Mavroudis v Frontline Building Group Pty Ltd [2025] NSWCATAP 317;

1. Although not identifying any ground of appeal, the Notice of Appeal generally sets out the appellant's contentions as to why she says the Tribunal should have found that each of Items 2, 4, 5 and 8 were defective and concerned work that was in breach of the warranties implied by s 18B of the HBA that applied to the work performed by the respondent, and sought the following orders:

(1) a joint inspection to have the defects reassessed;

(2) reassessment by the NSW Building Commission;

(3) reimbursement of $2,200.00 for my expert report;

(4) reimbursement of $792.00 for attendance of my expert;

(5) toilet roll holder and two guest towel rails that the appellant says she paid for.

1. Both parties appeared self-represented but were assisted by their respective experts.

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80 (2) of the NCAT Act.
2. An appeal to the Tribunal's Appeal Panel does not provide an unsuccessful party with the opportunity to run its case again, nor is it sufficient for an appellant to disagree with the outcome and to contend there should have been a different outcome: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
3. To succeed in an appeal from a decision of the Consumer and Commercial Division, an appellant must demonstrate either an error by the Tribunal on a question of law, which may be argued as of right; or that leave (permission) be granted to bring the appeal for a reason under clause 12(1) of Schedule 4 of the NCAT Act (which is expanded on below).
4. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ('Prendergast') the Appeal Panel set out at [13] a non-exclusive list of questions of law.
5. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204, the Appeal Panel, at [25] provided further guidance in relation to what is a question of law. In summary:

(1) A question of law should be articulated with precision;

(2) Absent leave to appeal, the question of law is the subject of the appeal;

(3) A question of law means a "pure question of law" which is not dependent on facts not found and is not dependent on the answer to the question;

(4) A party contending that a question of law was wrongly decided must identify the question in abstract terms;

(5) A mixed question of fact and law is not a question of law, and a question of law must not be hypothetical or arid;

(6) A question of law must be capable of affecting orders the subject of the appeal, not purely the reasons; and

(7) There may be disclosed an error of law but this of itself does not necessarily raise a question of law.

1. An error on a question of law is an appeal as of right (if established) and does not require leave.
2. Where the grounds of appeal do not raise a pure question of law, an appellant may seek leave to appeal.
3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division of this Tribunal under s 80(2)(b) of the NCAT Act are limited to those set out in cl 12 (1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(1) 12(1)(a) - the decision of the Tribunal under appeal was not fair and equitable; or

(2) 12(1)(b) - the decision of the Tribunal under appeal was against the weight of evidence; or

(3) 12(1)(c) - significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. As explained in Collins v Urban at [84], it is not sufficient merely to show that the Tribunal below was arguably wrong or that there is a bona fide challenge to an issue of fact.
2. In Collins v Urban, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12 (1) of Sch 4 may have been suffered where:

"... there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."

1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. On 23 May 2025, directions were made for the parties to:

(1) lodge with the Tribunal and give to the other party all the evidence that was provided to the Tribunal at first instance on which a party intends to rely; and,

(2) if what happened at the hearing at first instance is being relied on by a party in the appeal, a typed transcript of the relevant parts of the hearing, together with a sound recording of the entire hearing.

1. The appellant filed two bundles of documents on 20 June 2025 (AB1) and 5 August 2025 (AB2). Both contained further statements of the appellant dated 20 June 2025 and 1 August 2025, which we have had regard to, as being, in substance, submissions, rather than new evidence.
2. The appellant's documents did not include a transcript of the hearing or any of the experts' reports, including the joint report, relied on at the hearing.
3. The respondent filed a bundle of documents on 18 July 2025 (RB1) which included the respondent's Reply dated 20 May 2025, (further) response to the appeal dated 3 July 2025, the appellant's expert's report of Mr Andrew Kerin, building consultant, a bundle of photos that had been relied on by the appellant, the respondent's expert's report of Paul O' Donnell dated 13 November 2024, and the joint conclave report signed by the parties experts and dated 5 December 2024.

1. None of the matters raised by the appellant in respect of each of items 2, 4, 5 or 8 raise a question of law, and as noted above, the appellant effectively contends that the Tribunal should have found that each item concerned defective work in breach of warranties implied by s18B of the HBA.
2. We will therefore consider the appellant's arguments in respect of each of items 2, 4, 5 and 8 as being reasons why the appellant contends that leave to appeal should be granted because the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or was against the weight of evidence.
3. In saying that, a difficulty for the appellant is that, in circumstances where we have not been provided with a transcript of the hearing, particularly of any supplementary evidence given by the experts, it is difficult for the appellant to challenge the Tribunal's findings as being against the weight of evidence.
4. Following a consideration of items, 2,4,5 and 8, we will consider the appellant's claims on appeal for her expert witnesses' costs for the hearing below and a toilet roll holder and towel rails says she paid for.
5. Because Items 2 and 8 were related in that they involved issues with tiling falls and water stops not being flush with floor level causing water related issues, and were considered together by the Tribunal, we will also deal with those items together.

Item 2 Tiled floors of wet areas to have a minimum 1: 80 fall to waste & Item 8 Water stops across wet areas not sitting flush with floor level.

1. Item 2 item concerned the fall in tiles outside a shower area.
2. The issues concerned whether the falls were required to be 1:80 or 1:100 and whether there was evidence of water ponding. The appellant challenges the Tribunal's findings that minimum falls in the tiling were met and that it is not satisfied that there was ponding.
3. The appellant and contends to the effect that the Tribunal ought to have found that the fact of inadequate falls in the tiling and the existence of water ponding meant that there had been a breach of the warranties implied by s 18B of the Home Building Act 1989 (NSW).
4. Item 8 concerned whether water stop angles sat flush with the floor outside of the wet area.
5. The appellant challenges the Tribunal's acceptance of the respondent's expert's evidence that the instillation of the water stop and the application of waterproofing to the water stop was not defective.
6. The Tribunal carefully summarised the position of each of the experts in respect of Item 2 at paragraphs [38] to [44] of the Decision and in respect of Item 8 at paragraphs [64] to [68], including a supplementary report prepared by the appellant's expert after the Joint report had been signed by the experts (Supplementary Report), and then in considering Items 2, 7 and 8 together, and mindful that the evidence of water pooling was from the Supplementary Report, said at [108] to [113]:

108 I find that the limited photos in the supplementary expert report were not conclusive evidence that water was pooling in the wet areas for 4 to 5 hours during normal use. In any event the pooling was created by the drain being blocked for test purposes. Further, if it had been pooled for such a long period it is not a surprise that areas had elevated moisture levels when tested, and it is not a reasonable conclusion to say this moisture arose due to the disputed waterstop levels in Items 7 and 8. There was no evidence of leak under tiles.

109 This is particularly cogent where Frontline's expert was not given any opportunity to reply to this material supplied very shortly before, or at the conclave. I give more weight to the oral evidence of Frontline's expert that there was no ponding in the bathroom, and he tested for this when he did his first report. I accept this evidence even though there is no written mention of that test in the report. I accept (sic) also accept Frontline's evidence that falls did meet the either 1:100 or 1:80 requirements when he did his inspection and the applicant's readings may have been subject to error for angle to millimetre conversion. I accept that on his inspection and testing the water onsite fell into the drain, not outside.

110 Further, if waterproofing and consequent ponding had been such an issue that ought to have been addressed in the applicant's first expert report. It is more probable than not that when the applicant's expert prepared the first report as he did not caried out any water testing at the first inspection because he had no instructions from the applicant that ponding of water was an issue.

111 In addition, the claims that the waterstops were not installed correctly and that wet area falls were incorrect are not observable defects but ones that may happen in the future. Frontline's expert also said that installation of aluminium angles being installed on the top of a membrane angle is standard. The defects claimed are bare assertions and presumptions, not observable defects. The statutory period for action on major defects is 6 years and the applicant would have the opportunity to make a claim if the defect was realised.

112 Ultimately, I give more weight to the overarching opinion of Frontline's expert that to strip down and redo the wet areas is disproportionate in the circumstances of the case and accounting for the quality of the work done. To execute extensive remedial action when there was no evidence of any defect proven is not accepted.

113 There was no breach of a warranty under s 18B for items 1, 2, 7 and 8

1. The Tribunal has carefully dealt with the issues concerning falls, pooling and the water stops, and no error has been identified in respect of the Tribunals consideration of Items 2 and 8.
2. In our view, the Tribunal's findings were reasoned and open on the evidence and we are not satisfied that the Tribunal has erred in its consideration of Items 2 or 8 or that the appellant may have suffered a substantial miscarriage of justice for a reason set out in clause 12(1)(a) or (b) of Schedule IV.
3. Leave to appeal in respect of Items 2 and 8 is therefore refused.

Item 4 - Bath and vanity benchtops not installed with care and skill.

1. The appellant contended and her expert gave evidence that there were chips in a vanity benchtop and bath and that they had been sustained when the respondent was performing contract work.
2. The respondent's expert's evidence was that he could not identify any imperfections in the vanity or bath and that the surfaces were high quality without defects or visual impairments.
3. Photos of the claimed chips were at RB p 139. In our view they do no not show any chips.
4. The appellant also contended that a Building Commission inspector had not stated one way or another whether there was damage to the bath or vanity top, but despite a statement not having been made either way, the Tribunal found that the inspector did not see any defects.
5. In respect of the attendance of a NSW Building Commission Inspector, the Tribunal said at [15]:

15 An inspector from the NSW Building Commission attended on 16 May 2024. A rectification order was issued on 24 May. Frontline said that even during this inspection the applicant was verbally abusive. The rectification report and order made no findings that works done as of the date of the report were defective or that the builder had caused damage to the structure of works. The only order made was for Frontline to complete the contractual work. The applicant was ordered to allow reasonable access for this to occur. The order stated the rectification works to complete the contractual items ceased to have effect once this proceeding was lodged with the Tribunal.

1. The Tribunal otherwise summarised the evidence and determined Item 4 at paragraphs [50] to [54] of the Decision as follows:

50 In the joint conclave report the applicant's expert found that chips to the vanity benchtop and bath damaged both items. Rectification required replacing the bath ($1,792.00) and the vanity top ($650.00).

51 Frontline's expert said he could not identify any of the imperfections alleged. He opined that the bath surface is "absolute highest quality without defects or visual impairment". In relation to the vanity bench top, Frontline's expert said it was a "very high quality item and installation". It was alleged the applicant's expert focused on a tiny spot or indent, not considered a defect. Tiny and slight imperfections are expected with benchtops. Frontline's expert said that the applicant's expert referred to no manufacturer's standards in relation for supply of standard stone.

52 On 12 March 2024, Frontline sent an email to the applicant stating that the defect to the bathtub had been repaired. The marble vanity top which had some minor chipping would be replaced.

53 Applicant's expert relied on a zoomed photo of the vanity benchtop only (page 49 report). Frontline's expert relied on the photos for both bath and benchtop included in his report (pages 45-49). Even on the zoomed photo I could ascertain no defect beyond what normal imperfections might be. The only photos of the bath showed it to be in excellent order. Any damage caused to the bath by contractors had been repaired.

54 The claim is not allowed.

1. We do not see that there is any error in the way the Member considered the evidence of the inspector's attendance, and mindful that we have not been provided with a transcript and having been taken to the photos at RB p 139 and the reports of the experts, are satisfied that it was open to the Tribunal to accept the respondent expert's evidence.
2. No error has been identified in respect of the Tribunals consideration of Item 4 and the Tribunal's findings were reasoned and open on the evidence.
3. We are therefore not satisfied that the Tribunal has erred in its consideration of Item 4 or that the appellant may have suffered a substantial miscarriage of justice for a reason set out in clause 12(1)(a) or (b) of Schedule IV.

Item 5 - Vanity wall linings main bathroom not straight

1. This item concerned a deviation in a wall to which the bathroom vanity was attached.
2. The appellant referred to her expert's report and photos at RB p 141 and RB p 261 (from the Supplementary Report) and contended that the photos show that a bow in the wall has caused the wall-mounted vanity to distort and for the handles to be misaligned and asks that the matter be re -assessed.
3. The respondent maintained on appeal that the appellant's expert's observations were flawed and that there was no defect.
4. The Tribunal summarised the evidence and determined Item 5 at paragraphs [55] to [59] of the Decision as follows:

55 The applicant's expert found deviation in the straightness of the existing bathroom wall along the vanity of approximately 7 millimetres over 2 metres contrary to the standard of 4 millimetres over 2 metres as required in the NSW 15 'Guide to Standards and Tolerances 2017, section 4.3 - straightness of steel and timber frame surfaces'.

56 Frontline's expert said the standard relied on was for framing, not the installation of tiles along the length of the wall. He said that 7 millimetres at a corner in a tile application is acceptable industry practice. He stated that the measurements of the applicant's expert were erroneous. The standard referral only applied for a timber or steel frame. The measure of the external tile surface is not related to the timber frame tolerance referred to. The tile application he observed was straight and acceptable when considering impacts associated with glue and applied liquid membrane would have at corner areas. This was also another alleged defect that only arose applicant's supplementary expert report without Frontline's expert having been present or being able to carry out any tests. It was asserted the applicant's expert observations were theoretical and the frame was not measured in the first report.

57 I accept that if this defect had been obvious, it would have been included in report of any defects of the Building Commission inspector when the inspection and rectification order was made. The first report and supplementary report contain no prior instruction of the alleged defect.

58 I accept the evidence of Frontline's expert that at the time of the first inspection "the wall, the tiles and installation of high quality and defect free".

59 The claim is not allowed. Leave to appeal in respect of Items 2 and 8 is therefore refused.

1. Noting again that we have not been provided with a transcript, having been taken to the photos at RB p 141 and 261 and the reports of the experts, we are satisfied that it was open to the Tribunal to accept the evidence of the respondent's expert and rely on the fact that the Building Commission inspector did not identify any defect.
2. No error has been identified in respect of the Tribunals consideration of Items 5 and the Tribunal's findings were reasoned and open on the evidence.
3. We are therefore not satisfied that the Tribunal has erred in its consideration of Item 5 or that the appellant may have suffered a substantial miscarriage of justice for a reason set out in clause 12(1)(a) or (b) of Schedule IV.

Reimbursement of $2,200.00 for expert report, $792.00 for attendance of expert.

1. Although the appellant sought orders to the effect of requiring the respondent to pay the costs of her expert preparing a report and attending the hearing below, none of the material filed by the appellant identified any error by the Tribunal in determining the question of costs.
2. Costs were considered and determined at paragraphs [114] to [116] and [118(2)] of the Decision as follows:

114 Each party sought costs of their expert report and for their expert attending the final hearing to give evidence. The normal rule relating to costs in proceedings over $30,000.00 is that costs successful party in the proceeding are paid by the unsuccessful party.

115 The applicant has only been successful in this proceeding on two relatively minor issues and not the main substance of the claim. I am not satisfied she has been sufficiently successful to justify an order being made for her expert's costs.

116 Nor am I satisfied it would be just in the circumstances of the case to require the applicant to pay the costs of Frontline's expert. While not contested at hearing, Frontline did fail to comply with obligations under the HBA. For example, it provided no standard-form home building contract for the works. It did not provide the applicant with insurance as required under the Home Building Compensation Fund. It is these failures that caused the applicant to distrust Frontline from the beginning of the contract. By failing to comply with these requirements under the HBA, the respondent partly contributed to the possibility of the applicant proceeding with complaints about the issues that have been addressed in this determination. In the end, this required Frontline to obtain its own expert reports.

118 I make the following orders:

...

(2) Each party is to pay its own costs of the proceeding.

1. No error has been identified in respect of the Tribunals consideration of costs, and the costs decision was reasoned and open to the Tribunal in the exercise of its discretion.
2. Leave to appeal in respect of the Tribunals determination of costs is therefore refused.

Claim for toilet roll holder and two guest towel rails!

1. In respect of the appellant's request for a toilet roll holder and two guest towel rails she says she paid for:

(1) Neither the Notice of Appeal nor any of the appellant's submissions identify where this was claimed or otherwise considered and dealt with at the hearing;

(2) We have not been provided with a transcript of the hearing; and

(3) The decision does not identify a claim for a toilet roll holder and guest towel rails having been made as part of the application as filed or having been consider by the experts, even if just to assess the cost of them on an if found basis.

1. We are therefore not satisfied that the Tribunal has erred in respect of any failure to consider or its consideration of a claim for a toilet roll holder and towel rail.
2. To the extent leave is sought to appeal in respect of a claim for a toilet roll holder and towel rails the appellant says she paid for, leave is therefore refused.

6 (2) If any party wishes to make an application for costs of the appeal, that party is to lodge with the Appeal registry and give to the other party any submissions on costs at the same time as their submissions in relation to the appeal.

1. Neither party's submissions included submissions in respect of the costs of the appeal.
2. We will therefore make no order as to costs, with the intent that each party is to pay its own costs of the appeal.

(1) Leave to appeal refused.

(2) Appeal dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.