Campbell Holdings (NSW) Pty Ltd [2008] NSWCA 233; Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd (No 2) [2009] FCA 1153; (2009) 74 ACSR 373; Richard v Gendore Enterprises Pty Ltd [2004] NSWCA 116; Granitigard Pty Ltd v Termicide Pest Control Pty Ltd [2011] FCAFC 81; (2011) 281 ALR 1; Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200; Havyn Pty Ltd v Webster [2005] NSWCA 182; CH Real Estate Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37, referred to.
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60, distinguished.
Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep); Chalik v Chalik [2025] NSWCA 136, cited.
GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15; NMFM Property Pty Ltd v Citibank Ltd (No 8) [1999] FCA 266; (1999) 161 ALR 581; Stack v Western Australia (2004) 29 WAR 526; [2004] WASCA 300; House v The King (1936) 55 CLR 499; [1936] HCA 40; Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54; Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36, referred to.
B v R [2015] NSWCCA 103; Allen v Allen [1894] P 248; Mechanical and General Inventions Co Ltd v Austin [1935] AC 346; Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60; Abadom v Abadom (1857) 24 Beav 243; 53 ER 351; Morley v Morley (1855) 5 De GM & G 609; 43 ER 1007; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, cited.
BELL CJ: This is an appeal from a decision of Gibson DCJ (the primary judge) sitting in the District Court of New South Wales: Huo v Super Sheperd Pty Ltd & Ors [2025] NSWDC 345 (PJ or the primary judgment).
Ms Jingmin Huo (the Respondent or Ms Huo), who is also known as Ms Crystal Huo, owns a property at 243 Bulwara Road in Ultimo (the property). Mr Chun Ting Lee (the Appellant or Mr Lee), who has also been known as Mr Alfred Lee and Mr Alfred Kin Chau Lee, was a director and secretary of Super Shepherd Pty Ltd (Super Shepherd) between 24 October 2012 and 1 October 2013 but did not hold either of these positions at the time of the events the subject of these proceedings. Super Shepherd from time to time used the business name of Ping Pong Group Developments (PPGD). In May 2021, after a conversation with Mr Lee, Ms Huo engaged Super Shepherd to perform works at the property. It later emerged that Super Shepherd was not a licensed builder and did not hold Home Building Compensation Fund (HBCF) insurance.
The primary judge held that the Appellant engaged in misleading or deceptive conduct in representing to the Respondent that Super Shepherd was a licensed builder and held HBCF insurance. The primary judge awarded damages in the sum of $944,271.25.
The appeal challenges the primary judgment on a number of grounds including a lack of procedural fairness in circumstances where the primary judge did not permit the Appellant (who was self-represented) to cross-examine the Respondent even though she was present and available to be cross-examined. A series of other grounds relate to the quantum of damages awarded.
After purchasing the property, Ms Huo formed an intention to perform building works on it, including renovations of the main dwelling, the demolition of the existing garage and the construction of a new garage with a studio on top of it. She obtained development approval for these works in late 2020.
In about April 2021, Ms Huo sought to engage a builder to perform the works. She considered several builders, including Macquarie Constructions Group Pty Ltd (MCG). Between 22 April 2021 and 17 May 2021, she corresponded with representatives of MCG regarding the possibility of her engaging MCG to perform the works. MCG proposed to perform the works for a fee of $558,503. However, Ms Huo ultimately did not engage MCG.
In about May 2021, Mr Qiuming He (Mr He) — Ms Huo’s neighbour — suggested Mr Lee as a builder for the works. In or about May 2021, Mr Lee met Ms Huo, her mother — Mrs Huizhi Long (Ms Long) — and Mr He at the property. Ms Huo said in an affidavit that, at this meeting, Mr Lee said:
“We are a licenced [sic] builder”.
…
“All of our work is insured with HBCF insurance.”
Both Mr He and Ms Long deposed to similar statements having been made by Mr Lee at this meeting. In fact, neither Mr Lee nor Super Shepherd held a building licence at the time and therefore could never have obtained valid HBCF insurance.
At the meeting, Ms Huo was given a business card by Mr Lee which recorded his name as Alfred Lee, and his Chinese name as Chun Ting Lee, listing his role as “Development Manager” and the company he represented as “PPGD” or “Ping Pong Group Developments”. It also listed his phone numbers, architectural qualifications and email address, as well as the address of Super Shepherd.
The parties met at the property on two further occasions and negotiated the fee Super Shepherd would receive for performing the works.
On 21 May 2021, Mr Lee gave Ms Huo a document titled “Construction Contract” and dated 21 May 2021. On 27 May 2021, Mr Lee gave Ms Huo a document titled “Fee Proposal & Engagement Letter” and dated 27 May 2021 (Fee Proposal), attached to which was a document titled “Acceptance of Fee Proposal”.
The Fee Proposal included a table that contained a list of each element of the works to be performed and its corresponding cost. At the bottom of the table was a cell for the “Sub-Total” with the corresponding cost of $556,000. Above the table was a sentence that read:
“Below table indicates the final cost of construction, [and] details are subject to construction contract to be issued and signed by client.”
The Construction Contract included item 4 of schedule 1, which stated that the “[p]rice excluding GST” was $561,704.15. However, Ms Huo says that Mr Lee said that he would “only charge [her] $556,000” and would not “charge [her] anything beyond $556,000”.
The Construction Contract included text on its cover that stated it was “[p]repared by Super Shepherd Pty Ltd”. Item 3 of schedule 1 named “Ping Pong Group Developments (PPGD)” under “Builder(s)” or “Principal Contractor(s)” and listed “Alfred Lee” as the “[c]ontact person”.
The Fee Proposal concluded:
“If you are willing to accept our proposal, kindly sign the attached “Acceptance of Fee Proposal” form and email it back to us. Please note that we will require this document to be returned to our office prior to the commencement of work. Upon your acceptance of this proposal by signing the attached, we will be able to commence the above work within 5 working days. …
We are available to meet and discuss this proposal further. Thank you for your consideration. Should you require any clarification please do not hesitate to contact the undersigned at anytime [sic] on [the Appellant’s phone number] or [the Appellant’s email address].
Yours sincerely,
PPGD
[signature]
Alfred Lee
Development Manager
Nominated Architect – Alfred Lee
On behalf of Super Shepherd Pty Ltd and PPGD
Builder Lic: 312951C” (emphasis added)
As already noted, Super Shepherd was not licensed at the time of entry into the Construction Contract. While it was at one time licensed, that licence was cancelled on 12 April 2018.
On about 27 May 2021, Ms Huo signed the Acceptance of Fee Proposal attached to the Fee Proposal. She never signed the Construction Contract but paid money to Super Shepherd in relation to preparatory demolitions and works purportedly performed under that contract. On 17 June 2022, Ms Huo signed a document titled “Acceptance of Fee Proposal” that was attached to a document titled “Fee Proposal & Engagement Letter” (Revised Fee Proposal). Ms Huo did so after Mr Lee had informed her that Super Shepherd would require an increase in the fee to perform the works because of a delay in obtaining a construction certificate and an increase in the cost of labour and materials. Under the Revised Fee Proposal, the contractual arrangement was varied such that the date of practical completion became 20 April 2023 and the fee increased to $683,493.13. Super Shepherd never obtained an HBCF insurance policy in relation to the works.
Super Shepherd continued to perform the works. From 24 January 2022 onwards, Super Shepherd issued to Ms Huo invoices for, and Ms Huo paid to Super Shepherd, a total of $443,493.43 in fees for works performed.
As the primary judge held at PJ [29]:
“… It was not until some issues were raised by the local council that in or around November [2022] [Ms Huo] came to learn that the works were not insured by HBCF insurance. No further works were then carried out by Super Shepherd and no further payments were made by [Ms Huo]. …”
On 9 December 2022, Ms Huo was provided with an HBCF insurance policy which recorded the builder as Yifeng Group Pty Ltd and a contract price of $100,000. As the primary judge held at PJ [14], “[n]ot only was that of the wrong amount, but Yifeng Group had nothing to do with these transactions at any time on the evidence before [the District Court].”
In about May 2023, Ms Huo discovered that Super Shepherd had not held a building licence since 12 April 2018.
On 22 November 2023, Ms Huo sent a letter of demand to Super Shepherd and Mr Lee. In this letter, she stated her view that the cessation of the performance of works and attendance at the property by Super Shepherd constituted a repudiation of the Construction Contract, Fee Proposal and Revised Fee Proposal, and purported to accept that repudiation.
On 29 February 2024, Ms Huo entered into a contract with Felixland Pty Limited (Felixland) to perform the remaining works that Super Shepherd had not performed. Under the contract, she agreed to pay $770,000 for these works. She also paid $2,915 to Partridge Structural Pty Ltd and $1,980 to Peco Masonry to repair and rectify damage caused by Super Shepherd to a neighbouring property.
Between 1 August 2022 and 3 February 2025, Ms Huo paid $105,512.86 in rent for accommodation as she was not able to occupy the property. She then paid rent at $900 per week until 27 May 2025.
In December 2023, Ms Huo commenced proceedings in the New South Wales Civil and Administrative Tribunal (NCAT) against Mr Lee, Super Shepherd and Mr Tony Truong (Mr Truong), who had been the principal certifier of the works under an agreement between Ms Huo and Kudos Building Certification (KBC). In these proceedings, Mr Lee was represented by a solicitor and a barrister, and successfully applied to vacate a hearing date.
On 4 October 2024, the proceedings were transferred to the District Court of New South Wales because the claims exceeded NCAT’s monetary jurisdiction. Tony Truong Pty Ltd (TT), which Ms Huo claimed had been conducting the business of KBC in its capacity as trustee for the Tony Truong Family Trust, had by this point been joined to the proceedings. By this stage of the proceedings, Mr Lee was not represented by a solicitor or a barrister.
In the transferred proceedings, Ms Huo claimed that Mr Lee and Super Shepherd — or, in the alternative, Super Shepherd alone — had made representations through Mr Lee that Super Shepherd was a licensed builder and had insurance that covered the works. She claimed that they had, through these representations, engaged in conduct in trade or commerce that was misleading or deceptive, or that was likely to mislead or deceive, in contravention of s 18 of the Competition and Consumer Act 2010 (Cth), sch 2 – Australian Consumer Law (the ACL), and that she had suffered loss or damage because of this conduct. It was also alleged that the representation as to Super Shepherd being a licensed builder was also made in the Fee Proposal: see [15] above.
Claims were also made in the proceedings against Mr Truong and TT for breach of contract and professional negligence.
Ms Huo relied upon three affidavits of her own as well as affidavits of Ms Long, her mother, and Mr He, who introduced her to Mr Lee. As has already been noted, Ms Huo, Mr He and Ms Long deposed to Mr Lee orally representing to them that Super Shepherd was a licensed builder and that the works were covered by insurance.
On 10 July 2025, some six weeks before the hearing, Mr Lee filed his verified Defence to Ms Huo’s Amended Statement of Claim (ASOC). He also filed an affidavit he had affirmed on 8 July 2025. In this affidavit, he emphasised that he was not a director but only an employee of Super Shepherd and that all of his dealings with Ms Huo were in that capacity. Conspicuously, he did not in this affidavit refer to the affidavit evidence of Ms Huo, Mr He and Ms Long and the statements attributed to him as set out at [7] above nor did he deny making representations to the effect that Super Shepherd was a licensed builder and had insurance that covered the works although this had been denied in his Defence to Ms Huo’s ASOC.
“Essentially the second defendant left everything to the last minute. He provides no explanation beyond saying that I was unaware of legal issues for the delay. He tells me that he is an architect from which I assume that he has a tertiary education as a skilled professional, and it is clear to me that he speaks English with the utmost confidence, and is a well[-]educated and articulate member of the business community in general and architecture in particular.
I also take into account that while the second defendant said he did not have the money to retain a lawyer, he did in fact have a lawyer, albeit briefly, in the NCAT proceedings, and that lawyer was able to obtain an adjournment of the hearing on 12 August 2024 on the basis that the second defendant had not been served with documentation. Although Mr Lee says that these lawyers only appeared briefly and did not give him any advice about the merits of the case, he was nevertheless able to conduct this litigation thereafter by himself without any difficulties, which included appearing in court, drafting affidavits and the like.
He put to me that it was a requirement for procedural fairness that he should be entitled to have legal representation, and that it would be an unfair prejudice to him for him not to be able to adjourn these proceedings. He displayed little sympathy for the plaintiff who had come to court ready, willing and able to conduct the case today and indeed it would appear that while he has had some promises of funds from friends, he does not actually have those funds in his position, and he did not make any offer to in any way compensate the plaintiff for the very belated application he put before the Court.”
The primary judge received a Court Book into evidence and had earlier received and read an outline of submissions filed on behalf of Ms Huo. Her Honour invited Mr Lee to make any objections to Ms Huo’s affidavit evidence, explaining various bases upon which objections could be made. Prior to dealing with objections, the primary judge invited a brief oral opening from counsel for Ms Huo (Mr Rizk) in which he made the central point that Super Shepherd was “neither licensed nor insured”, noting that being licensed was a prerequisite to being able to obtain a policy of insurance under the Home Building Act 1989 (NSW).
In the course of his opening, Mr Rizk said:
“RIZK: The reason that I say that your Honour would have no hesitation ultimately in making the conclusions that I’m saying [your Honour should make] is that the evidence put on by Mr Lee does not deny making the representations. Had he done so your Honour would have been confronted with three deponents saying something was done and one saying otherwise but that’s not even the case. The evidence that’s been adduced by [Mr Lee] does not in any way seek to deny that those representations were made.
He does not in any way seek to identify any reasonable basis upon which that representation could have been made and so the way the claim is pleaded is [that] in a direct sense he has engaged in misleading and deceptive conduct and we’ve outlined in the written submissions the test that your Honour has to be satisfied of [which is] that he in fact made the representations. Here it is a little easier than some of those other cases that concern employees in that it’s not the passing off of information. It’s not a brochure. It’s not something in writing.
HER HONOUR: It’s a direct one on one [sic].
RIZK: It’s a direct oral representation--
HER HONOUR: Yes.
RIZK: --and written material that is signed in the name of Mr Lee. He doesn’t deny making it in the evidence and in that context once the representations are established they’re clearly false because it was not true and it could not have been true and then your Honour would get to the assessment of damages.”
The primary judge then inquired as to the need for an interpreter at which point Mr Rizk indicated that no witnesses had been required for cross-examination by Mr Lee.
In a letter written to Mr Lee on 5 August 2025 and tendered in the hearing of the appeal, Ms Huo’s solicitors had written to Mr Lee as follows:
“Dear Mr Lee,
As you know, the matter is listed for hearing between 25 and 27 August 2025.
Our client will require you for cross-examination at the hearing.
Can you please let us know which of our client’s witnesses you will require for the hearing.”
There was no evidence of any response by Mr Lee to this email.
Mr Rizk indicated that on the basis of the evidence as it stood, he did not require Mr Lee for cross-examination. He continued:
“RIZK: Once we deal with - if Mr Lee has any objections subject to that I’ve got some very minor objections to his affidavit. Most of them go to submissions, being read as submissions. Your Honour can then proceed to closing.
HER HONOUR: I see. All right. So that’s the court book and there has been no requirement for any witness to attend for cross-examination. Is that the case, Mr Lee, you agree with that? You haven’t asked - can I call her Crystal, is that the plaintiff’s name?
RIZK: Yes. Crystal is her English name.
HER HONOUR: You haven’t asked Crystal to attend for cross-examination. That’s right, isn’t it?
SECOND DEFENDANT: Your Honour, I--
HER HONOUR: Yes or no?
SECOND DEFENDANT: --I did not have knowledge I have to ask for it and if I knew I could ask, I could defend myself by cross-examining these three people I would have.
HER HONOUR: Which three people - the three people who swore the affidavits? Well, you haven’t required them to attend for cross-examination so why should they be cross-examined in those circumstances? I mean, I gather the other two witnesses may not even be here if they weren’t required to attend. That’s the case I see.
RIZK: They’re not here and I understand Mandarin interpreters would be required for those witnesses.
HER HONOUR: Yes, I see, so the position is that they’re not here because you didn’t require them to attend for cross-examination. The plaintiff is here but you haven’t required her to attend for cross-examination either so why should I permit it?
SECOND DEFENDANT: Your Honour, I do not have the knowledge on that.” (emphasis added)
“… Okay. I hear what you say but what I propose to do [is that,] as there hasn’t been a requirement for anybody to attend for cross-examination and given the history of the matter, I don’t propose to permit you to cross-examine any of the witnesses. You’re supposed to indicate you require people to attend for cross-examination. Is there any other document you need to tender or is that it, just the court book?”
“SECOND DEFENDANT: I see. I also would like to object - I’m not sure if I can - to the affidavit filed by Mr He.
HER HONOUR: Yes. What page is that please?
SECOND DEFENDANT: 686 - 685. Mr He was one of the key persons of the - of the happening.
HER HONOUR: What paragraph do you want to object to?
SECOND DEFENDANT: (No verbal reply)
HER HONOUR: That’s a very long silence.
SECOND DEFENDANT: Your Honour, please bear with me. Your Honour, paragraph 16--
HER HONOUR: Yes.
SECOND DEFENDANT: --claiming that - Mr He claimed that he was not aware that our company [was] unlicensed. This isn’t true because we never said [-].
HER HONOUR: You can’t object to it on that basis. You could have required him to attend for cross-examination and put it to him that this was untrue. Do you say it’s untrue because he knew you were unlicensed?
SECOND DEFENDANT: Your Honour, it wasn’t true because we never said we were the licensed builder.”
“HER HONOUR: Thank you very much. Thank you Mr Rizk. Yes, Mr Lee? Do you have any - what submissions do you have?
SECOND DEFENDANT: Your Honour, I do not have any submissions.
HER HONOUR: I see, thank you very much. Are you sure about that? Look if you’re sure about that I’m not going to badger you for them.
SECOND DEFENDANT: Yeah.”
As already noted, the primary judge held that Mr Lee contravened s 18 of the ACL because he had engaged in conduct in trade or commerce that was misleading or deceptive.
At PJ [17], the primary judge, referring to the defence filed by Mr Lee, said that “there is no traversal at all of the claims that he made the statements attributed to him.” This statement was regrettably incorrect as Mr Lee had denied the allegations made at [20] of the ASOC which pleaded the making of the representations. It may be that her Honour conflated the non-traversal of the alleged representations in Mr Lee’s affidavit with his Defence to the ASOC.
The primary judge referred to two expert reports which she indicated she only needed to refer to briefly, saying at PJ [19] that “[n]one of the deponents was required for cross[-]examination. Although [Mr Lee] stated from the bar table that he wished to cross[-]examine these witnesses, he had given no notification in circumstances where he should have done so.” While it is correct that neither expert had been required for cross-examination, it is not entirely clear from a review of the transcript of the hearing that Mr Lee had indicated that he wished to cross-examine the experts as opposed to Mr He, Ms Huo and Ms Long.
The primary judge concluded at PJ [39]-[45]:
“I am satisfied on the evidence before me that Mr Lee made the representations in a context where he was the only person [Ms Huo] dealt with on behalf of the builder, with whom she had discussions in the Mandarin language, where he was the face of the company and where he was the person whose email and phone number were provided to her. He was not merely providing information such as passing on a booklet. He was making positive representations and telling her that if she had any inquiries she should ring him on his mobile phone number, or contact him at the email address he gave. There is no suggestion in any of this evidence that he is a mere conduit for information as an employee of any particular corporation, and I interpolate that the belated claim made by Mr Lee that Super Shepherd was not the builder but some other company was would make no difference to his liability for this reason.
There is other conduct which would be of a compelling nature in terms of being focused on contemporaneous and historical documentation. This includes the fact that Mr Lee had been involved in the builder’s operations for the period from 2013 onwards, that he was the primary representative of the builder in its dealings with the plaintiff, and that he had not adduced any evidence to suggest that he was unaware of the fact that the builder was unlicensed and that the work would accordingly be uninsured.
…
The remaining issue in relation to the claim is the question of reliance. There is no challenge to the pleading of reliance in the pleadings or affidavit and Mr Rizk tells me he does not understand this question to be in dispute. No direct evidence is required and it is very often an inference drawn as opposed to being proved by direct evidence, as Kiefel J noted in Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 357 at [555] to [556]; (1999) 43 IPR 545.
The impugned conduct has to make a contribution to the decision taken by the plaintiff to act in the particular matter which I am satisfied is the case here. The representations went to the very heart of the contract and could not be viewed as being trivial or unimportant. The decision to pay so much money to a builder in circumstances where that builder needed to be licensed to do the work and obtain insurance would be central to the contract. Liability I am satisfied is made out and this brings me to the question of damages.
As to damages generally, I note the Court should determine how much worse off the plaintiff is as a result of entering into the transaction which the representation induced her to enter than she would have been had the transaction not taken place: Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1; [1986] HCA 3 at [12]. I note the careful way in which this topic has been addressed by [Cole DCJ] in her judgment and I propose to adopt the same approach here and award [Ms Huo] the sum of $779,798.29 plus pre[-]judgment interest which I will leave it to [Ms Huo] to calculate.
That calculation is based on the assumption that had the misleading or deceptive conduct not occurred, [Ms Huo] would have engaged an alternative builder to carry out the work, and had that occurred [Ms Huo] would have paid approximately $558,503 for the completion of the work, having regard to the expert evidence. That compares to the much larger sum of $1,213,493.43 that she did in fact have to pay to Super Shepherd and Felixland for the completion of the works. The loss is thus [$]654,990.43 plus the cost of rectification of the damage to the property next door which was a further $4,895. I also take into account that the works would have been completed by 1 August 2022 and [Ms Huo] would not have had to pay rent past that date which adds up to a sum of $119,912.86.”
Mr Lee appeals on some nine grounds.
Ground 1A raises a question of apprehended bias. In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 (Concrete), Kirby and Crennan JJ, with whom Gummow ACJ agreed at [3], observed at [117] that:
“An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided.”
See also Concrete at [172] (Callinan J); de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard (No 2) [2024] NSWCA 299 at [64].
In the present case, appeal ground 1A is formulated in a composite fashion, drawing on appeal grounds 4, 5 and 6 taken together as well as some supplementary arguments. In these circumstances, it is expedient, exceptionally, to deal with this ground after consideration of grounds 4, 5 and 6.
For the reasons that follow, grounds 1, 2 and 3 should be rejected.
“The Trial Judge erred in finding that the Appellant made the Licence and Insurance Representations (as defined in the Respondent’s Amended Statement of Claim filed on 9 April 2025, at [20]), by:
(a) Making findings at [17] and [32] of the reasons for judgment predicated on the Appellant’s purported failure to traverse (deny) allegations that he did make the Licence and Insurance Representations, in circumstances where the Appellant’s verified Defence to the Amended Statement of Claim filed on 10 July 2025, at [3], [5], [6] and [8], does expressly traverse (deny) such allegations;
(b) Reversing the onus of proof on the issue of whether the Appellant had made the Licence and Insurance Representation/s pleaded at [21](a) of the Amended Statement of Claim:
(c) Failing to give adequate reasons as to why it was found that the Appellant had made the Licence and Insurance Representation/s pleaded at [21](a) of the Amended Statement of Claim.” (emphasis and citations removed)
The Appellant was correct to submit that the primary judge erred in stating that he had failed to traverse the making of the alleged representations in his pleaded defence. The significance of that error is diminished, however, when it is appreciated, as her Honour did, that the Appellant had not in his affidavit denied making the representations or contested the evidence of Mr He, Ms Huo and Ms Long setting out in clear terms his statements said to have been made to them, namely that “[w]e are a licenced [sic] builder” and “[a]ll of our work is insured with HBCF insurance”: see [7] above. When her Honour said at PJ [15] that “[h]e has never denied them and that is a significant factor in this case”, she was referring to his affidavit and submissions. When her Honour said at PJ [17] that there was “extensive documentary evidence of the statements made”, it is plain from the context that she was referring to the affidavit evidence contained in the affidavits relied upon by Ms Huo.
The primary judge’s conclusion that the Appellant made the relevant representations was not “predicated” on her error as to his failure to traverse the allegations in the pleading. Her Honour referred at PJ [23] to the summary of the lay evidence in the Respondent’s written submissions which she relevantly adopted. This included at [14] the following:
“In May 2021, [Ms Huo] (with her mother and Mr He also in attendance) met with Mr Lee. During the meeting, Mr Lee made the following statements (among others):
(a) ‘We are a licenced [sic] builder’.
(b) ‘AII of our work is insured with HBCF insurance’” (emphasis and citations removed)
“The Court will comfortably conclude that the pleaded representations were made in circumstances where three witnesses have deposed to hearing the oral representations being made by Mr Lee (in what is unchallenged evidence), and Mr Lee does not suggest otherwise in his evidence.”
In relation to the submission that the primary judge reversed the onus of proof, this appears to be based upon a combination of a “denial of procedural fairness to the Appellant on the basis that he was never cross-examined on having made the representations” and a “reversal of the onus of proof on the issue by determining it on the basis of a lack of evidence from a self-represented litigant that he denied the alleged oral representations”.
This submission is misconceived. A cross-examiner is not bound to challenge a witness in respect of evidence that a witness has not given, in the current case, a denial of the representations deposed to in the affidavits of Mr He, Ms Huo and Ms Long. Indeed, it would usually be forensically foolhardy for a cross-examiner to seek to do so. It is for a witness to deny allegations, and adverse inferences may be drawn where a witness has the opportunity to go into evidence on an important matter within his or her knowledge and does not do so: see Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418. In the present case, Mr Lee filed a quite detailed affidavit in which he placed emphasis on the role he played in his communications with Ms Huo. In it, however, he conspicuously failed to address the central evidence of representations he had made to Ms Huo in the presence of Mr He and Ms Long. There was no evidence either on the adjournment application or in the trial or even in statements from the Bar Table that he did not understand the need to do this and, as the primary judge observed in her reasons in respect of the adjournment application, he was well-educated and articulate and spoke English with “the utmost confidence”: at PJ [15].
In relation to the third limb of ground 1, there was no deficit in the adequacy of the primary judge’s reasons for finding that the Appellant made what he refers to as the “Licence and Insurance Representation/s”: see, for example, [7]-[9] above.
For these reasons, appeal ground 1 should be rejected.
Ground 2 is that the primary judge erred in finding that the Appellant, not Super Shepherd, was responsible for the misleading or deceptive conduct. This ground reflects the principal basis on which, through his affidavit, Mr Lee sought to defend the claim against him, contending that he was merely an intermediary employee speaking for Super Shepherd.
In support of this ground, it was submitted, citing Anchorage Capital Master Offshore Ltd v Sparkes (2023) 111 NSWLR 304; [2023] NSWCA 88 at [362] (Anchorage) and Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35 at [100]-[117], that whether a representation is made by an intermediary, as opposed to the corporation that employs them, depends on by whom a representee would regard the representation as being made and, citing Borzi Smythe Pty Ltd v Campbell Holdings (NSW) Pty Ltd [2008] NSWCA 233 at [53]; Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd (No 2) [2009] FCA 1153; (2009) 74 ACSR 373 at [31]; Richard v Gendore Enterprises Pty Ltd [2004] NSWCA 116 at [26], that an intermediary is more readily inferred to be merely passing on, and not responsible for, information where they “[do] nothing more than provide or refer to a document that, on its face, was prepared by another”.
The Appellant submitted, citing Granitigard Pty Ltd v Termicide Pest Control Pty Ltd [2011] FCAFC 81; (2011) 281 ALR 1 at [31]; Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [3139], [3165]; Havyn Pty Ltd v Webster [2005] NSWCA 182 at [89]; CH Real Estate Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37 at [123], that an intermediary is more readily inferred to have adopted information where a third-party document has been altered before being passed on, the intermediary knows the representations passed on may not be reliable and the representation concerns a “relatively simple matter” supposedly within their “professional judgment”.
These submissions do not avail the Appellant. In the first place, on the evidence before the primary judge, the primary source of the representations as to the holding of a building licence and the existence of HBCF insurance was an uncontradicted oral statement made by the Appellant himself. Nothing in this statement, as evidenced in the affidavit evidence of Ms Huo, Mr He and Ms Long supported the contention that the Appellant was speaking only as a conduit or intermediary. Rather, according to their evidence he said that “[w]e are a licenced [sic] builder” and “[a]ll of our work is insured with HBCF insurance”. Whether, in using the words “we” and “our”, the Appellant was referring to himself and Super Shepherd, or simply to Super Shepherd, matters not: it was the Appellant who was making the misleading and deceptive representations and doing so in a positive and unqualified way.
Ground 3 is that the primary judge failed to take appropriate steps to ensure that the Appellant, as an unrepresented litigant, had sufficient information about the practice and procedure of the District Court of New South Wales as is reasonably practicable for the purpose of ensuring a fair trial. The Appellant submitted that her Honour failed properly to inform the Appellant of his ability to object to the admission of evidence and that she failed to ensure that he understood what “submissions” were.
In support of this ground, the Appellant submitted that a court’s responsibility to an unrepresented litigant includes that it “must be patient in explaining [the rules]”, citing a passage from the judgment of Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) which was referred to in Chalik v Chalik [2025] NSWCA 136 at [68] (Chalik). What followed the reference to that passage in Chalik at [69]-[71] should be set out in some detail:
“The question of the extent, if any, of assistance which a trial judge or appellate court should afford to an unrepresented litigant in civil proceedings is nuanced and has been the subject of many intermediate appellate judgments of this Court since Rajski was decided almost 40 years ago. Those decisions have emphasised that an unrepresented litigant should be provided with sufficient information about the practice and procedure of the court to ensure a fair trial takes place: see, for example, Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 at [48]; Jeray v Blue Mountains City Council [2010] NSWCA 153 at [14]. Even then, care must be taken not to disturb the balance which the rules of practice and procedure are designed to afford both parties: Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [39], citing Barton v Wright Hassall LLP [2018] UKSC 12; [2018] 1 WLR 1119 at [18] per Lord Sumption.
In Bauskis v Liew [2013] NSWCA 297 at [69], Gleeson JA (Beazley P and Barrett JA agreeing) noted that the duty of a trial judge to assist an unrepresented litigant ‘does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant’. In Cicek v Estate of late Solomon [2014] NSWCA 278 at [130], Ward JA (Meagher and Barrett JA agreeing) held that none of the cases her Honour had reviewed:
‘suggests that the primary judge in the present case had a duty to advise the appellants as to the inadequacies in their evidence having regard to the pleaded case or to adjourn the proceedings in order to permit them further time to re-plead their case in order for it to accord with the statement being made from the bar table as to the forgery complaints. A duty to provide information in order to attempt to overcome the procedural disadvantages faced by a self-represented litigant is not a duty to run the case for him or her.’
Handley JA expressed similar views more than 20 years earlier in Rowett v Westpac Banking Corp [1993] NSWCA 240:
‘Nevertheless, the role of a judge in a civil case is not to actively assist one party against the other; to advise one party against the other; or in any way to act as the legal adviser or the legal representative for that party even if that party is unrepresented. The role of the judge in a civil case in our system is to act as the umpire and he or she has no active role such as may occur under our system in criminal proceedings where a citizen is facing the State as prosecutor, and the judge has a proper role in protecting the accused, especially an unrepresented accused. Civil cases involve citizen (corporate or otherwise) against citizen, and the judge’s role, as I have said, is that of an umpire.’” (emphasis in original)
One of the reasons why the question of the extent, if any, of assistance which a trial judge should afford to an unrepresented litigant in civil proceedings is nuanced is that not all unrepresented litigants are alike: some may lack language skills or be plainly “at sea” in an unfamiliar court environment; others may be fixated on a particular issue or issues; still others may be intelligent and articulate.
The Appellant in the present case was in the latter category. He was described at PJ [51] by the primary judge when dealing with the adjournment application as speaking “English with the utmost confidence, and [being] a well[-]educated and articulate member of the business community in general and architecture in particular.” This is borne out not only by the affidavit he filed in the principal proceedings at a stage when he was self-represented but also by his affidavit in support of his adjournment application. During the course of that application, he made oral submissions to the primary judge to the effect that he would be denied procedural fairness and would be prejudiced if the adjournment were not granted. These were supported by a well-put-together affidavit.
Further, in relation to the complaint that the primary judge failed properly to inform the Appellant of his right to object to evidence, there was no such failure as the following extract from the transcript makes plain:
“HER HONOUR: All right. I’m just going to leave it, so that you’re going to be handing up the revised court books. Do you have any objections on the principles of the rules of evidence to any - are there affidavits? What are there?
RIZK: There [are] affidavits, your Honour.
HER HONOUR: Do you wish to object to the contents of any portions of those affidavits, Mr Lee, on the basis that they contain hearsay or submissions or opinion evidence or express an expert opinion or whatever; in other words, the evidentiary basis?
SECOND DEFENDANT: Your Honour, I do. As I said, there are key evidence missing from my--
HER HONOUR: That’s not a basis for objection. If you were to tell me that there’s evidence missing, that’s something we can cavil [about] when we get to the merits of the case.
SECOND DEFENDANT: Right, so, so your - sorry. Your Honour, your question was?
HER HONOUR: My question is do you object to the contents of any of the affidavit material by reason of the manner of expression of the evidence in those affidavits, or are there documents in there which you challenge on the basis of hearsay, relevance or some other basis? That’s what I want to know.
SECOND DEFENDANT: Your Honour, I don’t really understand how, how this is, sorry, and so if I - could, could you please clarify, because they, they filed the affidavits before?
HER HONOUR: Yes, but the thing is this. If you have any objections to the contents of the affidavit now is your chance to tell me paragraph by paragraph. When I get a copy of this court book back I’ll be able to look at the--
SECOND DEFENDANT: Your Honour, please give me a moment.”
In point of fact, and contrary to the complaint in relation to the suggested failure to inform him of his ability to object to the admission of evidence, Mr Lee did raise an objection to Mr He’s affidavit, as is borne out in the extract from the transcript reproduced at [43] above. A little after that exchange, the primary judge inquired of Mr Lee, “Anything else?” to which he replied, “No. No your Honour.”
As to the complaint that the primary judge failed to ensure that the Appellant understood what “submissions” were, immediately after this last exchange, the primary judge announced, addressing Mr Rizk, that, “In that case we’re up to submissions. Do you want to perhaps go first and then I’ll hear from Mr Lee and then you can address me in reply to Mr Lee?” Mr Rizk then proceeded to make oral submissions during the course of which he also made reference to written submissions which had been filed and which the primary judge indicated she had read. At the conclusion of his oral submissions, the following exchange occurred:
“HER HONOUR: Thank you very much. Thank you Mr Rizk. Yes, Mr Lee? Do you have any - what submissions do you have?
SECOND DEFENDANT: Your Honour, I do not have any submissions.
HER HONOUR: I see, thank you very much. Are you sure about that? Look if you’re sure about that I’m not going to badger you for them.
SECOND DEFENDANT: Yeah.”
The submission was made, unsupported by any evidence sought to be read on the appeal, that Mr Lee may have been under a misconception that her Honour was inquiring as to whether he had any written submissions and had not understood that he had been asked to make any oral submissions. This is speculative but in circumstances where the primary judge had said, before Mr Rizk’s address, that “we’re up to submissions” and that she would “hear” Mr Lee after Mr Rizk, I am not satisfied that there was any lack of clarity or understanding. More pertinently, the primary judge was entitled to be satisfied that Mr Lee was not labouring under some misunderstanding as to what “submissions” were such that she had failed to ensure a fair trial.
Ground 3 should be dismissed.
Ground 4 is that the primary judge constructively failed to exercise jurisdiction when her Honour found at PJ [31] that it was “not necessary … to deal with the expert evidence as the correctness of the sums claimed [had] not been challenged”.
The expert evidence comprised three reports. The first, by Mr Dan Oakley, of Cosmic Consulting, made an estimate of the percentage of the works that had been completed by Super Shepherd. This was said to be 6.1% with a value of $41,615.89. The second report was by a quantity surveyor, Mr Moises Lopez. He gave a slightly higher estimate of the value of the completed works, namely $57,449.74 inclusive of GST and provided an estimate to complete the works (this report having been prepared prior to Felixland having in fact completed its contract). The third report was also by Mr Oakley. It did not go directly to matters of quantum but to whether and how easily MCG, the other builder that Ms Huo had considered engaging to perform the works in April and May 2021, could have had its building licence modified to remove the restriction on taking contracts that required HBCF insurance.
Bearing these matters in mind, and in particular that the expert evidence did not go to the “correctness of the sums claimed”, the primary judge’s statement at PJ [31] is difficult to understand and supports an inference that she had not, before giving her ex tempore reasons, in fact read or reviewed the expert reports which were contained in a Court Book.
But that, in itself, does not particularly assist the Appellant. He had not sought to cross-examine the experts and the experts’ evidence was not in fact relied upon by the primary judge in the assessment of any damages. Further, her Honour was correct to say that the correctness of the sums claimed was not challenged, either by cross-examination or in submissions by Mr Lee.
That all having been said, however, the evidence as to the value of the works completed was relevant and should have been taken into account in the assessment of loss and damages. That did not occur. Ground 4 should, to this extent, be upheld. The failure to have regard to the value of the work completed was also relevant to ground 7 relating to damages.
These grounds can be dealt with together.
Ground 5 is that the primary judge denied the Appellant procedural fairness by refusing him the “right” to cross-examine the Respondent’s lay and expert witnesses.
Ground 6 is that the primary judge, “by refusing the Appellant the right to cross-examine the Respondent’s lay witnesses, in circumstances where those witnesses were present in person at the hearing, failed to apply the correct principle in refusing cross-examination on the basis that reasonable notice had not been given where those witnesses were otherwise present and there was no prejudice to the Respondent in having them made available for cross-examination.” It is important to note that, contrary to the terms of ground 6, only one of the Respondent’s lay witnesses was present in person at the hearing, namely Ms Huo, who was the plaintiff (and who is the Respondent in this Court).
The formulation of these grounds and the reference in both of them to the “right” to cross-examine was refined in written submissions in which it was put that:
“The authorities set out that there is no guarantee to cross-examination, and that the only actual ‘right’ is the right to have a fair trial. That being said it is the duty of the trial judge to ensure that all parties have a fair trial, and in carrying out their duties the trial judge must so exercise discretion in and about the examination and cross-examination of witnesses in the manner that is commonly exercised, namely that witnesses are examined, cross-examined and re-examined.
Specifically, where one party seeks to rely on an affidavit as evidence relevant to the grant of final relief, ordinarily as a matter of procedural fairness the opposing party should be given the opportunity to cross-examine the deponent in order to discredit or clarify that evidence.” (citations removed)
“In Beveridge v Dontan Pty Ltd (1991) 23 NSWLR 13, Rogers CJ Comm Div, after noting that cross-examination is recognised as an integral feature of adversarial litigation in the legal cultures that have their origin in English common law, said (at [12]), that it was an undoubted fact that ‘in ordinary court-conducted litigation today to deny a party completely the opportunity to cross-examine a witness would be a denial of natural justice’. There, the question arose in the context of a reference out to an expert of certain issues in the case. However, the court also noted (at [13]) that the ultimate test, there having regard to the issues posed for reference to the referee and other matters, was whether each party had been given a fair opportunity to put his or her or its case and point of view. There was found to be no denial of natural justice in that case.
In Wakim v Mathiew Pty Ltd [2002] NSWSC 405, the court accepted that the requirements of natural justice may not confer on a party the right to cross-examine in a given case ([29]) and said that in determining whether or not the denial of the right to cross-examine constitutes a denial of natural justice in a given case it is necessary to consider the whole of the circumstances including the legislation, the general practice as understood by the parties and any acceptance by them as to the way in which the proceedings are to be conducted (at [30]).
In GPI Leisure Corp Pty v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15, Young CJ in Eq, reviewed the authorities and said (at 22F) that the only actual right is the right to have a fair trial. His Honour also noted that in all proceedings the court has a duty to prevent cross-examination purely for a collateral purpose (at 23D).”
“35.2 Cross-examination of deponent
(1) A party may, by written notice served on the party serving or proposing to use an affidavit, require the attendance for cross-examination of the person by whom the affidavit has been made.
(2) Such notice is to be given a reasonable time before the time at which the person is required to attend for cross-examination.
(3) If reasonable notice of such a requirement has been given in respect of an affidavit, and the deponent does not attend for examination, the affidavit may not be used unless the deponent is dead or unless the court orders otherwise.
(4) If a person making an affidavit is cross-examined, the party using the affidavit may re-examine the person.”
This rule does not prevent or preclude cross-examination of a witness who has not been required for cross-examination. Rather, it operates to prevent a party from relying on an affidavit of a person who has been required for cross-examination within a reasonable time but who does not attend “unless the deponent is dead or unless the court orders otherwise.” Obviously, a party who fails to request a witness for cross-examination in a reasonable time or at all runs the risk that, as a practical matter, that witness may not be present at court and thus not be able to be cross-examined.
As noted above, neither Mr He nor Ms Long was present in the District Court at the hearing as they had not been required for cross-examination and an adjournment (which had already been refused) would have been required to secure their attendance and Mandarin translators. In the course of argument on the appeal Mr Hopkins, who appeared for Mr Lee, accepted that his complaint of a denial of a fair trial arising from the refusal to allow the cross-examination of these two witnesses was less persuasive than the refusal in respect of Ms Huo, the plaintiff who was present. I agree.
Acceding to the late oral request to cross-examine those two witnesses would have necessitated an adjournment and it was doubtful, based upon what had been said on the hearing of the adjournment application, that Mr Lee would have been in a position to meet any adverse order for costs thrown away by any adjournment.
The primary judge’s decision not to permit cross-examination of Ms Huo however, who was present in Court, was far more problematic. The key exchange between the judge and Mr Lee was as follows:
“HER HONOUR: … The plaintiff is here but you haven’t required her to attend for cross-examination either so why should I permit it?
SECOND DEFENDANT: Your Honour, I do not have the knowledge on that.”
“… I hear what you say but what I propose to do as there hasn’t been a requirement for anybody to attend for cross-examination and given the history of the matter, I don’t propose to permit you to cross-examine any of the witnesses. You’re supposed to indicate you require people to attend for cross-examination.”
The “history of the matter” to which her Honour referred no doubt included:
the fact that, although Mr Lee had filed an affidavit in the proceedings denying any responsibility for the claimed loss, this affidavit did not address the critical evidence of Ms Huo as to the making of the oral representations by Mr Lee;
Mr Lee had secured an adjournment and ultimately a transfer of the proceedings from NCAT in 2024;
Mr Lee had known about the trial date for a reasonable period of time;
Mr Lee had been given notice of his opportunity to cross-examine by the letter of 5 August 2025 inquiring whether he required any witnesses for cross-examination; and
two of the three lay witnesses who also deposed to the making of the oral representations and who had not been required for cross-examination were not present in Court.
Importantly it should be noted that part of her Honour’s understanding of the “history of the matter” included that Mr Lee had not traversed the making of the representations pleaded in the ASOC. As already noted, this understanding was erroneous. While the complaint as to this error was rejected in the consideration of appeal ground 1, it assumes more significance in the context of ground 5 because it cannot be excluded that this misapprehension informed the primary judge’s exceptional decision to prevent cross-examination of Ms Huo who was present in Court.
I use the term “exceptional” because of the myriad statements made in the authorities as to the significance of cross-examination as an essential component of a fair trial in the adversarial system. Thus, in Allen v Allen [1894] P 248 at 253, in a passage frequently cited, Lopes LJ, delivering the judgment of the Court of Appeal of England and Wales, said that it appeared to the Court to be “contrary to all rules of evidence, and opposed to natural justice, that the evidence of one party should be received as evidence against another party, without the latter having an opportunity of testing its truthfulness by cross-examination.” In Mechanical and General Inventions Co Ltd v Austin [1935] AC 346 at 359, it was said that “[c]ross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story.” In Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60 at [32], the High Court said that “[c]onfrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial.”
There may of course be exceptions. For example, cross-examination is not always permitted on interlocutory hearings; a witness may have died since giving their evidence or be unavoidably unavailable. In both of these cases, the evidentiary value attaching to such evidence may be diminished: (1857) 24 Beav 243 at 244; 53 ER 351 at 351; (1855) 5 De GM & G 609 at 615; 43 ER 1007 at 1009 referred to in (online ed, July 2024, Lexis Advance) at [17480]; [2002] NSWCA 419 at [187]-[192]. By way of further example, a witness’ evidence may just have annexed documents which could readily have been tendered as business records; or, as was so in the present case in respect of Mr He and Ms Long, the cause of the unavailability of a witness to be cross-examined may have rested at the feet of the party wishing to cross-examine because they had failed to request the witness’ presence for that purpose and prejudice would have ensued if the trial was adjourned.
“The plaintiff is here but you haven’t required her to attend for cross-examination either so why should I permit it?”
cast Mr Lee’s failure to require Ms Huo to attend as a breach of a procedural obligation which, as explained in [90] above, it is not. In any event, it should, with respect, have been obvious to the very experienced primary judge that the answer to her own question was because “[o]rdinarily, a judge in carrying out his [or her] duty will see that the trial is conducted in the manner that is commonly used throughout the State, namely that witnesses are examined, cross-examined and re-examined”: GPI at 22. That is what is usually required of a fair trial.
Although grounds 5 and 6 also refer to the primary judge’s refusal to permit cross-examination of the expert witnesses on the question of damages, on my review of the transcript, Mr Lee did not in fact indicate that he wished to cross-examine them. In any event, neither was present and would have fallen into the same category as Mr He and Ms Long.
Reference was made in argument to the discussion of materiality in MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 (MZAPC) and the Court’s earlier decision in Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54; see also Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [36]-[38] (Nobarani). In MZAPC, Kiefel CJ, Gageler, Keane and Gleeson JJ said at [46] that:
“The unanimous holding in Stead was captured in the statement of the Court that, to obtain an order for a new trial, ‘[a]ll that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome’ and that ‘[i]n order to negate that possibility, it was ... necessary for the [intermediate appellate court] to find that a properly conducted trial could not possibly have produced a different result.’” (emphasis in original)
“The question in these cases is whether the decision that was in fact made could, not would, ‘realistically’ have been different had there been no error: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [32], [46], [63] (Nathanson). ‘Realistic’ is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45]; MZAPC at [2], [85]. See also Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [30]-[31]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [62]. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous: Nathanson at [46]-[47], [127].
…
In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).” (emphasis in original)
In my view, appeal grounds 5 and 6 must be upheld. The primary judge’s refusal to permit the cross-examination by Mr Lee of Ms Huo regrettably means that there must be a new trial. In circumstances where permitting such cross-examination could have changed the course of the proceedings — for example, by affecting the assessment of Ms Huo’s credibility or revealing new evidence that undermined her arguments on reliance or damages — it cannot be said that “the outcome would inevitably have been the same” without the cross-examination. The refusal to permit the cross-examination of Ms Huo was therefore not an error of a kind that could confidently be characterised as immaterial, especially at a standard that is “not demanding or onerous”.
Having now dealt with grounds 4, 5 and 6, it is appropriate to turn to appeal ground 1A.
Ground 1A is that “[t]he conduct of the Trial Judge would have led a fair minded [sic] observer to conclude that there was as [sic] reasonable apprehension of bias as against the Appellant such that the Appellant was deprived of a fair trial.”.
As earlier noted, this ground built upon grounds 4, 5 and 6 and contended that, taken together with these matters, the primary judge engaged in the following conduct which warranted a finding of apprehended bias:
“a. Inappropriate rhetorical questioning/sarcasm towards the Appellant;
b. Interrogating the Appellant from the Bar Table as opposed to properly hearing his motion for an adjournment in an orthodox and considered way;
c. Voicing assumptions about the Appellant’s conduct, and expressing the view that he had spent ‘two years not going anywhere near mediation’ when there was no basis for that comment;
d. Making light of the Appellant’s medical condition on the basis that ‘everyone gets anxious in Court’;
e. Comments indicating prejudgment of contested issues;
…
f. Comments indicating that the Court would simply adopt the decision of [Cole DCJ] as to assessment of damages as opposed to giving the matter independent consideration and then proceeding to do so in the [j]udgment;
g. Approaching the rejection of the Appellant’s request to cross-examine witnesses in a blanket fashion as opposed to distinguishing between witnesses that were present in Court and those who were not; and
h. The rather strange exchange with the Respondent’s counsel about whether the Appellant’s affidavit should be read in the Respondent’s case, and whether (on the basis that the affidavit was said to contain concessions by the Appellant) he should be called as a witness in the Respondent’s case, and if necessary then dealt with as a hostile witness, which had the appearance of giving the Respondent advice to ensure that [she] was successful.” (citations removed)
The first four of these matters focused on observations made by the primary judge in the course of the Appellant’s adjournment application, which was rejected and from which decision there was no appeal. It was not inappropriate for the primary judge to engage with the Appellant in the course of this belated application and I do not read the transcript as manifesting either a sarcastic attitude on the part of the primary judge nor of her Honour “making light” of the Appellant’s medical condition as to which there was very general evidence. To the extent that the primary judge was firm in her interaction with the Appellant, there was a legitimate basis for her Honour expressing the view that the Appellant was the author of his dilemma due to his apparent tardiness in seeking to obtain legal representation.
In relation to the four instances given by the Appellant complaining of “pre-judgment of contested issues”, those references do not bear that character. They involved the primary judge setting out her understanding of key parts of the evidence. In relation to the criticism that the primary judge made comments indicating that “the Court would simply adopt the decision of [Cole DCJ] as to assessment of damages”, this is not a fair criticism of the primary judge. What her Honour did fairly in the course of argument was to indicate that she would be minded to take a similar approach to that taken by Cole DCJ in the assessment of damages against Super Shepherd. Far from manifesting apparent bias, this was putting the Appellant on notice of how her Honour was contemplating assessing damages and it was open to the Appellant to oppose that course or to advance any submissions against that course. That he did not do so did not mean that her Honour’s conduct manifested an appearance of bias against him. Insofar as the primary judge did not differentiate between those witnesses who were not present and thus not available for cross-examination, on the one hand, and Ms Huo, on the other hand, while I have held that her Honour was in error in so doing, that error was not the product of actual or apparent bias but of the miscarriage of her discretion for reasons dealt with in my treatment of appeal grounds 5 and 6. As to the final matter relied upon, the exchange in question related to a passage in the transcript where the primary judge and Mr Rizk had evidently been at cross-purposes, as Mr Rizk acknowledged in the course of the exchange.
In my view, the complaint of apprehended bias in appeal ground 1A is not sustained.
Grounds 7 and 8 relate to quantum and the primary judge’s assessment of damages. The appellant’s partial success in relation to ground 4 means that the primary judge’s decision in relation to damages should also be set aside.
The primary judge’s reasoning in respect of damages was confined to two paragraphs of her judgment (PJ [44]-[45]) reproduced at [49] above and largely represented an adoption of the two paragraphs from the Respondent’s written submissions at first instance. It did not depend on figures taken from the expert reports but on essentially four integers: first, the amount paid by Ms Huo to Super Shepherd; second, the price quoted for the MCG contract; third, the amount paid to Felixland; and fourth, the amount of rent paid by Ms Huo while not able to reside in her property on account of the delay in the refurbishments. The Respondent had prefaced her written submissions on damages in the Court below by stating that:
“Helpfully, the Court has already assessed the damages caused by the misleading or deceptive conduct in Huo v Super Shepherd Pty Ltd [2025] NSWDC 286. The Plaintiff submits that the same approach should be adopted here, and the Plaintiff should be awarded damages of $779,798.29 + pre-judgment interest.”
“lost the opportunity to engage MCG as a result of Super Shepherd’s misleading and deceptive conduct. Had she engaged MCG, she would have had a licenced builder complete the works for $558,503. Instead, on account of the misleading and deceptive conduct, she paid $443,493.43 to Super Shepherd plus $770,000 to Felixland to complete the works Super Shepherd should have completed under the contract or the varied contract. The plaintiff submits that her loss is therefore $654,990.43 (being $558,503 + $770,000 = $1,213,494.43 - $558,503 = $654,990.43). An alternative way of expressing this is to say that the difference between what the plaintiff paid to Felixland ($770,000) and what she would have paid to MCG ($558,503) is $211,497. This should be added to the amount paid to Super Shepherd, being $443,493.43, totalling $654,990.43.
Under the written contract offered by MCG, the date of practical completion of the building works would have been about 1 August 2022. The plaintiff has always intended to live on the property upon the completion of the works.
Super Shepherd’s failure to complete the works has caused the plaintiff to have to rent alternative premises. Between 1 August 2022 and 3 February 2025, the plaintiff paid $105,512.86 in rent. From 4 February 2025 to 27 May 2025, the plaintiff has paid or is required to pay $14,400 in rent ($900 for 16 weeks). The total rent claimed is $119,912.86.”
During the course of the hearing, the primary judge had foreshadowed that she was inclined to adopt the approach of Cole DCJ in any assessment of damages.
A large number of criticisms are made by the Appellant of the primary judge’s decision as to quantum including that her Honour:
constructively failed to exercise jurisdiction by failing independently to consider the Respondent’s evidence on the loss and damage she had suffered;
failed to apply the correct measure of loss or damage, being the difference between what was paid to, and the value of the works performed by, the Appellant**;**
wrongly assumed that the MCG contract could have been entered into in respect of the works when that company was itself not licensed to do so;
wrongly included in the measure of loss or damage the price of the contract with Felixland;
failed to enquire what settlement agreement had been reached with respect to Mr Truong and TT in the proceedings below; and
used the wrong date for calculation of the component of the loss and damages relating to the need to pay for alternative rental accommodation.
There is, in my view, force in a number of these criticisms including as to the mechanical adoption of the reasoning process of Cole DCJ and the failure to account for the value of the works in fact performed by Super Shepherd which was the subject of expert evidence and which authority dictated should have been accounted for: see Mills v Walsh [2022] NSWCA 255 at [110]; Schrader v Broach [2024] NSWCA 14 at [162]-[163]; see also Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 at [41]-[46].
On the other hand, there is force in the Respondent’s position that none of the arguments underpinning many of the criticisms was in fact advanced at first instance, and that they should not be permitted to be raised for the first time on appeal, citing familiar authorities such as University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 483:
“[A] party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had [an] opportunity to do so.”
See also Larsen as trustee for the Larsen Superannuation Fund v Tastec Pty Ltd (formerly Wonders Building Company Pty Ltd) (No 2) [2025] NSWCA 210 at [55] and the authorities there cited.
The Respondent submitted that the Appellant needed to demonstrate that it is expedient in the interests of justice to allow new points to be raised, in circumstances where a party is ordinarily bound by their case: Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 at [10]; Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462 at [314]-[316]; TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at [164]-[167].
Given that, because of the Appellant’s success on grounds 4, 5 and 6, there will need to be a new trial, it is unnecessary to resolve this tension, which would have required a detailed consideration as to whether the various matters sought to be raised were confined to matters of law which could not be affected by evidence: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35.
For the foregoing reasons, the appeal should be allowed, the decision of the primary judge set aside and the matter remitted to the District Court for a new trial: see Nobarani at [36]-[38].
In my view, the appropriate order as to costs should be that the costs of the appeal be costs in the cause.
MITCHELMORE JA: I agree with the Chief Justice.
STERN JA: I agree with the Chief Justice.
****************************************
Lee
Huo [2026] NSWCA 15
(2023) 111 NSWLR 304
(2004) 218 CLR 592
(1991) 22 NSWLR 389
(2006) 229 CLR 577
(1990) 20 NSWLR 15
(2011) 281 ALR 1
(1936) 55 CLR 499
(1998) 195 CLR 594
(2024) 280 CLR 321
(2021) 273 CLR 506
(1999) 161 ALR 581
(2018) 265 CLR 236
(2004) 29 WAR 526
(1986) 161 CLR 141
(1950) 81 CLR 418
(2014) 89 NSWLR 317
(2016) 91 NSWLR 439
(1985) 59 ALJR 481
(1999) 43 IPR 545
(1986) 160 CLR 1
(1991) 23 NSWLR 13
(2022) 276 CLR 80
(2019) 264 CLR 421
(2018) 264 CLR 123
(2020) 269 CLR 439
Appeal allowed. The primary judge's decision was set aside and the matter remitted to the District Court for rehearing. Costs of the appeal and the first trial were made costs in the cause.
On 27 May 2025, Ms Huo obtained default judgment against Super Shepherd with an order for damages to be assessed. Super Shepherd did not participate in the assessment of damages which came before Cole DCJ for hearing on 1 July 2025. On 6 August 2025, her Honour assessed damages in the sum of $779,798.29 together with interest of $164,474.96: Huo v Super Shepherd Pty Ltd [2025] NSWDC 286 at [13], [14], [28]-[29] (Huo).
On 25 August 2025, the first day of the trial, the District Court was told that Ms Huo had settled with Mr Truong and TT, the other remaining defendants in the proceedings. That left Mr Lee as the only defendant in the proceedings.
At the outset of the proceedings of 25 August 2025, Mr Lee sought to vacate the hearing date, relying on a Notice of Motion and an affidavit that had been filed by him the previous Friday. Mr Lee deposed to his inability to obtain legal representation and also that he suffered from anxiety for which he was medicated.
The primary judge heard oral argument on this application before dismissing it on the morning of 25 August 2025. Her Honour’s reasons for so doing appear in the substantive judgment. Those reasons included the following at [51]-[53]:
In relation to the Fee Proposal, it was the Appellant who signed that document on behalf of Super Shepherd. This is a very different context to the realtor in Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 who handed over a document which on its face was not prepared by him.
Moreover, it was entirely reasonable for the representees to act on the basis that the Appellant was familiar with what he was saying about the status of the licence and insurance of the company whose fee proposal he was proffering.
Ground 2 should be rejected.
Mr Lee’s request to cross-examine the plaintiff, Ms Huo, was not in terms opposed by her counsel. All he did was to point out to the primary judge that she had not been required for cross-examination in response to the letter of 5 August 2025. Ms Huo’s counsel did not identify any prejudice that would flow from her being cross-examined. The trial had been set down for three days before the primary judge and her Honour would have been in a position to control the extent, time and manner of the cross-examination in the exercise of her discretion: see also Evidence Act 1995 (NSW) s 41. It is highly likely that the cross-examination would, at least in part, have been directed to the evidence as to the making of the representations which had been denied in the Appellant’s defence. This is supported by what Mr Lee had said when attempting to raise objections to Mr He’s affidavit: see [43] above.
The primary judge may well have considered that Mr Lee was unlikely to make any headway in his proposed cross-examination of Ms Huo or that cross-examination may not ultimately have made a difference to the outcome of the case. That supposition may or may not have been correct but it is not to the point. Although Ms Huo was not the only witness who had deposed to the making of the representations, she was the only relevant witness for the purposes of reliance. Her evidence was central to her being able to succeed in the case and it is notorious that not all witnesses come up to proof when their affidavit evidence is tested in cross-examination. Fairness dictated that Mr Lee be given the opportunity to cross-examine Ms Huo given that she was present in Court, there was no logistical impediment to this occurring within the timeframe set aside for the trial and no other prejudice was pointed to. The short reasons of the primary judge do not identify any other specific matter that informed her decision although, as I have already said, it cannot be excluded that her Honour’s misapprehension that Mr Lee had failed to traverse the alleged representations in his Defence to the ASOC affected her reasoning.
Mr Rizk sought to defend the primary judge’s decision to refuse to permit cross-examination of Ms Huo on the basis that it involved an exercise of discretion such that the Court should consider any challenge to it through the eyes of House v The King (1936) 55 CLR 499; [1936] HCA 40. That submission was unavailing, however, because that exercise of discretion was vitiated by her Honour’s mistaken understanding that Mr Lee had failed to traverse the making of the representations in his Defence to the ASOC. Alternatively, her Honour’s decision to refuse to permit Mr Lee to cross-examine Ms Huo fell, in my opinion, into the category of unreasonable decisions that permit appellate interference with a primary judge’s discretionary decision. That it was a decision in some respects on a matter of practice and procedure is not to the point: it was a decision with potential to affect the outcome of the case.
To the extent that the primary judge relied upon the fact that Mr Lee had not required any witness to attend for cross-examination, that failure should not have counted against him in relation to Ms Huo. The primary judge’s blanket ruling failed to advert to this important fact. The answer to the primary judge’s question to Mr Lee,