Tremaine v Gems Painting Pty Ltd; Gems Painting Pty Ltd V Tremaine

Cases Cited: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25
Bartel v Ryan [2018] NSWCATAP 231
Bellgrove v Eldridge (1954) 90 CLR 613; [1954] ALR 929; (1954) 28 ALJR 319
Bimson Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734
BKB Constructions Pty Ltd v Sawan [2022] NSWCATAP 103
Bryant v United Voice NSW Branch [2019] FCA 460
Clements v Murphy [2018] NSWCATAP 152
Collins v Urban [2014] NSAWCATAP 17
Cominos v Di Rico [2016] NSWCATAP 5
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; 104 ALR 1; 66 ALJR 123
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
DeMarco v Macey [2025] NSWCATAP 131
Dimitropoulos v Capital Constructions Pty Ltd [2018] NSWCATAP 100
Empre Construction Pty Ltd v Garg; Garg v Empre Construction Pty Ltd [2026] NSWCATAP 23 the
Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378
FZK v Secretary, Department of Communities and Justice (No 4) [2025] NSWCATAP 278
Gennacker Pty Ltd t/as Homestead Holiday Park v Hohnberg [2024] NSWCATAP 96
Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297
Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92
House v The King [1936] HCA 40; (1936) 55 CLR 499
Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158
Kensington Homes (NSW) Pty Ltd v McMullen [2026] NSWCATAP 139
Kudrynski v Orange City Council [2024] NSWCA 33
Leung v Alexakis [2018] NSWCATAP 11
Mashat v Build Property Pty Ltd [2026] NSWCATAP 148
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
Nathanson v Minister for Home Affairs [2022] HCA 26
Palm Homes Pty Ltd v Kav’s Constructions Pty Ltd [2015] NSWCATAP 113
Parkview Constructions Pty Ltd v The Owners – Strata Plan No 90018 [2023] NSWCA 66
Pickett v Savage [2024] NSWCATCD 19
Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69
Reeves v Icon Group Constructions Pty Ltd and Bazzi [2025] NSWCATCD 129
Robinson v Harman (1848) 1 Exch 850 at 855; 154 ER 363
Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39
SDL Project Solutions Pty Ltd v Kim; Kim v SDL Project Solutions Pty Ltd [2022] NSWCATCD 10
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
Sleiman t/as Perfect Kitchens v Dempsey [2020] NSWCATAP 26
SZTOG v Minister for Immigration & Border Protection [2018] FCA 112
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; 253 ALR 1
The Owners – Strata Plan No 21563 v Rutherford [2023] NSWCATAP 326
Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40
Wabbits Pty Ltd v Godfrey [2009] NSWSC 1299
ZNX v ZNY [2020] NSWCATAP 41

Texts Cited: Brooking on Building Contracts, 6th ed 2020, LexisNexis Australia
Halsbury’s Laws of Australia, LexisNexis Australia
Hudson on Building Contracts, 7th ed (1946)

Category: Principal judgment

Parties: Case Number 2026/00069989
Kidani Tremaine (Appellant)
Gems Painting Service Pty Ltd trading as Gems Venetian Plaster (Respondent)
Case Number 2026/00079717
Gems Painting Service Pty Ltd trading as Gems Venetian Plaster (Appellant)
Kidani Tremaine (Respondent)

Representation: Case Number 2026/00066987
Snelgroves (Appellant)
Z H Jaffari, director (Respondent)
Case Number 2026/00079717
Z H Jaffari, director (Appellant)
Snelgroves (Respondent)

File Number(s): 2026/00069989
2026/00079717

Publication restriction: None

REASONS FOR DECISION

1. These reasons relate to two appeals against a decision made by Senior Member Block on 28 January 2026 in proceedings brought by Mrs Termaine (the homeowner) against Gems Painting Service Pty Ltd trading as Gems Venetian Plaster (the contractor). The dispute determined by the Tribunal concerned the homeowner’s claim that the contractor had performed defective work when performing a contract to apply venetian plaster to the bathrooms at her home.

2. It is agreed that the contractor did not and does not hold a licence authorising it to do venetian plastering under the Home Building Act 1989 (NSW) (the HBA). As is explained below, this impacts on the contractor’s ability to claim damages or to enforce any other remedy in respect of a breach of the contract committed by the homeowner: see s 4 and s 10.

3. The Tribunal determined the homeowner’s claim by ordering the contractor to pay her $28,031 immediately. This was made up as follows:

1. net claim $18,647.76

2. expert costs $9,384.00

4. That order was accompanied by written reasons for decision (the decision).

5. On 17 February 2026, in Case Number 2026/00066987, the homeowner filed an appeal against the Tribunal’s orders. The focus of her appeal was the Tribunal’s rejection of her gross claim for completing the incomplete works and remedying defects of $25,520, and the deduction from it of $6,782.24 unpaid to the contractor under the contract between them, to arrive at the net figure allowed by the Tribunal of $18,647.76. The homeowner’s appeal was filed within the time stipulated by r 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules).

6. On 25 February 2026 in Case Number 2026/00079717,the contractor filed its appeal against the decision, which notice of appeal was also made in time. It sought to challenge the Tribunal’s determination given that the works were incomplete and said that the Tribunal failed to properly consider whether it should be allowed to complete the works under s 48MA of the HBA.

7. The appeal was heard by us on 29 June 2026.

Nature and scope of appeals

8. Section 80 (2) (b) of Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides:

80 Making of internal appeals

….

(2) Any internal appeal may be made—

….

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

9. Accordingly, the parties have a right of appeal on a question of law but otherwise require leave to appeal. Whether a question is one of law must be approached as a matter of substance: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [62(6)], [94], [203]; Kudrynski v Orange City Council [2024] NSWCA 33 at [50]. The question of law must be a pure question of law and must be articulated with precision, as it is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22]; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71]; Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158 at [24] and Gennacker Pty Ltd t/as Homestead Holiday Park v Hohnberg [2024] NSWCATAP 96 at [11].

10. When, as is the case with the contractor, an appellant is not legally represented, the grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]; Cominos v Di Rico [2016] NSWCATAP 5 at [13]. Here only the homeowner is legally represented.

11. Where the appealed decision is the exercise of a statutory discretion such as awarding costs under the NCAT Act, it is a decision upon which minds might reasonably and legitimately differ. There is no unique, correct outcome, and no outcome which is necessarily more correct than another. The exercise of a statutory discretion can only be overturned in limited circumstances: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505-506.

12. Those circumstances were summarised by the Court of Appeal in Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 at [14] by Beazley P, Emmett JA and Tobias AJA. The Court held that any attack on a discretionary decision must fail “unless it can be demonstrated that the decision maker:

(a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter**,** or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.

13. It is not an error of law for a decision maker to fail to take into account a relevant consideration unless it is bound to take that consideration into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. As Deane J said in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375, the decision-maker is not to be criticised for failing to consider everything which the affected party has chosen to include in an “exhaustive list of all the matters which the decision-maker might conceivably regard as relevant.”

14. Because the appeal is from a decision of the Consumer and Commercial Division, a grant of leave to appeal can only be made if the appellant satisfies the conditions in clause 12 (1) of Sch 4 of the NCAT Act.

15. Clause 12(1) of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because:

16. the decision of the Tribunal under appeal was not fair and equitable; or

17. the decision of the Tribunal under appeal was against the weight of evidence; or

18. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

19. Furthermore, as stated by the Appeal Panel in Collins v Urban [2014] NSAWCATAP 17 at [84](2):

Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

17. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]:

An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.

The decision being appealed

18. At par [1] to [9] of the decision the Tribunal set out the background facts which it considered gave it jurisdiction to hear the homeowner’s claim under the HBA. Included among them were the following facts:

19. That the parties entered into a contract (consisting of an invoice for $19,635) for the contractor undertake micro-cementing of two bathrooms: at [4].

20. That work had been commenced but was alleged to be incomplete or defective: at [5].

21. The homeowner had paid the contractor $12,762.76. $6,872.24 was outstanding from the contract price: at [6].

22. The decision noted that only the homeowner had provided an expert report: at [14].

23. The Tribunal found that the existence and terms of the contract was not in dispute, and that the warranties specified under s 18B of the HBA were implied into the contract: see [13] to [16]. Despite the fact that the contractor did not hold a contractor licence when undertaking the work, the Tribunal held that it was still bound by the warranties implied by s 18B: [18].

24. The Tribunal then wrote:

19. The Expert Report noted that the micro-cement had been applied “poorly” with a number of defects including (i) poor surface finishes, visible trowel marks, pinholes and rough unfinished walls (ii) poor detailing at door jambs and ceilings (iii) bowed walls (iv) inadequate falls and undulations to the floors (v) timber door jambs embedded in floor finish.

20. The author of the Expert Report, Mr Bruce Frizzell, gave evidence, and was cross-examined by the Respondent.

21. The Respondent sought to infer that Mr Frizzell was not sufficiently experienced (despite his substantial qualifications and experience) although stated a number of times that he agreed with Mr Frizzell’s conclusions 100%.

22. The Respondent sought to infer that Mr Frizzell was inexperienced in the area of micro-cementing, however stated repeatedly that he (the Respondent) was not a professional and had never implied that he was. He stated rather that he’s an artist, and alternately submitted that he was one of the few micro-cementers in Sydney and then later said there were hundreds that the Applicant could have used.

23. The Respondent suggested that the issues with the uneven floor and any other structural issues were not his fault, but also insisted they would have been rectified had he had the opportunity to apply the epoxy and finish the job.

24. The Respondent suggested that there were pre-existing issues with the floor that could not be rectified by the micro-cementing, but also never raised these with the Applicant prior to accepting the job. When further questioned, the Respondent did not state that there were any pre-existing issues with the floor, nor suggest that the Works could not have been done.

25. The Respondent in both his written and oral submissions alternately referred to the Works as50% completed, 90% completed and ‘completed but for a final touch-up’. There was a general lack of consistency in the Respondent’s evidence, which was delivered with something of an aggressive and argumentative tone, which further supported the Applicant’s claims of being fearful and intimidated.

26. …

27. The Respondent’s website promised ‘luxury’ and elevated elegance, and that their micro-cementing would turn their bathroom into a “luxurious oasis” and “transforms spaces into personalized works of art”.

28. When questioned about the defects, the Respondent sought to alternately pass them off as mere irregularities which occur naturally in the micro-cement, but then otherwise acknowledged that they were defects but would have been rectified by the final sealant.

29. The Expert Report has concluded that the Works were substantially defective and were not carried out with due care and skill and were therefore in breach of the Act. The Expert Report and Mr Frizzell’s evidence were compelling in this regard, and I found him to be a witness of credit.

30. The Respondent submits that the work was not sub-standard or defective, and that they were simply minor imperfections consistent with the nature of the plaster.

22. With respect to the competing arguments about the fate of the contract the Tribunal wrote:

31. The Respondent denied abandoning the Works but felt they were prevented from completing the job and alleged that the Applicant had failed to make timely progress payments, and only paid $12,762.76 of the total amount owing.

23. The Tribunal rejected the contractor’s request to be awarded the unpaid amount it would have received if the works were completed, namely $6.872.24, noting that the contractor had not made an application to recover that amount: see [32].

24. The Tribunal concluded that:

34. The evidence supporting the Applicant’s position is compelling, and the Respondent has not submitted any evidence to the contrary. Accordingly, I find that, on the balance of probabilities, the Respondent has breached their obligations pursuant to the Contract between the parties, and has breached the applicable warranties pursuant to s 18B of the Act, and is liable to compensate the Applicant accordingly.

35. As the Respondent was unlicensed, the Tribunal cannot order them to rectify the works, and given the state of the relationship and police involvement, it would not be appropriate to make such an order in any case.

25. With respect to the damages awarded the Tribunal said:

36. A quote for rectification was obtained from Venetian plaster Gallery in the amount of $25,520 and provided to the Tribunal.

37. The Applicant still technically owes $6,872.24 to the Respondent, depending on how much of the Works remain incomplete. It is the usual practice of this Tribunal to subtract that amount from the award, so that the Applicant is placed in the position she would have been in had the Respondent not breached their warranties.

38. The Respondent has submitted that the claim for $25,520 represents the real cost of putting the Applicant into the position she should have been in on a quantum meruit basis. However, on balance I find that the Works were incomplete, and whilst they were clearly defective in material ways, the final payment and remaining tasks were not afforded to the Respondent.

39. Accordingly, I am minded to grant the Applicant’s claim for $25,520 less the outstanding$6,872.24, for a total of $18,647.76.

40. The Applicant is further seeking reimbursement of expert consultant costs in the amounts of $2,520 (for today’s appearance as a witness) and $6,864 for production of the expert report, totalling $9,384. Given that the Applicant could not realistically and compellingly pursue her claim without obtaining the Expert Report, and the Respondent advised that he agreed 100% with the conclusions of the Expert Report, and did not submit any expert evidence of his own, I consider it appropriate to award this claim to the Applicant.

26. At [41] to [51] the Tribunal considered whether there were special circumstances meriting an award of costs under s 60 of the NCAT Act, on the basis of the amount awarded, but determined that there were no special circumstances justifying such an order being made. Relevantly. the Tribunal quoted s 60 and then said:

47. It was determined in OLL [2014] NSWCATGD 40 that the test of special circumstances requires circumstances which are out of the ordinary, but do not have to be extraordinary or exceptional for an award of costs to be made.

48. In Hopkins v Governor General of Australia [2013] NSWSC 1068 the term ‘frivolous and vexatious’ claim was summarised to include a claim which was hopeless, for which no evidence existed to support it, and was obviously untenable and manifestly groundless.

49. On balance, I do not find that any particular special circumstance has been established in these proceedings. The Respondent did not provide a compelling defence to the Applicant’s claims, but this does not mean his defence had no tenable basis in fact or law, or was otherwise manifestly groundless.

50. The Respondent was not legally represented, nor was English his first language, so I am loath to ascribe any intent to mislead or deceive in his conduct of these proceedings.

The homeowner’s grounds of appeal

27. We will deal with the homeowner’s appeal first as it was received first. The homeowner has three grounds of appeal.

28. That the Tribunal was wrong to conclude as a matter of law that the homeowner had a remaining liability to the contractor under the contract of $6,782.34 (ground 1).

29. That the Tribunal was wrong, as a matter of law, to reduce the costs of rectification awarded to the homeowner by the remaining liability to the contractor (ground 2).

30. That the Tribunal was wrong to not allow the homeowner to recover costs from the contractor (ground 3).

31. Grounds (1) and (2) are interrelated. We accept that they raise a question of law concerning whether, in assessing damages, the amount unpaid to a contractor under the contract should be deducted from the costs of completing and rectifying the works contracted for, when the contractor has breached the contract. In our view, that is a ground that (if established) raises the application of a wrong legal principle to the facts rather than a question of mixed fact and law (Bimson Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [32]-[48]).

32. Ground 3 concerns the exercise of a discretion to order costs. Any appeal on a question of law is therefore restricted to the grounds stated in House v The King. In submissions the homeowner, who had been granted leave to be legally represented, said the Tribunal failed to consider that by “not disputing” and “by accepting “the quantum of” the homeowner’s claim, the contractor put her to the costs of running her case, which constituted special circumstances. In the event that the Appeal Panel was not satisfied that this gave rise to a question of law, the homeowner sought leave to appeal but did not specify which ground she was relying on, in seeking leave, under cl 12 of Sch 4 of the NCAT Act.

Ground 1 - Did the Tribunal enforce the contractor’s claim against the homeowner?

30. In its decision the Tribunal found that the contractor had breached its “obligations” under the contract, including a breach of the statutory warranties implied into that contract, at [34], had left the work “incomplete” and “defective in material ways”, with the consequence that “the final payment and remaining tasks were not afforded to” the contractor, at [38]. As a consequence the matter was determined on the basis that the contractor had breached the contract which was no longer on foot.

31. We note from the transcript of evidence before the Tribunal that Mr Jaffari, for the contractor, confirmed, at Transcript 13.29, that, that “the job was not finished”, but later, in response to the Tribunal Members comments that he would not order the contractor to complete the work, because the contractor was unlicenced, Mr Jaffari said, at Transcript 16.34, “No, I never do want to”.

32. As a result of the incomplete and defective work found by the Tribunal, the damages payable by the contractor to the homeowner were assessed on the basis that the contractor had breached the contract and that it had not progressed further. In doing so, the Tribunal found.

33. The agreed contract price for the works was $19,635.00.

34. The homeowner had paid the contractor $12,762.76 towards that agreed price.

35. The amount unpaid under the contract was $6,872.24.

36. The cost of completing the works and remedying the defects (which the expert evidence indicated meant it had to be done again) was $25,520.00.

37. The Tribunal assessed the damages for breach of contract, at $18,647.76. In doing so, it allowed the full cost of completing the works and remedying the defects ($25,520.00) but deducted from it the $6,872.24 still unpaid under the contract, leaving $18,647.76 payable by the contractors to the homeowner as damages for breach of contract. The effect of this deduction was to place the homeowner in the same position as she would have been in had the contract been fully performed without defects: i.e., paying the originally agreed contract price of $19,635.00 for the completed works.

38. In submissions the homeowner correctly made the point that the Tribunal had not made any finding as to precisely what work was incomplete. It is clear from the decision, at [38], that the Tribunal found the works were both incomplete and defective and approached the assessment of damages on that basis. There is no submission addressing why the Tribunal was wrong to approach the task of assessing damages on that basis.

39. What the homeowner did rely on, because the contractor did not hold a licence as required by s 4 of the HBA, were the provisions of s 10(1) which provide:

(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) …

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.

36. The homeowner’s submission was that, because the contractor was unlicensed, by deducting the amount owing to it under the contract, from the cost of rectification, the Tribunal was awarding the contractor “damages” thereby enforcing the contractor’s right under the contract, when s 10 provides that the contract is unenforceable by the contractor. This submission is misconceived for a number of reasons.

37. First, what s 10 renders unenforceable by a contractor is “a breach of the contract committed by any other party to the contract”; i.e., the homeowner. Here, there was no claim or application suggesting the homeowner had breached the contract.

38. Secondly, s 10 prohibits an award of damages or the enforcement of any other remedy against the homeowner for such a breach. Here, there was nothing awarded to the contractor. A deduction was made from the damages awarded to the homeowner in accordance with what the Tribunal considered the correct method of assessing damages, so that the homeowner was placed in the same position she would have been in, had the contract been completed without difficulty.

39. Finally, s 10 provides that an unlicensed contractor “is liable for damages and subject to any other remedy in respect of a breach of the contract” committed by it. Here, the Tribunal had found the contractor had breached the contract and the implied warranties under s 18B of the HBA. It was therefore liable for any damages properly assessed at the suit of the homeowner. If the deduction complained of by the homeowner was properly made, when assessing the damages recoverable by her, that deduction was simply an application of the law of damages, and not the enforcement of the contract by the contractor.

40. Any inability of the contractor to recover unpaid monies under the contract by reason of s 10 of the HBA does not mean that the unpaid amount is disregarded when assessing damages to the homeower.

41. Ground 1 therefore fails.

Ground 2 – Were damages properly assessed?

42. The question that therefore arises is whether the deduction made by the Tribunal, from the total costs of rectification, was properly made? This we understand to be the nub of ground 2.

43. Brooking on Building Contracts*,* 6ed 2020, LexisNexis Australia, at 10.5 succinctly says:

The measure of the damages recoverable by the building owner for breach of a building contract is prima facie the difference between the contract price of the work and the cost of making the work conform to the contract.

44. Halsbury’s Laws of Australia, LexisNexis Australia, at [65-2085] puts it thus (references omitted):

The basic purpose of an award of damages is to restore an aggrieved party to the position which would have been obtained had the wrongful act not occurred. In the case of incomplete and defective building work, the usual remedy will be the cost of completing the building works in accordance with the building contract.

45. These principles are derived from a line of cases including Robinson v Harman (1848) 1 Exch 850 at 855; 154 ER 363 at 365; Bellgrove v Eldridge (1954) 90 CLR 613; [1954] ALR 929; (1954) 28 ALJR 319; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; 253 ALR 1; [2009] HCA 8; and Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; 104 ALR 1; 66 ALJR 123; per Deane J. In Bellgrove v Eldridge the High Court found that, subject to a qualification, the rule was correctly stated in Hudson on Building Contracts, 7th ed (1946), at p 343:

The measure of the damages recoverable by the building owner for the breach of a building contract is, it is submitted, the difference between the contract price of the work or building contracted for and the cost of making the work or building conform to the contract, with the addition, in most cases, of the amount of profits or earnings lost by the breach.

46. The qualification was that, at p 344:

… not only must the work undertaken be necessary to produce conformity, but that also, it must be a reasonable course to adopt.

47. In Wabbits Pty Limited v Godfrey [2009] NSWSC 1299, Ward J (as she then was) stated at [109]-[111]:

[109] In determining damages as required under Bellgrove v Eldridge, account must be made for any amount of the contract price which remains unpaid to the builder, irrespective of whether the builder would be able to recover that amount. In Woodward Pty Limited v Kelleher [1989] NSWCA 82, Gleeson CJ (with whom Samuels and Priestley JJA agreed), dealt with this subject at some length:

In Bellgrove the High Court cited with approval the following statement in Hudson on Building Contracts 7th Ed (1946) at 343: "The measure of the damages recoverable by the building owner for the breach of a building contract is, it is submitted, the difference between the contract price of the work or building contracted for and the cost of making the work or building conform to the contract, with the addition, in most cases, of the amount of profits or earnings lost by the breach."

The corollary of that proposition was stated in H Dakin and Company Limited v Lee [1916] 1 KB 566. In that case the matter was considered from the point of view of the builder, who had performed work which was defective, but not so defective as to produce the result that he could not recover anything for his services. He was held to be entitled to recover the unpaid balance of the contract price, less the cost of rectifying the defects.

In many cases, perhaps most, cases of a claim for damages for breach of a building contract made by a proprietor against a builder on the basis of defective work, there will be no doubt that the unpaid balance of any contract price is recoverable by the builder from the proprietor subject always, of course, to the possibility that it might be exceeded by the proprietor's claim for damages. Whether or not it is technically accurate to describe what is involved as a set-off, there is no conceptual difficulty involved in such a case in deducting the unpaid balance of the contract price from the cost of rectification and consequential damages. There may, however, be, for a number of possible reasons, cases in which the unpaid balance of the contract price could not be recovered in an action brought by the builder. For example, the contract may have been repudiated by the builder. The building work may be so radically defective as to disentitle the builder to sue. The building contract may, for one reason or another, be void. Or, as in the present case, the building contract may be unenforceable at the suit of the builder.

The ultimate object of the rule as to damages earlier quoted is simply to apply to the particular case of a building contract the general principle of measurement of damages for breach of contract established in Hadley v Baxendale (1854) 9 EX 341 which is that the injured party is entitled to be indemnified against any loss likely to arise in the usual course of things from the breach, and also such other loss as was in the contemplation of the parties at the time of the contract as the likely result of the breach of it. Where a builder contracts to construct a building of a certain kind and to a certain standard of workmanship, and fails to do so, prima facie the loss sustained by the proprietor is the difference between what it will cost him to have the promised work carried out by somebody else and the price he agreed to pay to have it done by the builder in question. If, for some reason or other, the builder could not have enforced the contract against the proprietor, that does not mean that the proprietor was entitled to have the building erected for nothing. (my emphasis)

48. In Sleiman t/as Perfect Kitchens v Dempsey [2020] NSWCATAP 26 the Appeal Panel explained, at [79]:

79 The owner sought compensation for breach of contract. The measurement of damages for breach of contract is the amount necessary to put the owner in the same position as if the contract had been performed. In circumstances where a home owner has not paid the full contract price, the assessment of damages for breach of contract - whether the cost of rectification of defects or consequential loss such as loss of rent by reason of undue delay - must take account of the extent to which the home owner has not paid the full contract price.

49. In BKB Constructions Pty Ltd v Sawan [2022] NSWCATAP 103 at [77] the Appeal Panel said:

77 However, in proceedings where a homeowner seeking damages for the rectification for defective work and the builder asserts that it is owed monies under the contract because the homeowner has not paid the full contract price for the works, the assessment of damages to the homeowner must take into account the amount the homeowner would be liable to pay the builder under the contract for the work performed. The reason for this is to ensure that the homeowner is put into the same position as if the contract had been performed; not a better position (Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 at [5]; Sleiman t/as Perfect Kitchens v Dempsey [2020] NSWCATAP 26 at [79]-[84]).

50. In Pickett v Savage [2024] NSWCATCD 19 Senior Member Sarginson, as he then was, explained, at [172] to [174]:

172 The increased cost of completing the work is the amount above what the applicants would have paid the respondent under the terms of the agreement to engage another builder or tradesperson to complete the work. Accordingly, the applicants can only obtain damages for incomplete work if they establish (a) they lawfully terminated the contract; and (b) the increased cost of performing the work over and above what they would have paid to the respondent had the contract not been breached.

173 The fact that the respondent may not have been able to recover payment for the works for breach of contract by reason of s 10 of the HB Act (but may have been able to recover monies on quantum meruit principles) does not change the fundamental principle that assessment of damages for breach of contract is based on there being a loss and for damages to be assessed on the basis of putting the party in the position it would have been had the breach not occurred not in a better or worse position (Sleiman t/as Perfect Kitchens v Dempsey [2020] NSWCATAP 26 at [79]-[84]).

174 The applicants are not entitled to damages by way of a refund of monies they have already paid the builder simply because the builder is unlicensed; or demanded an excessive deposit; or the work has not been completed. Work has been performed, and there is no legal basis in the circumstances of this matter to award a remedy that would be the equivalent of a right to rescind the contract and be awarded damages on the basis of principle of restitutio in integrum (Alati v Kruger (1955) 94 CLR 216 at 223-224; [1955] HCA 64).

51. Recently, in Kensington Homes (NSW) Pty Ltd v McMullen [2026] NSWCATAP 139 (Kensington Homes), where no deduction was made at first instance of the amount owning under the contract from the cost of rectification, the Appeal Panel concluded, at [42]:

42 We are satisfied that in determining the amount of damages for the cost of the rectification and completion of defective and incomplete works to which the McMullen family were entitled the Tribunal should have deducted the unpaid balance owing under the building contract. Without such a deduction that includes a credit for the cost of incomplete work under the building contract the McMullen family would receive a windfall of $45,216.86.

52. The Appeal Panel in Kensington Homes made reference to the decisions of Ward J (as her Honour then was) in Wabbits [101]-[103], [109]-[111] and of the Appeal Panel in DeMarco v Macey [2025] NSWCATAP 131 at [166], which were to similar effect. We have quoted from Wabbits previously in this decision.

53. The homeowner submitted that, because the works were sufficiently defective and incomplete they needed to be done again and that she had received “no value” for the works. However, that submission misconceives the measure of damages for breach of contract. The cost of rectification and completion was set out in the evidence of Mr Frizzell (which was accepted by the Tribunal) and the measure of damages is putting the homeowner in the position that the homeowner should have been had the contractor not breached the contract, not in a better position.

54. The homeowner in submissions noted that the Tribunal had given “the usual practice of the Tribunal” as his reason for deduction the amount owning under the contract from the cost of rectification. While we are of the view that the reasons could have been expressed more fulsomely, it is clear that that the conclusion the Tribunal reached was correct. Any error in reasoning was therefore not material: see Nathanson v Minister for Home Affairs [2022] HCA 26 at [33]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [31]-[41], [50]-[53]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45]-[50], [68]-[69].

55. Ground 2 therefore fails.

Ground 3 – Did the Tribunal fail to take into account a relevant consideration?

56. Ground 3 concerns the Tribunal’s finding that there were no special circumstances warranting a costs order under s 60 of the NCAT Act. The basis for this submission was that:

The Senior Member in her reasoning failed to consider the by the Respondent accepting the quantum of the applicants claim and failing to adduce evidence to the contrary the Appellant was put to the costs of preparing her case and running the Hearing (sic) on 28 January 2026 and the fact that legal representation was granted to the parties.

57. It should be noted that on 9 March 2026 leave was only granted for the homeowner to be represented: not for the contractor. In that respect the homeowner’s submissions is factually incorrect.

58. The decision to award costs due to special circumstances under s 60 of the NCAT Act is a discretionary one.

59. Section 60 of the NCAT Act relevantly provides:

(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following—

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

60. Any appeal is therefore restricted to House v The King type grounds. In this case we understand the main ground to be that the Tribunal failed to take into account or gave insufficient weight to the contractor not disputing the quantum of her claim.

61. We have set out the Tribunal’s reasons for refusing to make a costs order at par [23] above. They need to be read in the context of the decision as a whole.

62. On that basis, while the Tribunal did not specifically refer to the proposition that the contractor accepted the owners quantum, it specifically “did not find” that his defence had no tenable basis in fact or law or was groundless. The Senior Member did not ascribe to the contractor “any intent to mislead or deceive in his conduct of these proceedings” and noted that English was not Mr Jaffari’s first language.

63. This we note is obvious from the transcript where Mr Jaffari’s difficulties, both in communicating what he wanted to say and in understanding the nature and requirements of the proceedings, are apparent. In saying that, we note while he did not dispute quantum, he did dispute the qualifications of the homeowner’s expert to give evidence as to defects and quantum.

64. We are not persuaded that the contractor not obtaining an independent expert report results in any of the factors set out in s 60(2) applying. It is clear from the transcript that Mr Jaffari sought to rely on his own expertise as superior to that of the owner’s expert. The owner would have needed to obtain expert evidence to prove her case in any event.

65. The homeowner submitted that she needed legal representation due to her age. She did not address why the granting of leave to allow her to be legally constitutes special circumstances justifying the making of a costs order under s 60 of the NCAT Act. That she chose to be legally represented in proceedings to which she says s 60 applies is a matter for her.

66. We think it clear that the Tribunal had regard to the totality of the parties conduct of their cases when determining costs. We are not persuaded that there is any error apparent in the costs decision.

Ground 3 – Leave to appeal

67. The homeowner also sought leave to appeal the costs decision on the basis that she may have suffered a substantial miscarriage of justice because the costs decision was not fair and equitable and against the weight of evidence.

68. The homeowner’s submissions did not address how the decision is not fair and equitable, beyond asserting that special circumstances should have been found and a costs order made. We are not persuaded that the homeowner may have suffered a substantial miscarriage of justice because the costs decision was not fair and equitable.

69. With respect to whether the decision was against the weight of evidence, we have already found that the costs decision reached by the Tribunal took account of all relevant matters. Aside from the fact that the homeowner disagrees with the costs decision, we are not persuaded that the decision was against the weight of the evidence. It was a decision that was reasonably open to the Tribunal on the evidence. The Transcript of the Tribunal hearing provided with the homeowner’s appeal documents demonstrates that the hearing was conducted in an orthodox manner. No issue of principle or public importance arises.

70. The homeowner’s appeal did not address the potential operation of r 38(2)(b) of the NCAT Rules to the costs principles applied by the Tribunal in the decision under appeal (Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [43] and [57]). In oral argument at the appeal hearing, the homeowner’s legal representative confirmed that this appeal ground solely involved the exercise of discretion under s 60 NCAT Act in respect of the discretionary matters considered by the Tribunal on the issue of whether “special circumstances” were established under s 60(2)-(3) of the NCAT Act, so as to displace the principle under s 60(1) of the NCAT Act. Those principles are concisely summarised in FZK v Secretary, Department of Communities and Justice (No 4) [2025] NSWCATAP 278 at [31]-[41] and [52].

71. The interaction between r 38(2)(b) and the NCAT Rules and s 60 of the NCAT Act is not an issue that goes to the jurisdiction of the Tribunal to make a costs order such that it may be appropriate for the Appeal Panel to raise it with the parties of its own volition in the course of determining the appeal, when it had not been raised as a ground of appeal.

72. Generally, itis not the role of the Appeal Panel to create, of its own volition, a ground of appeal where none is advanced in substance (ZNX v ZNY [2020] NSWCATAP 41 at [29], citing Flick J in SZTOG v Minister for Immigration & Border Protection [2018] FCA 112 at [30]). On that issue, Bromwich J stated in Bryant v United Voice NSW Branch [2019] FCA 460 at [19]:

“[19] It is noteworthy that this ground makes no express allegation of a denial of procedural fairness. In the absence of such an allegation, or some other identification of the precise nature of the legal error asserted, it is difficult to understand the proper basis for appellate intervention. However, it is not necessary to delve further into what might have been pleaded by way of a viable ground of appeal, because of a failure by the appellant to identify precisely how the primary judge’s approach was wrong. As noted by Flick J in SZTOG v Minister for Immigration & Border Protection [2018] FCA 112 at [30], “judicial attempts to revise ill-drafted Grounds of Appeal run the very real risk of prejudicing the impartial administration of justice”. This is particularly so in circumstances where the appellant was legally represented on appeal.”

73. Leave to appeal is therefore refused.

The contractor’s grounds of appeal

74. The contractor specifies three errors made by the Tribunal.

75. “Misapplication of the Legal Test to Incomplete Works (Sequencing Error)”. As we understand it, the contractor says that because the works were incomplete, the Tribunal misapplied s 18B when it found the work defective and awarded rectification costs.

76. “Failure to Determine Prevention and the Right to Complete (Legal Error)”. We understand that the contractor says the Tribunal failed to determine whether he had a right to complete the contracted work.

77. “Failure to engage with s 48MA (Preferred Rectification)”. We understand this to be arguing that the Tribunal failed to properly apply s 48MA when finding that as it was unlicensed, at decision [35]:

“…the Tribunal cannot order them to rectify the works, and given the state of the relationship and police involvement, it would not be appropriate to make such an order in any case.

75. The contractor also seeks leave to appeal on the ground that he may have suffered a substantial miscarriage of justice because the decision was not fair and equitable.

Ground 1 – Did the Tribunal misapply s 18B of the HBA when awarding damage for defective but incomplete work.

76. Section 18B provides:

(1) The following warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract to do residential building work—

(a) a warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract,

(b) a warranty that all materials supplied by the holder or person will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new,

(c) a warranty that the work will be done in accordance with, and will comply with, this or any other law,

(d) a warranty that the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time,

(e) a warranty that, if the work consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling,

(f) a warranty that the work and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the person for whom the work is done expressly makes known to the holder of the contractor licence or person required to hold a contractor licence, or another person with express or apparent authority to enter into or vary contractual arrangements on behalf of the holder or person, the particular purpose for which the work is required or the result that the owner desires the work to achieve, so as to show that the owner relies on the holder’s or person’s skill and judgment.

(2) The statutory warranties implied by this section are not limited to a contract to do residential building work for an owner of land and are also implied in a contract under which a person (the principal contractor) who has contracted to do residential building work contracts with another person (a subcontractor to the principal contractor) for the subcontractor to do the work (or any part of the work) for the principal contractor.

77. Nothing in s 18B requires that the works be completed before an action can be taken to enforce compliance. Incomplete work requiring rectification can and often is the subject of a claim for damages to enforce a breach of contract based on a breach of the implied warranties under s 18B: Parkview Constructions Pty Ltd v The Owners – Strata Plan No 90018 [2023] NSWCA 66 at [24]-[32] per Lemming JA.

78. We have already noted that at the hearing below the contractor made it clear that it did not want to complete the works. “No, I never do want to” (Transcript 16.34). The Tribunal dealt with the matter in substance on the basis the contractor had breached the contract and left the works; and that the contractor did not want to complete the work and should not do so, as it was not licenced. Although the Tribunal did not make findings that the contract had ended either by way of abandonment, or repudiation by the contractor that was accepted by the homeowner, it is unnecessary to explore the distinction between the two concepts (see, for example, Dimitropoulos v Capital Constructions Pty Ltd [2018] NSWCATAP 100) or further explore the principles of assessment of damages for the cost of rectifying existing works that are defective and the cost of completing incomplete work (see, for example, SDL Project Solutions Pty Ltd v Kim; Kim v SDL Project Solutions Pty Ltd [2022] NSWCATCD 10 at [285]-[286]).

79. In this matter the only conclusion to be drawn from the Tribunal’s reasons is that the Tribunal found the contract had ended. The only independent expert evidence of the nature of defective and incomplete works was the homeowner’s expert, who gave evidence of the cost of rectification and completion.

80. In those circumstances the Tribunal correctly awarded damages for both the incomplete and the defective work. While there was some debate as to whether some items were defective or incomplete, the contractor’s liability was for both.

81. The contractor’s appeal ground 1 fails.

Ground 2 – Did the Tribunal fail to determine whether the contractor had a right to complete the work?

82. This ground of appeal does not reflect the position adopted by the contractor at the hearing below, where the contractor’s position was that it did not wish to return to the site, remedy any defects and complete the works. “No, I never do want to” (Transcript 16.34).” This position accorded with that of the homeowner’s.

83. The proposition which the contractor now seeks to argue on appeal is contrary to the position it adopted before the Tribunal hearing the matter.

84. The High Court observed in Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 at [9] that it is elementary that a party is bound by the conduct of their case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against them, to raise a new argument which, whether deliberately or by inadvertence, the party failed to put during the hearing when they had an opportunity to do so: see too Palm Homes Pty Ltd v Kav’s Constructions Pty Ltd [2015] NSWCATAP 113 at [27] and Bartel v Ryan [2018] NSWCATAP 231 at [25].

85. That elementary principle applies with respect to ground 2. Mr Jaffari told the Tribunal that the contractor did not want to complete the works. The contractor cannot now complain that the Tribunal should have found it had a right to complete the works when its representative’s position was that it did not want to do so.

86. The contractor’s appeal ground 2 fails.

Ground 3 – Did the Tribunal fail to properly apply s 48MA of the HBA?

87. Section 48MA provides:

A court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the responsible party) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome.

88. Section 48MA applies to defects in completed work, not work that has yet to be performed under the terms of the contract. However, in respect of incomplete work that is not a breach of statutory warranties under s 18B of the HBA, the Tribunal retains a discretion under s 48O of the HBA to determine the appropriate remedy (Clements v Murphy [2018] NSWCATAP 152 at [30]-[35]).

89. The effect of s 48MA is the Tribunal must ,when considering what order to make under s 48O, approach the question, which involves the exercise of a discretion, on the basis that an order that the responsible person rectify the work is the “preferred outcome”. It does not say that having the responsible person undertake the rectification is the only or necessary outcome, but “the preferred outcome”. In Mashat v Build Property Pty Ltd [2026] NSWCATAP 148 the Appeal Panel explained at [38] that:

It is well established that the requirement under s 48MA of the HB Act for the Tribunal to have regard to the “principle” that a work order is the “preferred outcome” creates a mandatory relevant consideration in exercising its discretion whether to make a money order under s 48O(1)(a) rather than a work order s 48O(1)(c)(i): Galdona v Peacock [2017] NSWCATAP 64 at [50], [65]; Leung v Alexakis [2018] NSWCATAP 11 (Leung) at [139]; John McDonald Building Services Pty Ltd v Gusa [2022] NSWCATAP 60 at [69]; Moody v M K Building Services Group Pty Ltd [2022] NSWCATAP 212 at [48]-[49]. Further, an owner who seeks a money order under s 48O(1)(a) does not have any evidentiary onus: Noori Homes Pty v Patel [2023] NSWCATAP 149 at [53].

90. Because the Tribunal exercises a discretion when deciding what order to make, having regard to the principle in s 48MA, any appeal at law against the exercise of the discretion is limited to House v The King grounds. In Empre Construction Pty Ltd v Garg; Garg v Empre Construction Pty Ltd [2026] NSWCATAP 23 the Appeal Panel explained at [31]:

Since an appeal is not an occasion to re-run the first instance hearing, the question requiring consideration is whether the exercise of the Tribunal member’s discretion regarding whether s48MA of the HBA would be implemented involved an error. The test as to whether the exercise of a discretion involved an error was set out as follows in the joint judgement of Dixon, Evatt, and McTiernan JJ in House v The King [1936] HCA 40; 55 CLR 499 at 504-505:

it is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed ... It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

91. Two difficulties confront the contractor when seeking to argue ground 3.

92. First, as with ground 2, the contractor took the opposite position with respect to whether it wished to complete the works when asked by the Tribunal. It cannot now resile from the position and seek to argue that it should be allowed to rectify the works, when it previously did not want to. For that reason alone this ground of appeal must fail.

93. Secondly, even if that were not the position, there was no relevant error made by the Tribunal in the exercise of its discretion not to make a rectification order. Its reasons for doing so are compelling. The fact that contractor was unlicenced was decisive. Section 4 of the HBA prohibits unlicenced persons form doing any residential building work or specialist work. The principle in s 48MA does not require the Tribunal to order that rectification work be done by a responsible person who is unlicenced person, but does allow the Tribunal to make an order that the responsible person retain a licenced person to do the work: see Leung v Alexakis [2018] NSWCATAP 11 at [111] to [188] and Reeves v Icon Group Constructions Pty Ltd and Bazzi [2025] NSWCATCD 129. Also considered relevant to the exercise of the discretion by the Tribunal was that the relationship between the parties had broken down to the extent that Police had been called.

94. There is nothing which persuades us that in exercising the discretion the Senior Member acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, made mistakes the facts, or failed to take into account some material consideration.

95. Ground 3 therefore fails.

Ground 4 – Leave to appeal

96. The basis on which the contractor seeks leave to appeal is, in effect, a repeat of grounds 2 and 3. The grounds are that the Tribunal’s decisions not to allow it to rectify incomplete works were not fair and equitable and may have caused the contractor to suffer a substantial miscarriage of justice.

97. This ground fails to acknowledge that the contractor’s position before the Tribunal was that it did not wish to go back to the site and complete the contract. Why the Tribunal’s decision not to make a rectification order was not fair and equitable in those circumstances is not explained. We do not agree that the contractor may have suffered a substantial miscarriage of justice as a result.

98. Further, we are not persuaded that there is any issue of principle or matter of public importance raised by this ground of appeal. The hearing was conducted in an orthodox manner, there is no factual error underlying the Tribunal’s reasoning, and no apparent injustice given the contractor took the position that it did not wish to rectify the works (whether defective or incomplete).

99. Leave to appeal is therefore refused.

100. Finally, it is appropriate to make an observation about the Tribunal awarding damages to the homeowner for the cost of obtaining an expert report as a head of damage due to breach of contract. The Appeal Panel in The Owners – Strata Plan No 21563 v Rutherford [2023] NSWCATAP 326 discussed the authorities dealing with the distinction between legal costs and disbursements as a claimed head of damages and an award of legal costs and disbursements under s 60 of the NCAT Act, in the context of a strata scheme dispute. The Tribunal’s reasons in this matter do not address those authorities.

101. However, further comment is unnecessary, because this issue was not raised as a ground of appeal by the contractor. While we acknowledge the contractor is a self-represented party, the duty to assist self-represented persons does not extend to advising them of what legal rights they may have and how they should be exercised. It is confined to matters of practice and procedure and the clear identification and elucidation of contentions made by the unrepresented person in order to ensure a fair hearing: Chalik v Chalik [2025] NSWCA 136 at [67]-[72]; McNeill v Clarence Valley Council [2025] NSWCATAP 184 at [185]-[188]). In our view, that duty does not extend to identifying new or different potential grounds of appeal, beyond the scope of what are, in substance, the grounds of appeal that have already been raised by the unrepresented person. It is appropriate for us to focus upon the appeal grounds that have been raised by the contractor, rather than opine on what might have been raised.

Conclusion

102. The homeowner has failed to establish any error on a question of law, or grounds for leave to appeal. The contractor’s grounds do not raise any error on a question of law, and require leave to appeal. The contractor has failed to establish leave to appeal should be granted. Accordingly, both appeals are dismissed.

Costs of the Appeals

103. Both parties were directed at the Appeal Call Over to include any submissions they wished to make on the issue of costs in writing in their submissions on the appeals.

104. Only the homeowner sought her costs.

105. The homeowner submitted that s 60(1)-(4) of the NCAT Act applies to the issue of determination of appeal costs as distinct from r 38(2)(b) of the NCAT Rules: see 38A of the NCAT Rules. Section 60 is reproduced at par [53] above. No submission was made by the contractor.

106. Given the outcome of both appeals we are unable to see any special circumstance which would justify us departing from the rule that each party is to bear their own costs under s 60(1) of the NCAT Act. Both parties failed in their appeals.

107. We will not make a costs order at this time. If any party is the view that we should do so, they must make an application for costs to be lodged and served within 14 days of publication of these reasons. Any such application should be referred to us for further directions.

Orders

108. The Appeal Panel makes the following orders:

Case Number 2026/00066987

1. Leave to appeal refused.
2. Appeal dismissed.
3. If any party wishes to seek costs of the appealthey must lodge and serve an application seeking costs within 14 days of publication of these reasons.

Case Number 2026/00079717

(1) Leave to appeal refused.

(2) Appeal dismissed.

(3) If any party wishes to seek costs of the appeal they must lodge and serve an application seeking costs within 14 days of publication of these reasons.

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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.

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