Mhouis v Durabuilt Products Pty Ltd

(1) Cost of the workshop, $3,166.00.

(2) Storage facility costs, 14 months at $385 per month, $5,390.

(3) Cost of building report, $330.

(4) Service of document costs, $803.

1. The Tribunal found that the shed supplied by the first respondent did not comply with the guarantee of acceptable quality in s 54 of the Australian Consumer Law NSW (ACL). It dismissed the claim against the second respondent on the ground that the appellant had not provided any evidence to show that the second respondent failed to install the workshop with due care and skill.
2. On appeal, the appellant contends that the damages awarded were too low.
3. The appellant did not appeal the order dismissing the claim against the second respondent. The only question raised by his appeal was as to the amount of the damages awarded against the first respondent. Despite this, the second respondent was named as such in the Notice of Appeal. The appeal must be dismissed against the second respondent.

The Tribunal's reasons concerning the assessment of damages

1. Correctly, the Tribunal addressed the remedies available against a supplier of goods in respect of a failure to comply with a statutory guarantee set out in s 259 of the ACL.
2. The Tribunal concluded that the appellant had not rejected the shed within the terms of s 259 (3) (a) and, accordingly, a refund of the purchase price (in accordance with s 263 (4)) was not an available remedy.
3. Instead, the Tribunal addressed the question whether the appellant could recover damages against the first respondent pursuant to s 259 (4), which provides:

The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such failure.

1. The Tribunal referred to evidence given by the appellant as to the cost to fix the defects and, consistently, with that evidence found that the reasonable cost to rectify the defects would be $2,500.00.
2. The Tribunal went on to dismiss the appellant's claim for storage costs, the cost of the building report and service fees.
3. As to the claim for storage costs, the Tribunal said (at [34]):

...These storage costs pre-date the notification to the respondents that there were issues with the workshop and are therefore not a reasonably foreseeable consequence of the breach of guarantee. Further it can be seen from the building inspection report that the workshop was being used to store items. Therefore, the Tribunal is not satisfied that the storage fees are a loss suffered as a result of the first respondent's breach.

1. The Tribunal went on (at [35]) to dismiss the cost of the building report and the service fees on the basis that these were costs incurred in the proceedings and were not recoverable because special circumstances were required and the appellant had not demonstrated any special circumstances that would give rise to an order for costs.
2. Nature of appeal
3. Section 80 (2) (b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) provides:

80 Making of internal appeals

....

(2) Any internal appeal may be made -

....

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

1. Accordingly, the appellant has a right of appeal on a question of law but otherwise requires leave to appeal. Because the appeal was from a decision of the Consumer and Commercial Division, a grant of leave to appeal could only have been made if the appellants satisfied the conditions in clause 12 (1) of Sch 4 of the NCAT Act.
2. Clause 12(1) of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because:

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

(2) the decision of the Tribunal under appeal was against the weight of evidence; or

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

1. Furthermore, as stated by the Appeal Panel in Collins v Urban [2014] NSAWCATAP 17 at [84](2):

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

(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. In his Notice of Appeal, in the section concerning Grounds of Appeal, the appellant stated:

I'm appealing the decision to award the costs of the shed repair in the amount of $2500 only and omitting all the other costs that was the result of the defendant failure to rectify the issue when first started in June 2024.

1. In the Notice of Appeal, the appellant sought leave to appeal on the basis that the decision was not fair and equitable, was against the weight of evidence and that there was significant new evidence now available that was not reasonably available at the time of the hearing.
2. In his Notice of Appeal lodged on 30 July 2025 and his written submissions, lodged on 24 September 2025, the appellant did not articulate any question of law. This is not surprising given that the appellant has no legal qualifications and is self- represented. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25] the Appeal Panel addressed the requirements concerning the need to establish that an appeal raises a question of law. We have applied those requirements in respect of this appeal. In particular, we note the Appeal Panel's reference to the fact that in many cases involving an unrepresented litigant the Appeal Panel itself has considered whether a question of law is raised from the materials and submissions presented on the appeal. That is what has occurred in this case.
3. As explained below, in respect of the storage costs issue, we consider that the appeal raised a question of law as to whether the Tribunal asked itself the right question, or misdirected itself as to the correct approach to the assessment of damages.
4. In those written submissions, the appellant set out in 46 numbered paragraphs an account of why he was appealing a decision on the basis that it was said to be "unfair, unjust, and lacked factual understanding". In those paragraphs, he provided a number of statements about the facts some of which were, potentially, of some relevance to the question as to the compensation he should have been awarded.
5. We treat these statements as submissions only. We were not provided on appeal with the written or oral evidence that the appellant provided to the Tribunal. We were not provided with any transcript of the hearing. In any event, as appears below, the status of these statements is not material.
6. What appears from the account given by the appellant is that he says he decided to purchase the shed in order to reduce the existing storage costs he had with Kennards, where he was storing stock, machinery and tools used in a business he had carried on in the name of R.A. Windows Group Pty Ltd, which he had shut down in 2023. He says he purchased the shed to store these items. He says that after the shed was installed he started moving these items slowly into the shed, hoping to eventually move all the items there. At the time when the leaks started he had moved some of these items but many still remained at Kennards. Because of the defects with the shed, he was unable to complete the move of his machinery and tools and, hence, continued to have to incur storage costs for these items. He also said that even though he covered stock items in the shed after the leaks occurred, water still caused damage to stock and he had to dispose of them. He said that the whole purpose of purchasing the shed was to move machinery, stock, and tools and that the machinery and tools are still at the self- storage.
7. He also said that he was left with a useless product and that he told the Tribunal at the hearing that the first respondent could come and take their product.
8. In these written submissions, the appellant presented a table of the costs sought by way of damages consisting of:

(1) Storage costs with Kennards (by way of an updated statement), $6,545.

(2) Cost to "buy a shed", $3,116.

(3) Cost of "installing the shed", $900.

(4) Cost of building report, $330.

(5) Costs of serving documents, $803.

(6) Costs of postage and photocopying to serve parties, $398.

1. We proceed to consider the merits of his appeal by reference to each of these categories of costs sought by the appellant

1. In the written and oral submissions by the appellant most emphasis was given to the issue about recoverability of storage costs.
2. We agree with the Tribunal's conclusion that storage costs were not recoverable because the appellant did not establish that they were reasonably foreseeable loss or damage as a result of the failure to comply with the acceptable quality guarantee.
3. We do not, however, agree with the Tribunal's reasoning in respect of this conclusion, insofar as it is based upon the fact that storage costs pre--date the notification to the respondents that there were issues with the workshop.
4. The question of reasonable foreseeability is concerned with foreseeability of damage should there be a failure to comply with the relevant statutory guarantee. It is concerned with foreseeability at the time when the contract is entered into, not at the time when failure to comply becomes apparent or is notified. In this regard, therefore, we consider that the Tribunal did not ask itself the right question or misdirected itself as to the correct approach to be taken to the assessment of recoverable damage.
5. However, in our view, the Tribunal's error is not material. This is because the appellant has not shown any basis for a conclusion that the storage costs were a reasonably foreseeable consequence of a failure to comply with the guarantee. We do not consider that such an inference is available from the mere fact of entry into a contract to supply the shed. The making of the contract for the supply of the shed provides no information to the supplier about the consumer's intended use of the shed. Furthermore, the appellant did not point to any evidence concerning communications between the parties before, or at the time of, making the contract which could lead to a conclusion of foreseeability of such damage.

1. As to these items of damage, it appears that the appellant contends that the Tribunal erred by failing to assess damages on the basis that the appellant should receive replacement cost.
2. In support of his contention in the Notice of Appeal that the decision was against the weight of the evidence, in respect of the question raised as to what evidence the Tribunal should have given more weight to, the appellant stated:

According to the building report supplied to the tribunal, the product does not comply with Australian Standards and has major defects issues. It is useless.

1. We have already referred to the appellant's written submissions to the same effect.
2. However, as already mentioned, the Tribunal referred to evidence from the appellant concerning the cost to repair the defects. There was no suggestion by the appellant that the Tribunal had misunderstood or misheard such evidence.
3. In view of the evidence about the costs to repair given by the appellant the Tribunal's assessment of damage on this basis is readily understandable. It was, at least, reasonably open to the Tribunal to proceed on that basis. We also reject the contention that the decision was against the weight of the evidence for this reason.

The other costs-building report, service and photocopying costs.

1. We can discern no error by the Tribunal in rejecting these costs. It seems clear that these were costs incurred in the proceedings. The Tribunal was correct to say that costs were only recoverable by establishing "special circumstances", as provided for in s 60 of the NCAT Act.

1. At the hearing of the appeal, the appellant contended that he should be awarded compensation for damage to items that were in the shed at the time when the water leaks occurred. This was not an item of damage referred to in the table of costs contained in his written submissions.
2. When asked about this damage at the hearing of the appeal, the appellant was unable to provide any specific identification of the amount of this damage and how it was made up, including to specify the items alleged to have been damaged.
3. More significantly, this was not an item of damage identified in the Tribunal's specification of the make-up of the claim for compensation in the written reasons (at [9]). The appellant did not present any basis for a conclusion that the Tribunal had overlooked such an item of damages.
4. As far as we can tell, this is a new item of damage raised for the first time on appeal. Clearly, it raises new questions of fact. Accordingly, it should be rejected: see, for example, Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 (Suttor).

1. At the hearing of the appeal, the first respondent sought to raise a contention, based upon evidence not presented to the Tribunal, that the real cause of the defects with the shed and the consequent damage was unauthorised lighting work carried out by the appellant inside the shed. This contention was the subject of an "Application for miscellaneous matters" document lodged in the Tribunal on 28 November 2025. It was also supported by statements made by Mr Bannerman (named as the second respondent), who attended the hearing of the appeal by video link.
2. When asked at the hearing of the appeal what order the first respondent sought in respect of this application, Mr Jead, who appeared for the first respondent, stated that it was an application in support of an order that the appeal be dismissed. It was not an application that the order made against the first respondent be set aside on the basis of new evidence, albeit through a misconceived process-the first respondent did not lodge an appeal against the Tribunal's order.
3. The process followed by the first respondent was misconceived. In any event, it was clear that the evidence concerning this contention was reasonably available to the respondents at the time of the hearing. It is also a new controversial contention raised for the first time on appeal: see Suttor. We reject the attempt by the first respondent to rely upon this contention and the new evidence said to support it.

1. For the above reasons, we order that the application for leave to appeal is refused and that the appeal is 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.