Pickett v Savage

Background

1. The applicants own residential premises in Byron Bay. The respondent is a sole trader who operates a structural landscaping business.
2. In September 2021, the applicants sought works to be performed to their premises. The works relevantly included construction of a deck (which was to be constructed separately by Mr Hellsten of Pretty Sweet Carpentry and Woodworking), and structural landscaping.
3. There was no reference in the applicants' evidence and documents whether Mr Hellsten was suitably licensed or had entered into a contract compliant with the provisions of ss 7-7AA of the HB Act. This dispute solely involves the applicants and the structural landscaper.
4. No evidence was provided that the applicants' performed any license searches with NSW Fair Trading about the respondent until after the relationship between the parties had deteriorated.
5. According to Mr Pickett, the applicants wanted their development to be of a type that did not require Development Consent by the local Council. Whether that information was passed onto the respondent prior to the parties entering into a contract is a matter of factual dispute.
6. On 13 September 2021 Ms Pickett telephoned the respondent to discuss the proposed works and request a quote.
7. On 13 October 2021, the respondent attended the applicants residence and discussed the proposed works.
8. In the period between October 2021 and December 2021 Ms Pickett and the respondent exchanged a series of text messages. In one of the text messages, Ms Pickett sent a proposed plan. The respondent replied with an email that the applicants should consider a landscaping architect to prepare plans. Ms Pickett replied that the applicants' were conscious of costs and were not prepared to engage a landscape architect.
9. In a text message of 3 December 2021, Ms Pickett stated: "Hey Shaun, would be great to touch base on our garden and what dates you can do in the new year. We've decided to as much of the clearing as possible to save on the costs a bit. Would be great to chat through what we're doing and some ballpark costs with you so we can lock it in. Let me know when you're free to chat."
10. From early January 2022 to March 2023 there were further text messages between Ms Pickett and the respondent. One of the messages refers to the respondent attending the premises and doing a "plant count." All of the text messages were courteous and friendly. The respondent raised several issues as to why he could not attend the premises, including rain and COVID-19 affecting his family.
11. On 24 January 2022 Ms Pickett sent an email stating that she had "just paid the deposit to kick things off". The email also stated that the applicants were "looking forward to figuring out our plans once we've got the space cleared" and "we'll hopefully have settled on pavers after that."
12. On 24 January 2022, the respondent emailed Ms Pickett stating that he could "do part cash as well for the landscaping etc" and would "see you soon" to "start some clearing".
13. It is not in dispute that on 24 January 2022 the applicants paid the respondent $2500. According to the respondent this was done because Ms Pickett wanted to "lock in" the respondent in respect of the upcoming landscaping works in circumstances where the respondent and other tradespersons in the far North Coast of NSW we're very busy due too recent flood events.
14. Mr Pickett denied that this was the reason that the deposit was paid. However there was no evidence from Ms Pickett regarding the circumstances in which the payment was requested, or made. From the contemporaneous emails between the parties and text messages there is no indication that the respondent pressured the applicants to make such a payment. The contemporaneous text messages and emails more consistent with the respondents version of events regarding payment of the deposit.
15. In any event, whatever the reason for the payment, the respondent accepted it as an advanced payment or deposit.
16. On about 1 February 2022, the respondent attended the site and performed some clearing work. According to the respondent, he was paid cash for this. Mr Pickett's evidence was that on 3 February 2022 the applicants paid the respondent $440 in cash for clearing of shrubbery. The works were undertaken by the respondent and his son.
17. On 2 February 2022, Ms Pickett emailed the respondent stating that the applicants had had "success with the pavers" and attached a list of plants they would like to be "planted along the back fence and the big bird of paradise once that is retained by a garden bed". The email concluded by asking when the respondent was likely to be attending the site next.
18. On 24 March 2022, Ms Pickett sent a text message to the respondent stating: "Hi Shaun, hope you're well. Just checking in to see if you're still on track to start some work at our place next week? It would be good 2 catch up and talk through timelines and budget before we get too far into".
19. In response to that text message the respondent replied that due to his family having COVID and rain delays he was "behind" and would be in touch by the end of the week.
20. On 18 May 2022, the respondent emailed Ms Pickett stating that "the difficulty and access to your backyard makes what you want done really difficult to achieve" and that "this makes the whole job hard to price". The email also states that the respondent was very busy with work and had a backlog of work due to weather events and other issues.
21. On 19 May 2022 Ms Pickett responded by email. The email stated that the applicants "appreciate the position you're in, it's been a challenging time" and stated that "as we briefly chatted about the other day, we're happy to be flexible with what we do, we just want something functional and nice."
22. The email also stated that the applicants were happy to "help find some manpower to get the heavy lifting done, under your guidance, if you're having trouble with staff at the moment" and the applicants "just really want someone with your experience in retaining walls and structural work, but if it comes down to labour to help get the job done, we can help solve this. Possibly some decking rather than doing too much to the land is a good option too, it would be good to speak to a carpenter about this." The email also stated that the applicants' residence "doesn't stay wet as the rain washes straight off, so hopefully it's a job that could be done when rain is affecting some other projects you've got on the go."
23. The email also stated that the applicants "don't want to be putting a lot of pressure on you, where just looking for some clarity and understanding of timelines as we did kick off discussion late last year."
24. On 24 May 2022, the respondent emailed the applicants a quote dated 23 May 2022 in the amount of $11,600.
25. That quote described the works as follows:

Treated Pine Retaining Wall Prepare for treated H4 sleeper retaining wall. Clear away soil and debris from existing concrete swale drain. Install blue metal and geo-fabric to existing concrete drain to continue flow of water. Fix treated sleepers to existing fence with bugle screws, to retain new premium garden soil mix. Construct sleeper retaining wall approximately 10 m in length and 800 mm in height, using 200x 75 H4 treated sleepers, post to be set every 1.2 m in concrete. Back of retaining wall to be lined with geo-fabric drainage material added. Supply and plan a selection of Giant Strelitzia's and Colocasia (Giant elephant ears).

1. The respondent sent Ms Pickett a text message on 24 May 2022 stating that he had sent through the quote for the "first stage" of the work.
2. There were further extensive text message exchanges and emails between the parties in May and June 2022.
3. Those messages involved the respondent speaking to the applicants' carpenter regarding measurements for where the deck was to be located in the context of the structural landscaping works. According to the respondent, he spoke to Mr Hellsten on 25 June 2022 and it was agreed between the respondent and Mr Hellsten that the respondent would "build the retaining wall first" and the carpenter would "work to my heights and levels" for the deck.
4. The evidence of the respondent (although it was given in a vague manner) was that there were two separate contacts for the works; with the "first stage" being construction of a treated pine retaining wall at the rear of the premises attached to the dividing fence (with plants and drainage); and the "second stage" being construction of a second Besser block retaining wall, paving work, and landscaping.
5. However, there was no evidence from the respondent that the applicants had agreed to two separate contracts. The evidence of Mr Pickett was that there was one set of works involving structural landscaping and it was the respondent who provided two separate quotes for different parts of the total work. As discussed previously, there was no evidence from Ms Pickett as to any oral discussions with the respondent.
6. It is well established that assessment of the formation of a contract, and the terms of a contract, is performed objectively (i.e. from the perspective of a reasonable person in the position of the each of the respective parties) rather than based on the subjective views of the parties as to what they thought was the agreement (Equuscorp Pty Ltd v Glengallen Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 at [34];Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [38]).
7. The Tribunal is satisfied that, assessed objectively, there was one contract between the parties, with works divided up into two stages; rather than two separate and distinct contracts. This conclusion is supported by the contemporaneous emails and text messages between the parties. It is clear that the applicants accepted the quotations and agreed with the respondent regarding the price of the works and the scope of works, forming the essential terms of the contract between the parties.
8. On 30 June 2022, the respondent sent an email to Ms Pickett attaching a quotation for the "landscaping works". The email states: "Deposits required taking into account you have already paid $2,500. 50% for retaining wall quote taking off already paid $3,300. We will also start on the other works as we can backfill wall with the pulling up of pavers. 30% deposit $4,402.50 is fine of that price for paving etc".
9. The quote for the "landscaping works" is dated 14 June 2022. The total amount is $14,675 (inclusive of GST). The works are set out in as involving two types of works. The first involves construction of a Besser block retaining wall (for $7,454.55 plus GST). The second is for landscaping works and the laying of pavers (for $5,886.36 plus GST).
10. The description of the work in the quotation dated 14 June 2022 is as follows:

Besser Block Retaining Wall Excavate out by hand for new Besser block retaining wall (wall to retain large giant strelitzer) and proposed steps. Dug out soil to go in behind treated pine retaining wall. Pour concrete footings for wall, stater bars to be used. Build and construct besser wall approximately 1 m in height and 4 m in length. Back of wall to be water proofed, drainage material to be added with Ag-pipe. Construct besser block steps.

Landscaping/Pavers Pull up existing pavers, break up paving and add in behind wall for additional drainage. Excavate out by hand for new paving heights and levels. Soil to go in behind treated pine wall. River sand to be supplied, brought in screeded to the required heights and levels. Lay new paver (supplied by client) approximately 35m sq. Pave bond to be swept through paver joints.

1. On 30 June 2022 there was an email exchange between Ms Pickett and the respondent. The respondent's email was as follows: Hi Eliza, Attached quote acceptance form, for landscaping works. Please fill out and return at your earliest convenience. Deposits required taking into account you have already paid $2,500.50% for retaining wall quote, taking off already paid $3,300. We will also start on the other works as we can backfill wall with the pulling up of pavers. 30% deposit $4402.50 is fine of that price for paving etc. Kind Regards …
2. Ms Pickett responded to that email by way of an email stating that she would transfer "a total of $7,702.50 to your account today, with an outstanding balance of $16,072.50 due. Thank you very much, we can't wait to get started!."
3. On 30 June 2022, Ms Pickett signed the written "Quotation Acceptance" document. The respondent signed on 2 July 2022. That document relevantly states as follows: Quotation acceptance I accept the attached quote for landscape works, and agree that the breakdown of costs for accepting this work to proceed is as listed below. Deposit-10% of the Quoted price. This is required prior to the ordering of materials when starting the job. Progress payment Final Payment-being the remainder of the monies due from Quoted price. As well as additional works carried out that were not included in the quote but agreed to by both parties. … Please note: I always try to quote as accurately as I can however sometimes we will come across issues that we could not have possibly foreseen. I will always discuss these with you if they occur. E.g.: when excavating if we hit solid rock there will be additional charges. …
4. On 1 July 2022, the respondent sent the applicants a tax invoice in the amount of $7,702.50. That document contains the description "Deposit for landscaping works." The tax invoice confirms that the respondent had received $7,702.50
5. In the period between July 2022 and late August 2022 there were a series of text messages between Ms Pickett and the respondent about when the respondent would start work. Various reasons were put forward by the respondent as to why he could not start work, including weather; sick children at home; the respondent being ill with COVID-19; and the respondent's father in law being gravely ill and then passing away. One of the texts of Ms Pickett (on 27 July 2022) referred to the applicants not being available until 8 August 2022.
6. By the end of June 2022 the respondent had verbally discussed with Mr Hellsten the respondent constructing the retaining wall and then Mr Hellsten constructing the deck so that Mr Hellsten could assess the height of the deck accordingly.
7. On 10 August 2022, the respondent delivered treated pine sleepers to the site for the purpose of constructing the treated pine retaining wall.
8. The respondent attended the site and commenced work on 31 August 2022. According to the respondent, works were performed on 31 August 2022; 1 September 2022; 6 September 2022; 7 September 2022; 8 September 2022 and 13 September 2022. Mr Pickett disputed that the respondent attended on site on all of those days or that the respondent performed as much work as the respondent asserted.
9. However, it is unnecessary to make findings as to precisely what days the respondent attended the site and precisely how many hours he was on site. The pertinent factual issue is that works were performed during the period from late August 2022 to mid-September 2022.
10. The respondent asserts that by mid-September 2022 "98%" of the treated pine retaining wall works were complete; and the respondent had commenced "demolition" works in respect of the "second stage" of the works (i.e. the Besser block retaining wall; removal of old pavers; laying new pavers and landscaping works).
11. In the period between early September 2022 to late September 2022 there were a series of text messages between Ms Pickett and the respondent about the works. Those text messages were congenial. They refer to various aspects of the work, including Mr Hellsten and the applicants' electrician needing to attend the site for the works to progress.
12. On 13 September 2022 Ms Pickett sent the respondent a text message that relevantly stated as follows: Hey Shaun, I LOVE the plants, they look great! I will look out for the invoice no worries. A few things while we are away: … -Good plan to touch base with Liam, let me know how you go. Getting an idea on how low we can get that area for the decking will be important as it needs to be below council requirements (also want to go as low as we can so we're not looking into next door's house) -Our electrician cam by today to discuss lighting out the back. Not great timing we're away so hoping this plan will work. Before you build the retaining wall at the front, he can swing by and put a conduit in underneath where the wall will go so he can feed wires through this into the deck section later. He can come by next week on a day that works for you to do this. He will need the electrical work running wires from the house before the new paving is laid, can the paving commence after the 26th when we are back in Byron to be here so the electrician can access inside to do the work? You have the plans handy for what we're wanting with the other walls, but if you want to discuss anything next week , I'm available so please just give me a buzz! Thanks!
13. Importantly, there is no reference in the text messages or emails in the applicants' documents about any discussion about the height of the pine timber retaining wall at the rear of the premises before the applicants accepted the quote of the respondent; nor that it had to be a certain height in respect of being "below council requirements". The text message was sent after the respondent had been on site and constructed the wall.
14. On about 13 September 2022 the applicants paid the respondent $9,400 by electronic funds transfer. On 14 September 2023, the respondent sent a tax invoice in the amount of $9,400 to the applicants. The description of the work in the tax invoice is "progress payment for landscape works." The tax invoice confirms that the respondent received $9,400.
15. Until late September 2022, the contemporaneous emails and text messages between the parties do not indicate any animosity or that the applicants were dissatisfied with the works performed by the respondent or their progress.
16. The first sign that the relationship between the parties was deteriorating occurred on 28 September 2022. There was a text message exchange between Ms Pickett and the respondent where Ms Pickett referred to Mr Hellsten having attended the site and informing Ms Pickett that the respondent needed to "complete the besser (sic) walls, retaining walls and mov the soil to the previously planned height" before Mr Hellsten could commence work, and it would be "ideal" if the paving was also completed. Ms Pickett asked the respondent to confirm when he would be attending the site to complete the works.
17. The respondent replied by stating "How come Liam isn't doing the soil levels for the deck?"
18. Ms Pickett replied by asserting that "the movement of soil and levels from the grounds has always been your role;" that the applicants had made this clear; that the applicants were aware that manually removing soil from the site was challenging; and that the applicants had been "really patient about the delays over the past 8 months but our patience is being exhausted and we have a time pressure with a baby due soon". The text concludes with a request the respondent identify when he would return to complete the works.
19. The respondent replied that his quotation contained preparing soil levels for the decking and the deck levels were not his responsibility. The text concludes that the respondent was "not happy" with the tone of the text message of Ms Pickett.
20. Mr Pickett then sent a text message from Ms Pickett's phone seeking to meet with the respondent.
21. There was a telephone discussion between Mr Pickett and the respondent on about 29 September 2022. Neither party's documentary or oral evidence gave a clear version of what was discussed. According to the written chronology of the respondent, he told Mr Pickett that he was waiting for the applicant's electrician to attend the site and was working on another job for the next week. The respondent asserts that Mr Pickett "threatened" him by stating that he had recently successfully sued a removalist who did work for Mr Pickett. According to Mr Pickett, he was frustrated because the respondent was not completing the work in a timely manner.
22. In any event, irrespective of what was said on 29 September 2022, the contract between the parties was still on foot, and the respondent returned briefly to the site in mid-October 2022 to perform some further work.
23. From October 2022 onwards the text message exchanges and emails between the parties were between Mr Pickett and the respondent, rather than Ms Pickett and the respondent.
24. In the period from 7 October 2022 to 24 October 2022 there were a series of congenial text messages between Mr Pickett and the respondent. They commenced with Mr Pickett stating that they had a "small skip bin" arriving "for some work Liam is doing for us" and offering it to the respondent to use. The respondent replied by stating the next step would be "digging out for paving and small retaining wall." There were then issues regarding the respondent having booked a "mini dumper" but having to cancel because his labourer was unavailable. The mini dumper was rebooked and the respondent attended site on 19 October 2022 to perform some excavation work. However, the work was limited. According to the respondent this was due to the site being muddy due to wet weather.
25. The relationship between the parties significantly deteriorated (and soon ended) commencing with an email exchange on 24 October 2022.
26. Mr Pickett sent the respondent a text message on 24 October 2022 enquiring as to what work the respondent planned to do that week; and that the work needed to be finished by 5 November 2022. There followed a text message exchange in which the respondent asserted that the work could not be completed by 5 November 2022 due to factors that included "weather"; "sick kids"; "not having Izzy"; and the southern corner of the property being "very damp". The respondent also stated that he did not want to have to "move the soil twice."
27. Mr Pickett responded by text stating that although he "understood" he and his wife had been "far too patient" and that there had only been "5 days work in 300 days". Mr Pickett stated, "it is no longer acceptable for us to wait" and "we don't have time to play with now." Mr Pickett stated that unless the work was complete "by the end of next week" he would be writing a "formal email to you as of Nov 5 in the hope of avoiding legal action".
28. As of 24 October 2022, none of the contemporaneous emails and text messages of Mr and Ms Pickett raised any issue about the quality of the work of the respondent; nor the respondent being unlicensed under the HB Act to perform the work; nor the amount of the "deposit" paid. The complaints were about the length of time it was taking for the respondent to complete the work.
29. On 30 October 2022 Mr Pickett sent a lengthy email to the respondent. That email made a number of complaints about the quality of the work of the respondent and the unreasonably delay in completing work. It asserted various purported "facts," being: 1. The applicants had paid $20,482 of $26,275 and the respondent had only completed "25% of the job". 2. The applicants paid their "deposit" on 24 January 2022 with "the clear expectation of a start date in February". 3. There were still "significant amounts of plants" not yet supplied by the respondent. 4. The work had taken "more than 10 months to complete less than a quarter of a two week job". 5. The respondent had "dug up our paving to fill another job's retaining wall" and the applicants had "a completely unusable backyard for two months." 6. The work was "substandard and illegal."
30. The "substandard" work was identified as (a) Mr Pickett telling the respondent "the pine timber retaining wall needed to be held in by more than one screw"; (b) the "retained garden bed" at the rear of the property had been built onto the existing fence which was "not designed for the extra retaining wall force" and "an external support should have been built across the rear to avoid putting extra (unplanned) stress on the existing fence" (d) soil was spilling into drains and the site was unsafe because work had not been completed; and (e) the retaining wall was at an "illegal height" which Mr Pickett asserted was the "greatest concern" regarding defective work.
31. The email of Mr Pickett continued as follows: … I tried to be friendly with our phone call but you haven't been able to read between the lines so I will make this very clear. Your work is not up to standard. You have knowingly built an illegal structure on our property. You have $20,482.50 of our money and you have completed less than 25% of the job. You have dragged a job that could have been completed in two weeks out over 10 months. Legally, this means you are in breach of Australian Consumer Law Section 60. You are also in breach of Australian Consumer Law Section 61. In addition to common law and NSW law. Of greater concern is your Structural Landscape License being cancelled due to this unlawful activity. Further to this, when it comes to rectifying your substandard, illegal and unfinished work-it is common practice that the original contractor has to pay the bill for the new contractor that rectifies the issues and finishes the job. After our experience to date we will be using one of the high quality, well reputed, and consequently more expensive structural landscapers in the area. Meaning a significant financial outlay form you-to pay that high quality, well-reputed landscaper's bill (approximately $50,000 to $75,000). In our phone conversation, I made clear that I had just finished an 18 month legal process with one of the larger removalist companies and were (sic) paid out 3 times more than we originally sought (after covering legal expenses). I made it very clear in the phone conversation that I wanted to avoid this potential legal process with you. One that now appears imminent. Further to this, I think it would be valuable for you to understand that I occasionally write professional articles for the Sydney Morning Herald Masthead (with communications directly with the Editor-In-Chief and deputy editors) and have provided professional opinions for channel (sic) 9 as I have a close friend that presents the sport in Melbourne and an old school mate who is one of the directors of Channel 9. Through these contacts, I started communications with the producer of A Current Affair. As the removalist company will attest to, I am a man of my word. With regard to working through a situation such as this, I make it very clear what our expectations are and what the next stages will be if they are not met. At this stage, there are three options: 1/You finish the job properly in two weeks. 2/ You refund the complete amount we have paid you and then you pay a further $25,000 to us to pay for someone to rectify your work and complete the job. 3/ We commence each of the following at once: 1. Legal action. 2. Provide the details of your illegal and substandard work to Service NSW to have your licence cancelled. 3. Engage with a high quality structural landscaper to rectify and complete the job at a minimum of $50,000 and up to $75,000. As part of the legal process, we will be claiming our legal costs and also $20,000 in my damages (due to stress caused on my pregnant wife and I throughout the 10 months to date) which will be increasing as this process goes on. …
32. After the email of 30 October 2022, there were a series of further emails between the parties that continue until March 2023 about the works and various negotiations between the parties.
33. The Tribunal does not propose to set out those emails in detail. However, it is salient to note the following: 1. In an email of 7 November 2022 Mr Pickett stated that the respondent had performed work in breach of his NSW Fair Trading license, as the value of the work was above $20,000 and there was a condition that the respondent could not perform work that required home warranty insurance (which is required for contracts over $20,000). That email also states that Mr Pickett had now measured the pine retaining wall and it was "illegal" because it was more than 60 cm above ground level. The email also asks the respondent when he is coming to collect his tools on site; and when the respondent would be transferring $45,000 into the applicants' bank account to settle the dispute. 2. The respondent denied that he was breaching the conditions of his license because it was Ms Pickett who requested he provide two separate quotes, and the respondent asserted there were two contracts. Mr Pickett denied that Ms Pickett had requested two separate quotes. 3. The respondent denied his work was "illegal" or defective, and it was the applicants who were not now providing him with access to complete the works. 4. Mr Pickett also raised that the respondent had requested a deposit for work exceeding the prescribed amount of 10% of the contract price (i.e. breach of s 8 of the HB Act). 5. Mr Pickett's emails are replete with belligerent and strident language asserting that the respondent would face various legal consequences (including the imposition of penalties; loss of license; and payment of a large amount of damages) and adverse publicity consequences if the respondent did not resolve the dispute on terms acceptable to the applicants. 6. According to the written chronology of events of the applicants, the applicants terminated the contract in November 2022; and on 14 November 2022 placed the respondent's tools "in requested place for respondent to pick up". The respondent does not dispute that he picked up his tools on or about 14 November 2022.
34. On 27 January 2023, the respondent refunded the applicants $8,500. According to the respondent this was without admission of liability and was done to attempt to resolve the dispute and to reflect the value of the works that the respondent asserts were performed.
35. It is not in dispute between the parties that the following payments (and refund) occurred: Date Payment/Refund Amount 24 January 2022 Payment $2,500 3 February 2022 Payment $440 1 July 2022 Payment $7,702.50 14 September 2022 Payment $9,400 Sub-Total Payments $20,042.50 27 January 2023 Refund $8,500 Net Amount Paid to Respondent $11,542.50

1. It is also clear that when the two quotations of the respondent are added together, the total amount under the contract that would have been payable had the works been completed by the respondent was $26,275.
2. The applicant commenced proceedings in the Tribunal on 16 February 2023. As previously discussed, the application filed sought damages of $50,000.
3. On 17 February 2023, the applicant filed with the Tribunal an ASIC and business name search on the respondent.

Applicants

1. The applicants documents were filed on 17 April 2023. They contain: 1. Points of Claim 2. A chronology of events. 3. A brief expert report of Mr Rabbidge, of Land Company Design & Construction Pty Ltd (undated). 4. A quotation of Land Company Design & Construction Pty Ltd (undated) in the amount of $20,027.92. That quotation is for the cost of removing the rear timber retaining wall; associated landscaping works; and for the cost of engaging a structural engineer and rebuilding the rear timber retaining wall. It is not a quotation for the cost of completing incomplete works and makes no reference to the Besser block retaining wall or paving works. 5. A brief report of Mr Hellsten of Pretty Sweet Carpentry and Woodworking (undated). 6. Photographs with comments by Mr Pickett. 7. A copy of the respondent's NSW Fair Trading licence details downloaded from the NSW Fair Trading website. 8. A 'Scott Schedule' (not prepared by an expert witness, but prepared by Mr Pickett) asserting that the "estimated loss" of the applicants was $56,118.67. 9. A spreadsheet of the time Mr Pickett estimates he has spent on the proceedings and an estimate of the value of his time. 10. Emails and text messages between the parties. 11. The two quotations provided by the respondent. 12. Bank account records evidencing payments to the respondent.

Respondent

1. The respondent's documents were filed on 15 May 2023. They contain: 1. A chronology of events, with some details of the respondent setting out what he asserts occurred. 2. A 'statutory declaration' of the respondent (although not in the prescribed form of a statutory declaration) dated 12 May 2023. That document contains various complaints about the purported 'threats' of Mr Pickett and their effect on the respondent and his family; that if the if the Tribunal awarded "any form of damages" the respondent would have to sell his family home; comments about the respondent's wife; the death of his father in-law; and comments about the respondent's business practices. Most of that information is of little or no relevance to the issues in dispute. However, of relevance is that the respondent asserts that the condition imposed by NSW Fair Trading that he could not perform works that required home warranty insurance has now been lifted. 3. Text messages between the parties. 4. Emails between the parties. 5. Plans provided by the applicants for the works. 6. Quotes provided by the respondent to the applicants. 7. Bank records of the refund the respondent gave in January 2023. 8. Diary extracts of the respondent. 9. Estimates of the time spent on site and the materials purchased by the respondent in respect of the works. 10. Statements and statutory declarations by other clients of the respondent. Those documents have no relevance to the issues in dispute in these proceedings. Whether nor not the respondent had other satisfied customers has no bearing on whether or not the works the subject of this dispute are defective.
2. The documents of each party were admitted into evidence, subject to weight and relevance.

CAUSES OF ACTION OF THE APPLICANTS

1. The Points of Claim of the applicants identify the following causes of action: 1. Failure to provide services with due care and skill (s 60 ACL). 2. Failure to provide services reasonably fit for any disclosed purpose (s 61 ACL). 3. Failure to provide services within a reasonable time (s 62 ACL). 4. Misleading or deceptive conduct (ss 18 and/or 29 of the ACL). 5. Fraud (s 192E of the Crimes Act 1900 (NSW)). 6. The respondent allegedly "working in breach of licence conditions;" demanding and accepting an excessive deposit; and performing work without having taken out home warranty insurance. The applicable statutory provisions were not identified, but they are ss 4, 8, and 92 of the HB Act.
2. The Points of Claim do not refer to the statutory warranties under s 18B of the HB Act; nor breach of contract.
3. However, under s 38(4) of the NCAT Act the Tribunal must act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. That is subject to conducting a hearing which is procedurally fair to both parties and gives both parties a reasonable opportunity to present their case without the Tribunal 'acting as a lawyer' for one party.
4. In essence, the role of the Tribunal is to consider the substance of the legal issues being raised by a legally unrepresented party, but without losing sight of its duty of procedural fairness to both parties and without giving legal advice or conducting the case on behalf of one party (Hamod v State of New South Wales [2011] NSWCA 375 at [309]-[312]; Bauskis v Liew [2013] NSWCA 297 at [66]-[70]). The Tribunal is not, however, "is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point": Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21]; Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [42].
5. Proceedings of this nature in the Consumer and Commercial Division of the Tribunal are adversarial rather than inquisitorial (Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184 at [129]). The role of the Tribunal is not to intervene in a procedurally unfair way and 'run the case' or 'be the lawyer' of either party involved in what is, in substance, a commercial dispute.
6. Chen J aptly described this task in Halil v NSW Land and Housing Corporation (No 2) [2023] NSWSC 1646 at [63] as "to fairly and justly identify the nub of what was sought to be argued".
7. It is clear from the substance of what was raised in the application that the applicants are asserting the works of the respondent are defective. In that context, s 18B of the HB Act is directly relevant, and must be considered by the Tribunal. Principles applicable to the formation of contracts; breach of contract; and damages are also relevant.
8. As was pointed out to Mr Pickett at the Tribunal hearing, the Tribunal has no jurisdiction in a civil dispute under the HB Act to: 1. Consider s 192E of the Crimes Act 1900 (NSW) or 2. Impose penalties under the HB Act for purported breach of ss 4, 8, and 92 of the HB Act.
9. The amount claimed by the applicants in the Points of Claim is identified as being $56,118.67. That is broken down as follows: 1. Refund of all monies that have been paid by the applicants to the respondent ($11,542.50). 2. Rectification of "illegal" (sic) works ($20,027.92). 3. Engineers fees ($2,000 as an "estimate") 4. Development Application fees ($333) 5. Soil report ($490-"estimate") 6. Time spent attempting to resolve issue ($21,725.25).
10. No order is sought that the respondent perform work to complete the contract.
11. The Tribunal will deal with the claims by the applicants in more detail later in the decision. At this point, it is salient to point out that a number of the losses claimed by the applicants are on the basis that they will have to obtain a Development Approval for the retaining walls and landscaping works that they seek another building contractor perform.
12. There are obvious flaws to this argument. Firstly, on the evidence of Mr Pickett, the applicants sought to perform works that did not require a Development Application. Having made that conscious decision, any new works that require a Development Consent must, as a matter of logic, contain a different scope of works to the scope of works they contracted with the respondent to perform.
13. Secondly, they have not provided evidence to quantify any loss. An "estimate" of the applicants is not sufficient to quantify loss, in circumstances where the onus is on the applicants to provide sufficient evidence that loss has been caused by the breach of contract (or ACL) of the respondent (Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 at [41]-[42] summarising the applicable legal principles regarding whether there has been sufficient proof of loss).
14. Thirdly, as will be discussed later in this decision, there is no clear expert evidence that to rectify any defective work of the respondent it will be necessary for the applicants to obtain a Development Consent from the local Council.

DOCUMENTARY EVIDENCE OF THE APPLICANTS

1. The only expert evidence involves the brief report of Mr Rabbidge of Land Company Design and Construction Pty Ltd; the quotation of Land Company Design and Construction Pty Ltd; and the brief report of Mr Hellsten of Pretty Sweet Carpentry and Woodworking.
2. Neither reports contain any copy of any potentially applicable Australian Standard or provision of the Building Code of Australia.
3. The report of Mr Rabbidge is 1 page long, with an attachment.
4. It states that Mr Rabbidge had read and complies with the "experts code of conduct" but does not state that Mr Rabbidge is referring to NCAT Procedural Direction 3-Code of Conduct for Expert Witnesses; nor does it attach a copy of the Expert Witness Code of Conduct to the report.
5. The report states that the "limits to my expertise are in the design and construction of structural landscape elements under the conditions set under Local Environment planning, Development control plans and their associated standards under NSW legislation."
6. However, no copy of Mr Rabbidge's curriculum vitae (or summary thereof) is attached to the report or referred to in the report. The report contains a "licence number" at the top right hand corner, but no details of the NSW Fair Trading licence that Mr Rabbidge holds is attached to the report or referred to in the report.
7. The report states as follows: I have been instructed by Luke Pickett of (address) to provide comment on the landscaping works undertake at the above address. As outlined in the development standards in NSW legislation see excerpt in appendix 1.a. the works are non-compliant. -The retaining works are greater than 600 mm in height from the existing grades as well as within 1 m of the boundary. -Without partial demolition of the works, it is not clear whether the hydrostatic drainage works are sufficient. In my opinion, the construction is also non-compliant and at the risk of failure affecting both the clients property + neighbouring property. This type of construction requires an engineer's detail. The horizontal treated pine sleepers are fixed to an existing boundary fence post installed to hold the fence only. In my opinion, this construction method displays a clear lack of structural integrity.
8. The report then attaches a document "appendix 1.a." That appears to be an extract from environmental planning legislation, but there is no tile of what legislation or regulation is being referred to. The document states: 2.30 Development standards The standards specified for that development are that the development must- (a) not be a cut or fill of more than 600 mm below or above ground level (existing), and (b) be located at least 1 m from each lot boundary; and … (f) if it is a retaining wall or structural support for excavation or fill, or a combination of both- (i) be not more than 600 mm high, measured vertically from the base of the development to its uppermost portion; and (ii) be separated from any retaining wall or other structural support on the site by at least 2m, measured horizontally.
9. There are significant flaws in the expert report of Mr Rabbidge as follows: 1. As discussed previously, there is no detailed reference to the NCAT Expert Witness Code of Conduct nor the experience and expertise of Mr Rabbidge contained in the report. 2. The report does not state Mr Rabbidge attended the property; nor that he undertook any measurements or took any photographs. 3. There is no detailed reference as to what Mr Pickett told him about the works; or documents provided to Mr Rabbidge by the applicants and how he used that information to form an opinion. 4. The "development standards" that Mr Rabbidge refers to are not clearly set out; nor how the works fail to comply with those standards. 5. The "Development standards" extract does not state what piece of legislation; or regulation; or local government policy is being referred to. 6. If the reference in the "Development standards" is to requirements for Development Approvals under the Environmental Planning and Assessment Act 1979 (NSW) and its regulations, then the evidence of Mr Pickett was that the applicants deliberately chose to perform works that did not require a Development Consent from the local Council. There is no explanation in the report of Mr Rabbidge as to how the legislation he is referring to applies to the works performed by the respondent. 7. There is no reference to any breach of any applicable Australian Standard for building works; or the Building Code of Australia. 8. There is no detailed explanation as to how a licensed structural landscaper would have performed the works differently, exercising reasonable care and skill.
10. The second 'expert' report relied upon by the applicants is a brief report of Mr Hellsten of Pretty Sweet Carpentry & Woodworking. That report does not state that Mr Hellsten had read and complies with the NCAT Expert Witness Code of Conduct. Arguably, the applicants are only relying upon the report as lay evidence rather than expert evidence, but the report expresses opinions about whether or not the works of the respondent are defective.
11. As discussed previously, Mr Hellsten is the carpenter who the applicants engaged to construct a deck.
12. Mr Hellsten's report is very brief, and states as follows: … Upon assessing the completed landscaping works for Luke Pickett, there are a few notable areas of works on the retaining wall that I would deem not be compliant with the NCC and BCA standards for building a retaining wall. These include: The method of support for the two ends of the retaining wall. -The height of the retaining wall along the boundary area. From inspection I can see that the wall has been supported off an existing fence. Assuming the foundations for the fence posts are built only to support a wooden pailing fence, I do not believe this is enough to bear the weight of the retained land. The area towards the lowest side of the land measures around 900 mm or over which I believe is too high without having prior engineering plans to build to (photos of both problematic areas have been attached). To rectify these areas of concern I would recommend a structural engineer to determine the best form of construction method. My recommendations would be to dig out the ends connected to the fence and create new foundations to support the retained land. A rough estimate on rebuilding would be anywhere from $10,000-$20,000 depending on the engineer's report.
13. Despite the recommendation of Mr Hellsten that the applicants obtain a report from a structural engineer, no such report was obtained.
14. As with the report of Mr Rabbidge, the report of Mr Hellsten contains significant flaws. Those flaws are as follows: 1. Mr Hellsten in his report gives scant detail of his experience and expertise. The report refers to him having a "Certificate III Carpentry" and "Cert IV & Diploma Building and Construction." The report contains an ABN. However, there is no details (even brief details) of Mr Hellsten's experience. 2. There are no details in the report (such as the reference of a NSW Fair Trading licence number) that Mr Hellsten is a licensed builder or licensed carpenter. 3. There is no reference to any specific provision of the National Construction Code or Building Code of Australia that the works fail to comply with. There is only a broad reference to "NCC and BCA standards." 4. The estimated cost to "rebuild" (being between $10,000 and $20,000) is expressed in broad terms and is contingent on obtaining a structural engineer's report to determine the final amount.

Photographic Evidence

1. The documents of the applicants contain photographs. From the oral evidence of Mr Pickett it appears those photographs were taken by Mr Pickett rather than Mr Hellsten (although, ultimately, nothing turns on whether the photographs were taken by Mr Pickett or Mr Hellsten).
2. The photographs are not time and date stamped. The mainly show the pine retaining wall area. There is also one photograph of (part) of a wall where the pavers appear to be located, and another photograph showing what appears to be the side area of the house. Mr Pickett's oral evidence was not of assistance in precisely describing how the photographs showed the areas of work performed by the respondent.
3. A number of the photographs contain a tape measure, which the applicants rely upon to demonstrate that the retaining walls have been constructed "too high" and "too close" to the boundary.

Landscaping Plans

1. The applicants documents contain various designs and plans which Mr Pickett asserts were provided to the respondent, including a "final design" sent on 1 September 2022 and was "compromised due to respondent's challenges".
2. The plans contained in the applicants' documents contain no dimensions regarding height of retaining walls, or position in location to the boundary. The only dimensions on the plans is the length of the works.

Extracts from Websites

1. The applicants' documents contain an extract from the local Council in respect of "exempt developments" and an extract from NSW Department of Communities and Justice LawAccess NSW in respect of "Retaining Walls."
2. The extract from LawAccess states that persons do not require local Council approval in respect of a construction of a retaining wall if the retailing wall is less than 60 cm above ground level and at least one meter from any boundary line, easement, sewer or water mains.
3. The extract from LawAccess also states: You should make sure your retaining wall complies with any local council rules or regulations. If you are not sure whether your retaining wall will be breaking any local council rules or regulations, you should check with your local council before you build it. If after checking with your local council, you are told that you need to get approval before building your retaining wall, you should not build your retaining wall until you get the relevant approval. …
4. The extract from the local Council relevantly states that retailing walls do not need Council approval if they are built: 1. Maximum height 0.6 m where within 1.5m of any structure; 0.6 m where within 1m of property boundary; and 1m elsewhere. 2. Masonry walls to comply with: AS 3700-Masonry Code; AS 3600 Concrete Structures; and AS 3600-Concrete Structures and AS1170-Loading Code. 3. Timber walls to comply with: AS 1720-Timber Structures and AS 1170-Loading Code
5. The extract also states: All retaining walls are to be backfilled with free draining materials, and to be constructed so that they do not prevent the natural flow of storm water drainage/run off.

Extract of the Respondent's NSW Fair Trading Licence

1. The screenshot from the NSW Fair Trading website where a tradesperson or builder's licence can be searched in the applicants documents relevantly demonstrates that in the period from 31 May 2015 to 18 January 2023 there was a condition of the respondent's license that works be "only for contracts not requiring home warranty insurance". That condition was removed on 18 January 2023.
2. By reason of ss 7(1A) and 92 of the HB Act and reg. 5(1)(b) of the Home Building Regulation 2014 (NSW) a contract where the contract price is above $20,000, home warranty insurance was required to be taken out by the respondent prior to demanding monies or performing works; and the respondent could not obtain home warranty insurance by reason of the condition imposed upon his licence at the relevant time.
3. Further, in respect of the argument of the respondent that he entered into two separate contracts because Ms Pickett requested two separate contracts (which the Tribunal does not accept, for reasons previously expressed) it makes no difference for the purpose of s 92 of the HB Act whether there were two contracts. Section 92 of the HB Act relevantly states: 92 Contract work must be insured … (3) This section does not apply if the contract price does not exceed the amount prescribed by the regulations for the purposes of this section or (if the contract price is not known) the reasonable market cost of the labour and materials involved does not exceed that amount. (4) If the same parties enter into two or more contracts to carry out work in stages, the contract price for the purposes of subsection (3) is taken to be the sum of the contract prices under each of the contracts. …
4. Whether it was a single contract with works split into two stages; or two separate contracts for work to be performed in two stages, the total contract price (or aggregate price) was above the $20,000 threshold under s 92 of the HB Act.

Document Entitled 'Summary of Incomplete Parts and Cost to Complete With Alternative Companies'

1. The applicants documents contain a table created by Mr Pickett setting out what he asserts is the incomplete work of the respondent and what he asserts is the "cost to complete." Mr Pickett provides a total of $26,823.53.
2. However, there are no expert reports or quotations to support the assessment of Mr Pickett as to what are the incomplete works and how much it will cost to complete, other that the reports previously referred to and the single quotation of Land Company Design & Construction Pty Ltd.
3. The subjective opinion of Mr Pickett as to what are the incomplete works and how much it will cost to perform those works carries little or no evidentiary weight to the extent it is unsupported by appropriate reports and quotations from suitably qualified experts and/or builders and/or structural landscapers.

The Terms of the Contract Between the Parties And When the Contract Was Formed

1. As discussed previously, the Tribunal is satisfied that there was a single contract between the parties with works to be performed in two stages, rather than two separate contracts. An interpretation that there was two separate contracts is not consistent with the contemporaneous emails and text messages between the parties, assessed objectively.
2. However, the Tribunal does not accept the argument of the applicants that the contract commenced any earlier than 24 May 2022.
3. For a contract to be formed, there needs to be offer; acceptance; consideration; an intention to create legal relations; and an agreement as to the essential terms of the contract.
4. In respect of a sufficient agreement for the essential terms to form a contract, Payne JA summarised the relevant principles in Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 2) [2022] NSWSC 561 as follows (at [363]-[364]): Even if I were wrong, and it were to be accepted that the parties intended to make a concluded bargain, the pleaded agreement is void for incompleteness in the sense that the parties have not reached agreement on all the terms necessary to constitute an enforceable contract: see Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548 (Gleeson CJ). A contract can only arise if parties have reached present agreement "upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations": Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 at [57] (Gageler J), quoting Lord Clarke of Stone-cum-Ebony JSC in RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG (UK Production) [2010] 1 WLR 753 at 771 [45]; [2010] 3 All ER 1 at 18; see also Thorby v Goldberg (1964) 112 CLR 597 at 607; [1964] HCA 41 (Menzies J). As explained recently by the Victorian Court of Appeal in Delaney v Delaney [2022] VSCA 48 at [57]: "… The essential terms commonly (although not always) include terms identifying the parties, subject matter, consideration or price, and date(s) for performance. Used in this sense, 'complete' describes an agreement that contains (or at least provides an adequate mechanism to ascertain) the essential terms, and 'incomplete' describes an agreement that omits or leave[s] to be settled by later agreement one or more essential terms."
5. Prior to 24 May 2022 there had been no agreement between the parties as to the scope of works that the respondent was to perform. The applicants accepted the quotation of 24 May 2022 on or about that date.
6. When the contemporaneous emails and text messages leading up to 30 June 2022 are assessed, the applicants had not made clear to the respondent with sufficient detail what works they sought to be performed; nor had the respondent proposed a scope of works (which was supplemented by the subsequent quotation for the second stage of the works dated 30 June 2022). Accordingly, there was no agreement as to the essential terms sufficient to form a contract.
7. The payment of a deposit in late January 2022 of $2,500 is not sufficient to form a contract between the parties.
8. The works performed in February 2022 for clearing of shrubbery for which the applicants paid $440 cash are not part of the contract with the respondent that was formed on 24 May 2022. Rather, it was its own separate agreement where discrete works were performed for an agreed price.
9. As the Tribunal is satisfied that the contract was formed on or about 24 May 2022, the complaints of Mr Pickett that the respondent performed "5 days' work out of 300 days" is inaccurate and not accepted by the Tribunal. It is based on the erroneous premise that a contract between the parties was formed in September 2021.

Was It A Term of the Contract That the Height of the Retailing Walls Be Less Than 600mm?

1. Mr Pickett asserted that the applicants had "made clear" that the works were to be of a type that did not require Development Consent from the local Council. The respondent denied that the applicants had said that to him prior to the parties entering into the contract.
2. This issue is important because Mr Pickett submitted that the works were defective because the height of the retaining walls exceeded 600 mm and were within 1m of the boundary, relying upon the photographic evidence where a tape measure was photographed next to a wall (in particular, the area where the pine timber retaining wall was constructed and proximate fence to the wall); the extract from the local Council website about what types of retaining wall did not require a Development Consent; the information on the LawAccess website; and the reports of Mr Rabbidge and Mr Hellsten.
3. The Tribunal does not accept that the applicants have proved it was a term of the contract that the walls be constructed to a height of less than 600 mm and be position more than 1m from the boundary for the following reasons: 1. The contemporaneous emails and text messages in the period to 24 May 2022 make no mention that the works must be of a type that does not require Development Approval; nor is there any documentary reference in the plans to the height of the walls, or location of the walls in terms of their proximity to the boundary. 2. Mr Pickett clearly bears a significant degree of animosity towards the respondent, which impacts upon the credibility of his version of events, including his ability to recall conversations clearly and accurately between himself and the respondent. That animosity was not only apparent at the hearing, but is reflected in the content of the emails he sent the respondent from 24 October 2022 onwards. 3. Terms of a contract are assessed objectively, not from the subjective beliefs of the parties. 4. The written quotations of the respondent dated 24 May 2022 and 14 June 2022 clearly identify that the height of the two walls was to be above 600mm (the pine timber retaining wall being 800mm in height and the Besser block wall being 1 m in height). The applicants accepted those quotations. If the applicants were stipulating that the walls had to be a height of less than 600 mm and be a certain distance from the boundary, it would be a rational and logical response for the applicants to immediately inform the respondent that the dimensions in the scope of works contained in the quotation were not acceptable and propose the heights be revised. The applicants failed to do so. This is indicative that there was no such agreement, and the complaint about the height and location of the works came when the applicants became dissatisfied that the works were not going to be completed by 5 November 2022.

Did The Respondent Breach The Statutory Warranties in s 18B of the HB Act In Respect of the Work Performed?

1. Section 18B of the HB Act states: 18B Warranties as to residential building work (1) The following warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract to do residential building work - (a) a warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract, (b) a warranty that all materials supplied by the holder or person will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new, (c) a warranty that the work will be done in accordance with, and will comply with, this or any other law, (d) a warranty that the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time, (e) a warranty that, if the work consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling, (f) a warranty that the work and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the person for whom the work is done expressly makes known to the holder of the contractor licence or person required to hold a contractor licence, or another person with express or apparent authority to enter into or vary contractual arrangements on behalf of the holder or person, the particular purpose for which the work is required or the result that the owner desires the work to achieve, so as to show that the owner relies on the holder's or person's skill and judgment. (2) The statutory warranties implied by this section are not limited to a contract to do residential building work for an owner of land and are also implied in a contract under which a person (the principal contractor) who has contracted to do residential building work contracts with another person (a subcontractor to the principal contractor) for the subcontractor to do the work (or any part of the work) for the principal contractor.
2. The principles applicable to whether a breach of the statutory warranties in s 18B of the HB Act were summarised by the Appeal Panel of the Tribunal in Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 as follows (at [46]): Although objective standards such as Australian Standards, the Building Code of Australia and the Guide are of significant relevance in establishing whether work has been performed in a proper and workmanlike manner (Wheeler v Ecroplot Pty Ltd [2010] NSWCA 61 at [10]), the absence of such evidence does not automatically mean a homeowner has failed to establish breach of statutory warranty. In our view, the relevant principle was succinctly stated by Senior Member Goldstein in G MacFayden and Anor v G Tadrosse [2014] NSWCATCD 194 at [46] as follows: …[E]vidence that work does not comply with the Building Code of Australia would establish a basis for a finding that sub section 18B(c) of the Act has been breached. Evidence of the details in which work does not comply with the contractual plans and specifications would form the basis for a finding that sub section 18B(a) of the Act has been breached. Evidence of work not being carried out in a proper and workmanlike manner would in my view involve identification of the work in question, a statement of how the expert would expect it to be carried out in in a proper and workmanlike manner and then identification of the factors which establish that the way in which the work has been carried out falls short of it being carried out in a proper and workmanlike manner. Evidence of this nature, if accepted, would form the basis for a finding that sub section 18B(a) of the Act has been breached.
3. As was also set out in Deacon, the Tribunal when considering whether breach of s 18B of the HB Act has been established must consider and make findings in respect of: 1. Whether the owner has established on the balance of probabilities that works have not been performed in accordance with s 18B of the HB Act. 2. If a 'defect' (in the sense of failure to comply with s 18B of the HB Act) is established, what is the appropriate method to rectify that defect
4. In this matter, the respondent did not provide any expert evidence; nor request Mr Rabbidge and/or Mr Hellsten be present for the purpose of cross examination. The respondent's evidence regarding his personal subjective opinion that the works were not defective is given limited weight, due to his self-interest in the outcome of the proceedings
5. However, the onus is not on the respondent to prove the work was not defective. Rather, the onus is upon the applicants to prove, on the balance of probabilities that the work performed by the respondent was defective in the sense that there was a failure to comply with the statutory warranties set out in s 18B of the HB Act.
6. In respect of proving a fact on the balance of probabilities, Hallen J in Pollock v NSW Trustee & Guardian [2022] NSWSC 923 summarised the applicable authorities as follows at [74]-[75]: Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 wrote at [48]: "When proof of any fact is required, the court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2; [1938] HCA 34; [1938] ALR 334 at 342." In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, speaking with the concurrence of McColl and Bell JJA, McDougall J, similarly, had expressed the view, at [44]-[52], that proof on the balance of probabilities required a feeling of actual persuasion; that the event in question was more likely than not to have occurred; with "a probability in excess of 50%". His Honour repeated that view in Ballard v Multiplex [2012] NSWSC 426 at [126].
7. The Tribunal is not satisfied that the applicants have proved on the balance of probabilities that the works performed by the respondent have been performed in a manner that breaches the statutory warranties under s 18B of the HB Act.
8. The Tribunal has previously pointed out the significant flaws in the reports of Mr Rabbidge and Mr Hellsten. As discussed previously, the subjective opinion of Mr Pickett is given limited evidentiary weight.
9. The Appeal Panel in Khan v Kang [2014] NSWCATAP 48 (Khan v Khang) at [48]-[53] held that quotations or brief reports (including reports that do not comply with the NCAT Expert Witness Code of Conduct) may be sufficient evidence to establish defective work; incomplete work; and the cost of rectification and/or completion, particularly if the amount claimed or in dispute is relatively small.
10. The claim in this matter is not relatively small. Leaving aside other claims of the applicants, the claim for rectifying existing defective work is approximately $20,027.92 (based on the quotation of Land Company Design & Construction Pty Ltd); and the applicants' person subjective assessment of the cost of completing incomplete work is $26,823.53.
11. However, as the Appeal Panel also pointed out in Khan v Khang, the issue, ultimately, is the weight to be attributed to the evidence and whether or not the evidence is sufficient to prove breach of s 18B of the HB Act. Khan v Kang is not authority for the proposition that any evidence, no matter how flawed or weak, from an owner is sufficient to prove, on the balance of probabilities, breach of s 18B of the HB Act. It is well established that the Tribunal must apply legal principles and not engage in 'palm tree justice' (Curtis v Potter & Co Pty Ltd t/as The Africa Safari Co [2016] NSWCATAP 196 at [68]-[70] and the authorities cited therein).
12. The first issue is the height of the pine timber retaining wall. The second issue is that the wall has been supported off an existing fence. Both Mr Rabbidge and Mr Hellsten state that using the boundary fence as a support for the retaining wall by attaching the wall to the fence post in two places is not structurally adequate. However, both reports make only a very brief reference to this issue. There is no statement by either Mr Rabbidge or Mr Hellsten that attaching the wall to the fence fails to comply with Australian Standards AS1720 (Timber Structures) or AS1170 (Loading Code).
13. It is unnecessary for the Tribunal to repeat the factual findings previously made.
14. However, in summary, the Tribunal is not satisfied the applicants have proved on the balance of probabilities that the respondent has breached the statutory warranties under s 18B of the HB Act because: 1. The expert evidence relied upon by the applicants is manifestly inadequate to prove the works performed by the respondent were defective, particularly in respect of the allegation that the works did not comply with relevant applicable building standards or were not performed with due care and skill. 2. The subjective opinion of Mr Pickett that the works were defective carries minimal evidentiary weight. 3. The terms of the contract did not specify that the heights of the retaining walls were not to exceed 600mm or that they be located more than 1m from the boundary. 4. It was not a term of the contract that the works must be performed only in a manner that did not require a Development Consent from the local Council. Whether or not the works required a Development Consent was not within the scope of works under the contract with the respondent. 5. There is no specific reference in the evidence of Mr Rabbidge or Mr Hellsten that the construction of the pine timber retaining wall fails to comply with applicable Australian Standards; or sufficient evidence for the Tribunal to be satisfied that a structural landscaper exercising due care and skill would have performed the works differently. 6. Whether or not the respondent breached his obligations under the HB Act regarding the amount of the deposit (or advanced payment) made or the work being done without the taking out of home warranty insurance (or any breach of the form of contract requirements under s 7 of the HB Act) are not matters to be taken into account in respect of breach of s 18B of the Act. In other words, irrespective of any such breaches the applicants have to prove the works performed were defective, and have failed to do so.
15. As the Tribunal is not satisfied that the applicants have proved breach of s 18B of the HB Act in respect of the work performed by the respondent, it is unnecessary to consider whether a work order or a money order should be made in respect of rectification of any existing work (see SDL v Kim at [292]-[295] and [366]-[371] for a discussion of applicable legal principles, including s 48MA of the HB Act). If the applicants were entitled to damages; the amount of damages would have to take into account the monies that remained owing under the contract for the work actually performed, so that the applicants were not put in a better position than had the contract been performed (Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36 at [5]-[6]; Sleiman t/as Perfect Kitchens v Dempsey [2020] NSWCATAP 26).
16. Accordingly, the applicants' claim for damages based on existing defective work is dismissed as the applicants' have failed to prove breach of the applicable statutory warranties in s 18B of the HB Act.

Incomplete Work and Termination of the Contract

1. There is no doubt the contract was terminated before works were complete. On the respondent's own evidence, most of the second stage of the works was incomplete. The evidence of Mr Pickett was that a substantial amount of the first stage of the works was incomplete.
2. The Tribunal is satisfied that contract between the parties was terminated on or about 14 November 2022. By that time, the applicants had made clear that they did not seek the respondent perform any further work; the respondent was not to have access to the site; and the respondent's tools were made available for collection.
3. The critical issues are: 1. Whether the applicants lawfully terminated the contract by reason of the respondent repudiating the contract and the applicants accepting the repudiation. 2. If so, what is the increased costs of completing the works?
4. In Kim v SDL the Tribunal summarised the legal principles regarding repudiation as follows at [180]-[184] as follows: In DCT Projects Pty Limited v Champion Homes Sales Pty Limited [2016] NSWCA 117, the NSW Court of Appeal summarised the principles applicable to repudiation as follows at [39]-[42]: For the conduct of a party to constitute a renunciation of its contractual obligations it must be shown that the party is either unwilling or unable to perform its contractual obligations, that is, it has evinced an intention to no longer be bound by the contract, or stated that it intends to fulfil the contract only in a manner substantially inconsistent with its obligations and in no other way: Shevill v Builders Licensing Board [1982] HCA 47; 149 CLR 620 (Shevill) at 625-626 (Gibbs CJ); Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; 166 CLR 623 at 634, 647-648, 658; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; 233 CLR 115 (Koompahtoo) at [44]. Repudiation is a serious matter and is not to be lightly found or inferred: Shevill at 633 (Wilson J). Where inability to perform is declared the conduct amounts to a refusal to perform and the innocent party need not prove that the other party was actually unable to perform when the time for performance came: Universal Cargo Carriers Corporation v Citati [1957] 2 QB 401 at 437. A renunciation can be made either by words or conduct, provided it is clearly made: Universal Cargo Carriers Corporation v Citati at 436. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it: Koompahtoo at [44]; Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd at 659 (Deane and Dawson JJ) and 647 (Brennan J). So far as factual inability to perform is concerned, what needs to be shown is that the party in question has become wholly and finally disabled from performing the essential terms of the contract altogether: Rawson v Hobbs [1961] HCA 72; 107 CLR 466 at 481; Almond Investors Ltd v Kualitree Nursery Pty Ltd [2011] NSWCA 198 at [62] (Bathurst CJ; Giles JA and Handley AJA agreeing). It is well accepted that factual inability must be proved "in fact and not in supposition": Universal Cargo Carriers Corporation v Citati at 450. In DB Homes Australia v Kes [2019] NSWCATAP 221, the Appeal Panel stated at [46]-[47]: As a general rule, wrongful termination of the performance of a contract, where a party has no legal right to do so, will constitute a repudiation of obligation because such an act indicates an absence of readiness or willingness on the part of the party who has wrongfully terminated to perform its obligations under the contract: Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21; (1976) 136 CLR 444 at 453; Curnow Consulting Pty Ltd v JPD Media and Design Pty Ltd t/as Durie Design [2017] NSWSC 1171 at [344]. It is axiomatic that to terminate a contract based on repudiatory conduct, the first step is to identify the specific purported repudiatory conduct of the other party… The distinction between a right to terminate a contract for breach of an essential term; and repudiation of a contract, were articulated by the Appeal Panel of the Tribunal in CCS 251 Elizabeth St Pty Ltd v Hellenic Club Ltd [2021] NSWCATAP 279 at [77] and [98]-[101] as follows: Further, that evidence would only be relevant to the question of repudiation. In this regard it is important to emphasise that the issue of whether a party can legitimately terminate a contract for breach of an essential term is conceptually different from the issue of whether the party can terminate the contract due to repudiation of the contract by the other party. As the High Court emphasised in Koompahtoo Local Aboriginal Land Council v Sandpine Pty Ltd (2007) 233 CLR 115 at [44], the term "repudiation" has been used in different senses. In its broader sense, it refers to any breach of contract which justifies termination by the other party. However in its more precise articulation, repudiation refers to renunciation of the contract by a party. This is constituted by conduct which evinces an unwillingness or an inability to render substantial performance of the contract (see also DCT Projects Pty Ltd v Champion Homes Sales Pty Ltd [2016] NSWCA 117 at [39]). … Repudiation occurs when a party evinces an intention no longer to be bound by an agreement, or to fulfil it only in a manner substantially inconsistent with that party's obligations: Tabali at 33, Shevill at 625-6 and the other authorities referred to in Cheshire and Fifoot Law of Contract, 10th Australian Edition at 21.12. Repudiation may arise where there is an anticipatory breach if, prior to performance being due, a party manifests an inability or unwillingness to perform the contract at all or in substance: Foran v Wright (1989) 168 CLR 385 at 441. In this case, the other party may terminate forthwith: Cheshire and Fifoot at 21.13. Actual breach may also amount to repudiation whether or not the breach is of an essential term or condition: Cheshire and Fifoot at 21.14. As stated by the authors: Successive breaches may have a combined significance in determining whether repudiation has occurred. However, repeated failure to perform is not in itself enough to establish repudiation. Thus, consistently late payment of rent by the lessee plainly endeavouring to meet his obligations was held not to be repudiatory in Shevill v Builders Licensing Board. In Progressive Mailing House Pty Ltd v Tabali Pty Ltd, on the other hand, the lessee was not merely late in paying rent, but asserted the right not to pay it at all, and committed other breaches of lease; these factors added up to repudiation. Failure to perform an obligation on time may constitute repudiation even if performance on time was not agreed to be essential: see 21.20 The right to terminate following repudiation is separate to a right to terminate for breach of condition. Acceptance discharges the party not in default from further performance: Shevill at 626. Finally, an innocent party may support its termination of a contract by reference to conduct constituting breach which it had not relied on at the time of termination: Shepherd and Felt & Textiles of Australia Ltd [1931] HCA 21, 41 CLR 359 (Shepherd) at 377-8, referred to by Handley AJA in Sarker at [28]. It is not sufficient, however, that a party's conduct be repudiatory. The contract must be discharged by the other party accepting the repudiation and electing to terminate the contract rather than affirming the contract. If the innocent party does not accept the repudiation, the contract remains on foot. In Rudas and Andrassy v Eid [2021] NSWCATAP 4, the Appeal Panel summarised the applicable principles regarding election to terminate as follows at [36]-[39]: There is no real issue as to the legal principles applicable to determine whether an innocent party to a contract has accepted the other party's repudiation and thereby terminated the contract. First, any communication or conduct which clearly and unequivocally conveys to the repudiating party that the aggrieved party is treating the contract as at an end is sufficient: see Vitol SA v Norelf Ltd [1996] AC 800; 3 All ER 193 at 200 per Lord Steyn, and cited with approval in Cooper v Kinsella [2011] NSWCA 45 at [70]. Secondly, where the innocent party has by conduct elected to treat the contract as at an end, it is sufficient that the fact of election comes to the repudiating party's attention. Thirdly, the commencement of proceedings and/or the service of an appropriate pleading, claiming relief on the basis of termination for breach or otherwise clearly conveying in such pleading that the aggrieved party is treating the contract as at an end can be regarded as communication of the innocent party's acceptance of repudiation and subsequent termination: Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248 at [73]; Janos v Chama Motors Pty Ltd [2011] NSWCA 238 at [23]; Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537. The commencement of proceedings and/or the service of an appropriate pleading can act as either the election to treat the contract as at an end, or the communication that the innocent party has by previous conduct elected to treat the contract as at an end.
5. If the applicants had no legal right to terminate the contract because the respondent had repudiated the contract (including by breaching an essential term of the contract) then it is the applicants who have repudiated the contract and they are not entitled to damages for any increased cost in engaging another builder to complete the structural landscaping works.
6. If the respondent repudiated the contract and the applicants accepted the repudiation, then the applicants are (if they have provided sufficient proof) entitled to damages for breach of contract for the increased costs of completing the work.
7. The increased cost of completing the work is the amount above what the applicants would have paid the respondent under the terms of the agreement to engage another builder or tradesperson to complete the work. Accordingly, the applicants can only obtain damages for incomplete work if they establish (a) they lawfully terminated the contract; and (b) the increased cost of performing the work over and above what they would have paid to the respondent had the contract not been breached.
8. The fact that the respondent may not have been able to recover payment for the works for breach of contract by reason of s 10 of the HB Act (but may have been able to recover monies on quantum meruit principles) does not change the fundamental principle that assessment of damages for breach of contract is based on there being a loss and for damages to be assessed on the basis of putting the party in the position it would have been had the breach not occurred not in a better or worse position (Sleiman t/as Perfect Kitchens v Dempsey [2020] NSWCATAP 26 at [79]-[84]).
9. The applicants are not entitled to damages by way of a refund of monies they have already paid the builder simply because the builder is unlicensed; or demanded an excessive deposit; or the work has not been completed. Work has been performed, and there is no legal basis in the circumstances of this matter to award a remedy that would be the equivalent of a right to rescind the contract and be awarded damages on the basis of principle of restitutio in integrum (Alati v Kruger (1955) 94 CLR 216 at 223-224; [1955] HCA 64).

Did the Respondent Repudiate the Contract and Did the Applicants Accept the Repudiation?

1. There was no express term of the contract between the parties that the structural landscaping work be completed by a certain date. During the course of the works, Mr Pickett had texted the respondent on 24 October 2022 demanding the work be completed by 5 November 2022; and on 30 October 2022 Mr Pickett send an email proposing various "options" (as set out previously) that included "finishing the job properly in two weeks". However, there had never been any clearly agreed term when the contract had been entered into that the works would be completed by a specific date.
2. However, s 62 of the ACL states as follows: 62 Guarantee as to reasonable time for supply If: (a) a person (the supplier ) supplies, in trade or commerce, services to a consumer; and (b) the time within which the services are to be supplied: (i) is not fixed by the contract for the supply of the services; or (ii) is not to be determined in a manner agreed to by the consumer and supplier; there is a guarantee that the services will be supplied within a reasonable time.
3. Further, under s 18B(1)(d) of the HB Act, implied into every contract to perform residential building work is a warranty that "the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable period of time".
4. The Tribunal is satisfied that by reason of s 62 of the ACL and s 18B of the HB Act, it is implied by statute into the contract between the parties that the respondent would provide services (i.e. completion of the works) within a reasonable period of time.
5. The Tribunal is satisfied that the respondent failed to complete the contractual works within a reasonable period of time. The Tribunal accepts that the applicants did not send their "final design" for the structural landscaping work until 1 September 2022, but this did not prevent the respondent: 1. Sending quotations containing scopes of work dated 23 May 2022 and 14 June 2022. 2. Attending the site and performing the works set out previously in late August to mid-September 2022. 3. Accepting payments not only before the work was commenced; but a "progress payment" of $9,400 on 14 September 2022.
6. Further, the contemporaneous text messages and emails from the parties after mid-September 2022 (and in particular, in the period to 24 October 2022) do not, in substance, assert that the respondent cannot return to site and compete works until other tradespersons have performed works. Rather, they involve reasons focused upon the respondent being sick; his children being sick; the weather; his assistant being sick; a sub-contractor being unavailable; and pressure of other work.
7. The respondent also referred (after the parties had fallen into dispute) to the death of his father in law on 22 August 2022 and the effect this had on the respondent and his wife. However, this issue was only clearly raised Mr Pickett after the parties had fallen into dispute after 24 October 2022, and is not clearly referred to in the contemporaneous text messages between the parties in the period between mid-September 2022 and late October 2022. There is no contemporaneous email or text message from the respondent, for example, that he was closing his business for a period of time due to the death of his father in law. Rather, the inference can be drawn that the respondent was continuing to run his business and perform work but was prioritising work other than finishing the work for the respondents that had commenced, in substance, on 31 August 2022.
8. The Tribunal is satisfied that a reasonable period of time to complete the contractual works was 5 November 2022. The reasonable period is from the date of the commencement of the contract, not when Mr Pickett started complain about the need to finish the work in his text message of 24 October 2022 or his lengthy and aggressive email of 30 October 2022.
9. In assessing what is a reasonable period, the Tribunal accepts that Mr Rabbidge in his report does not address what would be a reasonable time for a structural landscaper acting with due diligence to perform the work set out in the quotations of the respondent dated 23 May 2022 and 14 June 2022. Had the applicant done so, the factual finding regarding what is a reasonable time to perform the works would have been straightforward. However, ultimately, this is a factual issue. Considering the scope of works contained in the two quotations of the respondent and all of the evidence of both parties, the Tribunal must make its own assessment on the evidence.
10. By failing to complete the work within a reasonable period of time, the respondent has repudiated the contract. In those circumstances, the applicant was entitled to accept the repudiation and terminate the contract. The acceptance of the repudiation occurred on or about 14 November 2022 in circumstances where Mr Pickett had informed the respondent to attend the site to collect his tools and the respondent did so.

Is the Applicant Entitled to Damages for the Increased Costs of Completing Incomplete Work?

1. Principles applicable to proving loss and damage were summarised by Black J in Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 as follows at [41]-[42]: The damages to which RBD is entitled, in respect of Mr Sabouni's breach of or repudiation of the Contract is the monetary sum which, so far as money can, represents "fair and adequate compensation for the loss or injury" which it sustained by reason of that breach or repudiation: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 116 per Deane J. The Court must do the best it can to make a reliable assessment of damages, where damages are difficult to assess, including where a party has failed to lead the best evidence of damages: Commonwealth of Australia v Amann Aviation Pty Ltd above at 83, per Mason CJ and Dawson J, 125 per Deane J, 153 per Gaudron J. In Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 at [135], Beazley JA observed that: "Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat the only remedy it provides for breach of contract, an award of damages….Such damages should not be nominal only, notwithstanding that the award may be difficult to assess…" (Citations omitted) On the other hand, the case law also recognises that damages must be proved with a degree of precision which reflects the proof that is reasonably available to the parties: State of New South Wales v Moss (2000) 54 NSWLR 536 at [72]; Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768 at [38]. In Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 319, Pincus J noted that "if the evidence called on behalf of [the plaintiff] fails to provide any rational foundation for a proper estimate of damages, the Court should simply decline to make one". That approach was approved by Brooking J in JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 at 243 and by the Court of Appeal in Troulis v Vamvoukakis [1998] NSWCA 237 where Gleeson CJ observed that, where damages were susceptible of evidentiary proof, but there was an absence of raw material to which good sense may be applied, "[j]ustice does not dictate that … a figure should be plucked out of the air". That decision has been approved in subsequent cases, including McCrohan v Harith [2010] NSWCA 67 at [128], where McColl JA (with whom Campbell JA and Handley AJA agreed) held that an estimate of damages, in the nature of a "guess", should not be made where precise evidence of the damages suffered could have been adduced, but was not. I followed that decision in Re Hair Industrie Penrith Pty Ltd, Hair Industrie Merrylands Pty Ltd [2015] NSWSC 1578 at [20], on which I have drawn for the summary which appears above.
2. In this matter, the applicants have provided no evidence as to the increased cost of completing the incomplete work under the contract with the respondent. There is a mere subjective assertion by the applicants as to the cost of completing the work, but no evidence, by way of an expert report or even a quotation as to the cost of completion. The quotation of Land Company Design & Construction Pty Ltd is only in respect of rectification of the existing works, not the completion of incomplete work.
3. This is not a situation where there is some evidence as to the increased cost of completion, and the Tribunal has to do its best. Rather, it is a situation where the applicants have had ample opportunity to obtain evidence as to the increased cost of completing the incomplete work and have failed to adduce any cogent evidence on that issue. The Tribunal cannot simply "pluck a figure out of the air".
4. Accordingly, the applicants' claim for damages due to breach of contract based on the repudiation of the contract by the respondent is dismissed.

Has the Respondent Repudiated the Contract By Performing Unlicensed and Uninsured Work?

1. As the Tribunal has found the respondent repudiated the contract by failing to perform and complete work within a reasonable period of time; but the applicants had failed to prove any loss caused by the breach, it is unnecessary to deal with this issue in any detail.
2. It is sufficient to simply note: 1. The provisions of ss 12 and 92 of the HB Act; 2. In Jubian v Clark; Clark v Jubian [2016] NSWCATAP 56 at [40] the Appeal Panel held that it was open to the Tribunal to find a repudiation of a contract by a builder who was licensed to perform work; had performed work; had then been ordered to rectify work by a NSW Fair Trading Inspector; and had surrendered its license for a period of time before regaining it. That decision, however, does not deal with whether an unlicensed and uninsured builder is engaged in repudiatory conduct from the beginning of the contract by reason of being unlicensed and uninsured. 3. There are a number of QCAT authorities commencing with the decision of Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228 that, by reason of licensing and insurance obligations on builders and tradespersons under the Queensland Building and Construction Commission Act 1991 (Qld) there is an implied term in building contracts that a builder and or tradesperson is duly licensed and insured, and failure to be suitably licensed and insured is repudiatory conduct. Whether those principles apply to the HB Act is unnecessary to explore.

Australian Consumer Law Causes of Action of the Applicants

1. The applicants have raised a number of ACL claims.
2. The consumer guarantee provision claims overlap with the claims in contract and do not give rise to any separate entitlement to damages. It is unnecessary to make findings on breaches of the ACL other than in respect of the consumer guarantee that services be provided with a reasonable period of time, which has been discussed.
3. The applicants have raised misleading and deceptive conduct or conduct likely to mislead or deceive under ss 18 and/or 29 of the ACL. The basis of this is in respect of the respondent being duly licensed to perform the work. In essence, the applicants assert that, assessed objectively, there was an implied representation by the respondent that he was suitably licensed, and if the applicants realised he was not suitably licensed they would not have entered into the contract.
4. It is unnecessary to make any findings about express or implied representations that the respondent was suitably licensed to perform the work and whether or not there was a breach of ss 18 and/or 29 of the ACL. It is noted that there was not evidence to establish on the balance of probabilities that the respondent told the applicants he was duly licensed to perform the works; nor that the applicants had made any enquiries about his license status prior to entering into the contract, such as performing a licence search on the NSW Fair Trading website. Any representation about being duly licensed to perform the work would have to be implied from the circumstances in which the respondent quoted for the works.
5. The reason that findings pertaining to ss 18 and/or 29 of the ACL are not required is that even if the applicants had established breach of ss 18 and/or 29 of the ACL, they have not proved any loss.
6. The assessment of damages under the ACL for misleading and deceptive conduct involving representations about being duly licensed was considered by the NSW Court of Appeal in Mills v Walsh [2022] NSWCA 255 (Mills v Walsh).
7. In Mills v Walsh, owners of residential premises entered into a contract with a building company to renovate their house. Mr Walsh was the sole director of the builder. The owners paid the builder $500,000. The builder was not licensed to perform the works. There was a dispute as to whether the works were defective and the owners refused to pay the builder. The builder left the site with works incomplete. The owners then engaged a new builder, demolished the building, and built a new house to a different design.
8. The owners took proceedings against Mr Mills for misleading and deceptive conduct in breach of s 18 of the ACL, arguing that they would not have entered into the contract with the builder had the owners known the builder was not suitably licensed, and sought damages by way of a refund of the monies they had paid the builder.
9. The NSW Court of Appeal (Brereton JA; Bell CJ agreeing, and White JA dissenting) held that in a building contract, the benefit received by the owner is the value of the works performed by the builder (i.e. the reasonable value of the materials and labour), not the end product or the value of the land. The fact that the builder performing the work is unlicensed does not render the works valueless. The value of those works may be affected by any defective work. However, in a "no transaction" case (i.e. an owner asserting that they would have not entered the contract if the misleading and deceptive conduct had not occurred) the owner bears the onus of proving the diminution of the value of the works actually performed by the builder. Where there is no satisfactory evidence of the value of the benefit received, a claim for the difference must fail. The owners had failed to prove the value of the labour and materials they had received under the contract was less than the $500,000 paid to the builder (Mills v Walsh at [130]; [140]; [146] and [154]).
10. In this matter, the applicants have failed to provide evidence to prove that the value of the works performed by the respondent are less than the amount they have paid the respondent (including taking into account the part refund they received).

The 'Costs' of Mr Pickett In Attempting to "Resolve the Issue"

1. The applicants have claimed over $21,000 in damages for the time that Mr Pickett has purportedly spent corresponding and meeting with the respondent; and preparing his case in the Tribunal. This is based upon Mr Pickett's claimed hourly professional fee in his private business.
2. This claim fails for the following reasons: 1. The purported loss is not caused by the respondent's repudiatory conduct. The applicants have not suffered any financial loss because Mr Pickett has spent time corresponding with the respondent and preparing his case in the Tribunal. There is no evidence Mr Pickett has lost any work or income. Rather, what Mr Pickett is attempting to do is to 'charge' the respondent for his time. This does not put the applicants back in the position that they would have been had the contract been performed. Rather, if damages were awarded on this basis, it would put them in a better position and constitute a windfall rather than damages based on loss caused by the repudiation of the contract. 2. Some of the purported time spent by Mr Pickett was before the contract was terminated and that time cannot be construed as loss caused by the respondent's repudiation of the contract, even if there was evidence of actual loss. 3. The evidence does not establish any actual loss. 4. To the extent that the time spent by Mr Pickett in preparing his case can be considered costs of and incidental to the proceedings, only disbursements can be recovered by a self-represented litigant, not reimbursement for time spent in preparing for and attending a hearing (Cachia v Haines (1994) 179 CLR 403 at 411; [1994] HCA 14; Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41 at [21]).

Damages for Distress And Inconvenience

1. In the emails of Mr Pickett from late October 2022 onwards he repeatedly refers to the distress and inconvenience allegedly suffered by him and his wife.
2. However, the Points of Claim do not identify any claim for general damages due to breach of contract for distress and inconvenience.
3. Accordingly, the Tribunal makes no legal findings on this issue.
4. However, it is pertinent to point out that even if a claim for general damages for distress and inconvenience could be brought for repudiation of the contract, as distinct from the effects of defective work (see Murphy v Zubkrycki & Anor [2020] NSWDC 538 at [157]-[163]; Millen v Skyview Homes Pty Ltd [2021] NSWCATCD 137 at [121]-[125]) the evidence of Mr Pickett does not establish distress and inconvenience sufficient to make an award of general damages in favour of the applicants.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 13 August 2024