Meehan as trustee for Novasense Property Trust v Perry’s Performance Plumbing Pty Ltd trading as Perry’s Performance Plumbing

1. In respect of the contract terminated for 163 Main Road the application stated that the Respondent issued an invoice for $10,211.30.
2. On 30 May 2025 the application came before the Tribunal when orders were made for the parties to exchange evidence. For reasons which are unknown the name of the Applicant was changed to "Novasens Property Trust".
3. The application was heard by the Tribunal on 18 August 2025. The record of the hearing states that the application was dismissed and that oral reasons were given. Written reasons were not requested, nor provided.
4. A Notice of Appeal was lodged by "Novasens Property Trust" on 5 September 2025.
5. On 19 September 2025, the appeal came before the Tribunal when directions were made for the preparation of the appeal. Leave was given for the Respondent to be legally represented. The directions provided for the parties to exchange evidence and submissions. This included a direction that if oral reasons were given "and/or what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing" should be provided.
6. The Notice of Appeal was accompanied by an application for a stay of the orders made at first instance. Both parties lodged submissions in support of or in opposition to the application. Subsequently, the application for a stay was withdrawn.
7. The Appellant has lodged submissions in support of the appeal, as well as a USB stick providing a sound recording of the hearing. Contrary to the direction described above, no transcript has been provided. However, some extracts from the hearing have been included in the Appellant's submissions.
8. On the morning of the hearing we received a court book prepared by the Respondent. In our view the explanation for the late provision of the court book was unconvincing and to the extent that it contained fresh material not previously drawn to the attention of the Appellant, we said that we were of the view that such fresh material should be given little or no weight. However, the bulk of the material in the appeal book does not consist of fresh material. The exception is submissions prepared by the Respondent and dated 29 January 2026.
9. At the hearing of the appeal we indicated to the parties that the identity of the Appellant (Novasens Property Trust, sometimes spelt "Novasense") could not be permitted to continue as that was not the name of a legal entity. Mr Von Rosen informed us that the trustee of that trust is Bradley John Meehan and , with Mr Von Rosen's consent, we indicated that we would amend the name of the Appellant to describe the Appellant as Bradley John Meehan as trustee.
10. It is necessary to say something about the hearing at first instance as gleaned from the sound recording. This is done in the following paragraphs.

1. At the beginning of the hearing Mr Von Rosen explains that he seeks an order for the Respondent to pay the applicant (now the Appellant) $8,339.21. The Member asked about evidence and received a bundle of documents from Mr Von Rosen. That was marked Exhibit A1. The Member also noted that a bundle had been filed by the Respondent and that was marked Exhibit R1. It was also clear at the beginning of the hearing that there was no appearance for the Respondent.
2. Mr Von Rosen explained some of the defects which form the basis of the claim against the Respondent.
3. The sound recording records that there was a discussion between Mr Von Rosen and the Senior Member during which Mr Von Rosen explains that by reason of the alleged defective work undertaken by the Respondent he engaged Academy Plumbing to provide a quote to rectify the works. The quote in the form of a tax invoice dated 7 April 2025 was the document relied upon by Mr Von Rosen. It identified that the works had been inspected, that a "line was installed with 1% backfall", that four pits were installed "too low", that stormwater lines backfilled with dirt and that the work was to "rectify all works". The quote totalled $8,339.21.
4. There was also a discussion between Mr Von Rosen and the Senior Member about the terms of the contract between the Appellant and the Respondent. It appears to be partly evidenced by a quotation dated 17 December 2024. That quote under the heading "stormwater drainage" identifies the work to be undertaken. We were informed that the items described in the first two bullet points relate to 161 Main Road and the balance of the items described in the subsequent bullet points relate to 163 Main Road.
5. The sound recording revealed that the Senior Member sought to better understand the contractual obligations agreed to be undertaken by the Respondent and then moved to a discussion of the alleged defects.
6. The Senior Member informed Mr Von Rosen that he was not only a lawyer but also an engineer and that he has had experience giving expert evidence. He disagreed that the alleged defects ( except one) were in fact defects and stated that the plumber engaged by Mr Von Rosen (Academy) has "had a lend of you". Later in the discussion the Senior Member stated that subcontractors "lie constantly" and that he did not accept Academy's evidence. We will refer to some other statements made by the Senior Member later in these reasons. The Senior Member stated that Mr Von Rosen had not made out the applicant's case and that that the case is dismissed. The Senior Member stated that the breaches were not established on the evidence except a very minor breach which would not prevent the work from being used for its intended purpose. He also said that Mr Von Rosen had not proved the terms of the contract.
7. There was a further discussion about the fact that Mr Von Rosen expressed concern that he would not be able to have the work certified as compliant in the light of the defects and he acknowledged that he had not asked the Respondent to certify the work.
8. The Senior Member stated that there was no evidence of the Respondent having breached the contract, that there was no evidence of damage having been suffered and no evidence that there was a contractual obligation to use gravel (as alleged by defect 4).

1. The Appellant lodged a Notice of Appeal on 5 September 2025. The grounds of appeal are as follows:

(1) The Tribunal rejected evidence provided by the Applicant.

(2) The Tribunal rejected evidence provided by the subcontractor hired to fix repairs.

(3) The Tribunal inferred that "the new subcontractor may have inflated scope of repairs".

(4) The Tribunal inferred that "defective work from original contractors that would have been rejected by certifiers and inspectors was acceptable".

(5) The Tribunal rejected evidence provided by the Applicant's engineers responsible for "designing project".

1. The Notice of Appeal also contended that the Decision was not fair and equitable and set out submissions in support of that proposition.
2. Given our views about the conduct of the hearing (which we explain subsequently in these reasons) it is not necessary to describe in further detail the submissions contained in the Notice of Appeal or the other grounds set out in the Notice of Appeal.

1. Again, given our views about the conduct of the hearing, it is not necessary to set out in full the substance of the Appellant's submissions. We intend to concentrate on those aspects concerning the conduct of the hearing.
2. The Appellant submitted (and we agree having listened to the sound recording) that the Senior Member described himself as not only a lawyer but also as an engineer who had experience as a witness giving expert evidence in cases concerning building projects. The Appellant submitted that the Senior Member expressed the opinion that a negative fall of -1° in the pipes laid by the Respondent was a minor issue that would not have precluded the work being appropriately certified. The Appellant's contention was that according to Academy Plumbing the fall required rectification.
3. The Appellant contended that it had not been afforded procedural fairness in the manner by which the Tribunal assessed the evidence of Academy Plumbing. The Appellant pointed to the following remarks made by the Senior Member at the hearing:

(1) The Senior Member stated that the problem with the evidence of Academy Plumbing was that their evidence was "not very good evidence because if they are having a tight week, they will find things wrong with the work. This is why we rely on expert evidence here".

(2) Later the Senior Member said that "I think this plumber is having a bit of a lend of you to be honest".

(3) The Senior Member stated that Academy Plumbing "charged you a fortune".

(4) The Senior Member said "subcontractors lie constantly. It is a risk of being in the construction industry and they will make money anyway they can. That is why I cannot accept the second contractor in time view as evidence".

1. The Respondent lodged submissions on 18 September 2025. The substance of those submissions was to assert that the Appellant has failed to identify a question of law or that the Appellant identified any basis for the grant of leave to appeal.
2. On 3 October the Respondent lodged a Reply to Appeal. It also recorded that the Respondent contends that the Appellant has not identified any error of law or procedural unfairness.
3. On 29 January 2026 the Respondent lodged further submissions. Those submissions state that the Tribunal was entitled to evaluate the credibility and weight of the evidence before it. The submissions state that the Appellant's evidence was internally inconsistent and unsupported by objective material. The quotation from Academy Plumbing was not compliant with the Tribunal's Expert Witness Code of Conduct and was correctly treated as opinion evidence lacking independence. Further, the tax invoice of Academy Plumbing did not provide any reasoning, measurements or findings in accordance with the Australian Expert Witness Code or any construction code which would indicate that the work conducted by the Respondent was defective.
4. The Respondent's submissions further stated that the inference that the scope of repairs quoted by Academy Plumbing may have been inflated was reasonable. The Tribunal was entitled to draw inferences "from these relative commercial self-interests". Further, the submissions state that the Tribunal was correct in the weight it placed on the quotation provided by Academy Plumbing.
5. With respect to the requirement for the work to be certified, the Respondent's submissions state that the Tribunal's reasoning that the work would have been certified was rational and a sound conclusion drawn from the evidence. The submissions state that the Senior Member provided an explanation by way of his own knowledge and experience that such certification would be made by the subcontractor who performed the works. The Respondent's submissions state that this was a permissible inference as "It is both factually sound and a reasonable assertion".
6. The Respondent's submissions refer to new evidence which the Appellant sought to introduce in support of the appeal. The Respondent objected to that evidence on the basis that there was no proper explanation as to how such evidence could not, with reasonable diligence, have been obtained for the original hearing. We interpose here to say that we agree with the Respondent that such fresh evidence should not be allowed in the appeal in support of the Appellant's case. Fresh evidence is usually only allowed in an appeal when it can be established that it was not reasonably available at the first hearing. In any event, this aspect is not germane to our decision.
7. In summary, the Respondent seeks an order that the appeal be dismissed with costs.

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) regulates appeals from decisions made by the Tribunal at first instance. The section provides that an appeal may be made as of right on any question of law or with the leave of the Appeal Panel, on any other grounds.
2. The position explained in s 80 is modified in the case of decisions made in the Consumer and Commercial Division (as was the case in these proceedings) by clause cl 12 in sch 4 of the NCAT Act. Clause 12 provides limits on the manner and extent by which leave to appeal may be granted. We are of the opinion that this appeal may be resolved by the fact that the Appellant has raised a question of law and, accordingly, there is no need to give consideration to cl 12.
3. In the Appeal Panel decision of John Prendergast and Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel outlined questions of law that may give rise to an appeal as of right. Two categories of questions of law listed in Prendergast are relevant to this appeal. They are:

(1) Whether there was a failure to afford procedural fairness.

(2) Whether there was no evidence to support a finding of fact.

1. By way of further background, it is necessary to refer to the Appeal Panel decision in Khan v Kang [2014] NSWCATAP 48. That decision contained guidelines concerning whether a quotation to rectify or complete work can never constitute evidence supporting a claim for defective or incomplete work. From [50] the Appeal Panel stated the following:

50 A quotation from a supplier willing to rectify defects or complete incomplete work can, depending on the circumstances and the nature and content of the quotation, constitute evidence of the defects or incomplete work and of the amount required to remedy the defective work or complete any incomplete work. For example, if the person providing the quotation was suitably qualified or experienced, inspected the work, identified defects or incomplete work on that inspection, recorded his or her observations in the quotation and gave a price to rectify or complete the work, it is difficult to understand why that quotation would not provide evidence in support of a claim for defective or incomplete work. The weight to be given to the evidence would, of course, depend upon many factors. Nonetheless, it would be wrong to conclude that simply because an applicant relied only upon a quotation or quotations for the rectification or completion of work that there was no evidence to support the claim that the work was defective or incomplete.

51 Of course, a quotation relied upon by a party may be inadequate for these purposes but, if this is to be the Tribunal's conclusion, the reasons for rejecting the quotation must be explained in the reasons for decision. Such an explanation does not have to be lengthy especially in a claim that has only a small monetary value, but some explanation is required. This is what s 62(3) entails when it requires findings of fact to be made referring to the evidence or other material on which those findings were based and when it requires the reasoning processes that led the Tribunal to its conclusions to be set out.

52 Even where a quotation is based upon assumptions as to defective or incomplete work and not the observations of the person giving the quotation, it still may be amount to evidence of an estimate of the cost of rectifying or completing the work and be relevant for that more limited purpose. Whether or not that evidence should be accepted would be a matter for the Tribunal to assess in all the circumstances of the case.

53 As to the implicit premise that in order to establish a claim for defective or incomplete work in a home building matter there must be a building inspection report by an independent builder to demonstrate any liability of the respondent, such a premise is wrong. Whilst a building inspection report by an independent builder may be very helpful in establishing liability, such a report is not always necessary in a case such as the present. To suggest that an applicant in a home building matter involving only a small monetary amount must engage an independent builder to provide a building inspection report before the applicant can succeed in his or her claim is also inconsistent with the principles set out in ss 36(1) and (4) which require the Tribunal to facilitate the just, quick and cheap resolution of the real issues in proceedings and to conduct proceedings so as to facilitate the resolution of the issues in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter.

1. Having listened to the sound recording of the proceedings at first instance we are of the opinion that the Senior Member had formed a firm view, based upon the Senior Member's prior experience, that the evidence tendered by the Appellant from Academy Plumbing in the form of the tax invoice dated 7 April 2025 could not be trusted. Extracts from the sound recording quoted earlier show clearly that the Senior Member did not trust the evidence from Academy, and therefore did not accept it. There was in fact no evidence that Academy Plumbing were lying in what is contained in their invoice or "having a lend" of the Appellant.
2. The NCAT Act provides in s 38(2) that the Tribunal is not bound by the rules of evidence and may enquire into and inform itself on any matter in such manner as it thinks fit, "subject to the rules of natural justice". In our view, this requirement encompasses the requirement that it is not open to the Tribunal to reject evidence from a particular category of witness only because the Tribunal has had earlier experiences where evidence from witnesses of the same category (in this case, subcontractors) was thought to be generally unreliable.
3. The sound recording discloses that the Senior Member was also not disposed to accept the evidence of Academy Plumbing because it was not the evidence of an independent expert, but was rather the evidence of a contractor who had an interest in obtaining work. As can be seen from the extract set out above from the Khan v Kang decision, it is not always necessary for opinion evidence as to defects to be authored only by an independent expert. In this case, there was evidence in the form of a tax invoice dated 7 April 2025 and the appropriate approach (as is evident from [51] of Khan v Kang) is to consider the invoice and surrounding evidence and decide whether it contains adequate details for the purposes of assessing whether the party making the claim has adequately discharged their obligation to prove the existence of defects and that the method of rectification was reasonable.
4. The result, in our respectful opinion, was that the Tribunal denied the Appellant procedural fairness by drawing conclusions as to the reliability of the evidence tendered by the Appellant for which there was no evidentiary basis.
5. In fairness to the Senior Member, it must be acknowledged that he attempted to come to grips with the Appellant's evidence by asking questions concerning the scope of the works performed by the original plumber and the nature and extent of the work undertaken by reference to engineering plans that had been submitted. In our view, the sound recording reveals that the Appellant's representative was not skilled in presenting the Appellant's case, possibly due to the fact that he was not familiar with litigious proceedings.
6. Our conclusion is that the Appellant's application must be remitted and be reheard before a different Member. In coming to this view we express no view at all as to the merits of the Appellant's application for compensation. The Appellant must still satisfy the Tribunal of all of the necessary elements required to establish that the Appellant's claim for compensation should be upheld.
7. We make the following orders:

(1) Appeal upheld.

(2) The Appellant's application is remitted to the Consumer and Commercial Division of the Tribunal for a rehearing (with such additional evidence as the Tribunal on remittal may permit) and on remittal the Tribunal should be differently constituted.

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.