Trindorfer v Civil Project Management Group Pty Ltd; Civil Project Management Group Pty Ltd v Trindorfer

Chapman v Taylor [2004] NSWCA 456

Collector of Customs v Pressure Tankers Pty Ltd and Commonwealth of Australia v Amann Aviation Pty Limited [1991] HCA 54; (1992) 174 CLR 64

Pozzolanic Enterprises Pty Ltd [1993] FCA 356; (1993) 43 FCR 280

Corcoran v Far [2019] NSWSC 1284

Day v SAS Trustee Corporation [2021] NSWCA 71

Donohoe v Albulario [2025] NSWSC 9

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26

Mann v Paterson Constructions Pty Ltd [2019] HCA 32

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231

Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940

Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17

Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

Rodger v De Gelder [2015] NSWCA 211

Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39

The Owners - Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27; (2017) 94 NSWLR 108

v Civil Project Management Group Pty Ltd (Respondent)

1. This is an appeal (2024/00423490) and cross-appeal (2024/00423504) from orders made in the Consumer and Commercial Division (CCD) of the NSW Civil and Administrative Tribunal (NCAT) which were delivered on 14 October 2024 in relation to a Home Building application (2023/00433919) and cross-application (2023/411005).
2. The appellant in 2024/00423490 (the Owner's appeal) is Jacob Trindorfer (the Owner). The respondent in that matter is Civil Project Management Group Pty Ltd (the Builder). The same parties appeared in 2024/00423504 (the Builder's cross-appeal), where the Builder was the appellant and the Owner was the respondent.
3. The dispute related to a building contract which the parties entered into on 12 March 2021 for the supply and construction of a shed on the Owner's land in Erowal Bay for a contract price of $87,400. The Tribunal at first instance found that the Owner was entitled to damages from the Builder for breach of the statutory warranties in relation to the construction of the slab for the shed. The Tribunal also found that the Builder was entitled to payment under the Contract up to the point of completion of the slab.
4. For the reasons set out below we have decided:

(1) In the Owner's appeal: The Owner has demonstrated that the Tribunal at first instance made an error on a question of law by applying the wrong legal principle in the assessment of damages. Accordingly, Orders 1 and 3 made by the Tribunal have been set aside and the matter has been remitted for reconsideration of the damages to be awarded to the Owner for the removal and replacement of the slab;

(2) In the Builder's cross-appeal: The Builder has not demonstrated an error on a question of law and the Builder's cross-appeal has been dismissed.

Proceedings in the Consumer and Commercial Division

1. In the Home Building application (the Owner's claim), the Owner sought damages in the sum of $87,400.00 for the cost of rectifying defective building works, or an order that the Builder return to the property to complete the building works and rectify any defects and costs.
2. In the cross-application (the Builder's claim), the Builder sought orders for the Owner to pay $85,945.00, interest and costs.
3. The essential facts as set out in the Tribunal's decision (the decision) were not disputed on appeal. Paragraph references in the outline below refer to the paragraphs of the decision.
4. The Owner and the Builder had been in discussions since about 11 October 2019 regarding quotes for the construction of a concrete slab and supply and installation of a shed on the Owner's property. The final quote on 1 March 2021 was $87,396 and the parties entered into an agreement to carry out the works for a price of $87,400.
5. Development Approval was granted by Shoalhaven City Council for the plans listed at [33] on 11 October 2021 and the certifier provided a notice of commencement of Building Works on that date. A construction certificate for the building works was issued on 5 November 2021.The building works commenced on that day.
6. The concrete finish of the slab was required to be smooth and level "so that the Owner could use video cameras on trolley systems." [35] The Project Manager, Gregory Martin, stated that the concrete floor would need to be a burnished finish to achieve the desired result.
7. On 8 November 2021 Mr Martin sent an invoice to the Owner in the amount of $4,695.00 being the cost of the burnished finish to the concrete floor.
8. The concrete slab was poured on 13 December 2021 but the Owner found that the finish had divots, bumps, an uneven surface and a wide uneven line that spanned approximately 13m from the eastern side to the western side of the slab.
9. On 14 December 2021 bolts were drilled into the slab and the Builder's accounts manager sent an email to the Owner noting that all invoices were now due and payable.
10. On 15 December 2021 the Owner met with Mr Martin on site and they discussed the inconsistencies in the concrete slab. Following that conversation, the Owner asked Mr Martin to leave the property, which he did.
11. On 16 December 2021, the Owner received a further invoice from the Builder for $3,120.00 for "lost work days" and works on site ceased on that date.
12. The Tribunal produced a table of invoices at [48] which was undisputed on appeal and became central to the oral submissions. It is annotated below where necessary to reflect the oral submissions in the appeal:

[$22,125 + $384.00 + $4,965.00 + $3,249 (see [140] totalling] $30,723

1. The Owner contended the slab was built 700mm higher at the northern elevation and about 600mm above the height of the approved plans at natural ground level.
2. The Builder responded that the slab height relevance to levels was approximate and described natural ground level at the southern boundary as a "reference point".

1. In the appeal, the Builder contended that the Tribunal had not given proper reasons for its decision. It is necessary to consider the Tribunal's findings in their context, and for that purpose the relevant findings are set out in full here:

110 The terms and conditions of the contract are ambiguous; caused by the builder's unsophisticated and scant regard to documenting the terms and conditions of the contract in a comprehensive form of contract regulating the clear obligations, rights and duties of the parties.

111 The accepted quotation dated 23 March 2021 specified provision for a roller door 3.8 metres high and 5.4 metres wide at the entrance of the shed. Such a wide and high entrance must have contemplated access by vehicles.

112 The Tribunal is satisfied that the owner stipulated that the slab height should allow vehicular access through the north elevation of the shed. This was known to the builder, critically when the plans were submitted to the local authority for approval. The owner's evidence is that on 10 May 2021 the owner included in an email to the builders project engineer, Mr Arbabzadeh, his requirements that the shed be capable of storage of a boat and caravan and large objects including sculptures.

113 The email exchange between Mr Arbabzadeh, the builders engineer, and the owner regarding the final approval of the plans in May 2021, demonstrated that it was the intention of the parties to finalise the plans of the shed to be approved and built after the date the owner accepted the quote on 23 March 2021. The approved plans were the plans of the shed to be built by the builder. Further the levels on the plans were to be verified before construction commenced, the owner was not consulted about any variation to the finished level of the slab from the plans, and the owner was charged a variation for the civil works required to compensate for the fall in the land.

114 The Statement of Environmental Effects ("SOEE"), dated May 2021 and revised June 2021, accompanying the development application, prepared by Mr Arbabzadeh, for the builder, stipulated:

Under the heading "Context, Design, and Bulk":

"" The proposed building is designed to serve its purposes as a personal photoshoot/filmmaking studio. The height and size of the building is essential to provide capacity of filming and shooting various personal projects including the followings (sic):

- filming stationary tall and wide objects such as boats, vans or trucks, and also handmade sculptures".

Under the heading "Vehicle and Pedestrian Access":

E_xisting driveway and garage which remain intact meets the council requirements. In case vehicle access to the proposed shed is required, it is to be accessed through the existing driveway"._

115 The expert opinion of Expert Moore is that it is not practically possible to obtain vehicular access to the shed due to the steepness of the transition slope required on the driveway over a distance of 6.2 metres to the street [Counsel for the Owner submitted that this was intended to mean "to the boundary"]

116 Clearly a slab height of between 600mm and 700mm at the roller door does not allow for vehicular access to the shed.

117 The final plans upon which the local authority issued its development approval on 11 October 2021 were:

(1) Drawing 100 dated 13 April 2021 with two additional revisions, finally on 25 June 2021;

(2) Drawing 200 dated 13 April 2021 with one additional revision on 27 April 2021;

(3) Drawing 300 dated 13 April 2021 with two additional revisions, finally on 25 June 2021; and

(4) Drawing 310 dated 14 April 2021 with one additional revision on 27 April 2021.

118 As the approved plans are the plans that the builder agreed to build, they will be the plans that have been created for the Contract. The plans, although each containing a notation "Levels included on the plan are approximate and shall be verified on the site before construction commences" are drawn to scale and Drawings 300 and 310 show the surface level and excavation approved [for] each elevation. Notably, the north elevation shows the level of the slab relative to the ground level. The as built slab is 600mm - 700mm above the adjoining ground level and with the proximity of the road it is not possible to access the shed with vehicles.

119 The Tribunal is satisfied that vehicular access to the shed was a requirement of the owner, the evidence of that requirement is contained in the email from the owner to Mr Arbabzadeh and his inclusion in the SOEE [of] the requirement for vehicle access.

120 The Tribunal is satisfied that the slab height significantly exceeds the slab height adduced from the approved plans. The Tribunal is satisfied the height of [the] slab surface level relative to the natural land surface level [for] the shed does not allow vehicle access to the shed.

121 The builder has breached the statutory warranty under section 18B(1)(a) of the HBA. The slab has not been completed in accordance with the plans and specifications as it does not allow vehicle access.

122 Rectification by reducing the slab height is not possible.

1. The email exchange to which the Tribunal refers in [112] is dated 5 and 10 May 2021. In response to a comment by an employee of the Builder that (AB 39):

We need to justify the height. Normally it is done by arguing that the shed is to be used for the storage of a boat and a caravan. It is not relevant in your case. I appreciate it if you can advise whether there is any technical consideration that help to justify the height. For instance installing lighting equipment, a green screen, or decoration would be a strong argument.

... The storage of a boat and caravan is entirely relevant for a number of reasons and examples that include:- rear projection including large stationary objects such as boat/caravan/truck/sculpture. - also if the house was to be sold one day the shed with the height planned would be suitable for people off the local area who would intend to buy as many people that choose to live in Erowal Bay do so for reasons of fishing/camping outdoor sports and these types of activities usually require the storage of supporting equipment including and not limited to Ocean Boats, Personal Watercraft, Caravans, Truck or Large Vehicle to tow the recreational equipment. - lighting systems and green screen systems require height to allow for subjects/actors to be filmed/photographed to achieve certain effects.

(1) the opinion of the Owner's expert's (Expert Moore's) that the cost of demolishing the slab and removal of the spoil was $22,739.96 was preferred;

(2) that cost should be borne by the Builder [123] - [124];

(3) the extent of the rectification required the removal of the slab and the appropriate order should be that the Builder pay to the Owner the assessed cost of the demolition and removal of the slab as assessed by Expert Moore in the amount of $22,739.96.

(1) The Builder's building claim was brought within three years of the cause of action arising and was less than $500,000 [17];

(2) it was common ground that the Contract was terminated on or about 13 December 2021 [133];

(3) the Owner repudiated the Contract on 15 December [sic:2021]. The Builder's representative was requested to leave the site. Although the Builder finished up on site on 16 December 2021, they did not return to and were prevented from returning to the site. The Builder then left the site and did not return after removing the shed kit which had been delivered to the site [137];

(4) the Owner had been invoiced up to 16 December 2021 for progress payments for work performed to that date [139];

(5) the Builder accepted the Owner's repudiation and termination of the Contract by not returning to the site to continue work after 16 December 2021 [138];

(6) the Builder was entitled to succeed in its claim for unpaid Contract progress payments for Stage 2 and the variations of $22,125.00 + 384.00 + $4,965.00 + $3,294 totalling $30,723 [140];

(7) the Builder was not entitled to recover the claim for stage 3 for the delivery of the shed. The shed was generic, despite the builder's claim that the shed was manufactured to the design. The Builder had not supported their claim with evidence of any attempts to mitigate their claimed loss and remained in possession of the shed kit [141];

(8) Stage 4 works had not been carried out and the Builder had not adduced evidence of the loss they had suffered as a result of not being able to deliver Stage 4. That claim failed.

(1) In the Owner's claim, the Builder was to pay the Owner the amount of $22,739.96.

(2) In the Builder's claim, the Owner was to pay the Builder $30,723.00

(3) The amount in Order 1 was to be deducted from Order 2 so that the balance payable to the Owner was $7,983.04.

1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. As the Appeal Panel observed in Unique Commercial Group Pty Ltd v Cusamano [2024] NSWCATAP 204 (16 October 2024) (Unique), referring to relevant authorities at [25] - [40], a question of law means a pure question of law. It is not a mixed question of fact and law, and it does not depend on facts not found.
3. Accordingly, appeal grounds based on a question of law, must be articulated with precision. The categories of questions of law are not closed but will include the application of the wrong principle of law, or a failure to accord natural justice (i.e., procedural unfairness) by not responding to substantial, clearly articulated arguments based on established facts, which alternatively, may also constitute a constructive failure to exercise jurisdiction.
4. In Unique at [27] - [28] the Appeal Panel made allowance for circumstances such as in the present case, where a question of law is not specifically articulated in the Notice of Appeal, but appears in substance:

"27. Where, however, there is a question of law in substance, a court (and, it follows, an Appeal Panel) has discretion (to be exercised judicially and in the interests of justice) to direct its formal notification in an amended notice of appeal: Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [60]. In appropriate circumstances, the Appeal Panel may elect to waive the requirement to formally lodge an amended notice of appeal, given its mandate to act "with as little formality as the circumstances of the case permit ... without regard to technicalities or legal forms": NCAT Act, s 38(4); Wollondilly at [19]. Where the party is not legally represented, a more generous approach is warranted: Kudrynski at [50]-[51]. This is an aspect of ensuring procedural fairness.

28. When dealing with self‑represented parties, the Appeal Panel has in many instances considered for itself whether a question of law is raised, applying [Prendergast] at [12]."

1. The considerations involved in delineating a question of law have been widely discussed; see particularly Kirby P in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (Azzopardi).
2. In Donohoe v Albulario [2025] NSWSC 9 (Donohoe) at [30] - [33], Basten AJ gives guidance in relation to establishing whether a question of law has been raised. We particularly note His Honour's view that:

30 In construing the phrase "question of law", statements of principles are less likely to be of assistance than close attention to the nature of the issue identified by the appellant and the statutory context in which the appeal arises. Reformulating the statutory criterion as referring to a "question of law alone", or as excluding "a mixed question of fact and law", may prove a distraction...

1. In the present case, it will be necessary to analyse whether the grounds of appeal in both the Owner's appeal and the Builder's cross-appeal raised a question of law in its particular context.

1. In the Tribunal, the Owner's claim and the Builder's claim were heard together and the submissions and evidence intertwined. On the appeal we have attempted to separate the submissions relevant to the appeal from the submissions relevant to the cross-appeal in an attempt to distil the issues relevant to each. This has been a necessary exercise primarily due to the fact that a party only has a right of appeal on a question of law, leave to appeal was not sought in the appeal or the cross-appeal and proceedings in the Appeal Panel are not an opportunity for a party to reargue its case.
2. The parties provided a Joint Hearing Bundle in three volumes (Appeal Books (AB)). At the Appeal Panel hearing, the Builder handed up further photocopied photographs and a copy of the Statement of Environmental Effects (SOEE) dated May/June 2021, without objection by the Owner.

1. In the Notice of Appeal, the Owner challenged all three orders made by the Tribunal at first instance. The Owner set out the following grounds of appeal:

1. The Tribunal erred in law in assessing the proper measure of the applicant's [the Owner's] damages in light of its finding that the respondent [the Builder] was in breach of the contract and the statutory warranties.

2. The Tribunal erred in law in finding that the respondent [the Builder] was entitled to be paid the sum of $30,723 for work which was found to be in breach of the contract, in breach of the statutory warranties and/or had not been performed.

1. The Owner did not seek leave to appeal.
2. In reply, the Builder contended that the Tribunal did not err in law in assessing the proper measure of the Owner's damages, but did err in law in its finding that the Builder had breached the contract between the Owner and the Builder. Further, the Tribunal erred in finding that the Builder was limited to the sum of $30,723 rather than finding the actual sum of compensation to which the Builder was entitled was the entire value of the 'shed' which could not be reused. The Builder contended that the Tribunal should have ordered the Owner to pay compensation of $87,400.00.

1. In the Notice of Appeal, the Builder also challenged all three orders made by the Tribunal at first instance. As grounds for the cross-appeal, the Builder set out:

1. The Senior Member erred in his findings [listed from a - i]

2. The Senior Member erred in not providing any or any adequate reasons to support his findings.

1. Appeal allowed (and Tribunal orders set aside)

2. Assessment of damages remitted to Tribunal to be reconsidered without further evidence in accordance with the AP's directions

OR

1. the Tribunal's orders be varied as follows:

(a) Builder to pay the Owner $87,400

(b) Builder's claim dismissed

(c) Builder to pay Owner's costs of the appeal and at first instance as agreed or assessed.

1. The Owner pay the sum of $85,945.00 plus interest and costs.

2. The Owner pay the cost of the appeal.

1. Directions were made on 27 November 2024 providing a timetable for the lodgement of documents. The Builder was given leave to lodge an amended Notice of Appeal by 4 December 2024. At the Appeal Panel hearing, Counsel for the Builder confirmed that they did not do so.
2. Order 3 of the Tribunal's orders was stayed by consent until the earlier of either a further order of the Tribunal or finalisation of the appeal.

Do the Owner's appeal grounds raise a question of law?

1. At the Appeal Panel hearing, Counsel for the Owner sought to frame the question of law as "whether the Tribunal applied the correct legal test in assessing the Owner's damages." This was stated to encompass both grounds 1 and 2 in the Notice of Appeal. There was no objection from the Builder to rephrasing the proposed question.
2. There is legal authority for "Whether a wrong principle of law has been applied" raising a question of law; Chapman v Taylor [2004] NSWCA 456 at [33] per Hodgson JA (Beazley and Tobias JJA agreeing).
3. We are satisfied that the Owner has raised a question of law and has a right of appeal under s 80(2) NCAT Act without requiring leave.

1. The Owner's written and oral submissions relevant to the Owner's appeal are summarised below.
2. The contract involved the construction of a shed. There were no plans included with the contract. The plans were produced by the Builder. The Tribunal had found that the construction of the slab was not in accordance with the plans. Taking the plans into account, the Tribunal found that the Builder had breached the statutory warranties. Failure to build according to the plans was a fundamental breach.
3. An award of damages was intended to bring a party back to the position in which they would have been, had the breach not occurred. The Tribunal had awarded the Owner damages to demolish the slab, but had stopped short at the second leg of the test in Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 (at 617 - 618) (Bellgrove) by failing to award damages for replacing the slab. As a result the breach had benefited the Builder by approximately $16,000 through the deposit of $8,700 paid on 26 February 2021 and the $7,983.04 difference between the money orders made in orders 1 and 2 of the reasons for judgement published on 14 October 2024.
4. The Owner did not dispute the Tribunal's findings on termination. The contract was at an end.
5. According to the approved plans (AB 55), the base of the roller door at the north elevation was to be at approximately natural ground level. The Tribunal at first instance had found that, instead, the slab was 700mm above natural ground level.
6. It was the Owner's case that, once the breach of the statutory warranties was established, the proper measure of the Owner's damages was the cost of removing and replacing the defective slab. That cost was quantified at the hearing by the Owner's building expert, Mr Moore, in his report dated 19 August 2022 in the sum of $84,095.94 (AB 591 at [599] and AB 597 at 2.1.8). The Builder had not provided any evidence to the Tribunal as to the cost of replacing the slab.
7. The Tribunal had applied the wrong test. The Tribunal had only awarded the amount required to demolish the slab and so had not assessed the damages such as to put the Owner in the position he would be in, but for the breach, by the time that the contract came to an end.

1. The Builder's case was that the Owner was seeking a sum which was equivalent to the total contract price. The Tribunal was not required to accept the costings of an expert.
2. The Tribunal did apply the correct test for assessing damages. As set out in [123] of the decision, the Tribunal had simply not awarded the amount sought by the Owner.
3. The Tribunal had not erred in its assessment of the Owner's damages, but had erred insofar as awarding damages at all (see the submissions in the Builder's cross-appeal).

Did the Tribunal apply the correct legal test in assessing damages?

1. The legal authority to the effect that damages are intended to restore the innocent party to the position they would be in but for the breach of contract is long established. As set out by Deane J in The Commonwealth of Australia v Amann Aviation Pty Limited [1991] HCA 54; (1992) 174 CLR 64 (Amann) regarding damages in contract at 116:

2. The general principle governing the assessment of compensatory damages in both contract and tort is that the plaintiff should receive the monetary sum which, so far as money can, represents fair and adequate compensation for the loss or injury sustained by reason of the defendant's wrongful conduct. The application of that general principle ordinarily involves a comparison, sometimes implicit, between a hypothetical and an actual state of affairs: what relevantly represents the position in which the plaintiff would have been if the wrongful act (i.e. the repudiation or breach of contract or the tort) had not occurred and what relevantly represents the position in which the plaintiff is or will be after the occurrence of the wrongful act ....

1. The facts in Bellgrove were similar to the present case; in a cross-claim to a builder's claim for payment, a homeowner claimed damages because the house which had been built was worthless due to specified breaches of the contract, including defective concrete leading to grave instability in the building. In that case, the High Court held (at 617 - 618):

In the present case, the respondent was entitled to have a building erected upon her land in accordance with the contract and the plans and specifications which formed part of it, and her damage is the loss which she has sustained by the failure of the appellant to perform his obligation to her. This loss cannot be measured by comparing the value of the building which has been erected with the value it would have borne if erected in accordance with the contract; her loss can, prima facie, be measured only by ascertaining the amount required to rectify the defects complained of and so give to her the equivalent of a building on her land which is substantially in accordance with the contract.

...

But the work necessary to remedy defects in a building and so produce conformity with the plans and specifications may, and frequently will, require the removal or demolition of some part of the structure. And it is obvious that the necessary remedial work may call for the removal or demolition of a more or less substantial part of the building. Indeed-and such was held to be the position in the present case-there may well be cases where the only practicable method of producing conformity with plans and specifications is by demolishing the whole of the building and erecting another in its place. In none of these cases is anything more done than that work which is required to achieve conformity and the cost of the work, whether it be necessary to replace only a small part, or a substantial part, or, indeed, the whole of the building is, subject to the qualification which we have already mentioned and to which we shall refer, together with any appropriate consequential damages, the extent of the building owner's loss.

The qualification, however, to which this rule is subject is that, not only must the work undertaken be necessary to produce conformity, but that also, it must be a reasonable course to adopt.

1. This principle was more recently summarised in Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27; (2017) 94 NSWLR 108 per Bathurst CJ (Beazley P and Gleeson JA agreeing at [186]):

The general principle on which damages are recoverable by a building owner for breach of a building contract is the cost of making the work or building conform to the contract, subject to the qualification that not only must the work be necessary to produce conformity, but it must also be a reasonable course to adopt: Bellgrove at 617-618; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 at [15].

1. The Builder contended that the Owner's argument would result in the Owner being awarded the entire contract price. As noted in Bellgrove, this is not a determinative factor. The question to be asked is "What was the cost of making the work conform to the contract?"
2. As the works were completed to the end of Stage 2, this would encompass the demolition of the slab, removal of the spoil and replacement of the slab.
3. At [123] - [125] the Tribunal found:

123 Expert Moore in his Building Costing Report of 19 August 2022 (Exhibit A4) opines that the cost of demolishing the slab and removal of the spoil is $18,949.97 plus margin of 20% totalling $22,739.96 based on Cordell Online Platinum Estimating program. Expert Cauduro in his report dated 4 July 2023 (Exhibit R2) opines that the cost of demolishing the slab and removal of spoil is $13,274.00 based on Rawlinson's Costing Guide. Expert Cauduro does not express an opinion on builder's margin.

124 The Tribunal is satisfied that the cost of removal of the slab should be borne by the builder. The Tribunal prefers Expert Moore's assessment of the cost of demolition and removal, despite Expert Cauduro's assessment. Expert Moore has explained his reliance on Cordell's in arriving at the cost and for completeness includes a builder's margin for carrying out the work.

125 The Tribunal has considered the preferred outcome under s48MA that the builder rectifies the defective slab. In the circumstances, the Tribunal is satisfied that the extent of the rectification requires the removal of the slab and the appropriate order should be the builder pay to the owner the assessed cost of the demolition and removal of the slab as assessed by Expert Moore in the amount of $22,739.96.

1. We have considered whether this is a case of the Tribunal applying the correct test incorrectly (in which case there might be an error of fact, but not an error on a question of law) or whether the Tribunal has simply not applied the correct test, which would disclose an error on a question of law. It is a fine line, but the paragraphs of the decision we have cited and the decision overall do not disclose that the Tribunal had applied the correct test in assessing damages in order to bring the Owner back to the same position he would be in but for the Builder's breach of the statutory warranties.
2. We are not satisfied that the Tribunal was applying the correct test in the assessment of damages in the current context. As a result, we are satisfied that the Tribunal applied an incorrect principle of law. In the Owner's appeal, the Owner has established that the Tribunal made an error on a question of law.

1. The Owner contended that the Builder was not entitled to be awarded:

(a) the Stage 2 payment of $22,125 for the delivery of a slab which failed to meet the requirements of the plans;

(b) the payment of $384 for a variation which was not delivered as the window could not be installed until Stage 3 or 4;

(c) any amount for variation 2 which related to excavation to meet the required levels (which was not done, on the Tribunal's finding) and for burnishing the slab, which was also not done to the requisite standard;

(d) any amount for variation 3.

Do the Owner's contentions demonstrate any relevant error?

1. The Owner has not stated any question of law on which the Tribunal was supposed to have erred in relation to its contentions regarding the amounts awarded to the Builder. These contentions amount to an attempt to restate the facts as found. At [140] the Tribunal concluded that the Builder was entitled to succeed in its claim for unpaid Contract progress payments up to the end of Stage 2 and the relevant variations for that stage totalling $30,723. The Owner has not demonstrated any error on a question of law in this regard.

1. In the event that the Owner's appeal was successful, the Owner submitted that the evidence of Expert Moore was that the cost of removing and replacing the concrete slab would be $84,095.94 and the Appeal Panel should make orders to that effect. The Builder submitted that if the Owner succeeded, the matter should be remitted on that point.
2. This appeal consisted of an appeal and cross-appeal listed to be heard in two hours. The substantive issues on the appeal were addressed in that time, however there was insufficient time for us to form any view or seek submissions regarding the reports and evidence which were before the Tribunal below outside the issues raised on appeal.
3. In assessing damages, more is required than merely to adopt the sum posited by a party's expert. Even if only one expert has expressed a view as to costings, the Tribunal (or the Appeal Panel, if conducting a new hearing under s 80(3)(a)) is required to assess the reliability of the expert's evidence and take submissions on the point. We did not have that opportunity at the appeal hearing.
4. In Amann (Per Mason CJ and Dawson J, p 83), the High Court set out what the Tribunal was required to do in circumstances where damages could not be readily ascertained:

... mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffman, Menzies J went so far as to say that the "assessment of damages... does sometimes, off necessity involve what is guesswork rather than estimation." Where precise evidence is not available, the court must do the best it can. Any uncertainty as to the profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages.

1. In those circumstances, we consider that the preferable approach is to remit the matter for reconsideration as to the damages to be awarded for removal and replacement of the concrete slab, with such further evidence as determined by the Tribunal.

1. The Builder contended that the approved plans (AB 55) did not specify precise heights and that landscaping, as shown in the plans attached to the construction certificate (AB 319), would prevent vehicle access from the street.
2. According to the SOEE:

5.7 Vehicle and Pedestrian Access

The specific objectives are to:

i. Encourage driveway design that minimises visual impact, stormwater runoff and retains established trees and vegetation.

ii. Encourage an approach to access design that considers the site and its elements holistically (e.g. landscaping).

iii. Provide adequate and safe vehicular and pedestrian access from the street to the site, development and parking spaces.

iv. Ensure the safety of pedestrians and bicycle riders in proximity to the driveway area.

...

Comments

Existing driveway and garage which remain intact meets the council requirements. In case vehicular access to the proposed shared is required, it is to be accessed through the existing driveway.

1. A photograph contained in the supplementary building inspection report by Mr. Moore dated 17 May 2023 contained a photograph of the slab at an angle which included the existing driveway in the photograph (AB 620). In that report Mr Moore set out (AB 605):

2.1.4 the shed slab height would prevent vehicular access to the interior due to there being inadequate frontage set back to allow acceptable transitions and slope to the driveway.

1. In the building report prepared for the Builder dated for July 2023, the Builder's expert, Mr Cauduro, opined:

in answer to item 2.1.4 of Mr Moore's report. The height of the shed is not required to have vehicular access. The architectural drawings provided highlight from the street frontage of Second Avenue, five bottlebrush trees are to be planted, preventing vehicle access from street level.

1. Before the Tribunal, the Builder had submitted (AB 904) that the issue as to vehicle access was misconceived. The requirement for vehicle access was not discussed prior to the formation of the contract. The Contract was formed on or about 12 March 2021, apart from some variations which did not relate to the provision of a driveway. The Owner had made submissions about an email exchange between him and the Builder but that discussion occurred after 12 March 2021 and did not determine the scope of work. There had been no discussion between the Owner and the Builder prior to the formation of the contract with respect to vehicle access.
2. The Builder contended that the requirement to justify the height of the shed was a compliance issue because it exceeded the building envelope and there was never any intention for the shed to have vehicular access. The purpose of the email discussion was to allow encroachment into the envelope which the Tribunal then incorrectly focused into requiring vehicular access.
3. The Builder claimed that the Tribunal also failed to take into account the unchallenged evidence from John Saunig, Managing Director of the Builder, in an affidavit dated 28 July 2023 (AB 214) that:

16 Before my workers were ordered off the site by Mr Trindorfer, we had completed the manufacture of the shed which he requested. The shed was custom made to fit the size of the slab and is not capable of being sold to any other customer. It is being stored in flat packs at our business premises.

1. The shed had also been described as "Custom" in the Building Details and Specifications (AB 33).

1. The Owner submitted that no error on a question of law had been shown by the Builder and the Builder was essentially disputing observations or findings of fact on the part of the Tribunal. The Owner further contested that the Builder should be entitled to any payment for the slab in light of the Tribunal's findings that the Builder had breached the statutory warranties. This submission has already been considered in relation to the Owner's further contentions.

Two preliminary issues in the Builder's cross-appeal

1. The Builder further contended in both the appeal and cross-appeal that the Owner had only ever paid a deposit in the amount of $8,700, which was repaid to him because the entire project was the subject of a grant.
2. We see no relevance in the fact that the Owner received a grant to build the shed. The deposit was paid and the source of the funds has no bearing on the proceedings.
3. We have placed no weight on this submission in our considerations.

1. The Builder contended that the Tribunal should have awarded to the Builder the full contract price of $85,945.00. No claim had been made for loss of profit and, at the Appeal Panel hearing, Counsel for the Builder acknowledged that Stage 4 was never reached. The parties also contested whether the shed had been delivered, or whether certain pieces of steel had arrived on site and then been removed by the Builder and the Tribunal had found that Stage 3 was also not completed. The contract had not progressed past Stage 2 and no claim had been made for loss of profits or for quantum meruit in relation to Stage 3.
2. In Mann v Paterson Constructions Pty Ltd [2019] HCA 32 at [110], [166], [170], [172] and [174], Nettle, Gordon and Edelman JJ summed up the position where certain stages of the Contract had been completed prior to termination of the Contract (footnotes omitted):

(ii) Entire obligations and divisible obligations

172 It follows from what has been said that, where, under a contract for work and labour, a party is entitled to payment upon completion of any part of the work (which is to say that the obligation to complete that work is "infinitely divisible"), where the contract expressly fixes a price for services, and where the contract is terminated by that party's acceptance of the other party's repudiation of it, the party so terminating the contract will have an accrued right to payment under the contract for that part of the work that has been done. There will have been no failure of consideration. Accordingly, that party's remedy in respect of that part of the work that has been done will generally be restricted to a claim for what has accrued due or damages for breach of contract assessed by reference to the contract price less the cost of completing the work**.**

...

174. By further contrast, if the obligation to perform work is divisible into several entire stages, then, upon termination of the contract for repudiation: (i) the contractor so terminating the contract will have accrued rights under the contract for those stages that have been completed; (ii) there will be a total failure of consideration in respect of the stages that have not been completed, because the contractor's right to complete the performance and earn the price will have failed and nothing will be due under the contract in respect of those uncompleted stages; and (iii) restitution will lie as upon a quantum meruit in respect of the work and labour done towards completion of the uncompleted stages as an alternative to damages for breach of contract.

1. As the Builder acknowledged at the hearing, it was not open to the Builder to claim for stage 4. No part of the installation and insulation of the shed had been commenced. The amount claimed by the Builder was reduced by the amount claimed for Stage 4 ($15,285).
2. At [141], the Tribunal found:

141. The Tribunal is not satisfied that the builder should recover the claim for Stage 3 for the delivery of the shed. The shed was generic, despite the builder's claim that the shed was manufactured to the design. The builder has not supported their claim with evidence of any attempts to mitigate their claimed loss. The builder remains in possession of the shed kit. The Tribunal is not satisfied that the builder is entitled to the amount claimed for Stage 3.

1. The Tribunal made findings of fact that payment was not recoverable for Stage 3 or Stage 4 as those stages were not complete. The Builder did not make a quantum meruit claim; instead they claimed to be entitled to the entire contract price plus variations.
2. The only payments found to be recoverable from the Owner were the deposit of $8,700 (already paid) Stage 2 and variations, totalling $30,723.

Do the Builder's appeal grounds raise a question of law?

1. The Builder did not seek leave to appeal and accordingly the grounds of appeal must raise a question of law in order for the Builder to have a right of appeal under s 80(2) NCAT Act.
2. In its Notice of Appeal, the Builder set out a list from 1(a) to 1(i) of errors that the Builder contended the Tribunal had committed in its findings (the Builder's first ground of appeal).
3. The second ground of appeal was stated to be that the Senior Member had erred in not providing any, or any adequate, reasons to support his findings.
4. At the Appeal Panel hearing, Counsel for the Builder reframed this ground of appeal as proposed questions of law (the Builder's second ground of appeal):

(1) Whether the Tribunal failed to take into account relevant evidence and

(2) Whether the Tribunal failed to give adequate reasons.

Does a purported failure to consider relevant evidence raise a question of law?

1. The weight to be given to particular evidence is largely a matter for the Tribunal to decide in its fact finding process. A failure to take into account a relevant consideration will generally only constitute an error on a question of law when those considerations are mandatory. A similar matter was considered by the NSW Court of Appeal in Rodger v De Gelder [2015] NSWCA 211 (Rodger) where the respondent was injured in a car accident and complained that a relevant body of evidence was not taken into account in assessing his degree of permanent impairment as 0%.
2. In that case at [84] - [87], Gleeson JA (Macfarlan and Leeming JJA agreeing) held that neither party had identified before the primary judge or on appeal any mandatory factor that the Panel was required by law to consider. To describe evidence as relevant to the case of one party is not to identify a relevant consideration for judicial review purposes.
3. In Rodgers, Gleeson JA went on to find (at [89]-[94]) that, where a decision-maker has failed to respond to a substantial argument it has been said that there has been a failure to accord natural justice. A failure to accord natural justice is a form of jurisdictional error:

95. It has also been said where the relevant facts have been clearly established and the reasons show the decision-maker acted on the wrong basis in important respects, the decision-maker has failed properly to exercise their jurisdiction: Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757; 282 ALR 24 at [102]- [103]. Jurisdictional error includes a constructive failure to exercise jurisdiction. A constructive failure to exercise jurisdiction arises when a decision-maker misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided, or misunderstands the nature of the opinion it is to form: Minister for Immigration v Yusuf at [41] (Gaudron J).

1. On this authority, a failure to take into account certain evidence, of itself, would not constitute a question of law in circumstances such as the present (where that evidence did not form a mandatory consideration). That is the distinction between the present circumstances and those in the Appeal Panel decision in Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 (Porter) as cited by the Builder.
2. However, the issue can be reframed as the Court of Appeal did in Rodgers to whether the Tribunal has failed to respond to a substantial argument and so failed to exercise jurisdiction by failing to accord procedural fairness.
3. In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 (Dranichnikov), Gummow and Callinan JJ (with whom Hayne J agreed) held that for an administrative decision-maker "[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts" was both a constructive failure to exercise jurisdiction and a failure to accord natural justice: at [23]-[25]. Kirby J similarly found a constructive failure in that case where the decision-maker's mistake "amounts to a basic misunderstanding of the case brought by an applicant": at [88].
4. It is not necessary for decision-makers to address every argument or every piece of evidence in delivering reasons; Corcoran v Far [2019] NSWSC 1284 at [64]. In a situation where the facts have changed, a decision-maker will not need to deal with submissions relating to the prior position; Allianz Australia Insurance Limited trading as Allianz v Susak [2025] NSWCA 91 (per Adamson JA, Payne and Stern JJA agreeing) at [73] - [76]. The failure to address an issue must be of sufficient significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of its power by reason of having failed to engage with an issue of importance to the matter being resolved; Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 at [25] - [27]

Does a failure to provide adequate reasons constitute a question of law?

1. Legal authority affirming this proposition is as set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 [13(1)]. More recently, the NSW Court of Appeal considered the Tribunal's obligation to give reasons in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr). Bell P (Ward JA agreeing) expressed the relevant principles to identify adequate reasoning on the part of a Tribunal in light of the requirements of s 62(3) of the NCAT Act and the existing case law at [77].
2. In Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 Wright J set out the general principles concerning the adequacy of reasons for decisions at [63].
3. In written submissions, the Builder addressed each of the subparagraphs of ground 1 in relation to the adequacy of reasons.
4. Accordingly we will consider whether the Builder's submissions disclose any error in the decision on two questions of law:

(1) whether the Tribunal has failed to respond to a substantial argument and so failed to exercise jurisdiction by failing to accord procedural fairness; and

(2) whether the Tribunal failed to provide adequate reasons for the findings described in ground 1.

1. The Owner disputed each item on the list in ground 1. For clarity, each sub-paragraph of the Builder's first ground of appeal is considered below with our findings as to whether the item raises a question of law.

1(a) [The Senior Member erred in his findings that] the terms and conditions of the contract were ambiguous and such ambiguity was caused by the Builder's unsophisticated and scant regard to documenting the terms and conditions of the contract in a comprehensive form of contract regulating the clear obligations, rights and duties of the parties (or at all) (paragraph 110)

1. An appeal is against orders not reasons and the question of law must be capable of affecting the orders the subject of the appeal; Unique at [25(11)] and the cases cited there. This criticism of the Tribunal's observations in [110] neither raises a question of law nor goes to the orders and does not raise a right of appeal under s 80(2) NCAT Act.

1(b) [The Senior Member erred in his findings that] the vehicular access to the shed was not practicably possible [115] and the slab height would prevent such access [116];

1(c) [The Senior Member erred in his findings that] the contract between the parties required vehicular access being included in the design and the construction of the shed and that access to the shed from the road was required [119]. The Tribunal failed to take any proper regard to the unsatisfactory evidence of the owner under cross examination on this issue (and in general)

...

1(e) The Senior Member erred in his findings that the rectification required demolition and removal of the slab with the builder to pay such costs [125]

...

1(f) [The Senior Member erred in his findings that] the owner's expert engineer's evidence should be preferred over the builder's. Specifically the Senior Member erred in stating that the [builder's engineer's] evidence must be given less weight than [the owner's engineer] because [the builder's engineer's] independence was impugned by his confirmation in cross examination that he had worked for the builder between 7 and 8 years in that time of up to 5 large projects. It was unreasonable for the Senior Member to find that a prior association alone discredited the applicants expert evidence (paragraph 128) [and the builder argued that the Tribunal] failed to give proper, or adequate, reasons for this conclusion.

The Senior Member failed to give adequate reasons or proper reasons as to why the overall height of the shed would encroach the' building envelope';

1(g) [The Senior Member erred in his findings that] the Builder was not entitled to an award for costs for the shed on the basis that the shed was generic in design and construction [141]

1(h) [The Senior Member erred in his findings that] the Builder was not entitled to the value of the shed because it had not demonstrated evidence of having mitigated its loss(or for any other reason) [141]. The Tribunal failed to give adequate weight to the Builder's evidence that the shed was custom made and could not be resold;

1(i) [The Senior Member erred in his findings that] the Builder was not entitled to claim under stage 4 because it had not adduced evidence of the loss it had suffered [142].

1. These points do not raise questions of law; they contest the facts as found by the Tribunal. They do not raise a right of appeal under s 80(2) NCAT Act. An appeal is not an opportunity for the party who was unsuccessful before the Tribunal to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

1(d) [The Senior Member erred in his findings that] the concrete slab had to be removed [124] because the slab and the shed combined would exceed the relevant height restrictions [120];

1. Reading the Tribunal's findings in context (see [19] and [58] above) this misstates the Tribunal's findings. The Tribunal found:

(1) the accepted quotation dated 23 March 2021 specified provision for a roller door 3.8 metres high and 5.4 metres wide at the entrance of the shed. Such a wide and high entrance must have contemplated access by vehicles and so the Tribunal was satisfied that the Owner had stipulated that the slab height should allow vehicular access through the north elevation of the shed [111] - [112]. A slab height of between 600 and 700mm at the roller door did not allow for vehicular access to the shed [116];

(2) the slab height significantly exceeded the slab height adduced from the approved plans and the height of the slab surface level relative to the natural land surface level did not allow vehicle access to the shed [120];

(3) accordingly the Builder had breached the statutory warranty under s18B(1)(a). The slab had not been completed in accordance with the plans and specifications as it did not allow vehicle access [121];

(4) rectification by reducing the slab height was not possible [122];

(5) the Tribunal preferred the Owner's expert's (Expert Moore's) opinion that the cost of demolishing the slab and removal of the spoil is $22,739.96;

(6) that cost should be borne by the Builder [123] - [124].

1. Ground 1(d) purports to argue with the facts as found and does not raise a question of law. It does not found a right of appeal under s 80(2) NCAT Act.

1. We do not consider that the Builder's contentions demonstrate that the Tribunal erred on either question of law in the Builder's cross-appeal.
2. It has long been held that the reasoning of tribunals and administrative decision-makers should not be 'construed minutely and finely with an eye keenly attuned to the perception of error". In Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 356; (1993) 43 FCR 280 (at [20] - [22]) (Pozzolanic) (Neaves, French and Cooper JJ considered what might and might not constitute a question of law in the setting of a decision of the Administrative Appeals Tribunal and commented on how to read a decision by such a body in that context (citations omitted):

20. The limitation of the jurisdiction to the resolution of questions of law imposes a significant constraint upon the role of the Court in reviewing decisions of the Tribunal. The appealable error of law must arise on the facts found by the Tribunal or must vitiate the findings made or must have led the Tribunal to omit to make a finding it was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law .... Where the decision of the Tribunal involves matters of fact and degree, then provided it applies correct principles of law, no appeal will lie ....

21. The limits within which the jurisdiction is conferred require that it be exercised with restraint. Only in exceptional circumstances should the decision of the Tribunal not be the final decision ...

22. This translates to a practical as well as principled restraint. The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts ... The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error ...

1. These sentiments were approved by the majority in the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30].
2. Recent legal authority supports a flexible, contextual approach to interpreting Tribunal reasons. The Owners - Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66 (Raysons), concerned an NCAT Appeal Panel decision in a similar context to the present, where Leeming J found that a seemingly contradictory finding in the Tribunal's decision at first instance should not be construed strictly at face value, and it should be read in the context of the surrounding reasoning (see particularly [122] - [139]). A finding which might be ambiguous or incongruous should not be held to its literal meaning where its context clearly demonstrates a different intention.
3. We have set out the Tribunal's detailed reasons in [19] and [58] above.
4. In their submissions, the Builder made much of brief observations made by the Tribunal at [110] that the contract was "unsophisticated' and its terms "ambiguous". This however is not a finding of fact or law relevant to the outcome of the case; it is a description of the evidence with which the Tribunal was presented which did not need to be justified by further reasons on that point.
5. It is important to read the Tribunal's observations and findings in their context. Just as the Federal Court warned in Pozzolanic, appealable error requires more than merely parsing and analysing the words of a decision "with an eye keenly attuned to the perception of error". In Orr, Bell P (Ward JA agreeing) set out (at [76] - [77])

76. What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context: Pozzolanic at 287.

77. These principles include the following:

(i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant);

(ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111;

(iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251;

(iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 356; (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291;

(v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shan Liang at 272 and 291.

1. In Day v SAS Trustee Corporation [2021] NSWCA 71 at [37] Meagher JA stated (with the agreement of Payne and White JJA):

"a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim: compare, in relation to failures to consider evidence, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69], [111]. It will be insufficient for the appellant to show that his 'three key issues' were not stated and determined discretely. What he must show is that they raised 'substantial' (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the appellant's claim ...

1. The Builder contends that the Tribunal "completely ignored" the available evidence and the Builder's submission regarding the failure to discuss vehicular access prior to the formation of the contract. This assertion is not made out on the face of the decision. From [110] - [124] the Tribunal considered the evidence in relation to the communications between the Owner and the Builder regarding the requirement of vehicular access. Whilst not specifically referring to the Builder's submissions on the point, the Tribunal found that the plans continued to be drafted after the Contract was signed. The Contract itself did not contain any plans and the plans described in [117] as the basis for development approval all postdated the formation of the contract. Accordingly the Tribunal was of the view that the intention for vehicular access could be and was required.
2. The Builder further criticised the Tribunal for not making findings on the Owner's credibility. However the Tribunal cited documentary evidence - not witness testimony - as the basis for its findings and the Builder has not made out how specifically addressing this issue would have made a difference to the outcome.
3. The Builder finds fault in the Tribunal's decision for failing to explain why the evidence of the Owner's expert was preferred to that of the Builder's expert. However this is set out plainly in [123] - [124]; the Owner's expert included builder's margin. The weight to be given to competing evidence is the province of the Tribunal at first instance. The Builder again complains that the Owner's Engineer's evidence was preferred to that of the Builder's Engineer. The Tribunal also gave reasons for that finding which the Builder has not given any grounds to disturb, apart from seeking to reargue the case.
4. Whilst the Tribunal did not refer to the landscaping on the boundary in considering that vehicular access was required, there was also evidence that vehicles would access the shed from the existing driveway. The Tribunal gave adequate reasons for finding that vehicular access was required and no error on either question of law is demonstrated.
5. The Builder referred to evidence in the affidavit of Mr Saunig as to the shed being custom built to fit the slab. The Builder argues that the Tribunal erred because he conflated the design plans with the size of the shed; any error on that point would be an error of fact. In any event, the crux of the Tribunal's finding in [141] is that the Tribunal was not satisfied that the Builder should recover the claim for Stage 3 for the delivery of the shed because they had not supported their claim with evidence of any attempts to mitigate their claimed loss. This claim also does not demonstrate an error on either question of law.
6. The Builder's cross-appeal is dismissed.

1. As we have found that the Tribunal made an error on a question of law in assessing the damages to be awarded to the Owner, order 3 will be set aside on publication of these reasons and the stay order will be extinguished.

1. We make the following orders on the basis of the reasoning set out above:

(1) The appeal in 2024/423490 is allowed in part, and the matter is remitted solely for reconsideration of the damages to be awarded to the Owner for removal and replacement of the concrete slab, with leave given to the parties to adduce such further evidence as the Tribunal thinks fit.

(2) The cross-appeal in 2024/423504 is dismissed.

(3) Orders 1 and 3 are set aside.

(4) Order 2 is stayed until further order of the Tribunal or finalisation of the remitted proceedings, whichever is the earlier in time.

(5) The parties are to file any written submissions in relation to costs within 14 days and are to reply to each other's submissions 7 days thereafter. Submissions are to include whether the parties consider that the issue of costs may be determined on the papers in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

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.