Nguyen v Nguyen

1. Application 2022/00449838, the Homeowners' first application, filed on 24 January 2022, was an application by the Homeowners for damages following termination of the relevant contract.
2. Application 2022/00428429, the Builder's first application, filed on 6 May 2022, was an application by the Builder for damages following termination of the contract.
3. Application 2023/00384373, the Homeowners' second application, filed on 17 July 2023, was effectively an application by the Homeowners to re-open their first application to seek a work order requiring the Builder to provide certain compliance certificates.
4. Application 2023/00382670, the Builder's second application, filed on 27 July 2023, was effectively an application by the Builder to re-open its first application, although, as the Tribunal identified, it was not clear how the Builder's second application changed the relief sought in the Builder's first application.
5. The Tribunal heard the parties' first applications on 8 November 2022, and 27 and 28 April 2023, and heard the Homeowners' and the Builder's second applications on 23 July 2024. At the conclusion of the hearing on 23 July 2024, the Tribunal reserved its decision on all applications.
6. In its reserved decision (the Primary Decision), published on 28 November 2024, the Tribunal:

(1) Determined, at [93], that the contract governing the building work was a contract executed on 18 July 2019[1] as amended by two contracts executed on 20 June 2020;

(2) Determined, at [126], that the Builder had not completed stage 9 of the works, that the Builder had repudiated the contract, and that the Homeowners had validly terminated the contract;

(3) Granted the Homeowners leave to re-open to seek an order for the provision of identified certificates which the Builder said he could and would provide subject to the determination of whether money was owed by the Homeowners to him, but did not otherwise grant leave to re-open their first application;

(4) In relation to the Homeowners' first application, ordered the Builder to pay the Homeowners damages of $43,952.59;

(5) In relation to the Homeowners' second application, ordered the Builder to provide the identified compliance certificates, but otherwise dismissed the application;

(6) Dismissed the Builder's first and second applications.

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel set out a non-exhaustive list of possible questions of law giving rise to an appeal as of right:

(1) whether there has been a failure to provide proper reasons;

(2) whether the Tribunal identified the wrong issue or asked the wrong question;

(3) whether a wrong principle of law had been applied;

(4) whether there was a failure to afford procedural fairness;

(5) whether the Tribunal failed to take into account relevant (that is, mandatory) considerations;

(6) whether the Tribunal took into account an irrelevant consideration;

(7) whether there was no evidence to support a finding of fact;

(8) whether the decision was so unreasonable that no reasonable decision-maker would make it.

1. These matters were clarified and expanded by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 where the Appeal Panel stated (references omitted):

32 To the above list [referring to the list in Prendergast extracted above] might be added the following (some of which are nuanced aspects of the categories in Prendergast):

(1) Whether the Tribunal drew inferences that were not available from the facts as found (an extension of item 7 [of Prendergast]) ...

(2) Whether the construction of a statute or contract arrived at by the Tribunal at first instance was wrong in some identified way: ...

(3) Whether the Tribunal's decision was vitiated by bias, or a reasonable apprehension of bias, relates to and intersects with the fair hearing rule, and may encompass or be related to the procedural fairness question: ...

(4) Whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice, that is, procedural unfairness. Alternatively, it may also constitute a constructive failure to exercise jurisdiction: ...

(5) Whether the facts as found necessarily satisfied the statute or necessarily did not: ...

1. The Appeal Panel then observed at [33] that, "plainly", the categories (that is, of questions of law) are not closed.
2. We note that, in circumstances where an appellant is not legally represented, it is appropriate for the Appeal Panel to approach the issue of whether a question of law has been raised by looking at the grounds of appeal generally, to determine whether a question of law has in fact been raised: Prendergast at [12].
3. The Appeal Panel raised this issue with the Builder at the commencement of the appeal hearing. We told him that we had been unable to discern any question of law raised by his materials.
4. After a lengthy exchange with the Builder, it was clear to us that he could not identify any question of law raised by his appeal. As will be seen, the appeal grounds he pressed were matters requiring leave to appeal.

1. Clause 12 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. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84(2)] 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. Even if an appellant establishes that the appellant may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

1. For the following reasons, we consider that the Builder has not raised any question of law, and therefore requires leave to appeal.
2. We do not consider that the appellant has shown that the Primary Decision is not fair and equitable, or is against the weight of evidence, in any respect raised by the appellant and, moreover, we are not satisfied that the Builder has raised any ground of appeal which involves an issue of principle, a question of public importance or an injustice which is reasonably clear, nor do we consider that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
3. Leave to appeal is therefore refused, with the consequence that the appeal is dismissed.
4. We consider that the Builder should pay the Homeowners' costs, but will allow the Builder an opportunity to seek a different order.

1. The Builder filed a Notice of Appeal on 24 December 2024, which is within the time required by r 25(4)(c) of Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), that is within 28 days from the day on which the appellant was notified of the Primary Decision.
2. In the Notice of Appeal, the Builder states that the Primary Decision was not fair and equitable because:

The Decision is not fair based on imagination.

Nor based on the Truth element.

I need Justice Decision.

1. The Builder also states that the Primary Decision was against the weight of the evidence.

1. The Builder attached an additional seven pages of documents to the Notice of Appeal. Those seven pages consist of:

(1) A letter from the Homeowners' solicitors to the Builder, dated 1 June 2022. The letter does not appear to have any relevance to the appeal.

(2) The Builder's invoices in respect of stage 9 of the contract works:

(a) Invoice 0010, for "Tiling-flooring-paint-fitting" dated 9 January 2022, in the sum of $65,000;

(b) Invoice 0011-1 dated 20 July 2022, being for the amount of invoice 0010 and interest on that amount, in the total sum of $71,500.

(3) A letter from the Builder to the Homeowners dated 9 May 2022 in which, for reasons stated, the Builder requests the Homeowners to withdraw their application.

1. On 24 December 2024, the Builder filed a 231 page bundle of materials which we understand was the evidence (or at least part of the evidence) the Builder relied on before the Tribunal.

1. Accompanying the Notice of Appeal was a one page submission, dated 24 December 2024. It is convenient to reproduce the submission in its entirety:

1. The homeowners did not pay for the work I have done according to the contract, this is a breach of contract by the homeowners.

2. I produced the invoice of the completed works of the building 9/01/2022 before the homeowners terminated the contract 07/04/2022- (page 3, 4). If they terminated the contract, they need to pay for the outstanding work completed

3. I produced the invoice of the completed works of the building before the homeowners apply to the tribunal.

4. For many times I convince the father of the homeowners Mr Van Don Nguyen to pay me part of the invoice for me to have the fund to complete the job in 6 weeks, but they refused to pay. (page 8(13))

5. During this construction period the price of the materials has increased skyrocketing, but I have not charge any extra money even a single dollar.

6. I thank you Senior Member Mr Woods, did not consider of their claim on the tiles they chose and the rent they claimed. I believe, Senior Member Mr Woods did not consider that the homeowners are in breach of the contract.

7. The construction for this building fall into the COVID-19 pandemic, there were 3 months lock up period, there were distance separation, there were restrict travel for whatever the career you are in Australia, I believe this should consider if you are decision maker.

8. The homeowners breach of the contract, I will say that all the time because they did not pay for my works.

9. The evidence I provided though out the hearing are 100% correct.

10. I believe justice to be fair, I believe, the appeal panel will overrule the order 2022/00449838 and 2023/00384873

11. I am a religious man, Buddha is my teacher, Buddha is inside me, I cannot do anything wrong to the humankind, I don't tell lie to people, I only help people, I am not angry to people that do the wrong thing to me, I don't start legal action to anyone, I believe in next life, I praise every day for our world to be saved.

12. I believe justice to be fair, I believe, the appeal panel will order the homeowners to pay for our works that have been done according to the contract, pay the invoice $71,500.00 (page 5).

13. I will come back to complete the remaining patching job and obtain the OC certificate of the building, the homeowners will pay the remaining of the contract $9,750.00.

14. There is a discount of $10,000.00 will remain.

1. The Builder filed further written submissions on 27 February 2025, apparently responding to the Reply to Appeal filed by the Homeowners on 24 January 2025. It is also convenient to set those submissions out in full:

1. The invoices page 209-229 from the labourers and the materials for the project Where I spent $253,360.00 up to the stage for the progress claim No.09, according to the contract at this stage the total amount is $71,500.00(late payment), I did accept my lost for the project. I want to finish the construction of their house, but they don't want to pay (email page 24). (see contract conditions Clause 10).

2. Whether it is partially completed or partly complete, the homeowners did not pay anything from the hinge of the door to the mixer or toilet or the shower screen or the floor tiles or the labour, they did not pay for anything, these materials have not been paid for by the homeowners, these are not belong to them until they pay for it, I don't understand why Mr. Woods ordered me to pay the homeowners an extra of $43,952.59 for them together I have to provide all the certificates that was not involved in the contract, and I am not qualify to provide these certificates.

3. The homeowners breach of the contract. they did not pay according to the contract. (see Clause 8).

4. The homeowners terminate the contract by themselves to get away from paying for my work. That is in the common sense in human kind.

5. The homeowners put me in a situation that I must depend against the decision from Mr. Woods. I believe people make mistake or mis judgment in their decision. Mr. Woods may be one of them, please look at the contract, the contract conditions and though out the contract agreed with the homeowner. The decision from Mr. Woods needed to be based on the contract for what items I need to provide to the homeowners. For what ever the contract date signed, the condition Clause 6 explained, I need to obtain the approval from all the authorities before I start the construction, Clause 7 of the contract page 105 more description.

6. (13) the reason workmanship manner as described reasoning by the member is untruth, because this building is under my eligibility home warranty, if I don't do the job properly, the insurance company deduct point from my eligibility credit and if someone going to anything inside the building, my home warranty insurance will not cover for the work.

7. I believe in Law and Order, I believe there is common sense in the human society.

8. I am qualified to do the construction work here in Australia not by luck but with my education and my knowledge, I Honor my words, I see everyone equal, NCAT need to reverse the order from Mr. Woods, I requested the homes owners to pay for my work, thank you.

1. Finally, on 11 April 2025 (and again on 23 April 2025), the Builder filed submissions in response to the Homeowner's submissions filed on 31 March 2025. Attached to those submissions was a copy of two pages from the transcript of the Builder's academic results in his Diploma of Building Studies, with the grades achieved in each subject redacted.
2. These submissions conclude as follows:

CONCLUSION

13. The homeowners have no evidence to prove that I, the builder did anything wrong during the construction of their building. Other than relying on Senior Woods's statement.

14. The error from Senior Woods's statement list above from 5-11 will be enough for the appeal panel to overrule the decision cases 2022/00449838 and 2023/00384873 from Senior Member Mr Woods.

15. The homeowners must pay the total cost of the subcontractor $253,360.00.

1. The Homeowners filed their Reply to Appeal on 24 January 2025, responding to the Notice of Appeal and the accompanying documents. In summary, the Reply to Appeal states that:

(1) The Tribunal made a finding that the Builder was not entitled under the contract to be paid for Stage 9 until Stage 9 was completed and that the Builder had not completed Stage 9, and the Builder has not identified any error in the Tribunal's reasoning;

(2) The Tribunal found that the Builder was also not entitled to be paid for part of an incomplete Stage on a quantum meruit basis; again the Builder has not identified any error in the Tribunal's reasoning;

(3) While the Tribunal referred to the Builder's submission that prices of materials had increased since the construction period, this was irrelevant because the contract was a fixed price contract;

(4) The Tribunal considered, and rejected, the Homeowners' claim that the tiles that were installed were in breach of contract;

(5) The Tribunal also considered, and rejected, the Homeowners' claim for lost rent;

(6) The Tribunal considered the impact of the COVID lockdown and the Builder has not identified any error in the Tribunal's reasoning.

'I will come back to complete the remaining patching job and obtain the OC certificate of the building, the homeowners will pay the remaining of the contract $9,750.00',

1. the Homeowners submit that the Tribunal determined not to make a work order requiring the Builder to complete construction because such an order was unlikely to result in the rectification work being completed in a proper and workmanlike manner and in a reasonable time period, and that the Builder has not identified any error in the Tribunal's reasoning.
2. Finally, the Reply states that the Tribunal considered, and rejected, the Homeowners' claim to a $10,000 discount on the Contract Price, but the Homeowners would not object if the Builder wanted to "honour his word" by discounting the $10,000 from the original contract price.

1. The Homeowners filed written submissions on 31 March 2025. Relevantly, the Homeowners submit:

6 The Builder does not identify any question of law in either his Notice of Appeal or his Submissions. Nor does the Builder identify with any precision any other grounds for appeal or provide any proper basis for the grant of leave in either his Notice of Appeal or his Submissions.

7 At its highest, the Builder's appeal seems no more than a complaint that the Tribunal erred by failing to order the Owners to pay for work that he had completed prior to termination.

8 The Builder's complaint reflects a misunderstanding of the decision. In fact, for the reasons below, the Builder did receive a credit for the value of the work that he had completed.

9 It follows that there is no error in the Tribunal's decision. The appeal should be dismissed with costs.

1. The Homeowners further submit (footnotes omitted):

Builder's claim for payment for work done

18. It was common ground that the Builder had been paid for all work done prior to Stage 9 R|97]-[98].[2] It was also common ground that when the Builder issued invoice 10 for $65,000 for stage 9, the stage 9 work had not been completed - indeed, the Builder's evidence was that he needed money to pay contractors to get them back on site to complete the stage 9 works R[101], [121]. The Tribunal found that the contract did not require the Owners to pay for a stage until the stage had been completed R[122], [125]. That finding is not challenged, nor could it be.

19. Having found that the Owners were entitled to terminate the contract for the Builder's failure to complete stage 9 R[126], the Tribunal went on to calculate damages to put the Owners in the position they would have been had the contract been performed, which it identified as the cost to remedy the defective work and complete the incomplete contract work, less the unpaid balance of the contract price R[127]. That is an entirely orthodox mode to assess damages in the case of lawful termination by an owner of a building contract that has been part performed.

20. The effect of that assessment is that work already completed by the Builder does not need to be carried out by another builder, so is not included in the calculation of cost to complete. To the extent the Builder would have, but has not, been paid for completing that work under the contract, then that amount forms part of the unpaid contract price that is deducted from the amount the Owners will have to pay another builder to complete the contract works in order to calculate damages. In short, the Builder received a credit for the value of the work that he had completed.

21 Having carried out an extensive and careful review of the evidence concerning costs to rectify defective work and complete incomplete work at R[146]-|243], none of which is challenged, the Tribunal carried out the damages calculation at R[244] in accordance with the mode it had foreshadowed at R[127]. The Tribunal correctly rejected the Builder's submission, apparently renewed on appeal, that he was entitled to be paid the value of work performed, as "misconceived", relying on Mann v Paterson Constructions Pty Ltd [2019] HCA [62] to [63] and [100] to [105].

22 In those circumstances there is no error in the Tribunal's decision that the Owners were entitled to an order that the Builder pay it damages of $43,952.59.

1. The Builder was not legally represented at the hearing of the appeal. At the commencement of the hearing, we explained to the Builder the principles set out above concerning the nature of an appeal, emphasising that an appeal to the Appeal Panel does not simply provide a losing party in the Tribunal with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

1. At the commencement of the hearing, we invited the Builder to articulate what he saw as the errors made by the Tribunal.
2. The first error the Builder identified was that the Tribunal erred in finding that the Stage 9 works, being "Tile, Paint Fitting", the subject of invoice 0010 in the sum of $65,000, had not been completed.
3. The second error was submitted to be the Tribunal's order that the Builder provide to the Homeowners the certificates set out in [247] of the Primary Decision.
4. After a lengthy discussion between the Appeal Panel and the Builder, the Builder submitted that the mistake was not that of the Tribunal, but of the Homeowners who had not paid him. The Builder said that he could not provide the certificates as he had not paid his subcontractors, who therefore would not give him the certificates, and the reason why he could not pay the subcontractors was that the Homeowners had not paid him.
5. Thirteen certificates are listed in [247], and the Appeal Panel asked the Builder, repeatedly, to identify which were the certificates that were not required under the contract. Initially he identified the Concrete and Reinforcing Certificate as being a certificate that was not required under the relevant contract, but after a further exchange with the Appeal Panel he acknowledged that he was mistaken.
6. When asked whether there were any other errors of the Tribunal, the Builder referred to his submission filed on 11 April 2025. Relevantly, that submission sets out [121] of the Primary Decision:

121 In summary, the Builder's evidence was that he accepts that the stage 9 work had not been completed, but he needed money to pay contractors because the costs to him had increased and he needed money to get contractors back to finish the works to complete the stage 9 / invoice 10 work.

This statement from Senior Woods is untrue. The work for this stage was already done, please see invoices from the subcontractors and the photos (page 127-166). I need the money after the work was completed and the subcontractors were demanding they receive payment for their work. It is expected that payment should be issued for the work we completed and it is not reasonable for the work not to be paid.

1. This issue is identical to the first identified error, that is that the Tribunal should not have found that the stage 9 works were not completed.
2. In the course of his submissions in this context, the Builder relied in particular on the photographs at pp 132-135 of his bundle as showing that the Stage 9 works were completed.
3. However, those photographs simply show that some tiles had been laid.
4. A third error identified by the Builder was that the Tribunal erred in finding that the Homeowners had validly terminated the contracts. In the Primary Decision at [117]-[127] under the heading "Were the Homeowners entitled to terminate the contract?" the Tribunal concluded that the Homeowners were entitled to terminate the contract.
5. In response to the Appeal Panel's request that he identify the error in that conclusion, the Builder referred to an email from him to Mr Nicholas Nguyen dated 2 December 2021 which stated:

In the last few weeks the weather was terrible even we do internal work, I will complete on the 16 December and booking for the final inspection on the 17 of December. I need you to forward the progress claim that I sent to sometimes ago, now, I need to have the fund to complete the last part of the construction. We have completed the flooring and the fitting in the bathrooms, the handrail for the stairs, I cannot use glass because it is very heavy the stair cannot hold the glass up. I can do glass balcony for you, but you need to pay extra cost, thanks.

1. The Builder then repeated the assertion that the Stage 9 works were completed and the Homeowners did not pay. The Builder said that had the Homeowners complied with the contract the works would have been finished a long time ago.

1. Mr Kerr SC, who appeared for the Homeowners, made brief oral submissions, and otherwise relied on his written submissions.
2. Mr Kerr said that it now appeared that the only issue being agitated by the Builder was an issue of fact, that being the Tribunal's determination that the Stage 9 works were not complete at the time the notice of termination was issued.
3. Mr Kerr submitted that a grant of leave was not appropriate in relation to that issue of fact, particularly in circumstances where the Tribunal's findings at [117]-[124] compelled that result. Mr Kerr submitted that those paragraphs encapsulate the evidence of Mr Nicholas Nguyen that the works were not complete, supported by photographs, a concession by the Builder in cross-examination that the works were not complete (Primary Decision, at [124]), and the evidence of Mr Capaldi, the Homeowners' expert, also to the effect that the works were not complete.
4. Mr Kerr said that these findings of fact were insurmountable.

1. The Builder said that the Homeowners dishonoured the contract, and that whatever they say he disagrees with. He said that people can have different ideas about what completion means, and the works the subject of Stage 9 were complete.
2. The Builder said that he totally disagreed with the Tribunal's finding that the Stage 9 works were incomplete.
3. The Builder also repeated his submission that the termination of the contract was invalid.

1. Of the asserted errors in the Primary Decision identified by the Builder in his oral submissions, only the first error is coherent and arguable. The Builder effectively abandoned the second error, and the third error was, effectively, the same as the first.
2. The first alleged error of the Tribunal raised by the Builder was that the Tribunal erred in finding that the Stage 9 works, being "Tiles, Paint Fittings", were incomplete.
3. The decision that the Homeowners validly terminated the contract was founded upon the proposition that the Builder had improperly suspended the works. The Homeowners had declined to pay Invoice 0010 in respect of Stage 9 because they maintained that stage 9 was not complete. If Stage 9 was complete, the Homeowners were obliged to pay Invoice 0010 and the Builder was entitled to suspend work. Accordingly, the question whether the Homeowners validly terminated the contract is answered by the question whether Stage 9 had been completed.
4. The Tribunal stated in the Primary Decision:

117 In his second statement dated 28 July 2022, Mr Nicholas Nguyen went into some detail identifying stage 9 works that had not been completed. That included unfinished gyprocking and painting work, unfinished kitchen splashback and cabinet installation, and light fittings not being installed. The evidence is supported by photos. The Builder does not dispute that the photos depict the state of works at the Property.

118 The Builder's evidence included that the Homeowners failed to pay invoice 10 for $65,000.00, which money he said he required to enable the work to be completed, because he needed to pay workers and subcontractors. He said that he even asked that $35,000.00 of the invoice be paid, and that the painting was up to 90 per cent complete and the floor tiles and the bathroom tiles were complete. He identified the work that he said was required to complete the contract work.

119 In cross examination, the Builder gave evidence to the effect that he would seek payment when a stage was 80 to 90% complete so that he could commence preparation of the next stage, and that he sent the progress claim 9 / invoice 10 claim, not because he believed that stage 9 was complete, but because he needed money. ...

120 Mr Capaldi gave evidence that in his opinion, the stage 9 works not been completed.

121 In summary, the Builder's evidence was that he accepts that the stage 9 work had not been completed, but he needed money to pay contractors because the costs to him had increased and he needed money to get contractors back to finish the works to complete the stage 9/ invoice 10 work.

122 Although I have some sympathy for the position of the Builder, the fact is that the Contract required the works to be completed to the relevant stage before payment was required

123 Having regard to evidence by Mr Nicholas Nguyen supported by the photos, I am satisfied that the work required to reach stage 9 had not been completed.

124 The Homeowner's evidence and assertions that the stage 9 works had not been completed is corroborated by Mr Capaldi and admissions by the Builder to the effect that it was 80 to 90 per cent complete but that he needed money to continue.

125 It is clear from each of the contracts that the entitlement to payment for a stage arose upon completion of a stage and stage 9 had clearly not been completed. It followed that the Builder was not entitled to demand payment of invoice 10 for the stage 9 works and was not entitled to suspend work because of its non-payment.

(emphasis added)

1. As noted, Mr Kerr submitted that these findings of fact were insurmountable. We agree, particularly in circumstances where we were not provided with a transcript of the hearing (or even of the oral evidence of Nicholas Nguyen and the Builder) or some of the core underlying evidentiary material that was before the Tribunal, including the Builder's statements, Nicholas Nguyen's statements and Mr Capaldi's report.
2. In circumstances where it is not provided with all the evidence that was before the Tribunal at first instance, an Appeal Panel cannot conclude that a conclusion of the Tribunal was not fair and equitable or was against the weight of evidence: Aboss v Hafeez [2022] NSWCATAP 345 at [30]- [31] and the cases there cited.
3. Moreover, we do not consider that this ground involves an issue of principle, a question of public importance or an injustice which is reasonably clear, nor do we consider that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
4. Leave to appeal is refused, with the consequence that the appeal is dismissed.

1. The Homeowners have sought their costs of the appeal.
2. The Homeowners correctly submit that rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) are applicable, in that the amount in dispute both at first instance and on the appeal exceeded $30,000. In consequence, special circumstances are not necessary before the Appeal Panel may make an order for costs in respect of the appeal. The usual outcome in a case where rr 38 and 38A apply is that costs follow the event. The Homeowners having succeeded on the appeal, the usual outcome would be an order for costs in their favour.
3. Our preliminary view is that that is the appropriate order to make. We see nothing in the issues or the conduct of the appeal which might suggest the usual order is not appropriate.
4. We will order the Builder to pay the Homeowners' costs of the appeal but we will allow the Builder, if so advised, to file and serve submissions, seeking a different order or that there be no order in relation to the costs of the appeal, within 14 days of the publication of these reasons for decision. If the Builder files submissions, our order that the Builder pay the costs of the appeal will cease to have effect.
5. We will allow the Homeowners 14 days to respond, and the Builder may reply within a further 7 days.
6. Submissions are to be limited to three pages, and reply submissions, if any, to two pages.
7. We propose, if necessary, to determine the question of costs "on the papers", and without a hearing: NCAT Act, s 50. Any party opposing that course must address that issue in their submissions.

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

(3) Subject to order (4) below, the appellant is to pay the respondents' costs of the appeal as agreed or assessed.

(4) The appellant may file and serve upon the respondents submissions, of no more than three pages, seeking a different order, or that there be no order, in relation to the costs of the appeal, within 14 days after the publication of this decision. If the appellant files submissions in accordance with this order, order (3) above will cease to have effect.

(5) If the appellant files submissions in accordance with order (4) above, the respondents may file and serve upon the appellant submissions in response, of no more than three pages, within 28 days after the publication of this decision.

(6) The appellant may file and serve upon the respondent submissions in reply, of no more than two pages, within 35 days of the publication of this decision.

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.

[1] The decision refers to the contract as "the 18 October 2019 Fair Trading Contract" but it is clear that that is an error as no such contract was executed. A Fair Trading standard form contract was executed on 18 July 2019.

[2] R (presumably an abbreviation of Reasons) is a reference to the Primary Decision.