PENDER v ROBWENPHI PTY LIMITED & ANOR - [2008] NSWSC 1144 - NSWSC 2008 case summary — Zoe

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PENDER v ROBWENPHI PTY LIMITED & ANOR

[2008] NSWSC 1144

Supreme Court of NSW|2008-06-12|Before: Hall J, Studdert J

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Source facts

Court

Supreme Court of NSW

Decision date

2008-06-12

Before

Hall J, Studdert J

Source

Original judgment source is linked above.

Judgment (72 paragraphs)

[1]

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.

[2]

[3]

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].

[7]

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 20 to (r) of the Outline of Submissions.

[13]

(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:-

[23]

"…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:-

[29]

(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:-

[46]

(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:-

[56]

(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:-

[60]

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:-

[63]

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:-

[71]

(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. **********