Opal Construction Group Pty Ltd v Christoff; Opal Construction Group Pty Ltd v Christoff

Catchwords: APPEALS — Appeal on question of law — Principles governing
APPEALS — Leave to appeal — Principles governing — Leave to appeal refused
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Where the owners repudiated the building contract – Whether the builder has established an entitled to damages for loss of profits

Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 41, 60, 80, 81
Civil and Administrative Tribunal Rules 2014 (NSW), rr 6, 25, 38, 38A
Home Building Act 1989 (NSW)

Cases Cited: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165
Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25
Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10
Collins v Urban [2014] NSWCATAP 17
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167
Hungry Jack’s Pty Ltd v Fourtounas [2020] NSWCA 325
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
Mitakidis v Everyday Homes Pty Ltd [2025] NSWCATAP 167
North Sydney Leagues Club Limited v Synergy Protection Agency Pty Limited (2012) 83 NSWLR 710; [2012] NSWCA 168
Opal Construction Group Pty Ltd v Christoff [2025] NSWCATCD 127
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 77 ALJR 768
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Star Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2026] NSWCATAP 127
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204
Vella v Mir (No 3) [2020] NSWCATAP 17
Yuen v Thom [2016] NSWCATAP 243

Texts Cited: None cited

Category: Principal judgment

Parties: 2025/00373523
Opal Construction Group Pty Ltd (Appellant)
Louie Christoff (First Respondent)
Hayley Rake (Second Respondent)
2025/00373549
Opal Construction Group Pty Ltd (Appellant)
Nicholas Christoff (First Respondent)
Romy Christoff (Second Respondent)

Representation: A Hopkins (Appellant)
Solicitors:
Reuben George Lawyers (Appellant)
Louie Christoff (Self-represented)
Hayley Rake, Nicholas Christoff and Romy Christoff (Louie Christoff)

File Number(s): 2025/00373523; 2025/00373549

Publication restriction: Nil

REASONS FOR DECISION

Overview

1. These are two internal appeals heard together from two decisions of the Tribunal in the Consumer and Commercial Division, the first made on 26 May 2025 (the 26 May 2025 Decision), and the second made on 22 August 2025 (the 22 August 2025 Decision) in two proceedings involving the construction of a duplex (the Duplex) on a property at Carlingford in New South Wales (the Property).

2. The dispute that gave rise to the two proceedings under the Home Building Act 1989 (NSW) (HB Act) is between the respective respondents, Louie Christof (Louie) and Hayley Rake (Hayley) who own unit 1, and Nicholas Christoff (Nicholas) and Romy Christoff (Romy) who own unit 2 (the Owners when referred to collectively), and the appellant in each appeal, Opal Construction Group Pty Ltd (Opal Construction), which is the builder which agreed to carry out residential building work by constructing the Duplex at the Property under two contracts, a contract with Louie and Hayley for the construction of unit 1 and a contract with Nicholas and Romy for the construction of unit 2.

3. The Tribunal in the 26 May 2025 Decision ordered Opal Construction to pay 90% of the costs of the respective respondents in each of the two proceedings. The Tribunal in the 22 August 2025 Decision relevantly dismissed the claim of Opal Construction for damages for loss of profits against the respective respondents in each of the two proceedings: Opal Construction Group Pty Ltd v Christoff [2025] NSWCATCD 127.

4. These appeals raise the following three issues:

5. whether time should be extended for Opal Construction to commence the appeals;

6. if so, whether the Tribunal incorrectly found that there was insufficient evidence to prove Opal Construction’s claim for damages for loss of profits;

7. if so and each appeal is allowed with consequential orders, whether the appeal against each costs order should be allowed with consequential orders.

8. We have made the following decision on these three issues:

9. time should be extended for Opal Construction to commence the appeals;

10. leave to appeal should be granted, each appeal should be allowed, the order in the 22 August 2025 Decision dismissing the claim of Opal Construction for damages for loss of profits should be set aside, and this issue should be remitted to the Consumer and Commercial Division for reconsideration without further evidence;

11. leave to appeal should be granted, each appeal should be allowed, the orders in the 26 May 2025 Decision should be set aside, and the issue of the costs of the two proceedings should be remitted to the Consumer and Commercial Division for reconsideration.

12. Before determining these issues, we have summarised the background to the appeals, the history of the appeals and the jurisdiction and approach of the Appeal Panel, and made some general comments about the appeal.

The background to the appeals

7. In late 2021, the Owners’ architect introduced them to Samir Jammal (Mr Jammal), a builder and developer. Mr Jammal was a director of a building company Eminence Construction Group Pty Ltd (Eminence).

8. In late 2021, Mr Jammal proposed that the Owners engage Eminence to redevelop the Property and build the Duplex.

9. On 10 February 2022, Mr Jammal on behalf of Eminence sent a written estimate of the project cost totalling $2,914,817.23 to Louie (the Eminence Estimate).

10. In about July 2022, Mr Jammal proposed that the Owners enter into contracts with Opal Construction rather than Eminence due to limitations with Eminence’s home warranty insurance.

11. On 28 September 2022, each of Louie and Hayley on the one hand, and Nicholas and Romy on the other one hand, entered into contracts with Opal Construction for the construction of their respective units in the Duplex.

12. On 19 December 2022, Opal Construction terminated the two contracts consequent upon the failure of Louie and Hayley, and Nicholas and Romy, to pay the deposit under their respective contracts.

13. On 9 June 2023, Opal Construction commenced the following proceedings in the Consumer and Commercial Division of the Tribunal:

14. proceedings HB 23/27119 (which were subsequently renumbered 2023/00390707) against Nicholas and Romy by lodging a home building application in which it claimed damages of $198,988.29 for loss of profits (the Nicholas and Romy CCD proceedings);

15. proceedings HB 23/27183 (which were subsequently renumbered 2023/00390181) against Louie and Hayley by lodging a home building application in which it claimed damages of $240,758.57 for loss of profits (the Louie and Hayley CCD proceedings).

16. On 16, 17 and 18 July 2024, the Tribunal constituted by Senior Member R Titterton OAM heard the two proceedings together following which the parties lodged their closing written submissions.

17. On 3 February 2025, the Tribunal made a decision (the 3 February 2025 Decision) comprising:

18. the following order and procedural orders dealing with the costs of the two proceedings and a statement of reasons:

“1. On or before 17 February 2025, the parties are to provide an agreed version of draft short minutes of order which complete the following proposed draft orders in (a), (b), (c) and (d) below in respect of the agreed reliance damages:

(a) In matter 2023/00390181, on or before 3 March 2025, the respondents are to pay the applicant the sum of $XXX.

(b) Matter 2023/00390181 is otherwise dismissed.

(c) In matter 2023/00390707, on or before 3 March 2025, the respondents are to pay the applicant the sum of $XXX.

(d) Matter 2023/00390707 is otherwise dismissed.”

16. On 26 May 2025, the Tribunal made the 26 May 2025 Decision comprising the following orders (the 26 May 2025 Orders) and a statement of reasons:

“1. In matter 2023/00390181, the applicant is to pay 90% of the respondents’ costs as agreed or as assessed in accordance with the applicable costs legislation.

2. In matter 2023/00390707, the applicant is to pay 90% of the respondents’ costs as agreed or as assessed in accordance with the applicable costs legislation.”

17. On 22 August 2025, the Tribunal made the 22 August 2025 Decision comprising orders (the 22 August 2025 Orders) and a statement of reasons (the 22 August 2025 Reasons) which is in identical terms to the 3 February 2025 Decision other than substituting “$3093.74” for “$XXX” in order 1(a) and 1(c) and identical changes in par [149] of the reasons.

The history of the appeals

18. On 29 September 2025, Opal Construction as the appellant commenced these two appeals from the 26 May 2025 Decision and the 22 August 2025 Decision against Louie, Hayley, Nicholas and Romy as the first to fourth respondents by lodging two notices of appeal which are in identical terms with one notice relating to the impugned orders in the Nicholas and Romy CCD proceedings (proceedings 2025/00373549) and the other notice relating to the impugned orders in the Louie and Hayley CCD proceedings (proceedings 2025/00373523), and:

19. in section 5A headed “Orders challenged on appeal” challenged the applicable order in the 22 August 2025 Decision dismissing its claim for damages for loss of profits and the applicable costs order in the 26 May 2025 Decision;

20. specified the following overarching question of law that arises in the appeal:

“What are the relevant principles to be applied in assessing whether a builder has satisfied its onus of proof in respect to lost profits arising from a breach of contract by homeowners.”

3. completed section 5B headed “Grounds of Appeal” by stating “Please see enclosed grounds of appeal sheet” and setting out the following grounds:

“1. That the Tribunal erred in finding that the Applicant (the Appellant) failed to discharge its onus of proof in prosecuting its claim for loss of bargain damages by: -

a. Misapplying the relevant principles as to the ascertainment of loss of bargain damages; and

b. Heightening the relevant standard of proof to something beyond “on the balance of probabilities”.

2. The Tribunal misapplied the relevant principles by failing to assess on the basis of the evidence actually led whether on balance the Applicant would have made a profit. The Tribunal instead heightened the relevant standard of proof at [101] by enquiring as to whether there was certain other evidence the Applicant could have led to prove its loss as opposed to assessing the evidence actually led.

3. The Tribunal misapplied the relevant principle of law at [101] by rejecting the expert evidence on the basis that the relevant expert was not provided with certain subjective documents in circumstances where the law required the task to be “objectively determined, rather than subjectively ascertained”.

4. In all the circumstances the finding that the Applicant had failed to discharge its onus of proof was legally unreasonable, and against the weight of evidence.

5. The Tribunal made an error of law in finding that the Applicant had failed to discharge its onus by failing to apply the principle that a Court or Tribunal must do the best it can to make a reliable assessment of damages, where damages are difficult to assess, including where a party has failed to lead the best evidence of damages: Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83, 125, 153; [1991] HCA 54.

6. `The Tribunal erred in taking into consideration that the Appellant had not evidenced its overheads when leading evidence as to its loss of profit in circumstances where the common law does not require such matters to be taken into account in the calculation, thereby relying on an irrelevant consideration.

7. That the Tribunal erred at [85] by taking into account the irrelevant consideration of “off-site overheads and profit”.

8. That the Tribunal erred by taking into account an irrelevant consideration at [86] that “In addition, Mr Jammal could hardly be considered to be an independent witness.” In circumstances where the builder was required, by the relevant principles, to adduce evidence of its subjective expectation of profit, and there is no principle of law requiring such evidence to come from “an independent witness”.

9. In circumstances where the Tribunal had accepted that some evidence of loss or damage had been produced (see for example [90] and [119] of reasons), it was not open to the Tribunal to conclude that the onus of proof had not been discharged, and doing so was a misapplication of the principles as to damages in such circumstances summarised in Rehman v Rasier Pacific Pty Ltd [2024] NSWCATCD 3 at [159]-[161].

10. That the Tribunal’s conclusion at [127] that the experts use of Rawlinsons meant that the methodology adopted by the Builder’s expert to estimate the costs of completion of the contract works was unreliable is legally unreasonable.

11. That the Tribunal misapplied the relevant principles as to damages by finding that damages had not been proven in circumstances where it was open to the Tribunal to apply a discount to any award to take into account uncertainty, and/or issues as to overheads.

12. That the Tribunal denied the Applicant procedural fairness by failing to consider its written submissions at [62] to [70] of its closing submissions as to the ability of the Tribunal to apply a reduction to any award on account of overheads. In so doing there was a failure to respond to a substantial and clearly articulated argument that amounted to a constructive failure to exercise jurisdiction and/or a denial of procedural fairness.

13. The conclusion at [139] of the reasons that rejected the conclave position and each of the individual expert’s reports is: -

a. Legally unreasonable; and

b. Unintelligible due to an inadequacy of reasons.

14. The conclusion of the Tribunal at [140] is legally unreasonable and fails to properly apply the relevant standard of proof and principles as to assessment of damages.

15. That the Tribunal, in addition to specific pinpoint examples in these grounds, failed generally to give adequate reasons for its decision.

16. That the Tribunal constructively failed to exercise jurisdiction by simply repeating the submissions of the parties and indicating in a broad manner agreeance or rejection of the same as opposed to engaging in its own judicial determination of the issues.

17. That the reasons of the Tribunal are legally unreasonable in that at times the conclusions of the Tribunal are internally contradictory, specifically: -

a. The reasons appear to accept that there is no principle that overheads must be taken into account - see [109]; however the reasons then go on to find against the Applicant on the basis that overheads were not provided to the relevant expert [101] and that therefore the expert evidence proceeded on an unreliable methodology [127] and [139].

Associated Costs Decision

18. For completeness the Builder also appeals against the associated costs decision - which should be re-exercised if the appeal is successful.

19. Even if the substantive appeal is not successful the costs decision should be varied in circumstances where:

a. In circumstances where there was a judgment in favour of the Builder in each proceedings, and where the homeowners only conceded liability on 15 July 2024, the day before the hearing, the costs decision is legally unreasonable and mischaracterises “the event”; and

b. In circumstances where the Tribunal found that there was mixed success at [13] of the costs reasons the finding at [20] that the owner’s success was in the vicinity of 90% is internally inconsistent.

6. Leave to Appeal

20. Leave is sought, to the extent necessary, on the question of whether the finding that the Applicant failed to discharge its onus was against the weight of evidence. That evidence specifically being:

a. The Applicant’s calculations as to its profit expectation, this being the evidence of Mr Jammal which is based on contemporaneous quotes obtained for the build and the Builder’s calculations which were done for the purpose of costing the contracts:

b. The joint expert report;

c. The Builder’s expert’s calculations; and

d. The Homeowner’s expert’s calculations.

21. Leave is sought, to the extent necessary, on the question of whether the finding that the Applicant failed to lead evidence as to its overheads was against the weight of evidence in circumstances where the Tribunal ignored or overlooked the evidence led by the Appellant in relation to its operations, being that the Applicant was a new company and there was no evidence of any such overheads.”

4. relevantly completed section 6B headed “Application for Leave to Appeal from a Consumer and Commercial Division Decision” in the following manner:

(a) under the subheading “i Decision not fair and equitable” by stating “Please see enclosed grounds of appeal sheet”; (b) under the subheading “iii Decision of the Tribunal against the weight of evidence” by stating “Please see enclosed grounds of appeal sheet”.

19. On 29 September 2025, Louie and Hayley, and Nicholas and Romy, lodged a reply to appeal in their respective appeals, which are in identical terms and:

20. reply to each of the 19 grounds of appeal in the notice of appeal:

21. reply to the application for leave to appeal in the notice of appeal by disputing the decision was against the weight of evidence and asserting that the necessary discretionary factors are not engaged.

22. At the hearing of the appeal, we made the following orders by consent:

23. in proceedings 2025/00373549, granting leave to Louie to represent Nicholas and Romy and removing Louie and Hayley as respondents;

24. in proceedings 2025/00373523, granting leave to Louie to represent Hayley and removing Nicholas and Romy as respondents.

25. Opal Construction provided an Appeal Book which included the documents before the Tribunal at first instance and a transcript of the hearing. The parties agreed that the transcript of the hearing contained errors.

26. We admitted the following documents into evidence on behalf of Opal Construction:

27. the document headed “Quantum Conclave” dated 7 July 2024 (marked as exhibit A1);

28. the affidavit of Reuben Mansour (Mr Mansour) sworn on 18 December 2025 (the Mansour affidavit) limited to the issue of whether time should be extended for Opal Construction to commence the appeals and subject to relevance (marked as exhibit A2).

29. We admitted into evidence on behalf of Louie and Hayley, and Nicholas and Romy, in their respective appeals the affidavit of Louie sworn on 4 February 2026 limited to the issue of whether time should be extended for Opal Construction to commence the appeals and subject to relevance (marked as exhibit R1).

30. Opal Construction relied upon the following written submissions and its counsel made oral submissions:

31. Appellant’s Submissions dated 16 December 2025;

32. Appellant’s Reply Submissions dated 13 March 2026.

33. Louie and Hayley, and Nicholas and Romy, in their respective appeals relied upon Respondents’ Submissions dated 8 February 2026.

34. Counsel for Opal Construction, in response to our request, did not articulate the questions of law raised on the appeal.

35. The Owners conceded that if the appeals against orders 1(a) and 1(c) of the 22 August 2025 Orders are allowed and they are set aside, then the appeals against the 26 May 2025 Orders should be allowed, they should be set aside and the costs of the Nicholas and Romy CCD proceedings and the Louie and Hayley CCD proceedings should be remitted to the Consumer and Commercial Division for reconsideration.

The jurisdiction and approach of the Appeal Panel

28. Section 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) allows a party to proceedings in which the Tribunal makes an internally appealable decision to appeal the decision to an Appeal Panel.

29. Internal appeals against an internally appealable decision may be made in the case of any kind of decision (including an ancillary decision) other than an interlocutory decision as of right on a question of law, or with the leave of the Appeal Panel on any other grounds: NCAT Act, s 80(2)(b).

30. The nature of a question of law within s 80 (2)(b) of the NCAT Act and applicable principles have been discussed in several recent Appeal Panel decisions: see for example Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique Commercial Group) at [25]-[40]; and most recently, Star Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2026] NSWCATAP 127 (Star Training Academy) at [24]-[33], [38]-[41]. We note the following principles:

31. a question of law must be a “pure” question of law;

32. it is necessary to articulate the question of law with precision.

33. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division include where it is satisfied that the appellant may have suffered a substantial miscarriage of justice because relevantly the decision of the Tribunal under appeal was not fair and equitable or against the weight of evidence: NCAT Act, Sch 4, cl 12(1)(a) and (b).

34. It is an established principle that an appeal court may order a new trial in a case where on conflicting evidence a verdict is found which is said to be against the weight of the evidence if it concludes that “the jury, viewing the whole evidence reasonably, could not properly find it; ... [t]he party seeking a new trial on this ground needs an exceptionally strong case because it must be shown that ‘the evidence so preponderates against the verdict as to shew that it was unreasonable and unjust’”: Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42 (Mason CJ, Deane, Toohey and McHugh JJ); [1991] HCA 23. This principle has been applied by the Appeal Panel in determining whether a decision of the Tribunal is against the weight of evidence within cl 12(1)(b) of Sch 4 of the NCAT Act: Collins v Urban [2014] NSWCATAP 17 at [77(2)].

35. Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the decision was arguably wrong: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] (Gleeson JA with Macfarlan JA at [1] and Payne JA at [67] agreeing). Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice: Hungry Jack*’*s Pty Ltd v Fourtounas [2020] NSWCA 325 at [9] (Basten JA with White JA at [18] agreeing); cited with approval together with another authority in Unique Commercial Group at [42]-[43]; see also Collins v Urban at [84(2)].

36. Where a ground asserting an infringement of the rules of natural justice is raised, it is appropriate for the court to consider it first and in advance of other grounds because if established the ground may necessitate a remittal for rehearing in any event: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [116]-[117] (Gummow ACJ). This principle has been applied by the Appeal Panel: see for example Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10 at [32].

37. The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to any one or more of orders that the appeal is to be allowed, the decision under appeal is to be set aside, and the whole or any part of the case is to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel: NCAT Act, s 81(1)(a), (c) and (e).

38. In conducting the appeal, we have followed the following approach:

39. we have decided whether time should be extended for Opal Construction to commence the appeals;

40. we have decided whether the overarching question and any of grounds 1 to 19 raise with sufficient particularity a question of law;

41. we have decided whether leave to appeal should be granted;

42. we have decided the costs of the appeal;

43. we have conducted the appeal as a rehearing on the materials before the Tribunal and any additional or further evidence received to determine whether the orders that are the subject of the appeal are the result of some legal, factual or discretionary error: Yuen v Thom [2016] NSWCATAP 243 at [14]-[22].

Some general comments about the appeal

37. The principles with respect to the drafting of appeal grounds and submissions in appeals in the Tribunal were explained by the Appeal Panel in O*’Brien v Women’s Housing Company Limited [2026] NSWCATAP 3 (O’*Brien) at [131]-[132]:

“[131] In dealing with the appeal grounds and submissions, the Appeal Panel is not required to engage with every argument or issue raised if the arguments are repetitive, overlapping, or irrelevant to the disposition of the appeal (Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 ( at [276] and [278]; Boensch Trust v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [7]-[8]).

[132] Prolixity of grounds of appeal and submissions by a legally represented party are inconsistent with the just, quick and cheap resolution of the real issues in the appeal, and also obscures apparent merit: Stoltenberg v Bolton; Loder v Same (2020) 380 ALR 145; [2020] NSWCA 45; at [52]; Superannuation & Corporate Services Pty Ltd v Turner [2020] NSWCA 246 at [6]; H2O Exchange Pty Ltd v Innovation and Science Australia [2021] FCA 11 at [19]).”

38. Having regard to the principles in O*’*Brien at [131]-[132], the grounds of appeal in the notice of appeal are prolix and overlapping. In responding to the grounds of appeal, we have identified and considered the substantial grounds rather than deal with each ground of appeal which express the same substantial ground in different ways.

Whether time should be extended for Opal Construction to commence the appeals

39. Before considering this issue, we have set out the applicable statutory provisions and legal principles, and to the extent necessary summarised the submissions of Opal Construction and the Owners.

The applicable statutory provisions

NCAT Act

40. Part 4 Div 2 (ss 39-43) contains provisions dealing with the commencement of proceedings in the Tribunal. Section 41 deals with extensions of time, and states:

41 Extensions of time

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired.

NCAT Rules

41. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly states that in the case of proceedings under the HB Act an appeal must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed.

The applicable legal principles

42. The relevant principles for the granting of an extension of time to appeal under s 41 of the NCAT Act are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [21] and [22]:

“[21] Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant’s favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice.

[22] The considerations that will generally be relevant to the Appeal Panel’s consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:

(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];

(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a “vested right” to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];

(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:

(a) The length of the delay;

(b) The reason for the delay;

(c) The appellant’s prospects of success, that is usually whether the applicant has a fairly arguable case; and

(d) The extent of any prejudice suffered by the respondent (to the appeal),

- Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and

(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].”

43. The New South Wales Court of Appeal has referred to Jackson at [22] and stated that the relevant principles to be applied are not controversial: EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167 at [17]-[19] (Bell P with Macfarlan JA at [78] and Brereton JA at [79] agreeing).

44. In Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 the New South Wales Court of Appeal dismissed the application of the respondent for an extension of time to cross-appeal against the judgment and orders of the District Court. The Court of Appeal (Basten JA with Hodgson JA at [1] and Ipp JA at [17] agreeing), after referring (at [55]) to the four general factors (which are set out in Jackson at [22(2)]), referred (at [56]) to the observations of Kirby J in Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [66(7)]:

“But they are by no means exhaustive. Several others have from time to time been thought relevant. These include whether the delay was intentional or contumelious; or merely the result of a bona fide mistake or blunder; and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled. It may also be relevant, where the default is that of a party’s legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant.”

The submissions of Opal Construction

45. Opal Construction relevantly:

46. refers to The Owners - Strata Plan 87003 v Raysons Constructions Pty Ltd (2025) 116 NSWLR 535; [2025] NSWSC 66 (Raysons Constructions) at [6] and submits that the time to appeal began to run on 22 August 2025;

47. the delay of a few days in the lodgement of the appeals was due to administrative issues as explained by Mr Mansour in the Mansour affidavit.

The submissions of the Owners

46. It is unnecessary to summarise the extensive submissions of the Owners on this issue except to record the following submissions:

47. the time to appeal began to run on 3 February 2025, and there is no adequate explanation for the delay of Opal Construction in commencing the appeals until 29 September 2025;

48. the principle in Raysons Constructions at [6] is distinguishable;

49. if the time to appeal began to run on 22 August 2025, then an extension of time to appeal against the impugned orders in the 26 May 2025 Decision and the 22 August 2025 Decision should be granted.

Consideration

47. It is an established principle that an appeal is against orders and not reasons: Unique Commercial Group) at [25(11)]; see also Raysons Constructions at [6] (Leeming JA).

48. Courts and the Tribunal sometimes refrain from making orders other than for the parties to bring in agreed short minutes of order if there is agreement to avoid fragmenting any appeal by having different dates for the commencement of an appeal from different orders: Star Training Academy at [12] and the cases cited therein.

49. We are satisfied that the only order made by order 1 of the 3 February 2025 Decision was for the provision by the parties of an agreed version of draft short minutes of order to deal with specified matters in that Decision in accordance with the practice referred to in Star Training Academy at [12]. In the light of the principle in Unique Commercial Group at [25(11)] and Raysons Constructions at [6] the only appeal that could have been made against the 3 February 2025 Decision would have been to challenge the procedural orders providing for an agreed version of draft short minutes of order and dealing with the costs of the two proceedings.

50. There was no final decision made in relation to Opal Construction’s claim for damages for loss of profits until the 22 August 2025 Decision. It follows that the time for the lodgement of an appeal by Opal Construction was 22 September 2025 pursuant to r 25(4)(c) when read with r 6(2) of the NCAT Rules. The lodgement of the appeals on 29 September 2025 was out of time by seven days.

51. The concession of the Owners that if the time to appeal began to run on 22 August 2025, then an extension of time to appeal against the impugned orders in the 26 May 2025 Decision and the 22 August 2025 Decision should be granted was properly made. Having regard to the four factors identified in Jackson at [22(3)], the length of the delay was short, the reason for the delay is explained by Mr Mansour in the Mansour affidavit, Opal Construction has a fairly arguable case and there is no evidence of any prejudice that will be suffered by the Owners through the delay of seven days in the commencement of the appeals.

52. We have decided that time should be extended for Opal Construction to commence the appeals against the 26 May 2025 Decision and the 22 August 2025 Decision to 29 September 2025.

Whether the overarching question and any of grounds 1 to 19 raise with sufficient particularity a question of law

53. We are not satisfied that the overarching question arises on the appeals. The question is expressed with a high level of generality. Further, the substantial reason for the Tribunal’s dismissal of Opal Construction’s claim for damages for loss of profits was it finding that the evidence relied upon had no probative value.

54. In circumstances where Opal Construction did not in its written submissions explain why any of grounds 1 to 19 raise a question of law within s 80(2)(b) of the NCAT Act and its counsel notwithstanding our request did not articulate the questions of law raised on the appeal, we are not satisfied that any of these grounds raise with sufficient particularity a question of law.

55. It follows that the appeals are not as of right and Opal Construction will need to obtain leave to appeal.

Whether leave to appeal should be granted

56. The notice of appeal of Opal Construction in each appeal raises the following substantial grounds of appeal in contending that the 22 August 2025 Decision was not fair and equitable and against the weight of evidence:

57. whether the Tribunal applied the wrong principles in its findings, or otherwise made incorrect findings, as to the sufficiency of the evidence relied upon by Opal Construction in support of its claim for damages (grounds 1 to 11, 13(a), 20 and 21). These grounds in different ways contend that this evidence was sufficient to enable the Tribunal to determine whether Opal Construction had established its claim for damages;

58. whether the Tribunal failed to accord procedural fairness to Opal Construction or constructively failed to exercise its jurisdiction by failing to deal with its submissions (ground 12);

59. whether the Tribunal constructively failed to exercise its jurisdiction by failing to give proper consideration to the merits of the claims of Opal Construction (ground 16);

60. whether the Tribunal failed to provide adequate reasons in the 22 August 2025 Reasons (grounds 13(b), 15 and 17).

61. Before considering these grounds, we have set out the relevant findings of the Tribunal. Then in considering these grounds we have set out the applicable legal principles, and to the extent necessary summarised the submissions of the submissions of Opal Construction and the Owners.

The relevant findings of the Tribunal

58. The Tribunal in the 22 August 2025 Decision relevantly made the following findings:

59. it summarised and set out part of the affidavit evidence of Mr Jammal for Opal Construction ([14]-[18]);

60. it summarised and set out parts with some particular parts emphasised (the letter of instructions and sections 4 Assumptions & Exclusions, 5 Methodology and 7 Builder’s Margin and Profit) of the expert evidence of David Madden (Mr Madden) for Opal Construction that its margin for unit 1 was $218,871.43 (exclusive of GST) and for unit 2 was $180,898.45 (exclusive of GST) ([19]-[24]) including:

“5.2 I have based on [sic] the Rawlinsons Australian Constriction [sic] Handbook 2023 (Rawlinsons 2023) for my costings of the costs of the works under the Contract/s. I consider the rates and costs published in the Rawlinsons Australian Constriction Handbooks (all editions over the years) are well representative of the typical and average rates and costs in the market for the construction work in the past and currently. ….

5.3. I have adopted the Building Costs per Square Metre methodology (the Costs/m2 Method) in estimating the building construction costs. As described in Rawlinsons 2023 (Page 20), the Costs given (based on Costs/m2 method):

a. should be used for initial feasibility studies only.

b. are average prices for typical buildings at December 31, 2022 within the metropolitan areas including allowance for Preliminaries and Builders profit and overheads (ADD additional allowances for increased costs (refer Anticipated Building Price Adjustment page 15) and when referring to country areas.

…

e. can provide no more than a rough guide to the probable cost of a building, and whilst in many instances a single rate is sufficient to indicate this ruling average cost, there are many other instances such as banks, function centres, theatres, churches, residential buildings, where costs can vary considerably from the range given.

…

5.4. Despite that the Costs/m2 Method has certain limitations in presenting an accurate estimate of the building costs (as noted in Paragraph 5.3a, b and e), I am of opinion that this method does in fact provide fairly accurate estimates of costs for typical simple residential and light industrial developments.”

3. it summarised the expert evidence of George Zakos (Mr Zakos) for the Owners that there was included in the contract price of $1,495,622.98 for unit 1 a profit margin of 7.57% and in the contract price of $1,419,194.25 for unit 1 a profit margin of 7.06% ([28]-[31]);
4. it summarised the joint expert evidence of Mr Madden and Mr Zakos contained in document titled “Quantum Conclave” signed by each expert and dated 17 July 2023 (Conclave Schedule) of $143,627.00 (exclusive of GST) for unit 1 and $129,612.00 (exclusive of GST) for unit 2 ([32]-[33]);
5. it identified the remaining issues to be determined ([57]-[58]):

“57 The first issue to be determine is the amount (if any) payable to the Builder as damages for loss of its bargains.

58 The second issue is, if do find in favour of the Builder on this first issue, has the Builder failed to mitigate its loss such that any damages should be reduced?”

6. it identified the evidence relied upon by Opal Construction upon which damages can be calculated ([61]):

(a) the lay evidence of Mr Jammal; (b) the expert evidence of Mr Madden; (c) the expert evidence of Mr Zakos; (d) the joint expert evidence of Mr Madden and Mr Zakos;

7. it noted the relevant principles for determining the award of damages for breach of contract ([76]-[79]) including the following quotation from the joint judgment of Mason CJ and Dawson J in Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 80 and 81; [1991] HCA 54 (Amann Aviation):

“The general rule at common law, as stated by Parke B. in Robinson v. Harman, is “that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed”. This statement of principle has been accepted and applied in Australia.

The award of damages for breach of contract protects a plaintiff’s expectation of receiving the defendant’s performance. That expectation arises out of or is created by the contract. Hence, damages for breach of contract are often described as “expectation damages”. The onus of proving damages sustained lies on a plaintiff and the amount of damages awarded will be commensurate with the plaintiff’s expectation, objectively determined, rather than subjectively ascertained. That is to say, a plaintiff must prove, on the balance of probabilities, that his or her expectation of a certain outcome, as a result of performance of the contract, had a likelihood of attainment rather than being mere expectation.

In the ordinary course of commercial dealings, a party supplying goods or rendering services will enter into a contract with a view to securing a profit, that is to say, that party will expect a certain margin of gain to be achieved in addition to the recouping of any expenses reasonably incurred by it in the discharge of its contractual obligations. It is for this reason that expectation damages are often described as damages for loss of profits. Damages recoverable as lost profits are constituted by the combination of expenses justifiably incurred by a plaintiff in the discharge of contractual obligations and any amount by which gross receipts would have exceeded those expenses. This second amount is the net profit.” (citations omitted)

8. as to the lay evidence of Mr Jammal that Opal Construction’s margin was $502,259.78, while it found that his spreadsheet alone did not establish that there was an expectation of Opal Construction that had a likelihood of attainment, it did not find that no weight could be placed upon it ([80]-[90]) including:

“85 I accept entirely the Owners’ submission that there is no evidence before the Tribunal of the calculations used to arrive at the figures in the spreadsheet or the supporting materials used to carry out the calculations (other than certain quotations). As there is no bill of quantities, no take-off (the process of quantifying the materials necessary to price the cost completing a project), no explanation of the trade breakdown, no workings for the prime cost items, no schedule of rates, no rates for the cost of labour, and no reference anywhere to off-site overheads and profit, I agree that the spreadsheet is simply a statement of speculation.”

9. as to the expert evidence of Mr Madden as to Opal Construction’s margin:

(a) after summarising the submissions of the parties ([94]-[99]), it found that his evidence is not evidence of Opal Construction’s estimated costs but that of a hypothetical builder because of his reliance on Rawlinsons, Australian Construction Handbook 2023 (Rawlinsons) ([100]-[102]); (b) after summarising the submissions of the parties ([103]-[106]), it referred to North Sydney Leagues Club Limited v Synergy Protection Agency Pty Limited (2012) 83 NSWLR 710; [2012] NSWCA 168 (NSLC v SPA) at [46] and found that the failure of Opal Construction to lead any evidence of its operating expenses or offsite overhead expenses is a neutral factor ([107]-[109]); (c) after summarising the submissions of the parties ([110]-[117]), it found that the failure of Opal Construction’s calculation of loss of profits to properly account for any head office overheads and profit may be a basis for reducing the expectation damages claimed ([118]-[119]); (d) after summarising the submissions of the parties ([120]-[126]), it found that his methodology to estimate the costs of completion of the contract works is unreliable because of his use of Rawlinsons ([127]);

10. as to the joint expert evidence of Mr Madden and Mr Zakos, after summarising the submissions of the parties ([128]-[133]):

(a) it referred to authorities that a court is not required to accept an agreed position of experts or the evidence of an expert ([134]-[137]); (b) it found that the Conclave Schedule was not an expert report, and contains no reasoning of either expert ([138]); (c) it suffered from the defects in the expert evidence of Mr Madden and Mr Zakos ([139]);

11. it concluded that there was no proper factual foundation for the opinions of Mr Jammal in his spreadsheet, or the experts (either individually or in their Conclave Schedule), as to Opal Construction’s expectation damages and that it had not established its entitlement to expectation damages ([140]-[141]).

Ground 12

59. The basis for Opal Construction’s application for leave to appeal on ground 12 is that it may have suffered a substantial miscarriage of justice because the 22 August 2025 Decision was not fair and equitable by reason that the Tribunal failed to accord it procedural fairness or constructively failed to exercise its jurisdiction by failing to deal with its submissions.

The applicable legal principles

60. 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: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [23]-[25] (Gummow and Callinan JJ with Hayne J agreeing at [95]); Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [6], [20]-[22] (Basten JA); cited in Unique Commercial Group at [32(4)]; Star Training Academy at [600]-[602].

The submissions of Opal Construction and the Owners

61. It is unnecessary to summarise the submissions of Opal Construction and the Owners except to record that the Owners accept that Opal Construction in its closing submissions made the following submissions:

62. there was no evidence of overheads that would have been avoided due to the breach of the contract;

63. even if overheads are considered relevant, absence of evidence of them does not mean its claim fails and the Owners’ submission on this point should be rejected; and

64. even if overheads were considered relevant, the Tribunal could apply a discount to the damages (thereafter, a conservative figure is postulated, in the event that the Tribunal were to adopt this alternative position).

Consideration

62. The assumption underlying this ground is that there was established evidence before the Tribunal as the Opal Construction’s loss of profits. However, this assumption is misplaced because the Tribunal rejected this evidence of Mr Madden and the joint expert evidence and held that the evidence of Mr Jammal did not establish any loss. In these circumstances we are not satisfied that this principle is engaged.

63. Ground 12 is not made out and the application for leave to appeal on this ground is refused.

Grounds 1 to 11, 13(a), 20 and 21

64. The basis for Opal Construction’s application for leave to appeal on grounds 1 to 11, 13(a), 20 and 21 is that it may have suffered a substantial miscarriage of justice because the 22 August 2025 Decision was not fair and equitable by reason that the Tribunal applied the wrong principles in its findings, or otherwise made incorrect findings, as to the sufficiency of the evidence relied upon by it in support of its claim for damages.

The applicable legal principles

The inclusion of overhead expenses in the assessment of damages

65. In NSLC v SPA the New South Wales Court of Appeal considered whether overhead expenses should be included in the assessment of expectation damages. After reviewing authorities, Beazley JA at [46] (with Macfarlan JA at [84] and Whealy JA at [91] agreeing) relevantly held:

“[46] These authorities are clear that, in respect of a claim for expectation damages, there is no absolute principle, as submitted by the appellant, that account must be taken of overhead expenses. Nor, in my opinion, as a matter of general principle, is the alternate approach for which the appellant contended, correct. That approach requires that overhead expenses be taken into account proportionately, that is, proportionate to the value of the contract to the overall business, unless the evidence demonstrates some different deduction should be made. … The true principle is, as the trial judge found, that a plaintiff is entitled to such damages as place it in the same position as it would have been had the contract been performed.”

66. In Mitakidis v Everyday Homes Pty Ltd [2025] NSWCATAP 167 (Mitakidis) the Appeal Panel considered whether overhead expenses should be included in the assessment of expectation damages. NSLC v SPA at [46] was cited in argument. The Appeal Panel at [76] held:

“[76] As a matter of principle, the assessment of loss of profits does not require a discount for overheads and operating expenses that are not specific to and which are beyond the costs of the project itself, in a building project such as the present; that is, they are not expenses which would be saved in the absence of the project. Profits in projects are by their character the source for paying such expenses that are not specific to a particular project and are present irrespective of the number and value of projects at any particular point in time. The total of such expenses against the total of gross profits in projects will either result in coverage of such expenses, or it won’t. But that does not require a parsing of such expenses against each project; all the more so, it would skew the outcome if all such expenses were thrown against one project. It would also reduce the funds available to pay such expenses which have to be paid in any event.”

The sufficiency of the evidence to substantiate a matter upon which a party bears an onus

67. In Amann Aviation at 83, Mason CJ and Dawson J considered the sufficiency of the evidence to substantiate a matter upon which a party bears an onus:

“The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v. Schiffmann Menzies J. went so far as to say that the “assessment of damages ... does sometimes, of necessity involve what is guess work rather than estimation”. Where precise evidence is not available the court must do the best it can. And uncertainty as to the profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages (47).” (citations omitted)

68. In Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 77 ALJR 768 (Placer) at [38], Hayne J said (with Gleeson CJ, McHugh and Kirby JJ at [6] agreeing):

“[38] It may be that, in at least some cases, it is necessary or desirable to distinguish between a case where a plaintiff cannot adduce precise evidence of what has been lost and a case where, although apparently able to do so, the plaintiff has not adduced such evidence. In the former kind of case it may be that estimation, if not guesswork, may be necessary in assessing the damages to be allowed. References to mere difficulty in estimating damages not relieving a court from the responsibility of estimating them as best it can may find their most apt application in cases of the former rather than the latter kind. …” (footnotes omitted)

The submissions of Opal Construction

69. It is unnecessary to summarise the lengthy submissions of Opal Construction which are repetitive. It is sufficient to record that Opal Construction submits:

70. the Tribunal misapplied the principles in NSLC v SPA at [46] as elaborated in Mitakidis at [76] and in Amann Aviation at 83;

71. Mr Madden was not required to conduct some review of its profitability based upon its own business records - he was required to assess whether the contract price would allow a profit once the fair and reasonable costs of completing the build required under the contract was achieved.

The submissions of the Owners

70. It is unnecessary to summarise the extensive submissions of the Owners which respond to the lengthy submissions of Opal Construction. In summary the Owners dispute that the Tribunal made any error in its findings as to the sufficiency of the evidence relied upon by Opal Construction in support of its claim for damages.

Consideration

71. We do not accept that the Tribunal misapplied the principles in NSLC v SPA at [46] as elaborated in Mitakidis at [76] and in Amann Aviation at 83. As to the former, the Tribunal in the 22 August 2025 Decision at [109], having at [107] referred to NSLC v SPA at [46], held that the failure of Opal Construction to have led any evidence of its operating expenses, such as rent or estimated off-site overheads, was a neutral factor. As to the latter, the Tribunal did not find that Opal Construction was not entitled to damages because of uncertainty as to the amount of its profit under the respective contracts.

72. The fundamental reason why the Tribunal dismissed the claims of Opal Construction was that it was not satisfied that it had adduced sufficient evidence to discharge its onus of proof. While the Tribunal made no reference to the principles in Placer at [38], it clearly regarded the evidence relied on by Opal Construction as falling into the category of case where, although apparently able to do so, it did not adduce evidence of what it had lost.

73. We are satisfied that the Tribunal was in error in finding that Mr Madden had not adduced evidence sufficient to establish its loss because it did not accept his methodology of using Rawlinsons for the following reasons:

74. we do not accept that a quantity surveyor such as Mr Madden in preparing an expert report as to the profitability of a building contract should be provided with business records as to operating expenses in the light of the principles in NSLC v SPA at [46] or the builder’s estimate of its margin;

75. we do not accept that Rawlinsons does not provide a proper foundation for the assessment of the costs of construction under a building contract. While Mr Madden in sections 5.2, 5.3 and 5.4 of his report accepted that “the Costs/m2 Method” in Rawlinsons had limitations, his opinion was this method provided fairly accurate estimates of costs for typical simple residential developments of which the Duplex was an example;

76. the fact that Opal Construction did not provide the Eminence Estimate to Mr Madden did not prevent his expert report from constituting sufficient evidence to establish its loss. While its provision may have been a basis for qualification of his opinion, its absence did not have the consequence that his evidence was insufficient to prove Opal Construction’s loss.

77. In the light of our conclusion about the expert evidence of Mr Madden it is unnecessary to consider whether the Tribunal was in error in finding that the joint expert evidence was insufficient to establish the loss of Opal Construction.

78. We are satisfied that Opal Construction may have suffered a substantial miscarriage of justice because the 22 August 2025 Decision was not fair and equitable within cl 12(1)(a) of the NCAT Act by reason that the Tribunal applied the wrong principles in its findings, or otherwise made incorrect findings, as to the sufficiency of the evidence of Mr Madden relied upon by it in support of its claim for damages.

79. We are further satisfied that this error of the Tribunal constituted an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. To leave this error uncorrected would give rise to a substantial miscarriage of justice.

80. Grounds 1 to 11, 13(a), 20 and 21 are made out and the application for leave to appeal on these grounds is granted. We are satisfied that the appeal should be allowed, orders 1(a) and 1(c) of the 22 August 2025 Orders should be set aside and the issues of the whether Opal Construction is entitled to any, and if so, what expectation damages for breach of contract including whether it failed to mitigate its loss should be remitted to the Consumer and Commercial Division for reconsideration without further evidence pursuant to s 81(a), (c) and (e) of the NCAT Act.

Grounds 13(b), 15, 16 and 17

78. In view of our decision on grounds 1 to 11, 13(a), 20 and 21 it is unnecessary to consider grounds 13(b), 15, 16 and 17.

The costs of the appeal

79. Rule 38 of the NCAT Rules deals with costs in the Consumer and Commercial Division of the Tribunal, and relevantly states:

38 Costs in Consumer and Commercial Division of the Tribunal

(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.

(2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if—

…

(b) the amount claimed or in dispute in the proceedings is more than $30,000.

80. Rule 38A of the NCAT Rules deals with costs in internal appeals, and relevantly states:

38A Costs in internal appeals

…

(2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.

81. For the purpose of r 38A of the NCAT Rules the amount claimed or in dispute is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57].

82. We are satisfied that r 38A(2) of the NCAT Rules is applicable to these appeals because the amount in dispute in each of the Nicholas and Romy CCD proceedings and the Louie and Hayley CCD proceedings and the appeals is more than $30,000. It follows that the position of each party paying their own costs specified in s 60(1) of the NCAT Act does not apply to the appeal.

83. The general principles concerning the awarding of costs were considered by the Appeal Panel in Vella v Mir (No 3) [2020] NSWCATAP 17 (Vella (No 3)) at [28]-[31]:

“[28] Clause 38 gives the Tribunal a wide discretion to make an order for costs. It does not specify the factors the Tribunal must take into account in exercising the discretion, although the discretion to make such an order must be exercised judicially: see, for example, Ruddock v Vadarlis [2001] FCA 1865 at [9].

[29] Where an application has been heard and determined on the merits and Clause 38 applies, the appropriate starting point for the exercise of the discretion is not that the parties are to pay their own costs. Rather, it is the well-established position at common law; that is, that the purpose of making a costs order is to provide compensation to the party in whose favour the order is made for the expense the party has been put to in prosecuting or defending legal proceedings. In general terms, this means that a party who is successful is entitled to an order for costs in its favour, subject to exceptions generally involving misconduct on the part of that party: Latoudis v Casey [1990] 170 CLR 534; Oshlak v Richmond River Council [1998] HCA 11.

[30] In BNT Constructions Pty Ltd v Allen [2017] NSWCATAP 186 the Appeal Panel, having set aside a costs order made in the Consumer and Commercial Division, decided to re-exercise the costs discretion. Clause 38 was the applicable costs provision in that case. At [67] the Appeal Panel noted the following principles relevant to the exercise of the discretion:

(1) the starting point is that a successful party should be entitled to an order for costs in his favour;

(2) an award of costs is by way of an indemnity and not as punishment;

(3) there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party;

(4) the factors to be considered are not to be confined as to do so would constrain the general discretion;

(5) the relative success of the parties on different issues and the time taken to determine them may be relevant;

(6) the nature of the proceedings is relevant;

(7) the proper exercise of the discretion requires a decision maker to do justice between the parties and to exercise the discretion having regard to relevant considerations and in a manner which is not arbitrary and capricious.

[31] Generally, costs are awarded in favour of the successful party based on the outcome of the proceedings as a whole, without differentiating between particular issues on which the party may not have been successful. …”

84. The Owners made no submissions on the costs of the appeal. Opal Construction submitted that the costs of the appeal should follow the event.

85. In the light of the principles in Vella (No 3) at [28]-[31], we are satisfied that the Owners should pay the costs of Opal Construction of the appeal on the ordinary basis as agreed or assessed.

Orders

86. We make the following orders:

Proceedings 2025/00373523:

(1) The time for the Appellant to lodge the notice of appeal is extended to 29 September 2025.

(2) Leave to appeal is granted.

(3) The appeal is allowed.

(4) Order 1(b) made on 22 August 2025 and order 1 made on 26 May 2026 are set aside.

(5) The following issues are remitted to the Consumer and Commercial Division for reconsideration without further evidence:

(a) whether the Appellant is entitled to any, and if so what, expectation damages for breach of contract, including whether it failed to mitigate its loss;

(b) the costs of the proceedings below.

(6) The Appellant and the First and Second Respondents are to provide to the Consumer and Commercial Division an agreed transcript of the hearing at first instance, or their own version of corrections to the transcript, within 28 days of this decision.

(7) The First and Second Respondents are to pay the costs of the appeal of the Appellant on the ordinary basis as agreed or assessed.

Proceedings 2025/00373549:

(1) The time for the Appellant to lodge the notice of appeal is extended to 29 September 2025.

(2) Leave to appeal is granted.

(3) The appeal is allowed.

(4) Order 1(d) made on 22 August 2025 and order 2 made on 26 May 2026 are set aside.

(5) The following issues are remitted to the Consumer and Commercial Division for reconsideration without further evidence:

(a) whether the Appellant is entitled to any, and if so what, expectation damages for breach of contract, including whether it failed to mitigate its loss;

(b) the costs of the proceedings below.

(6) The Appellant and the First and Second Respondents are to provide to the Consumer and Commercial Division an agreed transcript of the hearing at first instance, or their own version of corrections to the transcript, within 28 days of this decision.

(7) The First and Second Respondents are to pay the costs of the appeal of the Appellant on the ordinary basis as agreed or assessed.

**********

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. Registrar