Pollak v Masterglass Facades Pty Ltd

The cause of the water penetration

1. There was evidence before the Senior Member that the Respondent had requested the head contractor to install a hob upon which the sliding glass doors and the glass panel would be installed. There is evidence that the hob was to be between 100 mm and 120 mm high. Information made available to the Senior Member was to the effect that the glass doors would slide along tracks and those tracks had holes to allow any water which might accumulate through rain and, in particular in a heavy storm, to drain through the sill into a sub-sill. The sub-sill had its own drainage slots which allowed any water to drain into the external face of the building. It is a matter of common sense, as the Senior Member noted, that such a drainage system will only work where the level of the sill is located above the level of the external balcony. Unless this occurs, any water which accumulates in the tracks and which cannot escape will find its way through the tracks into the internal area of the apartment. If it is not possible to locate the level of the sill above the level of the external balcony, a grate drain would need to be installed across the external part of the doorway so that any accumulated water could be drained away.
2. On the evidence, after the Respondent installed the sliding doors and panel the external balcony was tiled and its level was raised either by the head contractor or the Appellant. The evidence is not clear about the exact final level of the external balcony after the tiling work was completed, but there is evidence that it was either at the same level as the internal floor or slightly below it. In any event, the Senior Member inspected the building works in the course of conducting his hearing and he was thus able to assess the comparative levels of the external balcony and the internal flooring. The Senior Member assessed the external balcony after the affixing of the tiles as being level with the tray of the sub- sill. In another part of his reasons for Decision the Senior Member noted that the tiles to the balcony were installed "at a height that is above the top of the approximately 40 mm high external face of the sub- sill installed by the Applicant and, it would seem, also above the level of the top of the hob."
3. It was uncontroversial in the proceedings before the Senior Member, and accepted by the parties before us that the design and installation of water proofing of above ground installations was the subject of Australian Standard AS 4654 - 2012 Part 2. In discussing the Standard, the Senior Member said, at [24]: "As is clear from the terms of the Standard, the critical element in the design of waterproofing systems by way of flashings, or as in this case the aluminium profiles, is the distance from the upper level of the flashing system, (top of the sill - internally) to the level of the external finished floor level. This distance is dependent upon the relevant wind class for the location of the installation, as set out in Table A1 of Appendix A to the Standard."
4. Having regard to the uncontroversial evidence in the proceedings the Senior Member calculated that the required height in the case of these building works was a minimum of 100 mm. He noted that "The actual height, as constructed by the Contractor is only approximately 35mm." Furthermore, it was also necessary "to provide a 10 mm gap between the bottom of the external face of the sub- sill flashing and the external floor finish."
5. It is abundantly clear from the description of the works which we have set out above that the Senior Member was correct in determining that by reason of the raising of the level of the external balcony by the affixing of tiles carried out after the Respondent had completed its work, and without reference to it, there was a relevant failure to comply with the provisions of the Standard. Furthermore, it is clear that this failure compromised the ability of the drainage system to cope with the ingress of water, particularly in a storm.
6. Information made available to the Senior Member concerning events leading up to the entry of water into the Appellant's premises indicates that the penthouse is on the eighth, namely top, floor of a residential building and was "exposed to the North overlooking Sydney Harbour in….. a high wind area." Meteorological records demonstrated that in the relevant area there was rainfall of 89 mm on 4 June 2016 with wind gusts to 89 kph and rainfall of 125.8 mm on 5 June 2016 with wind gusts up to 96 kph on that day. The Senior Member described this as "a severe storm event" and observed by reference to a Table of Static Pressures that winds of between 90 and 100 kph "may generate pressures of approximately 400 Pa upon the facade. The obvious conclusion is that any construction across an opening in a building above ground level must be able to resist such an external pressure. This necessarily involves compliance with the Standard."
7. Documentation provided to the Senior Member was to the effect that the work to be performed by the head contractor was required to comply with the Building Code of Australia. Included within this Code is a reference to AS4654 Parts 1 and 2.
8. The Appellant had retained the services of NSW Master Building Consultants, the principal of which is Dan Drexler to advise him following the entry of water into the penthouse. Mr Drexler provided an expert report concerning the building works which was relied upon by the Appellant in the proceedings before the Senior Member and before us on appeal. The report, in dealing with the water damage to the Appellant's penthouse, observed briefly that there was evidence of water entry through the aluminium doors. It then stated that that entry occurred "because the sill installed at the base of the aluminium doors is a standard sill instead of a high-rise sill. It is my opinion that a high-rise sill should be installed at the base of the aluminium doors to prevent water seepage through the doors since Unit 44 is located in a high wind area close to the water….." The Senior Member observed that Mr Drexler failed to make any reference to the provisions of AS4654, failed to make any reference or give any consideration to the manner in which the Respondent asserted that the Standard applied, and failed in any way to make any comment concerning the level of the tiled external balcony when compared to the level of the internal floors. He said that the observation of Mr Drexler that a high-rise sill would have prevented water seepage was "devoid of expert reasoning and… of little, if no, evidentiary value. It seems to assume that the water penetration occurred above the sill rather than above the sub- sill." The Senior Member concluded that any specialised knowledge that Mr Drexler might possess did not extend to the design of waterproofing for aluminium sliding doors across openings in buildings. The Senior Member rejected the opinion of Mr Drexler which we agree he was entitled to do.
9. The Respondent had relied before the Senior Member on a report provided by Mr E Bergman of First Choice Building and Maintenance Pty Ltd. This report asserted that the balcony floor tile height was too high and too close to the weep holes in the doors which would have allowed for rainwater to backtrack through the sub- sill. This report did not contain any reference to the Expert Code of Conduct as is required by the rules of this Tribunal. The Senior Member noted the objections of the Appellant to reliance upon this report. He accepted that these objections "might be sustainable" but concluded that "to the extent that (the report) merely expresses common sense and conclusions which do not require the application of specialised knowledge, then I consider that it is admissible." We agree that this approach was permissible in all the circumstances.
10. The Senior Member noted also that Mr A Punin, a principal of the Respondent had consistently informed the Appellant that the water penetration had occurred as a result of the raising of the level of the external tiled balcony. He accepted this expression of opinion, not as that of an expert, but reflecting a common sense view of what occurred. This view was consistent with a great deal of documentation produced during the hearing and in particular literature published by the Master Builders Association and the provisions of the Standard.
11. Other evidence about this issue was given before the Senior Member, but it is not necessary that we refer to it.
12. On the basis of the evidence before him, the Senior Member concluded that there were no defects in the design and installation of the sliding doors provided by the Respondent. Furthermore, he concluded that on the basis of the information provided that the "sole reason for the water penetration which occurred on 4 and 5 June 2016 was the breach by the head contractor of AS4654.2.
13. In written submissions before us, the Appellant principally asserted that the Senior Member had "relied on his own evidence" in determining the matter. Initially the Appellant said that tiles had already been laid on the balcony before the installation by the Respondent. He then stated that later a single row of tiles was later installed. However, we are unable to discern that the Appellant provided any detailed measurements in support of this contention. In the same way, the Appellant challenged the finding of the Senior Member that the actual height, presumably of the hob, was 35mm. The Senior Member had the benefit of an inspection and recourse to extensive documentation which did include measurements. We conclude that on the basis of the evidence available to the Senior Member that there is no substance in these submissions, and that the Senior Member was entitled to come to the conclusion which he did based on the evidence before him. The Appellant has misunderstood the decision-making process of a member of this Tribunal, which involves the making of factual findings based upon the evidence given in the proceedings and also matters of common knowledge. In the same manner, the Appellant complained that the Senior Member had included within his reasons for decision a diagram which included his understanding of the relevant dimensions and measurements pertaining to the work including the levels of the interior flooring and the external tiled balcony. We endeavoured to explain to the Appellant during the course of the hearing that the production of such a diagram reflected the reasoning process of the Senior Member in the same way as the written material contained within his reasons for decision.

Consequential orders following the determination of the cause of the water entry

1. In the proceedings before the Senior Member, the Appellant claimed inter-alia monetary compensation exceeding $39,000 for the cost of rectification of the sliding door installation and for other associated costs based upon an assertion of defective design and installation causing the entry of water. As the Senior Member noted, and we agree, once it has been determined that the Appellant had failed to make out any case based on defective design and installation, this claim fell away.
2. The Appellant also brought claims for "minor defects" totalling in all approximately $750. For reasons set out by the Senior Member he allowed a total of $250. Amongst these reasons was the fact that the Appellant had refused to allow the Respondent entry into the premises to complete or attend to these minor items on the asserted basis that the Appellant was neither licensed nor insured to undertake that work. As a matter of practicality, the Senior Member rejected this assertion and found that the Appellant was in error in excluding the Respondent from access to rectify and complete these minor items. In all the circumstances, we agree that such an approach was open to the Senior Member.
3. Furthermore, the Appellant claimed additional amounts for the payment of a crane access license fee which the Senior Member allowed. He rejected the claimed cost of having safety markings placed on the doors and other minor claims for rectification because the Appellant had refused access to the Respondent and also refused a claim for what were essentially legal costs. For completeness we mention also a claim by the Appellant that the glass installed was not 10.38 mm thick Low E Laminate Safety Glass, as required by the Standard. The Senior Member rejected this claim on the basis of evidence from the supplier that the glass was compliant. The appellant has appealed against all of these findings. In our opinion there was sufficient evidence available to the Senior Member to support each of his findings concerning these matters for the reasons contained in his decision. The Appellant's appeal with respect to these findings must be dismissed.
4. This leaves for consideration the claim by the Respondent for the recovery of outstanding monies under the building contract. It was the position of the Appellant that because the Respondent was unlicensed and had failed to effect insurance under the Home Building Act that the Respondent was not entitled to recover any unpaid monies. Such a position would have entitled the Appellant to the benefit of the installation effected by the Respondent, and would require the Respondent to repay the deposit of $11,326.

The Respondent's claim under the contract and the Appellant's position

1. The Respondent sought payment to it of all monies due and owing under the building contract. The Appellant asserted that because the Respondent was not licensed to carry out the building works and that the building works were therefore not insured he was not required to pay any monies to the Respondent, and indeed, should be refunded the deposit that he had paid.
2. There was no issue that the Respondent was unlicensed and that the building works were not relevantly insured. In dealing with this matter the Senior Member considered the provisions of sections 10 and 94 of the Home Building Act which are in the following terms; 10 ENFORCEABILITY OF CONTRACTS AND OTHER RIGHTS (1) A person who contracts to do any residential building work, or any specialist work, and who so contracts: (a) in contravention of section 4 (Unlicensed contracting), or (b) under a contract to which the requirements of section 7 apply that is not in writing or that does not have sufficient description of the work to which it relates (not being a contract entered into in the circumstances described in section 6 (2)), or (c) in contravention of any other provision of this Act or the regulations that is prescribed for the purposes of this paragraph, is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, and the contract is unenforceable by the person who contracted to do the work. However, the person is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person. (4) This section does not affect the liability of the person for an offence against a provision of or made under this or any other Act. 94 EFFECT OF FAILURE TO INSURE RESIDENTIAL BUILDING WORK (1) If a contract of insurance required by section 92 is not in force, in the name of the person who contracted to do the work, in relation to any residential building work done under a contract (the "uninsured work" ), the contractor who did the work: (a) is not entitled to damages, or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, in relation to that work, and (b) is not entitled to recover money in respect of that work under any other right of action (including a quantum meruit). (1A) Despite section 92 (2) and subsection (1), if a court or tribunal considers it just and equitable, the contractor, despite the absence of the required contract of insurance, is entitled to recover money in respect of that work on a quantum meruit basis. (1B) A contractor who applies to a court or tribunal for a remedy under this section, or who is awarded money under this section, is not guilty of an offence under section 92 (2) by virtue only of that fact. (1C) Without limiting the factors that a court or tribunal may consider in deciding what is just and equitable under subsection (1A): (a) in relation to any contract-the court or tribunal may have regard to the impact on the resale price of the property if no contract of insurance is provided, and (b) in relation only to a contract entered into before 30 July 1999-the court or tribunal is not to be limited by the fact that the required contract of insurance was not obtained until after the date of the contract. (2) However, the contractor remains liable for damages and subject to any other remedy in respect of any breach of the contract committed by the contractor. (3) Residential building work that is uninsured work at the time the work is done ceases to be uninsured work for the purposes of this section if the required contract of insurance for the work is subsequently obtained. (4) If a person commenced residential building work before 30 July 1999 and entered into a contract of insurance that complies with this Act in relation to that work after the contract for the residential building work was entered into, that contract of insurance is, for the purposes of this section or any previous version of this section, taken to have been in force in relation to the residential building work done under the contract for the residential building work whether that work was done before or after the contract of insurance was entered into. Note : If a contract of insurance is in force in relation to part of the residential building work, this section applies only in relation to the part of the work that is not insured.
3. For reasons given in his decision, the Senior Member determined that there was no breach of the provisions of section 10 (1)(b) of that Act. We do not apprehend that this finding was challenged by the Appellant. In any event, there was abundant evidence before the Senior Member upon which he was entitled to find that the contract works were clearly defined in the quotation provided by the Respondent. In our opinion such finding is not open to challenge by the Appellant.
4. This left for consideration the consequences flowing from the fact that the Respondent was not appropriately licensed as required by section 7 of that Act. After referring to relevant authority (Lee Gleeson Pty Ltd v Stirling Estates Pty Ltd (1991) 23 NSWLR 571 and O'Connor v LEAW Pty Ltd (1997) 42 NSWLR 285) and the authorities referred to therein, the Senior Member concluded that the prohibition against recovery of damages or the enforcement of another remedy in respect of a breach of the contract did not preclude a claim being maintained on the basis of a quantum meruit, because essentially, that was not a remedy "in respect of a breach of" a building contract. We do not apprehend that there was any specific challenge to the Senior Member so holding and it is not necessary that we deal with this matter in detail, other than to agree with the reasoning and the conclusion reached by the Senior Member in this regard.
5. This left for consideration the entitlement or otherwise of the Respondent to recover monies in respect of the work performed on a quantum meruit basis under subsection (1A) of section 94. For reasons which we shall shortly summarise, the Senior Member held that it was appropriate to make an order for the payment of monies by the Appellant to the Respondent on the basis of a quantum meruit. Before doing so, it is necessary to refer to some matters which arose in the course of the hearing before the Senior Member, because the Appellant claimed in these appeal proceedings that the Senior Member was not entitled to take this matter into account.
6. The hearing of the matter before the Senior Member took place on 7 April 2017 and was followed by written submissions made 13 April 2017. A series of Directions had been made on 22 December 2016 to enable the parties to prepare for the hearing. The Appellant was required to file and serve a number of documents on which he intended to rely including "Evidence in respect of a quantum meruit claim by the (Respondent)". The Respondent did not in fact file any evidence specifically related to a quantum meruit claim because its claim was based upon monies due and payable under the building contract. However, the Respondent did not indicate at any stage prior to the hearing before the Senior Member that it did not seek to rely specifically on a claim based on quantum meruit. Accordingly, until that time the Appellant must have been aware that there was a possibility that a quantum meruit claim would be raised by the Respondent at the hearing and was required to file evidence in respect of any such claim.
7. When the matter came on for hearing neither party was legally represented. The Senior Member endeavoured to ascertain from the parties the nature and extent of the contest between them. An extract from a transcript provided to us by the parties indicates that the Respondent stated that it was seeking an order for the payment of monies outstanding under the contract. The Appellant asked whether that included a reference "into any quantum meruit issue. Is there a quantum meruit issue?" A representative of the Respondent replied "I don't think there is an issue." The Senior Member then observed that a claim for quantum meruit did not arise where a building contract was still on foot and had not been terminated. The parties advised the Senior Member that the contract had come to an end, and the contract itself contained provisions for the payment of monies. He concluded that in those circumstances the issue of quantum meruit would not arise in the proceedings. It is clear from a later cryptic reference by the Senior Member to a Privy Council decision relating to a New Zealand matter (Lodder v Slowey [1904] AC 442) that he was speaking in general terms of the circumstances in which a quantum meruit claim might arise. In any event, the matter proceeded on the basis that there was no issue of any determination of a quantum meruit claim. As will be seen, the order made adverse to the interests of the Appellant was based on a quantum meruit.
8. We also refer to the written submissions made by the Appellant on 13 April 2017. When dealing with his cross claim under the heading "Restitution for monies paid" the Appellant referred to Head v Collings Homes P/L (Home Building) [2002] NSWCTTT 294, a decision of the former Consumer, Trader and Tenancy Tribunal. We observe that the circumstances pertaining to those proceedings were substantially different from those which apply to these proceedings. In Head, the unlicensed and uninsured builder had engaged in work which was preparatory to any building works and had been paid a substantial deposit. The Tribunal ordered that the deposit be repaid, but that the unlicensed and uninsured builder be entitled to an amount fixed by reference to a quantum meruit for the preparatory work which it had carried out and which was of benefit to its clients. There was reference in that decision to section 94 (1A) of the Home Building Act. In referring to that decision in his written submissions to the Senior Member the Appellant made specific reference to the ability of the Tribunal in Head to make an order under that subsection if it was satisfied that it was just and equitable to do so. The Appellant concluded "Here, it is not relevant that the (Respondent) did not avail itself of section 94(1A) claim." We are not certain with any precision what the Appellant meant when he made that comment, but there can be no doubt that the Appellant was aware of this statutory entitlement for the Tribunal to make such an order.
9. In his reasons for decision, the Senior Member said at [88]: The (Appellant) asserts that the (Respondent) has not formerly (sic) sought relief under subsection 94 (1B) and accordingly is not entitled to such a remedy. It may be that the (Respondent) has not expressed a claim specifically under this subsection, however the Tribunal considers that the (Respondent) has made it very clear that a remedy by way of recovery on a quantum meruit was being sought. It may be that the specific source, or basis, for the remedy was not articulated with precision, nonetheless the (Appellant) in his submissions has made it very clear that he understood that such a remedy was being sought.
10. We assume that the Senior Member was referring in general terms to the claim made by the Respondent for the monies outstanding under the contract. If this is correct, there is no doubt that the Appellant understood that such a claim was being made. However, if the Senior Member was referring to a quantum meruit claim in the narrower legal sense, the last sentence as to the understanding of the Appellant may be incorrect. Indeed, the Appellant in his submissions on appeal emphasised that he was denied natural justice because the Senior Member had not made it clear to him that he was considering a remedy in favour of the Respondent based on a quantum meruit pursuant to subsection 94 (1A). Notwithstanding that it might be arguable that there was no specific mention by the Senior Member of any readiness to make an order based on the provisions of the subsection, it must have nevertheless been clear to the Appellant from his reading of the decision in Head that this was a possibility given the factual circumstances which applied in the context of these proceedings. Indeed, his written submissions to the Senior Member adverts to the existence of this subsection. We make this observation cognisant that the Appellant is not legally qualified, albeit he is clearly intelligent and has undertaken a degree of research concerning relevant legal principles. Given the task of the Senior Member of dealing with a complex issue under complex legislation against a background where neither party was legally represented or legally qualified, we are of the opinion that the approach adopted by the Senior Member was open to him in all the circumstances and was within the discretion which reposed in him under the provisions of the Civil and Administrative Tribunal Act 2013, which the Senior Member relied upon in adopting the approach which he did.
11. The Senior Member referred to the provisions of subsection 36(4) and subsection 38 (4) of that Act which are in the following terms: 36 GUIDING PRINCIPLE TO BE APPLIED TO PRACTICE AND PROCEDURE (1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. … 38 PROCEDURE OF TRIBUNAL GENERALLY (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2): (a) the Tribunal must observe the rules of evidence in: (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. Note : Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege. (4) The Tribunal is to 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. (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal: (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
12. In so determining, the Senior Member considered that it was "quite appropriate that legally principled consideration be given to the remedy which subsection 94 (1A) of the Home Building Act provided. We agree that this was an appropriate approach in all the circumstances. This approach dealt with the real issue between the parties, avoided becoming embroiled in inappropriate and essentially irrelevant arguments, and was clearly based on considerations of equity and good conscience within established legal principles. Accordingly, it became necessary for the Senior Member to assess whether it was "just and equitable" to provide relief in favour of the Respondent.
13. Prior to dealing with the remainder of the reasoning of the Senior Member we record that during the course of oral submissions we asked the Appellant what additional evidence he would have provided if he was aware that an assessment was to have been made by the Senior Member based on a quantum meruit. The Appellant said that he would have provided a valuation of the diminution in value of the penthouse by reason of the fact that the work carried out by the Respondent was relevantly uninsured and the Respondent was unlicensed. We asked the Appellant whether he had that evidence available to him during the course of the hearing before the Senior Member. He said that he had not had such a valuation carried out, and had not done so as at the date of the hearing of these appeal proceedings before us. He was unable to proffer any satisfactory explanation of his failure to have such evidence ready for the hearing before the Senior Member despite the clear direction issued by the Tribunal that that evidence as it related to quantum meruit should have been available at the hearing.
14. In all the circumstances, even if we accept the bald assertion of the Appellant that he was in some way inappropriately and unfairly taken by surprise by the decision of the Senior Member to have regard to the merits of a quantum meruit assessment of the entitlement of the Respondent, there is no evidence available of the quantification of the manner in which the Appellant has been prejudiced. As is obvious, even though a valuer might be prepared to value any detriment affecting the property of the Appellant by reason of the unlicensed and uninsured work, this would have to be undertaken in the context of a finding by the Senior Member which we have upheld that apart from some minor matters of detail which are capable of being rectified, there is no defect in the design or installation of the sliding doors or panel undertaken by the Respondent. This fortifies our conclusion that there is no relevant appropriate detriment that was suffered by the Appellant by reason of the approach taken by the Senior Member. Furthermore, as will become apparent, we are supportive of the approach taken by the Senior Member in making an order for the payment of outstanding monies less an offset for certain minor matters in favour of the Appellant.
15. In considering the relevant principles in determining whether it was just and equitable to make an order for the payment of monies based on quantum meruit, the Senior Member relied on observations of Hall J in the Supreme Court of NSW in Pender v Robwenphi Pty Limited & Anor [2008] NSWSC. His Honour said: 41 In relation to the analysis undertaken by Barrett J in Eddy Lau Constructions (supra), the following propositions may be derived from the judgment:- (1) The words "just and equitable" are of the widest significance and involve evaluations of questions of fact. (2) In exercising the wide discretion under the provision, a Court or Tribunal is to have regard to considerations affecting the particular transaction as are material to the decision to be made. Irrelevant matters are those that have no rational connection with the policy of the statutory requirement. (3) The statutory discretion under s.94(1A) must be exercised judicially in light of the whole of the circumstances surrounding the relevant subject matter. (4) Inquiry is directed to ascertaining whether the surrounding circumstances are such as to justify the creation of a right and an obligation as to the payment of the sum separately determined to represent fair remuneration. (5) The Act is concerned with factors influencing a decision whether, in the particular circumstances in which the Court finds the parties, it is fair that one receive the quantum meruit sum and the other pay it. 42 It is apparent from the analysis by Barrett J in Eddy Lau Constructions (supra) that the conduct of the party in breach is an important matter for consideration. In that respect, ignorance or oversight of the statutory requirement under the Act stands in marked contrast to a contravention that is wilful or deliberate. 43 In the present case, the determination of the Tribunal was, in effect, that the first defendant's contravention was an inadvertent one, it being a company accustomed to undertaking commercial and industrial work and not home building or renovation work. The Tribunal accepted, as it was entitled to, the evidence given which explained the first defendant's ignorance or inadvertence. These were matters of fact for the Tribunal's determination. 44 In the circumstances of the present matter, on the evidence there was no identification of any particular form of disqualifying conduct by or on behalf of the first defendant that was material to be taken into account in determining what was "just and equitable". 45 The Tribunal was also entitled to have regard, as Barrett J did in Eddy Lau Constructions (supra) to the fact that, if the first defendant was not granted relief under s.94(1A), the plaintiff would receive the benefit of the work undertaken by the first defendant without having to pay for that work and for the materials supplied. I will return to this issue of "benefit" below. 46 Finally, there was no factor establish that resulted in any detriment flowing to the plaintiff by reason of the particular breaches or contraventions by the first defendant. Again, such matters involve a factual determination for the Tribunal. 47 In summary, it is clear that the Tribunal did have regard to relevant matters in its exercise of the discretion. Those matters included:- (1) The fact that the plaintiff would stand to gain the benefit of work without paying for it should a claim on a quantum meruit basis not be allowed. (2) That the failure to have had in force a contract of insurance as required by s.92 of the Act had no measurable effect on the resale value of the property. (3) That Mr Palmer, the "principal of the first defendant" had been unaware of the requirements of s.92. (4) The explanation for Mr Palmer's lack of knowledge in that respect was accounted for by the fact that his company was principally engaged in industrial and commercial electrical work and only did "domestic or cottage work" on an occasional basis. (5) There is no other aspect concerning the conduct of the first defendant that was contumelious or dishonest in not having secured a contract of insurance. (6) That the case itself justified the conclusion that it was just and equitable for the first defendant to invoke the provisions of s.94(1)(A). 48 It is, in my opinion, plain that the Tribunal was aware of and applied correct principles and it identified relevant facts and circumstances concerning the criteria to be applied in determining what was "just and equitable" as required by the statute. I do not consider that it has been established that the Tribunal took into account irrelevant matters. As earlier noted, what is just and equitable in a particular case involves the evaluation of questions of fact.
16. We note that the reference in the above extract is to Eddy Lau Constructions Pty Limited v Transdevelopment Enterprise Pty Limited [2004] NSWSC 273.
17. After observing that there were no significant defects in the design and installation of the work undertaken by the Respondent and that this was "a significant consideration" in assessing whether it was just and equitable to afford a remedy in favour of the Respondent, the Senior Member observed that even in the absence of evidence it was realistic to accept that there had been "no impact upon the resale value of the (Appellant's) property" for the purpose of the matters referred to in subsection 94(1C). We agree in these observations.
18. We are able to add reference to some additional matters contained in the evidence before the Senior Member which supplement and support the reasons why the approach adopted by him to the disposition of the proceedings was correct. It was the evidence of the Respondent that it did not undertake residential work but had an extensive business operation undertaking commercial work. It was for this reason only that it had not obtained the relevant licence to undertake residential work. Furthermore, the only reason why it had agreed to provide the design and installation for the Appellant was that the Appellant was a personal friend of long-standing of the father of one of the principles of the Respondent, Mr Adam Punin, who had prevailed upon Mr Punin to deal with the Appellant. The Appellant was desirous of obtaining the best possible design and installation for his penthouse. It seems also that the Appellant had obtained several quotations for the work and that which was submitted by the Respondent was the cheapest.
19. Having regard to all of the circumstances as identified by the Senior Member, the additional matters to which we have referred and the principles which apply as identified in the extract from the judgement of Hall J above, it is obvious that it would be grossly unfair and inappropriate to allow the Appellant to retain the benefit of the extensive sliding doors and panel designed and installed by the Respondent without having to pay for same, as claimed by the Appellant. It is just and equitable that such a result be avoided.

Assessment of the quantum meruit

1. The Appellant complained that the Respondent had not adduced evidence upon which the Senior Member could properly assess the quantum of the monies to be awarded under quantum meruit. It is clear that he misunderstood the process by which an evaluation may be properly made having regard to the particular circumstances. This was not a case where the Respondent was required to produce detailed time costing and other material concerning the work actually undertaken by it. It was sufficient in all the circumstances, as the Senior Member held, to consider the overall quotation for the work provided by the Respondent and compare it with an assessment made by the expert retained by the Appellant of the cost of replacing that work. In all the circumstances, it is not necessary for us to consider this matter in any detail. Suffice to say that the Senior Member was satisfied having regard to the quotation for the cost of replacement that the quotation provided by the Respondent to the Appellant provided an appropriate basis for assessing the value of the work undertaken by the Respondent. We detect no error in this approach. This is particularly so as the Appellant did not assert before the Senior Member nor before us that the quotation provided by the Respondent was anything but reasonable.
2. In all the circumstances the Senior Member was entitled to quantify the amount of money to be awarded in favour of the Respondent against the Appellant by reference to the amount of the quotation, together with extras which the Senior Member properly found to have been proven, less allowances made for minor defects and work outstanding, and for the deposit which had been paid.

Disposition of the appeal and orders

1. To the extent that the appeal raises questions of law, as it does, leave to appeal is not necessary. However, for reasons which we have set out above we find no merit in the appeal and it must be dismissed. We make the following orders:
2. 1. the appeal is dismissed
3. 2. any stay made in the proceedings is vacated I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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

Amendments 20 October 2017 - 19/10/17: Withdrawn from publication temporarily - no amendments made 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: 23 October 2017