Rathchime Pty Ltd v Willat

NCAT Appeal Panel|2016-12-12|Before: Dr J, Mr J

of Decision: 09 September 2016 Before: T. Simon, Senior Member File Number(s): HB 14/43750 and HB 15/11593

Reasons for Decision

This appeal is from a decision of the Tribunal dated 9 September 2016 (the 'decision') which required the appellant to pay the respondent the sum of $26,688.53 in connection with residential building work.
The Member's written reasons record the fact that the appellant, as the homeowner, entered into three contracts with the respondent builder in or about July 2011 for the carrying out of residential building works.
The decision the subject of this appeal dealt with the appellant's claim against the respondent for damages for breach of contract, breach of statutory warranties, cost savings, costs, interest and interest on costs. The decision also dealt with the respondent's claim against the appellant for outstanding monies due under the contract and unpaid variations.
There was a dispute between the parties regarding how and if the contracts they entered into came to an end. In detailed reasons the Tribunal Member found at [19] and [41] that the parties mutually abandoned the contracts by July 2013 and as a result the appellant was not entitled to claim for the costs of completion of the unfinished building work.
The Tribunal Member then determined the appellant's defective work claim in the sum of $37,130.50 and the respondent's variations claim in the sum of $63,819.03. After deducting the appellant's defective work claim against the respondent's variations claim, she found that the appellant was liable to the respondent in the sum of $26,688.53.

Ground Two

'The Tribunal Member's finding that the contract came to an end by a mutual abandonment of the parties by July 2013 was manifestly unreasonable such that no reasonable decision maker would make that finding in the face of evidence that: 1. The builder attended a site meeting on 22 July 2013 to discuss completing the job; an occasion after the Tribunal Member had found that the contract was abandoned. 2. The builder prepared a schedule of defective and incomplete work, which was provided to the homeowner on 6 September 2013; an occasion after the Tribunal Member had found that the contract was abandoned. 3. The homeowner made repeated attempts to contact the builder to have him return to site before during and after the date on which the tribunal member had found that the contract was abandoned. 4. The builder conceded in cross-examination that he wanted to complete the contract works after July 2013 when the contract was found by the Tribunal member to have been abandoned. 5. The builder conceded in cross-examination that the homeowner had said to him at a site meeting on 22 July 2013 that he had sent numerous emails and had left numerous telephone messages which the builder ignored. 6. The builder had attended site in January 2013.'
In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel stated at [21] that a question of law would include 'Whether the decision is so unreasonable that no reasonable decision-maker would make it'. We therefore accept that Ground Two raises a question of law for which leave is not required.
The Tribunal Member dealt with the question of how the contract came to an end at [12] - [44] of the decision. Paragraphs [38] and [39] of the decision contain the relevant findings of fact and reasoning to support the Tribunal Member's finding that the parties had mutually abandoned the contract by July 2013. The Member stated: The Tribunal finds that there was after January 2013 an inordinate length of time elapsing during which neither party has attempted to perform, or called upon the other party to perform the contract between them. Both parties evidence suggests that the builder had substantially abandoned the work in August 2012 and the homeowner claims that an electrician had returned for electrical works in January 2013. Mr Wren states that he continued to ask the builder to return on site, but there is no objective evidence to support that claim and the Tribunal is not satisfied on his evidence that he did continue to ask the builder to return to complete the works after January 2013. The Tribunal is satisfied that by time the parties had the meeting in July 2013 the contract had been abandoned and neither party had affirmed the contract since January 2013. Both parties had mutually abandoned the contract. The builder had failed to carry out any work for more than 6 months. Neither party had issued a breach notice or terminated the contract in accordance with the contract terms. The evidence reveals that the parties had previously communicated by email, but no email correspondence between the parties was provided for after 30 November 2012. Mr Wren did not point to a date or time when he contacted the builder after 30 November 2012 or provide specific details of exact conversations. The time to complete the works under the contract had passed and the builder had not rectified the defective works that had been raised by the homeowner some 18 months earlier in November 2011. Accordingly the Tribunal finds that the contract was abandoned by July 2013. In regards to the builder and homeowners actions after July 2013, those actions cannot serve to resurrect a mutually abandoned contract. Mr Wren's records of the minutes of the meeting of July 2013, even if they are accurate, are irrelevant because by the mutual actions the contract had been abandoned prior to the meeting. The email dated 6 September 2013 sent by the builder to the homeowner is simply a status on the list of defects and incomplete works. In relation to the rectification orders of Fair Trading, Mr Wren's email of 24 March 2014 refers only to the commencement of "remediation work."
For us to find that the Tribunal Member's decision was so unreasonable that no reasonable decision maker would make it would require, as Lord Greene MR stated in Associated Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230, 'something overwhelming'.
In Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 145, Tobias JA referred to the Wednesbury formulation in the following terms at [104] - [106]: Finally, as her Honour noted at [115], in Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 Spigelman CJ, with whom Beazley JA and myself agreed, stated at [129]: "Perhaps the most appropriate formulation [of Wednesbury unreasonableness] is whether the decision is 'illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds". This formulation was adopted by myself in Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [71]. It was also adopted and applied by myself, with the agreement of Mason P and Hodgson JA, in Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230 at [122]. In Notaras I cited (at [124]) [31] of the judgment of Biscoe J in Save Our Streets Inc v Settree [2006] NSWLEC 570; (2006) 149 LGERA 30 where His Honour drew a distinction between a decision which the court considers is unreasonable and a decision which the court considers is so unreasonable that no reasonable body could have come to it. The latter required "something overwhelming": Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [44]. In Wednesbury itself, Lord Greene MR at [229] referred to the relevant unreasonableness as "something so absurd that no sensible person could ever dream that it lay within the power of the authority". In Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at [821], Lord Diplock defined Wednesbury unreasonable decisions as those which "looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them". In Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] 1 AC 484 at 518, Lord Brightman said that the unreasonableness must be "verging on an absurdity".
In Aavelaid v J.A. Hayek t/as Laing & Simmons [2015] NSWCATAP 130 the Appeal Panel stated at [57] in connection with Wednesbury principles: Further, courts have repeatedly found that where there might be "mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions, this is not a sufficient reason for overturning a judicial decision on review", see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 48.
The grounds upon which the Tribunal Member found that there was an abandonment of the contract, after a full consideration of the relevant evidence, was clearly set out in a logical and concise manner, supported by the necessary findings of fact. We are unable to agree with the appellant's submissions that the decision of the Tribunal Member was so unreasonable that no reasonable decision maker would make it. Nor would we agree that the decision was illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds: rather, it was evident from the face of the reasons that the decision had none of these qualities.
At the highest the appellant's Ground of Appeal Two indicates a preference for a different result when the matter in issue is one on which reasonable minds might come to a different conclusion.
We are unable to agree that the Member's decision on the abandonment of the contract was so unreasonable that no reasonable body could have come to it.
We dismiss this Ground of Appeal insofar as it raises a question of law.
We have referred to the appellant's Notice of Appeal and submissions which state that Leave to Appeal is sought on the basis that the decision was not fair and equitable and was against the weight of the evidence.
The Appeal Panel considered the principles that apply on an application for Leave to Appeal in Collins v Urban [2014] NSWCATAP 17 on the basis that an appellant may have suffered a substantial miscarriage of justice on grounds that the decision of the Tribunal under appeal was not fair and equitable and against the weight of evidence. At [76] - [78] the Appeal Panel stated the principles which apply as follows: Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence.
The appellant has referred to evidence under this Ground suggesting that the decision of the Tribunal Member on the abandonment issue was against the weight of evidence and, we infer, the evidence that the appellant has specifically referred to.
The evidence that the appellant has referred to in support of its application for leave on the ground that the decision was against the weight of evidence was that the: 1. builder attended a site meeting on 22 July 2013 to discuss completing the job; 2. builder prepared a schedule of defective and incomplete work, which was provided to the homeowner on 6 September 2013; 3. homeowner made repeated attempts to contact the builder to have him return to site before during and after July 2013; 4. builder conceded in cross-examination that the homeowner had said to him at a site meeting on 22 July 2013 that he had sent numerous emails and had left numerous telephone messages which the builder ignored; and 5. builder had attended site in January 2013.
This evidence referred to at 28 (a) (b) (c) was referred to by the Member at [24], [27], [30], [39] of the decision. The evidence referred to at 28 (d) was not mentioned by the Tribunal Member in her decision but is at T80(40) which is at page 107 of Exhibit 1. The appellant submits that paragraph 38 of the decision establishes that the Member found that the respondent had attended the site in January 2013. However we do not agree that paragraph 38 of the decision goes that far. At its highest paragraph 38 records the appellant's claim that an electrician had returned for electrical work in January 2013.
The basis of the Member's finding of a mutual abandonment of the contract was that there was, after January 2013 an 'inordinate' length of time which elapsed during which neither party attempted to perform the contract or called upon the other party to do so. Moreover, the evidence suggested that the builder had abandoned the work in August 2012. The Member did not accept that the appellant's director had asked the builder to return to complete the works after January 2013. The Tribunal member found (at [38]): The Tribunal is satisfied that by the time the parties had the meeting in July 2013 the contract had been abandoned and neither party had affirmed the contract since January 2013. Both parties had mutually abandoned the contract. The builder had failed to carry out any work for more than 6 months. Neither party had issued a breach notice or terminated the contract in accordance with the contract terms.
It is implicit in the Member's findings in [38] that the contract had been abandoned before the meeting in July 2013. This is reinforced in [39] where the Member stated: Mr Wren's records of the minutes of the meeting of July 2013, even if they are accurate, are irrelevant because by the mutual actions the contract had been abandoned prior to the meeting.
As stated in Collins v Urban it will be necessary for the appellant to persuade us that the evidence that it has referred to 'preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach'.
Given that the Member found that the contract had been mutually abandoned before the meeting of 22 July 2013, we do not accept that the evidence that is relied upon by the appellant which relates to the meeting of 22 July 2013 and events after that time 'preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach'.
The appellant has not addressed us on, nor made submissions, that the decision of the Tribunal Member regarding abandonment of the contract was not fair and equitable. There is nothing to suggest that the process by which the Tribunal Member conducted the hearing was such as to involve a denial of procedural fairness.
For the reasons provided we conclude that the appellant has failed to establish that it may have suffered a substantial miscarriage of justice because the decision of the Tribunal Member was not fair and equitable or against the weight of evidence. We refuse Leave to Appeal under this Ground of Appeal.

Ground Three

'The Tribunal Member fell into error by ignoring relevant evidence, including evidence that the homeowner had attempted to contact the builder to have him return to site to complete the works under the contract, in the period when the Tribunal Member found that the contract had been mutually abandoned.'
The Tribunal Member was not obliged to address all of the evidence before her. In Mifsud v Campbell (1991) 21NSWLR 725 at 728 Samuels JA stated: Similarly, in my opinion, it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her.
In our view there was no error of law by reason of the fact that the Tribunal Member did not refer to evidence that the appellant refers to under this Ground of Appeal.
We have referred to the appellant's Notice of Appeal and submissions which state that Leave to Appeal is sought on the basis that the decision was not fair and equitable and was against the weight of the evidence.
We have referred to Collins v Urban above in relation to Appeal Ground Two in which the Appeal Panel considered the principles that apply on an application for leave to appeal on the basis that an appellant may have suffered a substantial miscarriage of justice on grounds that the decision of the Tribunal under appeal was not fair and equitable or against the weight of evidence.
This Ground of appeal replicates part of Ground of Appeal Two.
As stated in connection with Ground of Appeal Two, the Member found that the contract had been mutually abandoned before the meeting of 22 July 2013. As was stated in connection with that Ground of Appeal we do not accept that the evidence referred to by the appellant under this ground 'preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach'.
For the reasons provided we conclude that the appellant has failed to establish that it may have suffered a substantial miscarriage of justice because the decision of the Tribunal Member was not fair and equitable or against the weight of evidence. We refuse Leave to Appeal under this Ground of Appeal.

Ground Five

'The Tribunal Member erred in failing to take into account a relevant matter, namely the homeowner's entitlement to a credit for the difference between the contract sum of $642,164.93 and the total amount paid to the builder in the sum of $701,470.00 in determining the builder's entitlement in quantum meruit.'
The appellant stated that this Ground of Appeal required leave under section 80(2)(b) of the Civil and Administrative Tribunal Act.
This Ground of Appeal is explained in the appellant's Outline of Submissions at [22] - [26].
In essence the appellant's Ground of Appeal proceeds on the basis that the Tribunal Member should have credited or set off the sum of $71,883.61 against a finding of $63,819.03 in favour of the respondent in connection with variations.
The sum of $71,883.61 is asserted to have arisen as an amount which ought to have been determined as a credit due to the appellant because it had paid that amount to the builder in excess of the amount invoiced for the work that had been performed.
The respondent submitted that this issue was not raised by the appellant at first instance and that if the Appeal Panel was to deal with this Ground of Appeal, he would be denied procedural fairness. The cases of Suttor v Gundowda (1950) 81 CLR 418 and Coulton v Holcombe (1986) 162 CLR 1 were cited in support of the respondent's submission. Moreover the respondent submitted that the issue was not a discrete point of law which does not require factual findings.
In reply the appellant states that it would be unconscionable for the respondent to retain the benefit of the overpayment. The appellant also states that this issue was always before the Tribunal.
At this point it is necessary to mention that one of the appellant's claims, which was dismissed by the Tribunal Member, related to an alleged oral agreement relating to cost savings whereby if certain work was carried out below a specified budget allowance, then the appellant would be entitled to the savings by way of a credit against the contract sum. The appellant's Grounds of Appeal included at Ground 4, an appeal against the rejection of this claim. This Ground of Appeal was withdrawn at the hearing. We will refer to this claim as the 'cost saving credit claim'.

Was the overpayment case always before the Tribunal?

In the proceedings at first instance the appellant pleaded its case in Points of Claim and Amended Points of Claim. Copies of these documents are in exhibit A.
The appellant's Points of Claim and its Amended Points of Claim pleaded the cost saving credit claim, but neither pleaded a claim for the credit that the appellant refers to under Ground of Appeal 5.
The Tribunal is not a tribunal where there are formal rules regarding pleadings to the effect that the parties are bound by their pleadings. Nonetheless the fact is that the appellant's pleaded case which was amended on the second day of the hearing, did not plead a claim for the credit that the appellant refers to under Ground of Appeal 5.
The appellant has referred to its opening at the hearing which it submits referred to its claim for a credit the subject of Appeal Ground 5 which is separate from the cost saving credit claim.
In opening the appellant's case at first instance, counsel for the appellant relied on a written Outline of Submissions which is exhibit B in this appeal. The Outline of Submissions raises the cost saving credit claim. We find that the Outline of Submissions does not raise a claim for the credit that the appellant refers to under Appeal Ground 5. In these submissions the appellant submitted at [35] that it was entitled to a credit of $117,014.63 in connection with the cost saving credit claim. Later at [37(d)] the appellant stated that: The builder has not provided a credit for the sum of $117,014.63 for overpayment under the contract.
In our view that submission can only be understood by reference to previous submissions which calculated the credit of $117,014.63 solely by reference to the cost saving credit claim.
The transcript of the hearing which is relied upon by the appellant does indicate that a claim for a credit, separate to the cost saving credit claim, was the subject of the appellant's counsel's opening.
Page 4 of the transcript records the following: 'HYDE: The next point on there as we say the builder has overcharged the homeowner and this will become clearer, and I won't spend too much time on it at the moment, MEMBER SIMON: $117,000? HYDE: Yes we say we have overpaid the builder $117,000, we say the builder has been paid a total of $727,210.00 to date, and the overpayment we say is in the sum of 117, we then in the alternative which is option 2 MEMBER SIMON: If I don't find it's a cost plus contract… HYDE: No, option option option 1 deals with side agreements, so there was a fixed price lump sum contract, then a side agreement, and this is in evidence, whereby the homeowner and the builder agree that if the builder had costs savings along the way these would be credited back to the homeowner. We say option1 shows in summary he has been overpaid $117,000. There's a reconciliation for those numbers. Option 2 is based on the total amount paid to the builder of $727,210 and a contract sum of together with some agreed extras in the sum of 695 and we say that on option 2 the builder has been overpaid $31,000.'
We find that the above passage of the transcript makes it clear that the appellant's counsel opened on the basis that the overpayment claim was put on two bases, although the Points of Claim did not reflect that at the time of the opening, or at any time after that.
In addition the appellant's counsel handed to the Tribunal Member during the opening a document which is exhibit C in the appeal. This document summarised the appellant's claims. Under the heading 'OVER-CHARGE BY BUILDER' Option 2 is described as 'based on written contract terms' which claims the sum of $31,460.11, essentially the same amount mentioned by counsel in his opening in connection with Option 2.
The appellant's Closing Submissions, which are exhibit D in the Appeal, do not provide complete clarity on the claim that the appellant is advancing under this Ground of Appeal. However at [20] of those submissions the 'contractual' overpayment claim is raised on the straightforward basis that the contract sum for contracts 2 and 3 totalled $642,164.93, but the appellant paid the respondent $701,470.00 leading to the submission that the respondent had been overpaid by $59,305.07.
Under the heading 'Overpayment by the Homeowners' the appellants cost saving credit claim is dealt with leading to a submission that the appellants were entitled to a credit of $91,014.63.
Next under the heading 'Purported Variation,' the appellant states that the respondent failed to provide a credit of either $59,305.07 or $91,014.63, referring to both categories of overpayment claim made by the appellants.
Only the cost saving credit claim was advanced and referred to in the 'Summary' and 'Conclusion', sections of the Closing Submissions.
While we can see that both categories of overpayment claim made by the appellant were referred to in the Closing Submissions, the way in which they present as separate items of claim was not particularly clear such as to make it plain to the Tribunal Member that there were two categories of overpayment claim to be determined. In particular, the appellant's conclusion only dealt with the cost saving credit claim.
We find, based on the above material, that the appellant opened and closed its case on the basis of a claim substantially the same as that raised in Ground of Appeal 5, despite the fact that the claim was not included in the appellant's Amended Points of Claim as amended on the second day of the hearing. We also observe, with the benefit of hindsight, that while the claim was referred to in the written submissions as being a claim in the alternative to the cost saving credit claim, it was not specifically included in the appellant's conclusion in its Closing Submissions.
It is on this basis we find that there is no substance to the respondent's submission that Ground of Appeal 5 was not raised by the appellant at first instance.

Failure by the Tribunal Member to deal with the claim

If a Tribunal Member does not deal with an issue that was before him or her for determination that will be an error of law.
In Yong v Antworks Pty Ltd [2016] NSWCATAP 14 at [31- 34] the Appeal Panel cited the following authorities in support of the above proposition: 'In Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority 24 NSWLR 156 at 186 Handley JA stated: The duty of a judicial officer to hear and determine a claim made in judicial proceedings conducted before that officer is also an incident of the judicial process. Since breaches of the duty to give proper reasons and to observe procedural fairness involved errors of law, there seems every reason to hold that a breach of the duty to hear and determine a claim made in judicial proceedings also gives rise to such an error. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Gaudron J in context of the Migration Act (Cth) discussed a constructive failure to exercise jurisdiction stating: It follows from what has been written above that the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, failure to conduct a review as required by the Act. In Fox v Australian Industrial Relations Commission [2007] FCAFC 150 Marshall and Tracey JJ stated at paragraph 38: In the present case the complaint is not that the full bench ignored the evidence but rather that it did not deal with an important ground raised by Mr Fox. This case is more akin to one where there is a failure by a Tribunal to deal with necessary issues. Such a failure constitutes a jurisdictional error. In Khan v Kang (supra) the Appeal Panel found that the Tribunal had made an error of law by failing to consider a claim made by Mr Khan. The Appeal Panel observed at [28] as follows: It is possible to characterise what occurred either as a failure to give reasons for the Tribunal's decision or a failure to exercise the jurisdiction conferred on the Tribunal and invoked by the appellant in relation to this claim in respect of excess timber - see Waterways Authority v Fitzgibbon [2005] HCA 57 at [129] - [130] and Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [42]. Whichever way it should be characterised, the Tribunal's failure to consider such a claim at all in its Reasons for Decision amounted to an error of law by the Tribunal below.
We find that the Tribunal Member erred in law in not determining the appellant's claim that, apart from the cost saving credit claim, it was entitled to a credit in the sum of $59,305.07 being money paid by the appellant to the respondent in excess of the contract sum for contracts 2 and 3.
Ground 5 of the Appeal is slightly different to the overpayment claim made before the Tribunal Member, which was that the contract sum for contracts 2 and 3 totalled $642,164.93, but the appellant paid the respondent $701,470.00 leading to the submission that the respondent had been overpaid by $59,305.07.
The way that the claim is put in the Appeal is different. The appellant claims a larger amount, $71,883.61. The reason for this difference is that the appellant's calculation starts with a different amount, namely the amount claimed by the builder, $629,596.39, not the contract sum of $642,164.93. It is against that lesser figure the amount paid of $701,470.00 is deducted leading to the credit of $71,883.61 claimed by the appellant under Ground 5 of the Appeal. On our calculations the correct figure is $71,873.61.
Although the method of calculation advanced by the appellant in the Appeal is different to what was put to the Tribunal Member, the substance of the claim is identical. We find that the Ground 5 of the Appeal does not raise a new claim which was not put to the Tribunal Member.

Disposition of Ground Five

Section 81 of the Civil and Administrative Tribunal Act states: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal.
We are minded that it will be in the best interests of the parties and in conformity with the 'guiding principle' stated in section 36 of the Civil and Administrative Tribunal Act that we determine the substance of Appeal Ground 5 if we are able to, on the information that we have, rather than remitting the issue to the Tribunal Member.
We will do so if it is possible on the material tendered in the Appeal.
There is agreement between the parties, as found by the Tribunal Member at [66], that the second and third contracts executed by the parties were those relevant for assessing whether the work carried out by the builder was incomplete or defective. There is no challenge to that finding.
At [7] of the decision the Tribunal Member found that: Contract 2 was in the amount of $499,661.39; and Contract 3 was in the amount of $142,503.54.
The total contract price was therefore $642,164.93.
The appellant submits that the respondent claimed the sum of $629,596.39 from the appellant in connection with the work carried out under contracts 2 and 3. Pages 586 - 603 of Exhibit A are relied upon to support this submission. Pages 586 - 603 of Exhibit A are made up of Progress Claims 01- 09 from Epica Construction. No point has been taken about the fact that the respondent's progress claims are from Epica Constructions. Progress claims 1, 3, 4, 6, 7, 8 and 9 have been approved and signed by a director of the appellant. We have calculated the total claimed in all progress claims to be $629,596.39, the figure asserted by the appellant.
The respondent in his submissions does not address whether or not the amount he claimed was $629,596.39. The respondent submits that given that neither party's expert provided evidence as to the value of the work carried out by the respondent it is not appropriate for the Appeal Panel to determine the issue and that if we were to do so, that would not afford the respondent procedural fairness. In circumstances where the respondent issued 9 progress claims under the contract, we do not see that there is any occasion or utility for experts to provide opinions on the value of the work carried out. The fact is that the respondent issued progress claims and contract 2 required progress claims to be paid within 10 days.
In circumstances where the respondent's progress claims were paid in full and in fact overpaid there is in our view no possible reason to entertain expert evidence about the value of work undertaken by the builder. The fact that progress Claims 01- 09 contained no claim for variations reinforces this view.
The parties agreed on the second day of the hearing that the amount paid to the respondent was the sum of $701,470.00 as made clear on page 112 of Exhibit 1 in the appeal which is T.85.
The appellant's submission is that the total amount claimed by the respondent was $629,596.39 and that it paid $701,470.00. From these facts the appellant claims it has overpaid the sum of $71,883.61. On our calculations the correct figure is $71,873.61.
At [114] of the Reasons for Decision the Tribunal Member assessed the appellant's claim for defective work at $37,130.50. She also assessed the respondent's claim for variations at $63,819.03 and set the defective work claim off against the variations claim to arrive at the amount found in favour of the respondent, $26,688.53.
Having regard to the respondent's concession the calculation made by the Tribunal Member at [114] would change to $37,130.50 (appellant defects finding) - $18,184.61 (respondent variations) = $18,945.89 in favour of the appellant. This total accords with the respondent's submission at paragraphs 9.2 and 9.3(a) of its written submissions in this appeal.
In order to conclude this appeal, the position is, having regard to the reasons we have provided, as follows.
First, the respondent concedes that $18,945.89 should be found in favour of the appellant on the basis of the calculation in [83] and in its concessions at paragraphs 9.2 and 9.3(a) of its written submissions.
Secondly we have concluded that the appellant should be successful in the sum of $71,873.61 on the basis of the overpayment claim which was before the Tribunal Member but which was not dealt with.
This leads to the conclusion that an order should be made that the respondent must pay the appellant the sum of $90,819.50.
Ground Six
'The Tribunal Member erred in failing to take into account a relevant matter, namely that the homeowner had paid for three significant items, which the Tribunal Member then awarded on a quantum meruit basis to the builder, and failed to offset those payments against: 1. Item 15 for the 'Pavilion Slab' in the sum of $25,027.34; 2. Item 23.2 for the "Engineer, Geotech, drafting", in the sum of $4,824; 3. Item 23.3 for the "slate roof", in the sum of $15,783.08.'
The respondent concedes that the amount for variations should be reduced to $18,184.61.

Orders 1. In relation to Grounds of Appeal Two (2) and Three (3), leave to Appeal is refused and the appeals in relation to those grounds are dismissed. 2. The appeal is allowed in connection with Grounds Five (5) and Six (6). 3. Order 1 of the Tribunal made on 9 September 2016 is set aside and replaced with an order that Grant Willatt must pay Rathchime Pty Ltd the sum of $90,819.50 immediately.

Costs

In the event a party wishes to apply for costs, we make the following orders. 1. Any costs application (of no more than 5 pages) must be lodged in the Appeal Division of the Tribunal and served on the costs respondent within 21 days of the date of these orders either attaching or referring to any documents relied upon in support of the application. 2. The costs respondent will have 21 days after the date it receives the application referred to in the preceding paragraph to lodge in the Appeal Division of the Tribunal and serve on the costs applicant its submissions (of no more than 5 pages) in response to the costs applicant's costs application, such submissions either attaching or referring to any documents relied upon. 3. The costs applicant will have 14 days after the date it receives the cost respondent's submissions to lodge in the Appeal Division of the Tribunal and serve on the costs respondent its submissions, if any, in reply, such submissions either attaching or referring to any documents relied upon. 4. Subject to the right of the parties to make submissions under section 50(3) of the Civil and Administrative Tribunal Act, the Appeal Panel will determine any costs application on the basis of the papers lodged in the Appeal Division of the Tribunal.
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.
(signed)
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 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: 27 April 2017

(2007) 161 LGERA 230

At a glance

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Judgment (11 paragraphs)

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Cases Cited (28)

Cited By (7)