SD Portfolio Holdings Pty Ltd v Todd

(1) whether the Tribunal erred in law by failing to provide adequate reasons for its decision in accepting the respondent's expert evidence over the expert evidence advanced by the appellant (Ground One);

(2) whether the Tribunal erred in law by failing to provide adequate reasons for its decision in relation as to the quantum of the compensation ordered (Ground Two);

(3) whether the Tribunal erred in law by failing to give proper, genuine and realistic consideration to the appellant's arguments and evidence as to the quantum of damages for the respondents' claim (Ground Three);

(4) whether the Tribunal erred in law by failing to consider the appellant's argument that the respondents had benefited from their own breach (Ground Four);

(5) whether the Tribunal erred in law by failing to consider the appellant's submission that the respondents had benefited from their own breach (Ground Five);

(6) whether the Tribunal erred in law by failing to give genuine consideration to a matter arising on the material, which is that the respondent's failed to mitigate their own loss (Ground Six);

(7) whether the Tribunal erred in law by failing to give proper, genuine and realistic consideration to the appellant's submission that the parties had resolved the matter by agreement (Ground Seven);

(8) whether the Tribunal's finding, that there was no evidence that the electrical cable ran across common property, was legally unreasonable (Ground Eight);

(9) whether the Tribunal erred in law by failing to consider the only material evidence on the issue of electrical cable servicing more than one lot (Ground Nine).

1. In the course of these reasons, we will set out the Particulars to the amended grounds of appeal where necessary.

1. The respondents filed a Reply to Amended Grounds of Appeal on 13 August 2025.
2. In summary, the respondents submit that the grounds of appeal are without merit, mischaracterise the Tribunal's reasoning, and are written without any regard to expert evidence and statutory obligations, which the Tribunal took into consideration in determining their claims.
3. In the first instance, the respondents say the appellants have failed to identify any questions of law supporting their appeal, here relying in particular on Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) at [25]-[40].
4. We note that at the appeal hearing the respondents' counsel conceded that Ground Eight did raise a question of law.
5. The respondents also filed a copy of the joint tender bundle (JTB) that was before the Tribunal.

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel set out a non-exhaustive list of possible questions of law giving rise to an appeal as of right:

(1) whether there has been a failure to provide proper reasons;

(2) whether the Tribunal identified the wrong issue or asked the wrong question;

(3) whether a wrong principle of law had been applied;

(4) whether there was a failure to afford procedural fairness;

(5) whether the Tribunal failed to take into account relevant (that is, mandatory) considerations;

(6) whether the Tribunal took into account an irrelevant consideration;

(7) whether there was no evidence to support a finding of fact;

(8) whether the decision was so unreasonable that no reasonable decision-maker would make it.

1. These matters were clarified and expanded by the Appeal Panel in Unique where the Appeal Panel. Relevantly, the Appeal Panel stated at [32] (references omitted):

32 To the above list [referring to the list in Prendergast extracted above] might be added the following (some of which are nuanced aspects of the categories in Prendergast):

...

(4) Whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice, that is, procedural unfairness. Alternatively, it may also constitute a constructive failure to exercise jurisdiction: ...

...

(8) Whether the Tribunal made a jurisdictional error will often raise a question of law. However, as jurisdictional error may stem from myriad reasons, care must be taken to ensure the particular basis is raising a question of law. ...

1. We will not set out the requirements for establishing a grant of leave to appeal. That is because the appellants have not sought a grant of leave in respect of any of the grounds of appeal.

1. We will commence with a consideration of Ground One, which in relation to Order (1) is the appellants' fundamental ground of appeal.
2. The appellants' submit that the reasons given for that order were inadequate.
3. The relevant principles relating to adequacy of reasons of the Tribunal were stated by the Court of Appeal in NSW Land and Housing Corporation v Orr [2019] NSWCA 231, by Bell P (as the Chief Justice of NSW then was), with whom Ward JA (as the President of the Court of Appeal then was) agreed.
4. In Orr, the Court of Appeal stated at [71] that:

... there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the [Civil and Administrative Tribunal Act 2013 (NSW)] which ... requires there to be set out in reasons (when requested by a party):

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal's understanding of the applicable law, and

(c) the reasoning processes that lead the Tribunal to the conclusions it made.

(emphasis added)

1. Those principles have been followed and applied many times by the Appeal Panel, including most recently on 10 October 2025 in Tiglin Constructions Pty Ltd v Warhurst [2025] NSWCATAP 251 (Tiglin). In Tiglin, the Appeal Panel stated at [72] that the reasoning need not be unduly long or elaborate, but needs to be sufficient to explain why a decision was made.
2. Put another way, as a majority of the Court of Appeal (Bell CJ and Kirk JA) stated in Della Bruna v Health Care Complaints Commission [2025] NSWCA 105 at [63]:

it was certainly a legal error by failure to give adequate, intelligible or logical reasons ... It was also a constructive failure to exercise jurisdiction insofar as it involved a failure to grapple with a substantial and clearly articulated aspect of the appellant's case ... That type of error can also be expressed in terms of procedural fairness (as raised by ground 5(b)): Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24].

1. This was a dispute between the respondents (Homeowners) who had purchased the property from the first appellant (Vendor). A special condition of the sale of the property was that the Vendor would have a timber deck constructed at the property before the end of February 2023 but not before settlement. The Homeowners alleged that the deck was incomplete and defective.
2. The Homeowners retained Mr Aaron Kyle of Quest Associates Pty Ltd to prepare an expert report. His report was dated 23 September 2025, and was 89 pages in length. The issue of the deck was dealt with at pp 19 to 36 of his report. Mr Kyle concluded that the cost of completion of the decking and rectification of defects was $45,038.86.
3. The Vendor retained Mr Peter Shepherd of Pink Slip Building Reports. His report was dated 7 November 2024 and was 39 pages in length. The issue of the deck was dealt with at pp 7 to 13 of his report. Mr Shepherd concluded that the cost of completion of the decking and rectification of defects was $7,313.38.
4. The two experts prepared a Conclave Joint Report dated 26 February 2025. Relevantly, Mr Kyle lowered his figure for the cost of completion and rectification to $40,820.95, while Mr Shepherd increased his to $8,357.00.
5. In the Primary Decision, the Tribunal relevantly stated:

16 The experts engaged in a conclave and produced a joint report. They both agree that the deck is incomplete and agree on certain of the defects but differ in respect of the scope of work for rectification. Mr Shepherd is satisfied that the deck can be completed whilst Mr Kyle says that it needs to be removed and rebuilt.

17 I prefer the evidence of Mr Kyle for a number of reasons:

(1) The deck has not been built in accordance with the specifications [and the Tribunal then set out eight examples of failures to build in accordance with the specifications].

(2) The deck has been sitting in an incomplete stage of construction for 2 years. I accept that this will necessarily have caused damage.

(3) The deck as constructed has not been approved by the Owners Corporation. The By-law requires consent to be sought before construction.

18 I accept Mr Kyle's amended costings and allow the sum of $40,820.95.

1. The Vendor submits that the Tribunal's reasons are inadequate because:

(1) they simply state facts, and do not establish why there is a "preference" for Mr Kyle, nor disclose the reasons why Mr Shepherd's evidence should be discounted or put to the side;

(2) they do not adequately address how the Tribunal arrived at preferring Mr Kyle's opinion over Mr Shepherd's;

(3) they do not reach a resolution of the experts' differences as to what is defective and the applicable scope of works.

(1) it is left trying to understand how the Tribunal decided to impose a $40,825.95 when its expert, Mr Shepherd, advised that the costs to rectify were $7,313.38;

(2) the Tribunal's fact-finding miscarried;

(3) the Tribunal's reasons in that regard are far from doing justice between the parties; and

(4) the appeal should be allowed.

1. In summary, the Homeowners make the following submissions.
2. First, they submit, for the reasons set out at pars [10]-[17] of its Reply to Amended Grounds of Appeal filed 13 August 2025, that the appellants have failed to identify any question of law.
3. The Homeowners submit that this was the case as, invoking Unique:

(1) the appellants have not raised any "pure questions of law"; rather, they have attacked the merits of the Primary Decision;

(2) there is a distinction between an error of law and a question of law. The appellants have simply attempted to raise errors of law which do not constitute a question of law; and

(3) the appellants' grounds of appeal raise part questions of fact, "which does not meet the necessary threshold of a 'pure question of law'".

1. The Vendor relies in particular on [37]-[38] of Unique where the Appeal Panel stated:

37 What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51.

38 For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly at [28]-[32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A; see too: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [53]-[54], [109]-[114].

1. At [38], the Appeal Panel referred to "the exposition of this issue in Wollondilly". That is a reference to the Appeal Panel's decision in Wollondilly Shire Council v Styles [2024] NSWCATAP 104 (Wollondilly). In the passages identified, the Appeal Panel stated:

28 Simply alleging that the Tribunal's reasons are inadequate may not be sufficient to identify the particular or specific question of law that arises where the alleged inadequacy does not "breach a statutory condition of validity of the decision itself, so as to render the decision invalid": Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 at [30].

29 Whilst it is true that simply alleging that reasons are inadequate "raises" a question of law, and that may be sufficient where the parties and the Appeal Panel correctly understand what that allegation entails (STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98 at [14] to [22]), it is preferable that the actual and specific question of law that it raises is identified with precision. That position is reinforced where the appellant is legally represented: Theophilas v Chief Commissioner of State Revenue [2016] NSWCATAP 111, at [24]; Thomas and Naaz, above, at [72].

30 In the absence of leave to appeal, the particular questions of law identified by the appellant are the subject matter of the appeal: Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd, above, at [13] and the cases referred to there. Succinctly identifying the question the alleged inadequacy raises will also better turn the parties' attention to what question the Appeal Panel is actually answering, as an allegation that reasons are inadequate is all too often simply a challenge to the merits of the Tribunal's decision, for which leave to appeal is required.

31 The allegation of error here is so closely related to the Tribunal's determination of the facts of the case that any alleged inadequacy of reasons does not amount to a question of law alone: JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669; (2015) 256 A Crim R 447; PQR v Director of Public Prosecutions (NSW) [2020] NSWSC 731. Unlike the case of Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254, the Council did not provide detailed evidence to support its reliance on various public interest considerations against disclosure. Nor did the Council provide detailed evidence, other than the emails themselves, to support its reliance on legal professional privilege.

32 As to some of the related questions of law, being whether the Tribunal's reasons were "sufficient in law" (as that phrase was used in Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 by Basten JA at [23]) or met the Tribunal's obligation in respect of what the Tribunal was required to address under s 62 of the NCAT Act, the decision of the Tribunal at [37]-[70] clearly articulates the evidence before it and its findings, the law to be applied, and the reasoning process that led to its conclusions. Had those questions been identified as questions of law, no error would be established. It is also not possible to discern, from examining the reasons and the evidence lodged in the appeal, that some identified inadequacy or deficiency in the reasons shows that the Tribunal has constructively failed to exercise its jurisdiction by failing to deal with "a substantial, clearly articulated argument relying upon established facts": Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; (2003) 77 ALJR 1088; [2003] HCA 26 at [24]. The reasons also meet the required level of transparency to facilitate the appellant exercising its qualified right to appeal.

(emphasis added)

1. Ground One is whether the Tribunal erred in law by failing to provide adequate reasons for its decision in accepting the respondents' expert evidence over the expert evidence advanced by the appellant.
2. The Particulars of Ground One are:

(a) The Tribunal received expert reports from both appellant[s] and [the] respondent provided evidence on rectification of the deck.

(b) The Tribunal's reasons for preferring the respondents' expert are bare and appear to recite findings of fact made by the Tribunal about the issue more broadly rather than articulated consideration of the respondents' report

(c) The Tribunal did not give any reasons why the evidence of Mr Shepherd was rejected or suitable.

1. As the Appeal Panel stated recently in Kratochvil v Cutting Choice Carpentry Pty Ltd [2025] NSWCATAP 157:

111 An appeal is against orders and not reasons (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34]) although reasons that are not adequately expressed to expose the basis for the finding on a dispositive issue may ultimately raise questions of law. The adequacy of reasons in the context of determining questions of law raised on appeal was considered at length by the Court of Appeal in Alexandra Landfill [Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165], where two of the principal issues in the appeal were whether the primary judge constructively failed to exercise his jurisdiction and whether the reasons for his findings were inadequate.

112 Basten JA observed at [22] and [23]:

22. In a case where a court has set out the competing material (thus engaging with an issue) and decides in favour of a particular result, without explaining why, the reasons will fail to meet the criterion of transparency required of judicial decision-makers. Where some reasons are given, expressly or implicitly the element of transparency may well be met, even if an appellate court considering an appeal by way of rehearing would find the reasons flawed.

23. To the extent that the appellant is not able to demonstrate that the trial judge failed to consider any essential element of the claim for compensation, a separate question will arise as to whether the reasons given for the outcome were sufficient in law.

29. Where the process of fact finding is unreviewable except to the extent that it reveals an error of law, the reasons required must be sufficient to demonstrate that the legal limits of the process have not been contravened. Having regard to the purpose of giving reasons, the standard is properly identified negatively: it must be shown that the decision has not been reached capriciously or arbitrarily, but rationally. The reasons must thus reveal that all material factors have been identified and addressed, and that no prohibited considerations have been operative. If there is an available process of reasoning from the evidence to the outcome which has been adopted, either expressly or by implication, the appellate court should be slow to reach the conclusion that the function of the trial court has not been exercised according to law.

1. As the Appeal Panel stated in Wollondilly, alleging that reasons are inadequate "raises" a question of law, and that may be sufficient where the parties and the Appeal Panel correctly understand what that allegation entails.
2. In our view, the Particulars of Ground One make it clear what the allegation involves, namely the Tribunal's reasons for preferring Mr Kyle are bare (and appear to recite findings of fact made by the Tribunal about the issue more broadly rather than set out an articulated consideration of the experts' reports), and that the Tribunal did not give any reasons why the evidence of Mr Shepherd was rejected or suitable.
3. In our view, it is self-evident that the reasons of the Tribunal on why it preferred the evidence of Mr Kyle over that of Mr Shepherd failed to meet the minimum standard required by Orr. To use the language of Orr, there appears to be no attempt at all to explain the reasoning processes that lead the Tribunal to the conclusions it made. There is simply the statement that the Tribunal prefers the evidence of Mr Kyle and accepts his costings. The Tribunal did not explain "why" (Alexandra Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165, at [22] per Basten JA) one expert's opinion was accepted by the Tribunal in preference to an alternative opinion on a question in dispute.
4. We accept that reasons can be brief, but to paraphrase the language of the Supreme Court in Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 at [86], the Tribunal's reasons in this instance failed to provide any, or any adequate, statement of the reasoning processes that led it to its conclusions. No attempt whatsoever has been made to engage with the reasoning of each expert and their conclusions.
5. In addition, in his oral submissions, Mr Widjaja referred us to Whipps v Caravan & RV Central Pty Ltd [2017] NSWCATAP 163. In that decision, the Appeal Panel noted that the Tribunal's "summary dismissal" of evidence relied on by Mr Whipps (being the evidence of his two experts), was a failure to give a proper, genuine and realistic consideration to the issue.
6. In our view, the Tribunal failed to give proper, genuine and realistic consideration to Mr Shepherd's expert evidence.
7. In relation to this part of the appeal, the appeal is allowed, and order (1) of the Tribunal's orders of 23 June 2025 is set aside.
8. Given this conclusion, is not necessary to consider any other ground of appeal in so far as those grounds relate to Order (1).

1. We next turn to the grounds which relate to Order Two, being Grounds Eight and Nine. These grounds both relate to the issue of electrical wiring. Both parties' experts agreed that the wiring was faulty. However, the appellants alleged that the electrical cable was common property and the Homeowners did not have standing to bring the claim.
2. The Tribunal rejected this submission as "[t]here is no evidence that the cabling in question services more than one lot. I do not accept that the cabling is common property": Primary Decision at [24].
3. Grounds Eight and Nine are:

(8) Whether the Tribunal's finding, that there was no evidence that the electrical cable ran across common property, was legally unreasonable;

(9) Whether the Tribunal erred in law by failing to consider the only material evidence on the issue of electrical cable servicing more than one lot.

(a) The appellants submitted that the electrical cable was common property, and thus the respondents' did not have standing to make the application

(b) The Tribunal did not accept it was common property on the basis that there was "no evidence that the cabling in question services more than one lot".

(c) There was evidence from the appellants' expert that the conduit extends from under the dividing fence.

1. The appellants' submission is simple. They submit that Mr Shepherd stated in his expert report in reply at 7.5.2.1.1 that the electrical wiring did cross the boundary and may service more than one lot.
2. Therefore, they submit that the Tribunal erred in finding that there was no evidence on this point, and that the Tribunal's conclusion was legally unreasonable, as it lacks an evident and intelligible justification or whereby a court or tribunal cannot comprehend how the decision was arrived at: Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [76].
3. The appellants submit that that the "no evidence" conclusion of the Tribunal was "completely contrary" to the evidence that was available (and which was not rejected).
4. The appellants put Ground Nine alternatively, on the basis that the Tribunal failed to consider the evidence, with limited evidence being produced on this point. They submit that there is no indication from the reasons that the Tribunal had regards to Mr Shepherd's evidence on this point.

1. The respondents accept that Ground Eight raises a question of law. The question of whether there is no evidence to support a finding raises a question of law: see Unique at [25](9)(b)].
2. They say that Ground Nine does not.
3. The respondents relevantly submit that:

(1) it is clear that the appellants did not provide any evidence to support this contention at hearing, as found and expressed by the Tribunal;

(2) the cabling is located in the courtyard of Unit 14, which under the registered strata plan is not common property. The appellants have provided no evidence to the contrary;

(3) photographic evidence was tendered showing the cabling's location within the courtyard of Unit 14. This visual evidence was consistent with the strata plan and supported the Tribunal's finding that the cabling did not service more than one lot and was not common property;

(4) the appellants were also issued a summons for the building contracts - documents which typically contain electrical and plumbing plans that would identify the scope and servicing of the cabling. They failed to comply with that summons, despite having the opportunity to produce evidence in support of their claim.

1. It is to be noted that the respondents do not address the appellants' submission that Mr Shepherd addressed this issue at 7.5.2.1.1 of his report.

1. Mr Shepherd relevantly stated in his report that:

7.5.2. RESPONSE TO DEFECT AS CLAIMED

7.5.2.1 I observed the cable referred to by Mr Kyle.

5.5.2.2.1 The conduit extends from under the dividing fence and may be considered common property, this may also be the case for all wiring and cables.

7.5.2.2 These cables are not required to be in a conduit as they are in an inaccessible areas as defined by AS3000.

7.5.2.3 I agree the cable should be terminated in a junction box and the cables clipped to the underside of the deck, this appears to be part of what is allowed for in the electricians quote.

7.5.2.4 The electrician identified the orange conduit is not buried sufficiently below the ground.

7.5.2.5 What has not been investigated is whether or not the conduit contains electrical cables, let alone being live cables.

7.5.2.6 There has been no investigation as to the actual depth of the conduit, only that part of can be seen.

7.5.2.7 Should it v [sic - be?] found that it is electrical cable, then for the extent that it is less than 500mm can have the trench re dug and the conduit placed deeper.

1. The report then goes on to calculate the rectification costs.
2. In our view, Mr Shpherd's language is equivocal. Nevertheless, the statement of the Tribunal that there is "no evidence" appears not to be correct. Accordingly, we accept the appellant's submission that the Tribunal erred in finding that there was no evidence on this point, and that the Tribunal's conclusion was legally unreasonable, as it lacks an evident and intelligible justification or a court or tribunal cannot comprehend how the decision was arrived at.
3. In relation to this part of the appeal, the appeal is allowed, and order (12) of the Tribunal's orders of 23 June 2025 is set aside.
4. Given this conclusion, is not necessary to consider Ground Nine.

1. Given our findings above in relation to Orders (1) and (2), it has not been necessary to deal with the other grounds of appeal.

1. Having determined that Order (1) and Order (2) should be set aside, the question arises whether the issues should be remitted to the Tribunal, which was the appellants' position, or reconsidered by us, which was the respondents' position.
2. Given the central issue is the persuasiveness of the opinions of the two experts, we do not consider it a practical, or indeed fair, solution that we reconsider the matter without the benefit of seeing the experts' cross-examined and without receiving the benefit of submissions from the parties.
3. Regrettably, we consider that the proper course is to remit the matter to the Tribunal for reconsideration.
4. We note that at the appeal hearing an attempt was made by the parties to reach a consensual resolution of the appeal. We encourage the parties to continue those efforts.

1. The appellant has been successful.
2. We have included in our orders a timetable for the filing of submissions on costs.
3. We propose to deal with costs on the papers and without a hearing: Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 at [85]. Any party opposing that approach must address that issue in their submissions.
4. Submissions are to be limited to five pages.

1. We were told at the appeal hearing that submissions had been directed and filed in the Tribunal proceedings.
2. Those costs should be pursued with the Tribunal.

(1) The appeal is allowed.

(2) The orders of the Consumer and Commercial Division of the Civil and Administrative Tribunal of 23 June 2025 in matter 2024/00127036 are set aside.

(3) The matter is remitted to the Consumer and Commercial Division of the Civil and Administrative Tribunal (differently constituted) for redetermination.

(4) If the appellants seek their costs of the appeal, they are to file and serve any submissions (and if necessary evidence) as to costs on or before 21 November 2025, 14 days from publication.

(5) The respondents may respond on or before 11 December 2025, 28 days from publication.

(6) The appellants may reply on or before 22 December 2025, 35 days from publication.

(7) The stay of the orders of the Tribunal of 23 June 2025 in proceedings 2025/00275632 ordered by the Appeal Panel on 30 July 2025 is lifted.

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.