//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2008] NSWSC 1144
respondent. Appeal dismissed. The Tribunal’s substantive order for $18,888 was not disturbed. The Court affirmed the Tribunal’s order that the plaintiff pay one half of the first defendant’s costs as agreed...
No linked legislation citations have been extracted yet.
The contractor did not have the required insurance and had not entered a written contract in the required form, but the Home Building Act allowed recovery on a quantum meruit basis if that was just and equitable. The Tribunal accepted evidence that the contractor had done electrical work and supplied materials, calculated a reasonable amount while excluding travelling time, and ordered the homeowner to pay $18,888. Hall J held that the homeowner’s objections largely challenged factual findings, which were not enough to establish legal error under the restricted appeal provision. The Tribunal’s reasons for ordering costs were deficient, but the Supreme Court considered the proceedings’ unusual complexity sufficient to affirm an order for half the contractor’s costs. The appeal was dismissed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,933 words · generated 29/09/2026
In Pender v Robwenphi Pty Limited & Anor [2008] NSWSC 1144, Hall J considered an appeal from decisions of the Consumer, Trader and Tenancy Tribunal concerning payment for electrical work at a Bondi Junction home. The appeal was restricted by s.67 of the Consumer, Trader and Tenancy Tribunal Act 2001 to a question “with respect to a matter of law” ([19]–[25]).
The homeowner, Mr Pender, had been renovating his property after a dispute with an earlier builder. In late 2003 he engaged Robwenphi, an electrical contractor that had previously worked for him, to complete electrical work. No written contract in the form required under s.7 of the Home Building Act 1989 was made. The contractor also lacked the insurance required by s.92 ([6]–[9], [12]).
The contractor claimed $22,919.30 before the Tribunal. In response, the homeowner argued that the statutory non-compliance prevented payment and brought a cross-claim based partly on alleged delay and defective work ([11]–[15]). The contractor relied on s.94(1A), which provided that, if a court or tribunal considered it just and equitable, a contractor could recover money for the work on a quantum meruit basis despite the absence of required insurance ([13]–[14]).
The Tribunal ordered payment of $18,888 on 7 August 2007. It rejected the homeowner’s cross-claim for want of sufficient evidence and later ordered him to pay half the contractor’s costs ([16]–[18]). The Supreme Court dismissed the appeal. The substantive award remained undisturbed, and Hall J affirmed the costs order under the Court’s power in s.67(3) ([131], [134]).
The first issue was whether the Tribunal had exercised the “just and equitable” discretion under s.94(1A) according to law. Hall J drew on the analysis in Eddy Lau Constructions Pty Limited v Transdevelopment Enterprise Pty Limited [2004] NSWSC 273. He described the phrase “just and equitable” as broad and fact-sensitive, requiring attention to material circumstances surrounding the transaction and to the statutory policy ([40]–[42]).
The Tribunal had regard to matters including the possibility that the homeowner would receive the value of the work without paying for it, the lack of measurable effect on the property’s resale value from the absent insurance, and the contractor principal’s lack of awareness of the insurance requirement. It also considered that the company mainly carried out commercial and industrial work, did domestic work only occasionally, and had not acted dishonestly or contumeliously ([43]–[48]). Hall J held that the Tribunal applied the correct principles and that no irrelevant consideration or error of principle had been shown ([48]–[50]).
The second issue concerned the factual basis and value of the quantum meruit claim. Hall J stated that the claim could arise where work conferred a benefit that another party accepted in circumstances where retaining it without remuneration would be unjust ([52]–[53]). The homeowner argued, among other things, that the Tribunal had not identified the benefit or adequately established its value ([54]–[55]).
Hall J read the Tribunal’s reasons in the context of the evidence and submissions rather than treating their brevity as conclusive. The Tribunal had accepted the evidence of the contractor’s employees about work performed, hours worked and materials supplied. It had also considered the credibility disputes, the contemporaneous job cards and diaries, and the homeowner’s challenge to the claimed work ([61]–[65], [92]–[94]). The Tribunal assessed the claim by reference to reasonable value, deducted travelling time, and allowed $18,888 for labour, apprentice hours and materials ([96]–[101]).
The Supreme Court regarded the existence, extent and value of the work, and whether it benefited the homeowner, as matters of fact for the Tribunal. Hall J concluded that the Tribunal’s findings made clear that it accepted the work had been done and that the homeowner had received and accepted its benefit. The complaints therefore did not raise a question of law within s.67 ([102]–[117]).
The costs issue was different. For a claim in the relevant monetary band, cl.20(3) of the Consumer, Trader and Tenancy Regulation 2002 permitted costs only where exceptional circumstances warranted them or a specified order under s.30(2) had been made ([120]). Hall J accepted that the Tribunal’s reasons did not demonstrate the required satisfaction, and that this deficiency could amount to an error of law ([122]–[123]). But s.67(3) allowed the Court to make the order it considered appropriate. Hall J considered the unusually elaborate submissions and the resulting complexity of what he viewed as a straightforward claim, and found adequate material to support exceptional circumstances. He affirmed the order for half the costs ([124]–[131]).
This judgment applied the statutory framework as it stood for the appeal. Under s.67 of the Consumer, Trader and Tenancy Tribunal Act 2001, the Supreme Court’s role was not to rehear the factual dispute. Hall J relied on Kalokerinos v HIA Insurance Services Pty Limited [2004] NSWCA 312 for the view that the phrase “a question with respect to a matter of law” was confined to a pure question of law, while also recognising that an implicit legal decision could qualify ([21]–[24]). The judgment does not set out a broader history of later statutory changes or establish what the law became after this appeal.
On s.94(1A), the Court adopted the fact-sensitive approach stated in Eddy Lau Constructions. The inquiry was whether the circumstances justified creating a right to fair remuneration despite the statutory non-compliance, with the contractor’s conduct relevant to that assessment ([40]–[49]). The judgment’s application shows that inadvertence and the absence of identified detriment could matter, but it does not make those matters a universal checklist or prescribe a guaranteed result for other cases.
On quantum meruit, the judgment applied the general proposition that recovery may be available for work that has been done, has conferred a benefit, and has been accepted in circumstances where retention without payment would be unjust ([52]–[53], [115]–[117]). It also accepted that the Tribunal could use the contractor’s labour and materials evidence as a basis for valuing the benefit, while making a factual adjustment for travelling time ([97]–[101], [117]).
For costs, the decision illustrates the distinction between a tribunal’s obligation to give reasons and the reviewing court’s statutory power to make an appropriate order. Hall J found the Tribunal’s reasons deficient, but did not remit the matter. He concluded that the material before him supported the costs order under the exceptional-circumstances test ([123]–[131]). This was an application of the provisions before the Court, not a general statement that deficient reasons can always be cured on appeal.
At [41], Hall J stated that “‘just and equitable’” involves evaluations of factual questions. In plain English, the statute did not impose a mechanical rule: the decision-maker had to assess the circumstances of the particular case.
At [42], the judgment identifies the contractor’s conduct as an important consideration, distinguishing ignorance or oversight from wilful or deliberate non-compliance. In practical terms for understanding the reasoning, the Tribunal’s acceptance that the insurance failure was inadvertent was relevant to its fairness assessment; it was not treated as automatically decisive ([43]–[48]).
At [110], Hall J said the complaints about identifying the benefit were “properly characterised as relating to the Tribunal’s evaluation of factual matters.” This explains the appeal’s limits: arguing that the Tribunal should have believed different evidence or valued the work differently did not, without more, establish legal error.
At [117], Hall J stated that there was no error of law in the Tribunal’s assessment of the benefit’s value. The Tribunal was entitled, though not bound, to use the contractor’s costing of labour and materials as a basis for measuring the benefit.
At [123], Hall J recognised that the failure to provide adequate reasons for the costs order could constitute an error of law. But at [124]–[131], he explained why the Supreme Court could itself make the appropriate order and affirm the half-costs award. The outcome thus rested on the Court’s statutory power and its assessment of the case circumstances, not on a finding that the Tribunal’s reasons were adequate.
The judgment is most directly relevant to a statutory appeal where the appeal provision is limited to a question of law and the grounds in substance dispute the tribunal’s assessment of evidence. Here, the homeowner’s complaints about whether work was done, what benefit it conferred, and how much it was worth were characterised as factual issues ([61]–[62], [107]–[110]).
It also concerns a contractor seeking quantum meruit recovery despite statutory non-compliance relating to residential building work. The particular non-compliance included absence of required insurance and a written contract in the required form ([8], [12]–[14]). The reasoning treats the contractor’s conduct, the benefit to the homeowner, and any detriment connected with the breach as relevant circumstances for the just-and-equitable inquiry ([42]–[48]).
The quantum meruit analysis concerned a partly completed domestic electrical project with evidence from employees who performed the work, contemporaneous job cards and diaries, photographs and oral testimony. The Tribunal also faced disputes about travelling time, the labour rate, the quantity of work, and the quality of work ([63]–[100]). The judgment’s conclusion about benefit followed the Tribunal’s credibility findings and its acceptance that the work was competently performed ([102]–[117]).
Finally, the costs reasoning concerns proceedings in the monetary band specified in cl.20(3), where exceptional circumstances were required for a costs award. The Court’s conclusion was tied to the way the submissions had made the proceeding unusually complex in its view ([120], [125]–[131]). The judgment does not determine how a different record, statutory provision or appeal right would be treated.
The judgment itself reports no later cases applying, distinguishing, overruling or otherwise treating Pender. This analysis therefore cannot establish its subsequent reception.
The authorities discussed in Pender are earlier authorities, not later treatment of this judgment. Hall J relied on Eddy Lau Constructions for the just-and-equitable discretion under s.94(1A), and on Pavey & Matthews Pty Limited v Paul for the quantum meruit context ([40]–[42], [52]–[53]). He discussed Kalokerinos in explaining the restricted meaning of the statutory appeal provision ([21]–[24]). Those references show the authorities informing Pender, not how later courts have understood it.
The judgment resolves the appeal before it but does not provide an exhaustive list of factors that must be considered in every s.94(1A) case. Its account of the discretion is broad, contextual and fact-sensitive ([41]–[49]). The relative weight of inadvertence, the contractor’s experience, the owner’s benefit and any detriment therefore remains dependent on the particular circumstances considered by the relevant tribunal or court.
The judgment also does not specify a single method for identifying and valuing a benefit in every quantum meruit claim. It upheld the Tribunal’s factual assessment on the evidence before it, including its use of job records and witnesses’ testimony, and its adjustment for travel time ([96]–[108], [117]). Questions about the evidentiary basis or valuation method in a different case would need to be considered against that case’s record and governing law.
A further question is how far s.67(3) could permit a reviewing court to address a tribunal’s inadequate reasons in other circumstances. In Pender, Hall J found both that the Tribunal’s reasons did not show the requisite satisfaction and that the record provided adequate material for the Court to affirm the half-costs order ([123]–[131]). The decision does not suggest that every failure to give reasons will be harmless or that an appellate court will always have material to make the order itself.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Background to these proceedings 6 The plaintiff entered into a home building contract with a builder for the purpose of adding an upper level to his property in Bondi Junction. As part of that construction, the builder retained an electrician (not the first defendant) who undertook various electrical work at the premises. 7 During the renovations, a dispute occurred between the plaintiff and the builder. Before completion of the alternations and additions to the property, the builder, according to the plaintiff, abandoned the site in mid 2002, leaving the plaintiff with a partially completed home. The plaintiff then obtained another builder's permit to complete the project. 8 In late 2003, the plaintiff engaged the first defendant to complete the remaining electrical work for his property, the first defendant having undertaken work for the plaintiff in previous years. No written contract in the form required under s.7 of the Home Building Act 1989 was brought into existence to give effect to the agreement for electrical work. 9 According to the evidence for the first defendant, it commenced the electrical work at the property in December 2003. Subsequently, the plaintiff engaged another electrical contractor, Blacktown City Electrical Services (BCES), in January 2004 to carry out work at the property. Owing to the retention of BCES, the first defendant, for reasons disclosed in the evidence, ceased work on the property (with BCES staying on). 10 The first defendant made a claim against the plaintiff, filed in the Local Court on 17 November 2004. That claim against the plaintiff was ultimately transferred to the Tribunal.
The Tribunal proceedings 11 Before the Tribunal, the first defendant, as the applicant, claimed against the plaintiff the amount of $22,919.30 as well as interest and costs. 12 The plaintiff resisted the first defendant's claim, arguing, inter alia, that it was not entitled to payment given its failure to comply with the formalities imposed by the Home Building Act. Specifically, the plaintiff pointed to the first defendant's failure to obtain a written contract in the form required under s.7 of the Home Building Act and to its failure to obtain the relevant contract of insurance as required under s.92 of that Act. 13 Given the failure to comply with the requirements of the Home Building Act and the legislative consequences (arising under ss.10 and 94(1) of that Act), the first defendant framed its claim pursuant to s.94(1A) of that Act which provides:- " 94 Effect of failure to insure residential building work … "(1A) Despite s.92(2) and subsection (1), if a court or tribunal considers it just and equitable, the contractor, despite the absence of the required contract of insurance, is entitled to recover money in respect of that work on a quantum meruit basis." 14 The first defendant argued, in accordance with the terms of s.94(1A), that it was just and equitable for it (as the contractor) to recover money for the work performed on a quantum meruit basis despite the absence of the required contract of insurance. 15 Before the Tribunal, the plaintiff brought a cross-claim against the first defendant claiming damages based, in part, on costs incurred by the alleged late completion of the electrical work and on the basis of alleged defective work.
Decision of the Tribunal 16 On 7 August 2007, the Tribunal gave its decision in relation to the first defendant's substantive claim, ordering the plaintiff to pay the first defendant $18,888.00. The Tribunal exercised its discretion under s.94(1A) of the Home Building Act in favour of the first defendant, considering it just and equitable that it recover monies on a quantum meruit basis for the work done despite its failure to obtain the required contract of insurance and, it can be inferred, despite its failure to create a written contract in accordance with statutory requirements. 17 In relation to the plaintiff's cross-claim, the Tribunal found he had failed to provide sufficient evidence to substantiate the claim. 18 On 6 February 2008, the Tribunal made cost orders that the plaintiff pay one half of the costs of the first defendant. Right of Appeal under the Consumer, Trader and Tenancy Tribunal Act 2001 19 The plaintiff in this matter appeals against the decision of the Tribunal pursuant to s.67 of the Consumer, Trader and Tenancy Tribunal Act 2001 as it then stood (that is, prior to the commencement of the Courts and Crimes Legislation Amendment Act 2008, Schedule 5). 20 Section 67 of the Act conferred a right of appeal against decisions of the Tribunal to this Court. Section 67 restricts the right to appeal to one against "a question with respect to a matter of law". Specifically, s.67 of the Act provides that:- " (1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law , a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the Supreme Court against the decision . (2) An appeal is to be made in accordance with the rules of the Supreme Court. The rules of the Supreme Court may provide that an appeal (or such classes of appeal as may be specified in the rules) may be made only with the leave of the Court." (emphasis added) 21 In Kalokerinos v HIA Insurance Services Pty Limited [2004] NSWCA 312, Bryson JA observed that limited rights of appeal are more usually conferred by legislation employing the phrases "a point in law" or "a question of law": Kalokerinos (supra) at [39]. The operative provision in these proceedings, however, refers to "a question with respect to a matter of law". 22 In Kalokerinos (supra), Bryson JA considered judicial pronouncements on the ambit of legislation similarly worded to s.67(1), notably those of Carruthers J in Sullivan v Waltons Credit Ltd (1990) ASC 56-023 and Canham v Australian Guarantee Corporation Limited (1990) 20 ALD 361: see Kalokerinos (supra) at [42]-[46]. Bryson JA expressed the view that the observations of Carruthers J were of equal application to s.67(1) of the Consumer, Trader and Tenancy Tribunal Act such that "a question with respect to a matter of law" is confined to "a pure question of law": Kalokerinos (supra) at [47]. 23 Bryson JA also observed that a decision on "a question with respect to a matter of law" can include decisions implicitly made by the Tribunal on matters of law: Kalokerinos (supra) at [47]. 24 Where the appeal grounds stated by a party fall outside of the ambit of s.67 as elucidated by the above authorities, the appeal is incompetent. 25 In an appeal under s.67 of the Act, the onus, accordingly, is on the plaintiff to establish that the Tribunal has committed an error with respect to a question involving a matter of law: A J Bignell Pty Limited v S G Edenden [2004] NSWSC 27 at [10]; Janos Hoey v Consumer, Trader and Tenancy Tribunal [2002] NSWSC 1023 at [18].
Grounds of Appeal 26 The plaintiff challenged the substantive decision of the Tribunal in two respects. 27 First, he submitted that the Tribunal failed to properly apply the discretion conferred by s.94(1A) of the Home Building Act: Submissions for the plaintiff, dated 13 February 2008, at [A]. 28 Secondly, he submitted that the Tribunal erred by failing to make a finding in his favour on the issue of quantum meruit: Submissions for the plaintiff, dated 13 February 2008, at [B]. 29 The summons filed by the plaintiff, dated 3 September 2007, particularised the appeal grounds as follows:-
The first basis of appeal: s.94(1A) " 1. The [Tribunal] erred in the application of s.94(1)(A) of the Home Building Act - in that the application of the discretion was not appropriate at law. 2. The [Tribunal] took into account irrelevant factors in the exercise of the discretion, and misdirected itself in the application of the discretion generally." The second basis of appeal: quantum meruit
30 As to the ancillary issue of costs, the plaintiff submitted that the Tribunal, in ordering that the plaintiff pay half of the costs of the first defendant, had failed to apply the statutory test for the awarding of costs and had committed an error of law: Submissions in reply by the plaintiff at [22]. The statutory test calls for the satisfaction of the Tribunal that there are "exceptional circumstances that warrant the awarding of costs": Consumer, Trader and Tenancy Tribunal Regulation 2002, cl.20(3). 31 Furthermore, the plaintiff submitted the Tribunal had failed to provide reasons in accordance with ss.35 and 49 of the Consumer, Trader and Tenancy Tribunal Act. 32 As to the substantive issue, the submissions of the first defendant focused on the narrowness of the ambit of the appeal provided by s.67 of the Consumer, Trader and Tenancy Tribunal Act. In summary, it submitted that the plaintiff's complaints, those directed to the Tribunal's exercise of discretion as well as its findings on quantum meruit, even if established, fell outside the ambit of s.67: Submissions for the first defendant, dated 25 March 2008, at [19]-[21], [25], [51]. 33 The first defendant further submitted that many of the instances of error alleged by the plaintiff were, if proven, merely errors in the Tribunal's fact-finding process, standing outside the operation of s.67 of the aforementioned Act. 34 As to the issue of costs, it was submitted that the plaintiff's complaint was, in essence, a complaint as to the findings of fact made by the Tribunal in exercising its discretion under cl.20(3) of the Regulations and that s.67 of the Act did not extend to such appeals: Submissions for the first defendant in reply, dated 14 April 2008, at [12]. Furthermore, the first defendant submitted that exceptional circumstances had existed in that it was the plaintiff, before the Tribunal, who had insisted on cross-examining all of the first defendant's witnesses thereby contributing to costs. Had it not been for such insistence, the first defendant submitted, the Tribunal hearing could simply have been conducted on the papers: Submissions for the first defendant in reply dated 14 April 2008, at [13]. 35 The plaintiff relied upon its Outline of Submissions filed 13 February 2008 and plaintiff's Submissions in Reply filed 5 May 2008. 36 In relation to the first ground of appeal in relation to the application of s.94(1)(A), the plaintiff referred to the decision of Barrett J in Eddy Lau Constructions Pty Limited v Transdevelopment Enterprise Pty Limited [2004] NSWSC 273 and to the decision in Merheb v Hilal & Anor [2004] NSWSC 425: Outline of Submissions, paragraphs [12]-[13]. 37 The plaintiff contended, inter alia, that the Tribunal did not apply the Act according to law in determining "… whether or not the plaintiff had received a benefit". In paragraph [15], it was contended that there was no finding made as to what the benefit was, other than to nominate time sheets and material entries: paragraph [16]. 38 It was further submitted that the Tribunal did not identify the factors relevant to its refusal to exercise the discretion. Further, it was contended that the discretion should not have been exercised before relevant facts had been taken into account: Outline of Submissions, paragraph [20]. 39 The plaintiff identified specific matters set out in paragraph to (r) of the Outline of Submissions.
The Tribunal's alleged failure to exercise the s.94(1A) discretion according to law 40 Before dealing with the specific matters raised by the plaintiff in relation to the Tribunal's application of the provisions of s.94(1A) of the Home Building Act it is apparent from the Tribunal's decision (p.5) that the Tribunal member had well in mind the observations and principles enunciated in relation to that section by Barrett J in Eddy Lau Constructions (supra). In his Honour's judgment in that case, the following observations are recorded:- "62. The policy behind s.94(1A) is, clearly enough, that the statutory disentitlement under s.94(1) to sue for damages under or otherwise to enforce the contract made in contravention of s.92(1) may be offset by the court's allowing recovery on a quantum meruit basis, provided that it is satisfied, according to the 'just and equitable' criteria, that the builder is deserving of such recovery." 41 In relation to the analysis undertaken by Barrett J in Eddy Lau Constructions (supra), the following propositions may be derived from the judgment:-
(1) The words "just and equitable" are of the widest significance and involve evaluations of questions of fact.
(2) In exercising the wide discretion under the provision, a Court or Tribunal is to have regard to considerations affecting the particular transaction as are material to the decision to be made. Irrelevant matters are those that have no rational connection with the policy of the statutory requirement.
(3) The statutory discretion under s.94(1A) must be exercised judicially in light of the whole of the circumstances surrounding the relevant subject matter.
(4) Inquiry is directed to ascertaining whether the surrounding circumstances are such as to justify the creation of a right and an obligation as to the payment of the sum separately determined to represent fair remuneration.
(5) The Act is concerned with factors influencing a decision whether, in the particular circumstances in which the Court finds the parties, it is fair that one receive the quantum meruit sum and the other pay it. 42 It is apparent from the analysis by Barrett J in Eddy Lau Constructions (supra) that the conduct of the party in breach is an important matter for consideration. In that respect, ignorance or oversight of the statutory requirement under the Act stands in marked contrast to a contravention that is wilful or deliberate. 43 In the present case, the determination of the Tribunal was, in effect, that the first defendant's contravention was an inadvertent one, it being a company accustomed to undertaking commercial and industrial work and not home building or renovation work. The Tribunal accepted, as it was entitled to, the evidence given which explained the first defendant's ignorance or inadvertence. These were matters of fact for the Tribunal's determination. 44 In the circumstances of the present matter, on the evidence there was no identification of any particular form of disqualifying conduct by or on behalf of the first defendant that was material to be taken into account in determining what was "just and equitable". 45 The Tribunal was also entitled to have regard, as Barrett J did in Eddy Lau Constructions (supra) to the fact that, if the first defendant was not granted relief under s.94(1A), the plaintiff would receive the benefit of the work undertaken by the first defendant without having to pay for that work and for the materials supplied. I will return to this issue of "benefit" below. 46 Finally, there was no factor establish that resulted in any detriment flowing to the plaintiff by reason of the particular breaches or contraventions by the first defendant. Again, such matters involve a factual determination for the Tribunal. 47 In summary, it is clear that the Tribunal did have regard to relevant matters in its exercise of the discretion. Those matters included:-
(1) The fact that the plaintiff would stand to gain the benefit of work without paying for it should a claim on a quantum meruit basis not be allowed.
(2) That the failure to have had in force a contract of insurance as required by s.92 of the Act had no measurable effect on the resale value of the property.
(3) That Mr Palmer, the "principal of the first defendant" had been unaware of the requirements of s.92.
(4) The explanation for Mr Palmer's lack of knowledge in that respect was accounted for by the fact that his company was principally engaged in industrial and commercial electrical work and only did "domestic or cottage work" on an occasional basis.
(5) There is no other aspect concerning the conduct of the first defendant that was contumelious or dishonest in not having secured a contract of insurance.
(6) That the case itself justified the conclusion that it was just and equitable for the first defendant to invoke the provisions of s.94(1)(A). 48 It is, in my opinion, plain that the Tribunal was aware of and applied correct principles and it identified relevant facts and circumstances concerning the criteria to be applied in determining what was "just and equitable" as required by the statute. I do not consider that it has been established that the Tribunal took into account irrelevant matters. As earlier noted, what is just and equitable in a particular case involves the evaluation of questions of fact. 49 In summary, the power available to the Tribunal was a broad one and there has not been established any error of principle or an error of mixed fact and law by the Tribunal. In those circumstances, the plaintiff has failed to establish that the Tribunal brought into account irrelevant factors or proceeded on the basis of incorrect principle. 50 I am satisfied that the Tribunal exercised its discretion in accordance with the principles stated by Barrett J in Eddy Lau Constructions (supra). Accordingly, the first ground of appeal has not been made out.
The Tribunal's alleged failure to determine the recovery of monies on a quantum meruit basis according to law 51 The plaintiff submitted that the Tribunal had erred by applying an incorrect legal test when determining the recovery of monies by the first defendant on a quantum meruit basis: Outline of Submissions at [35] and Submissions in reply by the plaintiff at [7]. 52 An action on a quantum meruit basis lies where the work performed by one party constitutes a benefit and the other party accepts the benefit in circumstances where it would be unjust for the latter to retain that benefit without remunerating the former party: Keith Mason & J W Carter, Restitution Law in Australia (1995) Butterworths at [914]. 53 The action may provide a builder with the right to recover fair and reasonable remuneration for work which the builder has actually done and which as been accepted by the owner: see Pavey & Matthews Pty Limited v Paul (1987) 162 CLR 221 at 262 per Deane J.
54 In the written submissions for the plaintiff, reliance was placed upon the principles as stated in ABB Engineering Construction Pty Limited v Abigroup Contractors Pty Limited [2003] NSWSC 665 which restated the principles for assessment enunciated in BP Exploration Co (Libya) Limited v Hunt (No 2) [1979] 1 WLR 783, 784-785. Reference there was made to ascertaining whether the defendant had "obtained a valuable benefit" and for that purpose the benefit had to be identified and valued. 55 The plaintiff submitted that the Tribunal misdirected itself as to the inquiry undertaken in determining the action based on quantum meruit. This was said to have been evident, inter alia, from the Tribunal's failure to identify the benefit supposedly obtained by the plaintiff: Outline of Submissions at [24] and at [36]-[37].
56 Before referring to the evidence and factual findings, it is necessary to make observations as to the need for the Tribunal to identify the basis for its decision. Although a Tribunal is required to give reasons for its decision, there is no principle that determines the level of detail such reasons ought take. As noted by Meagher JA in Beale v Government Insurance Office of NSW (1997) NSWLR 430 at 442, the content of the reasons depends on the particular circumstances of the matter being considered by the Court (or here, the Tribunal). His Honour, in that case, emphasised that reasons need not be lengthy or elaborate (at 443) and cited dicta of Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728: " It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. " 57 Meagher JA remarked that whilst the obligation for courts to provide reasons differs in origin from any obligation imposed upon tribunals by statute, there is no reason in principle or policy why the content of reasons for both types of decisions should differ: in Beale (supra) at 441. 58 Studdert J in TS v George (14 April 1998, unreported, BC 9802154) observed that the reasons of a Magistrate (or here the Tribunal member) are to be read in context, this being the context in that case of the Magistrate addressing his or her mind to the submissions made by counsel. A similar point was made by Whealy J in Murphy v Director Public Prosecutions [2006] NSWSC 965 at [50] wherein his Honour stated:
"…It is also true that the Magistrate does not set out, in any precise way, the principles she considered were applicable to each application. The decision is expressed as telescoped, hurried language. It may fairly be criticised for its brevity and lack of analysis. As I say, all these criticisms have some justification in them. On the other hand, however, the learned Magistrate had two sets of carefully drafted submissions from the plaintiff's side which were quite detailed. There was also a succinct and accurate submission put in on behalf of the prosecution…" 59 In Murphy (supra), Whealy J observed that in that connection it was necessary to read the Magistrate's decision, making due allowance for the submissions which were before the Court below and to scrutinise it in a manner which is not overly pedantic or patronising. 60 In the present case, the Tribunal had extensive written and oral submissions. 61 Whilst the Reasons for Decision of the Tribunal are comparatively brief and do not expressly record findings on many of the discrete factual issues subjacent to the claim, looked at in the context of the general findings made, namely, that the first defendant's witnesses were credible witnesses on the issues of the work performed, the hours of work and the materials supplied, it is readily apparent that the Tribunal determined the issues of benefit and the plaintiff's acceptance of the benefit of the first defendant's performance of work in installing electrical wiring, components and associated systems and determined each issue favourably to the first defendant. 62 The nature of the issues before the Tribunal as to what work was performed by the first defendant, the value of such work and associated issues of identifying the "benefit" and value of the benefit said to have been conferred upon the plaintiff were essentially matters of fact for the Tribunal's determination. 63 The evidentiary foundation for the claim based on such matters was partly constituted upon primary documents associated with the project including diary entries, work sheets and job cards. In the Outline of Submissions, it was contended (paragraph [24]) that it was "not enough that the defendant has time sheets and can provide a list of materials that it said it used". However, the defendants' case was not solely documentary. (The Tribunal specifically referred to these contemporaneous documents in its Reasons for Decision.) In addition, the evidence as to the work performed, its nature and extent was also based on the oral evidence of Mr Palmer and, importantly, of the first defendant's employees, in particular, Mr Nuttall and Mr Langton. 64 In making findings of fact in relation to issues referred to in paragraph [62], it is clear that the Tribunal was required to resolve a number of factual disputes in the evidence of the witnesses called for both parties. It is apparent from the Reasons for Decision that the following matters were significant in the Tribunal's resolution of those disputes:-
(1) The Tribunal's consideration and finding that the evidence of Mr Nuttall and the evidence of Mr Langton, the electricians who did most of the work on behalf of the defendant, as to that work as well as the records which they maintained were "persuasive" .
(2) The challenge to the evidence of Mr Nuttall and of Mr Langton was, at least in part, based on Mr Vella's evidence and, to some extent, upon that of Mr Pender, both of whom gave evidence as to "who was on site, when and how often" .
(3) As to Mr Vella, the Tribunal member stated:- "I did not form a very positive opinion of Mr Vella as a witness and where their accounts differ, I prefer the evidence of Mr Palmer."
(4) As to Mr Pender, the Tribunal observed:- "… I was more favourably disposed to Mr Pender's evidence but in cases of variance and contradiction, I generally prefer Mr Palmer's recollection." (Reasons for Decision, p.4)
(5) Under the sub-heading in the Reasons for Decision, "The state of the works" (p.4), the Tribunal member recorded:- "On all these matters I am inclined to accept the evidence of Mr Palmer who impressed me as a witness of truth and integrity …" 65 Accordingly, on the basis of above matter, whilst Mr Palmer was not directly involved in executing the work, in determining issues of act, the evidence of Mr Nuttall and Mr Langton, was plainly of importance to the Tribunal's determination of matters of fact concerning:-
(4) the materials used and installed in the plaintiff's home. 66 Mr Palmer gave oral evidence that Mr Langton and Mr Nuttall were both experienced electricians and they performed electrical work at the plaintiff's premises while another of his employees also undertook more minor tasks. He stated that upon the instructions of Mr Pender, he arranged for one of his employees (Mr Langton) to inspect the electrical wiring installed by the former electrician and that that inspection revealed the existing wiring to have been substandard. During his oral evidence, Mr Palmer referred to defects in the former electrician's work (for example, roughly installed and bare earth wires running along the premises), at times using photographs (also before the Tribunal) to identify the deficiencies. The Tribunal was entitled to have regard, and did accept, the evidence of Mr Palmer that he informed Mr Pender the quickest way to proceed was to remove much of the wiring installed by the former electrician before his company undertook work on re-wiring the premises. 67 Mr Palmer also gave oral evidence, cross-referenced to photographs and documentary evidence before him, as to the work undertaken by the first defendant. Whilst he did not, as I have earlier noted, perform the actual work himself, he exercised overall supervision. 68 The evidence of Mr Langton and Mr Nuttall, as the first defendant's employees present on site and performing most of the electrical work, was important in establishing the detail of work actually performed although they each admitted particular areas of uncertainty in that respect. 69 Mr Langton's evidence was contained in a statutory declaration of 4 October 2005, a written statement of 30 May 2006 as well as further statements made on 5 June 2006 and 2 August 2006. Mr Langton also gave oral evidence, with his cross-examination commencing on 28 February 2007. 70 The evidence given by Mr Langton provided some particularity to the Tribunal in respect of a number of matters including the following:-
(1) Work undertaken in the checking of wiring installed by the previous electrician involving tracing wiring, marking the existing wiring and endeavouring to understand the method involved in the installation.
(2) That in undertaking such work, Mr Nuttall worked with an apprentice and the checking by both of the wiring involved "buzzing it" to find out the location of wiring installed.
(3) The installation by Mr Langton and other employees of the first defendant of electrical wiring on the upper levels of the site.
(4) Removal of defective wiring laid by the previous electrician.
(5) Re-wiring of light and power circuit wiring on the ground floor.
(6) Specific electrical wiring completed by reference to a series of photographs including installation of the conduit, wiring to the light switch (photograph 6), rewiring of a new circuit in the attic (photograph 45).
(7) Rewiring GPO circuits and installation of light circuit wiring. 71 Mr Langton also produced in evidence his job sheets in support of the claim by the first defendant. These were before the Tribunal as Exhibit 3A (copies of original job sheets) and Exhibit 3B (original job sheets). 72 Mr Langton gave evidence that he normally maintained a diary in relation to work performed and did so in relation to the plaintiff's premises. He said that the work he carried out on the plaintiff's house included work in respect of television and data equipment. 73 The diary entries recorded work performed by him on 18, 22 and 24 December 2003, 7, 8, 9 and 12 January 2004, 2 and 4 February 2004 and 1 March 2004. 74 The diary entries were made in his handwriting and indicated the number of hours attributed to his attendance in respect of electrical work performed for the plaintiff. He explained that the hours included allowance for travelling time. 75 In his statement of 5 June 2006, Mr Langton stated that the bulk of his work normally involved installations in commercial premises. He stated that, in respect of work performed on behalf of the plaintiff:-
(1) That he installed telephone, data and security wiring associated with additions and alterations being carried out at the plaintiff's home.
(2) In December 2003, his first job was to check and test the wiring which had been installed, as discussed above, by the previous electrician who had been engaged on site leading him to identify defects including old cables still connected, cable with bare earth wiring, some cables missing from circuits and junction boxes joining cables in areas which would become inaccessible after walls and ceilings were lined. The specific defects found on inspection included:- • New circuit wiring connected to old existing wiring with different size conductors. • Cables with bare earth wires. • Junction boxes, roughly connected in the ceiling area.
(3) Mr Langton said that some wiring had been installed on the first floor but most rooms were not wired.
(4) A decision was taken that it would be quicker to rewire the lighting circuits than to trace and repair existing wiring.
(5) Although some of the power circuit wiring which had previously been done was satisfactory, the first defendant and its employees wired/rewired what was required. They worked up until Christmas Eve and resumed back on site on 7 January 2004.
(6) Difficulties were encountered with the plaintiff's project manager, David Vella, who, Mr Langton said, had changed his instructions which would result in pulling apart work that he and others had finished.
(7) Mr Langton also said that on some site visits by him work that had been performed by the first defendant had been removed or altered.
(8) Mr Langton said that he and other employees finished the connection of the communication cables and the alarm system before finishing work on the project. He said Mr Palmer installed the meter board.
(9) Mr Langton, in describing the work undertaken, said that he and other employees commenced on the upper levels and installed wiring throughout those areas in accordance with the applicable drawings. He said that some existing rewiring was reused, but most was changed due to modified drawings.
(10) On the ground floor, he said that he and other employees rewired most of the light and power circuit wiring due to:- • Defective wiring. • Changes in drawings from those used by the previous electrician. 76 In relation to other aspects of work, Mr Langton in his statement of 2 August 2006, identified work performed by him as including:- • Installation of wiring for the exhaust fan. • Rewiring of power points in the attic to a new circuit. 77 Additionally, in that statement, Mr Langton referring to job cards used to record labour and materials stated:- "1. All entries for labour and materials on Job Card No 1 are accurate and in my handwriting. … 4. The entries for labour and materials on Job Card No 4 are accurate and in my handwriting." 78 In the same statement, Mr Langton stated that:- "The copies of pages from my job diaries dated 18, 22, 24 December 2003, 7, 8, 9 and 12 January, 2 and 5 February 2004 and 1 March 2004 are also genuine accurate copies which record the times I spent on David Pender's project …" 79 In cross-examination, Mr Langton gave further evidence concerning the work undertaken including work in the downstairs hall area. It was put to him that he did not do any work in that area. He responded "I did, I wired it and I traced the walls for the two stage switch up the front near the front door … there was only one chase, that was on the inside of that - of the first bedroom and chopped through and put a wall box in it and there was also another chase done for the intercom and the K-pad at the front " (transcript 28 February 2007, p.137) 80 Mr Langton was cross-examined by reference to a series of photographs. He identified aspects of electrical installation which he said were not in place when he arrived on site. He confirmed that he did work in relation "to the alarms and telephones". He said he did "the chase" for a "drop switch" by cutting a channel in the wall and installing the conduit. In relation to some aspects, it was put to him that photographs depicted work that he did not do. He made concessions in relation to particular items by responding "I can't say one way or the other" (transcript, p.143). The witness' preparedness to state, in certain instances, that he could not be sure as to whether it was work already in place or performed by him or Mr Nuttall, no doubt influenced the Tribunal's assessment of Mr Langton as a credible witness. 81 He confirmed that he "did the power" in the downstairs TV room and did the "data and the TV in that room". At one point it was put to him "I'm going to suggest to you that in fact you weren't the person that chased the wall and install the conduit wires". Mr Langton responded "I'm sorry, I've got to disagree with you because I know I did it" (transcript, p.145). 82 Mr Nuttall's evidence was contained in his statutory declaration dated 5 October 2005 and two written statements dated 5 June 2006 and 2 August 2006. Mr Nuttall also gave evidence before the Tribunal. 83 In his statutory declaration dated 5 October 2005, in relation to the work performed by him and his colleagues, Mr Nuttall noted that they often had to undertake corrective work, pointing to two instances in which they discovered wiring loops missing from power circuits in the "bathroom next to the stairwell" and "in the main bedroom". 84 In his statement of 5 June 2006, Mr Nuttall annexed copies of his diary entries for dates in January, February and one date in March, these entries recording the hours he spent on the plaintiff's job. 85 Mr Nuttall's statement of 2 August 2006 provided greater detail of the work performed by him at the plaintiff's premises. He stated that in addition to correcting existing wiring, including the proposed sub-board being wired in the laundry, he also:-
• Installed new three phase sub-mains to sub-board in kitchen
• Installed the alarm panel and fitted alarm devices. 86 Furthermore, he stated that he and his colleagues sometimes ("several times") had to repeat wiring work they had already performed owing to the wiring having been "pulled out by other persons on site", the inference being that these were employees of BCES. 87 Mr Nuttall also provided a statement verifying the accuracy of the entries made by him or his colleague, Mr Langton, on his behalf in the job sheets. 88 As to his oral evidence, during his evidence in chief, Mr Nuttall was taken through each of the jobs cards, these cards recording the hours spent on the job and recording the materials supplied.
89 In cross-examination, Mr Nuttall's evidence as to the electrical work performed by him was elicited through the use of a series of photographs. He was shown a series of photographs (those taken of the site over a period, including those taken more recently to the work performed) against which he identified the work already existing when he arrived on premises as opposed to the electrical wiring he installed. Where Mr Nuttall was unable to identify by reference to the photographs the work he had performed, he made this known. Mr Nuttall stated that he had undertaken only a small amount of electrical work on the upper levels of the property, with most of his work being directed to the downstairs wiring.
90 A good deal of the cross-examination concentrated on disputing the amount of time spent by Mr Nuttall on the plaintiff's job. In that respect, counsel for the plaintiff attempted to impugn the accuracy of the entries appearing on the job sheets (suggesting that the entries were recorded sometime after the job had been completed) and queried the amount of time dedicated to travelling to and from the plaintiff's premises. It is apparent from the Reasons for Decision that the Tribunal member was cognisant of this latter issue (that is, the time spent travelling by the first defendant). 91 The Reasons for Decision (at p.4) make it clear that, in respect of the plaintiff's position before the Tribunal on the issues of "benefit", value of benefit and "acceptance of benefit", there were a number of subjacent issues litigated by the parties. They included:-
(1) The plaintiff's contention that work as claimed had not been performed.
(2) The plaintiff charging for travelling time when the plaintiff alleged there was no entitlement to do so.
(3) The first defendant charging an hourly rate which was not agreed to and which was said to be an excessive hourly rate. 92 In determining the disputed questions as to the work performed, the Tribunal had regard, in particular, to the following:-
(1) That the work was largely performed on behalf of the first defendant by Mr Nuttall and Mr Langton who were described as long-standing employees and who had Mr Palmer's confidence as to their workmanship and reliability. Their evidence was accepted.
(2) The job cards and diaries maintained by Mr Nuttall and Mr Langton.
(3) That Mr Vella, on behalf of Mr Pender, did not have available contemporaneous records in the nature of diaries to corroborate his evidence. 93 In relation to Mr Vella, the Tribunal stated in the reasons for decision (p.5):- "… there was some dissembling about site diaries but finally Mr Vella conceded that no diaries as such existed. It also became clear that Mr Vella's other business interests kept him busier than he was initially willing to admit. And his invoices to Mr Pender failed to corroborate his evidence relating to the hours he spent on site." 94 In relation to the evidence given, in particular, by Mr Nuttall and Mr Langton, the Tribunal concluded (p.5):- "It was only at the stage of submissions that the appropriateness of the volume of cable used was mentioned as casting doubt on the claims of Nuttall and Langton. This matter could have been explored by the respondent's experts but was not. As a result, I accept the evidence of Mr Palmer and his employees that they did substantially what they said they did at the Bondi Junction site." 95 That conclusion supported the first defendant's case that the work had benefited the plaintiff in a material way. 96 In dealing with the quantum meruit claim, it is clear that the Tribunal had in mind the relevant principles referring, inter alia, to the High Court's decision in Pavey & Mathews v Paul (supra). The Tribunal stated (p.6):- "It is clear from that case that the curial task is to evaluate the reasonable value of the works performed and the materials provided. This is the measure of the potential for unjust enrichment to the homeowner. As pointed out in the respondent's submissions, neither the cost to contractor nor the charge made by him is the criterion." 97 A little later, the Tribunal recorded (p.7):- "The measure of compensation in a quantum meruit claim is the enrichment to the homeowner in an objective sense. I do not think that his enrichment includes the time the tradesmen were travelling to the job. As a result, I think there should be a reduction in the applicant's claim to allow for the travelling time …" 98 The Tribunal then calculated that the claim should be reduced in respect of travelling time by some 45 hours "… as they are not a benefit for the purpose of a quantum meruit". 99 In making findings, the Tribunal noted:-
(1) So far as materials were concerned, Mr Pender's "… attack did not really dispute the various electrical devices claimed to have been used by the applicant in the job" (p.7).
(2) In relation to the cost of labour, the Tribunal stated that it had carefully considered the charge of $66 per hour. The Tribunal noted that it was "… less than that advocated by the industry body, but I think it just qualifies as reasonable for domestic electrical contracting in 2004" (p.7).
(3) That the basis of the charges was set out in job cards made by Mr Palmer's staff. The Tribunal noted, in this respect (p.8):- "… these show hours logged by each employee as well as materials and other disbursements. They are supported by diaries kept by his workers." 100 The Tribunal then set out the calculation made from the seven job cards in evidence after deducting travelling costs for eight hours for apprentice travel and 37 hours for electrician travel. Additionally, the Tribunal disallowed "the transport charge component". 101 On the basis of the assessment made by the Tribunal, the quantum meruit was assessed on the basis of 203.5 hours at $66 per hour amounting to $13,431, a small allowance of $781 for "apprentice hours" and $4,676 for materials totalling $18,888. 102 The particular matters in dispute as to whether and what work was performed by the first defendant were directed to the issue of "benefit". From the reasons provided by the Tribunal, it is clear, and hardly surprising, that the Tribunal considered the electrical work undertaken by the first defendant for the plaintiff, as it so found, namely, the materials supplied, the connection and assembly of parts and other materials used and the man hours expended in performing the electrical installation work on the premises, constituted a benefit to the plaintiff. 103 It is plain from the findings that the Tribunal was alive to the areas of dispute, in particular the hours and nature of work performed by the first defendant, and the evidence of the relevant participants that bore upon contested issues. It also had detailed submissions on all these matters.
104 It is clear that the Tribunal resolved the dispute factual issues in the proceedings and, in doing so, undertook an assessment of the reliability of the witnesses with strong findings being made in favour of the first defendant's witnesses. 105 Although detail of the work found to be performed by the first defendant is not set out in the reasons of the Tribunal, there was in the context of this domestic electrical installation contract, no need, in my opinion, for all the items of work to be particularised individually in the Reasons for Decision. The Tribunal, in plain terms, indicated that its task was "… to evaluate the reasonable value of the works performed and the materials provided" (Reasons for Decision, p.6). Additionally, the Tribunal member was conscious that that was relevant to "… the measure of the potential for unjust enrichment to the homeowner" 106 The evidence was concentrated upon identifying discrete aspects of work said to have been performed, who performed it and the dates and hours on which work was executed. In establishing "what work" was performed by the first defendant, it is plain on the findings made that it was the work the subject of identification in evidence by Mr Nuttall and Mr Langton as the Tribunal member stated, in effect, that he accepted their evidence "… about the work they did" and found it to be "persuasive". The nature of the installation work and the supply of materials self-evidently provided a valuable benefit to the plaintiff who failed to establish that any such work was in any way defective. 107 Accordingly, it is evident from the findings made and the ultimate decision of the Tribunal that the evidence called on behalf of the defendant identified the benefit received by the plaintiff in that he accepted the evidence of the defendant that the work was performed as claimed, materials were supplied and the plaintiff's limited challenge made to the quality of the work performed failed. Further, it is implicit in the findings made that, whilst the Tribunal accepted the evidence as to the hours performed, it made what it considered to be an appropriate adjustment in respect of travelling time. In those circumstances, the submission made on behalf of the plaintiff that the Tribunal did not find a benefit is contrary to the factual findings made by it. 108 It is not correct, as was submitted on behalf of the plaintiff, that, other than what was referred to as the "hearsay evidence" of Mr Palmer, that the Tribunal had no evidence upon which to find the benefit. A review of the documents before the Tribunal and the transcript establishes that there was an abundance of evidence from which the Tribunal could make the findings of fact that it did. 109 In relation to the cross-claim, on the findings made by the Tribunal it was clearly open to it to dismiss the cross-claim, in which the plaintiff had alleged faulty workmanship on the part of the first defendant. The Tribunal's consideration of the matters raised by the plaintiff and its adverse determination of the allegations of faulty workmanship also support its finding that valuable work was, in fact, performed on the plaintiff's house, thereby producing a benefit of value to him. 110 The complaints made by the plaintiff concerning the Tribunal's alleged failure to identify the benefit obtained do not, in my opinion, raise any "question with respect to a matter of law". On analysis, the complaints are properly characterised as relating to the Tribunal's evaluation of factual matters. In particular, many of the matters relied upon for the purposes of this appeal were directed to the alleged insufficiency of evidence to support the Tribunal on those matters. The Tribunal heard the witnesses and had regard to documentary evidence to support the claim made in making its factual findings. The Tribunal's conclusions based on an acceptance of the records of the first defendant and credibility findings favourable to the first defendant, do not involve or raise a question with respect to a matter of law within the ambit of s.67 of the Consumer, Trader and Tenancy Tribunal Act to this Court. 111 The plaintiff submitted that the Tribunal had failed to find acceptance of the benefit by the plaintiff, and that the evidence did not support such a finding, thereby demonstrating that the Tribunal had applied an incorrect test in determining the recovery of monies upon a quantum meruit basis: Submissions in reply by the plaintiff at [7]; Submissions by the plaintiff, dated 13 February 2008, at [60]. 112 In oral submissions in the present proceedings, counsel for the plaintiff drew attention to the concession made by the plaintiff as to the receipt of some benefit, as reflected in the plaintiff's (then the respondent's) pleadings before the Tribunal: see respondent's Points of Defence, dated 19 December 2005, at [16]. 113 The benefit conceded was of the first defendant's work in regards to:-
"Moving a rough in circuit wire less than 15 centimetres to centre a light in TV room
Smoke detector one supplied and installed." 114 Otherwise, as counsel for the plaintiff emphasised, "the benefit was hotly contested": see Transcript, dated 12 June 2008, at p.20. 115 I consider that a finding that the benefit was accepted by the plaintiff properly flows from the Tribunal's finding that work had been performed in accordance with evidence from the first defendant's witnesses. 116 The plaintiff, accordingly, obtained the benefit he had bargained for, namely, electrical work on his premises as detailed in evidence by the first defendant's witnesses. The first defendant performed the work on a "do and charge" basis until the breakdown in relations caused by the subsequent retention of BCES. That work was found to have been competently performed, the plaintiff's contentions of faulty workmanship having been determined in favour of the first defendant. In the circumstances of this case, the plaintiff, having received the benefit of competently executed work to equip his home, he must be taken to have accepted the benefit of such work: see Keith Mason & J W Carter, Restitution Law in Australia (1995) Butterworths at [216]-[218]; Foran v Wight (1989) 168 CLR 385 at 438. 117 Finally, the Tribunal was entitled, although not bound, to accept the first defendant's costing on labour and materials as a basis for measuring the value of the benefit received by the plaintiff. There is no error on a matter of law involved in the Tribunal's assessment in that respect.
The Tribunal's costs order 118 The general provisions as to costs in the Tribunal are prescribed by s.53 of the Consumer, Trader and Tenancy Tribunal Act. Section 53(1) provides that, subject to that section and the Regulations, parties in any proceedings are to pay their own costs. 119 Section 53(2) provides that the Tribunal may, in accordance with the Regulations, award costs in relation to any proceedings. 120 Clause 20(3) of the Consumer Trader and Tenancy Regulations provides:- "20(3) In any proceedings in respect of which the amount claimed or in dispute is more than $10,000 but not more than $25,000, the Tribunal may award costs in relation to the proceedings only if:- (a) the Tribunal is satisfied that there are exceptional circumstances that warrant the awarding of costs, or (b) the Tribunal has made an order under s.30(2) of the Act in relation to the proceedings." 121 The Tribunal, as earlier noted, ordered that the plaintiff pay half the costs of the first defendant. The submission for the plaintiff is that the Tribunal failed to apply the statutory test for the awarding of costs. A number of matters are set out in the written submissions for the plaintiff in relation to the asserted error on the matter of costs. 122 The Tribunal determined on 6 February 2008 that the plaintiff in the present proceedings was to pay one half of the first defendant's costs, as agreed or assessed. One complaint made was that the Tribunal failed to state its reasons for making the costs order and, in particular, failed to identify "exceptional circumstances" within the meaning of cl.20(3)(a) of the abovementioned Regulations. 123 The failure to provide reasons for the costs order is, in my opinion, capable of constituting an error of law and, as such, would fall within the provisions of s.67(1) of the Consumer, Trader and Tenancy Act. The Tribunal did not, in the reasons for the costs order, demonstrate that it had the requisite "satisfaction" required by cl.20(3). 124 By s.67(3), this Court may, unless it affirms the decision of the Tribunal on the question referred to in s.67(1):- "(a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or (b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal." 125 The cause of action in the present proceedings, in essence, involved a straightforward issue arising out of a claim by an electrical contractor for payment in respect of services and materials provided. There were not, in my opinion, any difficult issues of law or of fact requiring resolution by the Tribunal. There were, of course, a number of evidentiary difficulties in establishing precisely the nature and extent of work and the number of workings hours, as distinct from travelling time. Those, of course, were, as I have indicated above, all issues of fact. 126 The submissions before the Tribunal made by the plaintiff, however, sought to weave an elaborate complex of issues in relation to the quantum meruit claim. Both parties were legally represented and, what ought to have been a straightforward hearing on questions of fact, developed into a prolonged and unnecessarily detailed analysis in the evidence and submissions. The issues advanced for the plaintiff were founded on the principles of restitution and each was said to be relevant to the resolution of the issues before the Tribunal. 127 It is sufficient to identify some of the issues raised in the submissions advanced by the plaintiff (the respondent before the Tribunal) in this respect. They included:-
(3) The concept of "acceptance of a benefit" and, in this respect:- • the "nature of the benefit" , • actual benefit, • "constructive" benefit,
(4) The question of "willingness of acceptance" of the benefit:- • Whether there had been "acceptance" of a benefit by the plaintiff. • The issue of "a reasonable person's realisation" of an expectation that they would be required to pay for the provider of services. • Inadequate detail of the benefit. • The need for something additional to "mere enjoyment of the benefit of (the first defendant's) services or work" .
(5) The issue of whether a claim in restitution lies where a contract "remains partially performed" .
(6) The claimed failure to demonstrate that the plaintiff accepted the benefit.
(7) The "scope of works to be undertaken" and "plans" and "parameters" of the contract as relevant to the claim on a quantum meruit basis.
(8) Whether performance of the contract by the first defendant was in accordance with such plans and within the scope of works.
(9) The nature of the contract - the contention being, contrary to the Tribunal's findings, that there was a "fixed work contract" .
(10) The value of the benefit. • the "cost" of the works, • the principle of valuing work according to the "original bargain" , • the measure for valuing work, • proof of material costs. 128 The elaborate array of issues pursued by the plaintiff (as the respondent before the Tribunal), in my opinion, raised a level of complexity that was unnecessary for the ultimate disposition of what was, as I have earlier stated, a claim by a contractor raising issues of fact relevant to the that claim. 129 I consider that the Tribunal, in such circumstances, could well have been satisfied that there were "exceptional circumstances" within the meaning of cl.20(3)(a) of the Regulations (in the sense of the circumstances being unusual or out of the ordinary) such as to warrant an award of costs. 130 I consider that the costs order made by the Tribunal that the plaintiff pay half the first defendant's costs to have been both a moderate and an appropriate one. 131 Accordingly, on that basis, there was adequate material for the Tribunal to be satisfied of the existence of exceptional circumstances under cl.20(3) of the Regulations warranting the award of costs and on that basis, pursuant to s.67(3) of the Consumer, Trader and Tenancy Tribunal Act, I affirm the decision and order of the Tribunal made by it on the question of costs, namely, that the plaintiff pay one half of the costs of the first defendant as agreed or assessed. 132 For completeness, I should note that counsel for the plaintiff, in impugning the award of costs made by the Tribunal, contended that the Tribunal had failed to comply with s.49 of the Consumer, Trader and Tenancy Tribunal Act. Subsection (2) imposes procedural requirements on the Tribunal (specifically, that the Tribunal provide a statement of reasons for its decision within seven days after a request has been duly made) whilst subsection (3) prescribes the matters in respect of which the statement must address. 133 I accept that there was been an irregularity in terms of s.49 of the Act, including a delay in the provision of a statement of reasons in respect of the Tribunal's decision on costs. However, given the conclusion expressed above, namely, that exceptional circumstances for a costs order existed, any procedural irregularities fall away. 134 Accordingly, the order made is that the appeal is dismissed. 135 In relation to the costs of the appeal, the first defendant has successfully contested the relief claimed by the plaintiff. Subject to any particular matter, the costs follow the event rule would normally follow. 136 However, I provide the parties the opportunity of making any submissions on the question of costs as necessary and grant liberty to apply in that respect. **********
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
PENDER
ROBWENPHI PTY LIMITED & ANOR
CITATION : PENDER v ROBWENPHI PTY LIMITED & ANOR [2008] NSWSC 1144
ABB Engineering Construction Pty Limited v Abigroup Contractors Pty Limited [2003] NSWSC 665 A J Bignell Pty Limited v S G Edenden [2004] NSWSC 27 Beale v Government Insurance Office of NSW (1997) NSWLR 430 BP Exploration Co (Libya) Limited v Hunt (No 2) [1979] 1 WLR 783 Canham v Australian Guarantee Corporation Limited (1990) 20 ALD 361 Eddy Lau Constructions Pty Limited v Transdevelopment Enterprise Pty Limited [2004] NSWSC 273 Foran v Wight (1989) 168 CLR 385 CASES CITED : Janos Hoey v Consumer, Trader and Tenancy Tribunal [2002] NSWSC 1023 Kalokerinos v HIA Insurance Services Pty Limited [2004] NSWCA 312 Merheb v Hilal & Anor [2004] NSWSC 425 Mifsud v Campbell (1991) 21 NSWLR 725 Murphy v Director of Public Prosecutions [2006] NSWSC 965 Pavey & Matthews Pty Limited v Paul (1987) 162 CLR 221 Sullivan v Waltons Credit Ltd (1990) ASC 56-023 TS v George (Studdert J, unreported 14 April 1998)
(1989) 168 CLR 385
(1991) 21 NSWLR 725
(1987) 162 CLR 221
Appeal dismissed. The Tribunal’s substantive order for $18,888 was not disturbed. The Court affirmed the Tribunal’s order that the plaintiff pay one half of the first defendant’s costs as agreed or assessed. The parties were given liberty to apply concerning costs of the appeal ([131], [134]–[136]).