Wilkinson v Bostock

Documents Filed on 27 June 2022 That Do Not Form Part of the Evidence

1. On 27 June 2022, the applicant filed with the Tribunal 179 pages of documents, with an index.
2. However, those documents were not included in the Court Book, which the Tribunal had previously directed contain all of the documents the parties sought to rely upon as evidence of at the hearing.
3. No application was made at the hearing to tender any of those documents. Accordingly, they do not form part of the evidence.
4. Notably, some of the documents contain more detailed information from the applicant as to the events that allegedly occurred. There is a witness statement of the applicant (that the applicant drafted) dated 19 June 2022. There is also a witness statement of the applicant dated 26 May 2022 that was obtained by NSW Fair Trading.
5. No detailed expert report compliant with Practice Note 3-Expert Witness Code of Conduct setting out the allegedly defective and incomplete work was contained in the documents filed on 27 June 2022.
6. There are also a limited number of photographs of the property.
7. Those documents provide more detail to the applicant's allegations that the affidavit dated 8 August 2022 and the annexures to that affidavit.
8. However, in the absence of them being tendered as evidence, they cannot be taken into account. In that regard, the Tribunal notes that the procedural direction of Boyce SM dated 15 December 2022 relevantly stated as follows: 3. Not less than seven (7) days before the commencement of the final hearing parties shall file: A. an agreed Statement of Facts; B. an agreed Statement of Issues; C. their respective opening submissions; D. an agreed bundle of documents, comprising a folder or folders containing all documents filed by all parties with numbered pages and a table of contents. If parties cannot agree on a bundle, each party is to hand up a folder containing all documents filed by or for that party, with numbered pages and a table of contents. *Parties will not be permitted to present any evidence in chief, whether spoken or written, at the hearing of their case unless that evidence has already been provided to the Tribunal and other party/ies (sic) in accordance with the Practice Directions. The granting of leave may also subject the applicant for leave to pay costs other party inconvenienced by the departure from the timetable.

THE CLAIM

1. The applicant's Points of Claim seek the following orders: 1. A full refund of monies paid by the applicant to the respondent ($26,850). No cause of action is identified. 2. A reimbursement of monies paid by the applicant to rectify allegedly defective work ($26,717.34). 3. Damages for loss of rental income ($12,000). 4. Damages for the cost of rectifying "illegal (sic) plumbing works retile the back verandah" ($13,990). 5. Damages for the cost of accommodation for the applicant's tenants for a two week period "for rectification works to be undertaken by Lancaster Homes" ($2,310).
2. The applicant's Points of Claim, despite being drafted by a Solicitor, do not refer to any legal causes of action.
3. The only provisions of the HB Act referred to are in respect of the respondent not "providing a contract for his works" (with no reference to the provisions of s 7 of the HB Act); and not taking out insurance (with a reference to s 99 (sic) of the HB Act). Section 99 of the HB Act identifies the requirements of a home warranty insurance contract; but it is s 92 of the HB Act that stipulates that a builder must not perform residential building work; or demand payment for residential building work if no home warranty insurance has been taken out.
4. By reason of the operation of s 7 (1A) of the HB Act and Reg. 5 of the Home Building Regulation 2014 (NSW) (HB Regulation) the "prescribed amount" for which home warranty insurance must be take out is $20,000, and s 92 of the HB Act contains a monetary penalty provision if a builder performs residential building work (or demands money for residential building work) in circumstances where home warranty insurance was required, and was not taken out.
5. Failure of a builder to provide a written contract in a form compliant with s 7 of the HB Act is a penalty provision and, by reason of s 10 of the HB Act, prevents the builder from obtaining contractual damages (subject to the debate about the scope of s 10 of the HB Act by the Appeal Panel in Vujica v TNM Roofing Pty Ltd [2022] NSWCATAP 305 and Dyjecinska v Step-Up Renovations (NSW) Pty Ltd; Step-Up Renovations (NSW) Pty Ltd v Dyjecinska [2023] NSWCATAP 36 which is irrelevant to these proceedings as there is no cross application by the respondent). However, failure to comply with s 7 of the HB Act is not a cause of action which enables an homeowner to obtain damages against a builder.
6. Failure to take out home warranty insurance is a penalty provision (s 92 HB Act). However, it also does not provide a cause of action to a homeowner against a builder. Failure to comply with that provision is relevant to the legal principles applicable to a builder seeking to recover damages for the reasonable value of work performed under quantum meruit. It is unnecessary to explore quantum meruit principles in the circumstances of this matter as there is no cross claim by the respondent raising that issue.
7. The substance of the allegations contained in the Points of Claim appear to raise a claim for breach of statutory warranties under s 18B of the HB Act. Breach of statutory warranties under s 18B of the HB Act may also encompass claims for consequential loss, such as loss of rental income whilst rectification work is being performed.
8. It is surprising that a legally represented party has not clearly set out the legal causes of action relied upon in Points of Claim. The Tribunal is not a court of strict pleading, and, to some extent, defects in pleadings (which is what, in substance, Points of Claim are in the context of a HB Act claim where a substantial amount of money is at issue) can be overlooked by reason of s 38 (4) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Further, if a matter is not pleaded yet both parties run their case in a manner that makes clear that both parties are engaging with the particular matter or legal issue, the Tribunal must consider it, subject to procedural fairness issues (Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at [6]).
9. However, those principles do not extend to the Tribunal entering the arena and 'running the case' for a legally represented party because to do so would constitute a denial of procedural fairness to the other party.
10. It is also surprising that the Points of Claim do not articulate a cause of action in respect of the applicant seeking to recover monies allegedly paid to the respondent (which, according to the applicant, exceed $25,000). The Points of Claim do not set out, for example, that the applicant is claiming on a contractual basis in respect of monies paid in advance for work that was never performed; or that monies were paid under a mistake of fact or law.
11. The Points of Defence filed and served by the respondent assert that: 1. The agreement to perform work was for a total value of less than $5,000 and the provisions of the HB Act do not apply. 2. The evidence of the applicant fails to establish what the terms of the agreement between the parties involved (i.e. the scope of works); or the amount of money paid; or that any of the work performed was defective or incomplete. 3. As discussed previously, the respondent asserts that the respondent performed "odd jobs" for the applicant on a "do and charge" basis with the total amount of monies received being $4,000.

Applicant

1. The applicant's documentary evidence was an affidavit by her dated 8 August 2022 and a bundle of documents annexed to the affidavit.
2. The affidavit is, in substance, an affidavit in reply as it refers to the affidavit of Mr Bostock dated 25 July 2022. However, rules of evidence do not strictly apply in the Tribunal in this type of proceeding (s 38 (3) of the NCAT Act), subject to principles of procedural fairness and the applicability of common law principles of evidence. Nothing turns on the affidavit "replying" to documentary evidence of the respondent.
3. The applicant states that she first met the respondent when he arrived at her premises in late 2021. She was speaking with her tenant (Mr Cox) and her painter (Mr Grentell) when Mr Dunn arrived with the respondent. According to the applicant, Mr Dunn was her "kitchen joiner."
4. The applicant states that the respondent walked around the property "looking for jobs which needed to be completed;" and made "suggestions." The applicant states that she cannot recall asking the respondent to provide a written quote, but "may have."
5. The applicant states that she asked the respondent to provide a written quote "on several occasions" between December 2021 and February 2022 but he did not do so. Her affidavit contains little detail of when such conversations occurred, and what was said.
6. The applicant states that the respondent told her that he purchased items for the bathroom renovation, which included "toilet, tiles, cement bags, laundry sink." The applicant stated that she requested invoices for materials purchased, but despite her "repeated requests" the respondent did not provide her with invoices.
7. The applicant states that the respondent "knew exactly what I wanted" in respect of the bathroom renovation. However, she does not set out what the substance of what she said to the respondent; what he said to her; or what was she asserts was the agreed scope of works beyond making reference to the bathroom being "upgraded to ensure it was suitable for disabled access."
8. The applicant states that she had "engaged" Mr Dunn to "provide me with an updated kitchen which would allow for better disability access due to my MS" and she does not agree with the respondent's assertion that she did not know what works she wanted performed by the respondent.
9. The applicant asserts that she engaged the respondent "to complete the renovation to my bathroom."
10. The applicant denies that she engaged the respondent only to perform "odd jobs." However, at paragraph [8] of her affidavit, she states that the respondent did perform "odd jobs" that the respondent referred to at paragraphs (a) to (f) of his affidavit, but "mostly they were so poorly done or not completed that I was required to employ other trades to fix his work".
11. The applicant states that the respondent "demanded" money from her "on the dates referred to" and that she paid him money in cash, but he did not complete the bathroom renovation. The applicant then sets out a table in her affidavit setting out the monies she alleges she paid and the dates the payments were made.
12. The applicant states the respondent never requested she provide a plan for the works and that the respondent was "only ever engaged to renovate my bathroom so that it was disability friendly."
13. According to the applicant, she requested the respondent perform brickwork "after" he removed the air-conditioner in the living room area. She denies that she asked him to remove the air-conditioner and asserts he did this work at his own volition. The applicant states that after the air-conditioner was removed, the respondent installed gyprock in the wall, but there was "a gaping hole in the brickwork on the outside of the house." The applicant states she requested the respondent repair this damage. According to the applicant, the respondent "insisted" she help him carry "2 heavy gyprock sheets" and she did so.
14. The applicant asserts that the respondent engaged Mr Webb to perform plumbing works at the property, and she had no knowledge of Mr Webb or discussions regarding such works until Mr Webb attended the property. The respondent then "demanded" $1,850 for him to pay Mr Webb.
15. Importantly, not only does the applicant not clearly set out what was the works she contracted with the respondent to perform within the broad terminology "bathroom renovation;" she does not set out exactly what work the respondent performed prior to her terminating the agreement on 15 February 2022. It is entirely unclear why this was not set out in evidence. The applicant was clearly present at the premises on a number of occasions and had the ability to clearly state exactly what the respondent did.
16. For example, if the respondent stripped out the tiles and fixtures in the bathroom, there is no reason the applicant could not set this out in her evidence. If the respondent did no work beyond the work identified (which involves a small amount of work) but demanded large amounts of monies from the applicant for work that was never performed and for which she had paid in advance, that should be clearly set out in the applicant's affidavit.
17. The only matters specifically referred to by the applicant are the respondent purchasing "toilet, tiles, cement bags and laundry sink;" removing the air-conditioner and doing associated work to repair gyprock; and engaging Mr Webb to perform plumbing work. However, in respect of the plumbing work, the applicant does not identify exactly what work Mr Webb performed, or any discussions with the respondent regarding what work he was engaging Mr Webb to perform at the premises.
18. The respondent attached 3 text messages she asserts she received from the respondent. She asserts in her affidavit that one message was sent on 15 February 2022 and two messages sent on 16 February 2022.
19. However, at annexure C of her affidavit, there are 3 photographs of a telephone.
20. The first 2 photographs appear to show a text message from 16 February 2022. Presumably, the photographs are of the applicant's telephone. The first message is from 16 February 2022. It has a heading (presumably on the basis of the name entered by the applicant into her telephone contacts "Peter Bostock bathroom." The message states as follows: Good day Marie just checking to see what you (sic) thinking today you have the plumbers bill materials & labour to fit shower and all the water pipes & to connect the Laundry sink pipe work around $1000 & $800 for your kitchen slash back tiles & laundry tiles that you wanted.
21. The second message is undated and does not have any heading. It states as follows: Did you a favour pick up gear & buckets even left over rubbish good luck selling house unfinished give key back when fix up your plumbers & tile bill.
22. The applicant refers to paragraph [17] of the respondent's affidavit, and states that she "did attend a property at (the respondent's) request in Wilks Avenue" when the respondent took her there to show her the bathroom tiles that had been installed. According to the applicant, the respondent told her the property was his home and he had installed the bathroom tiles.
23. The applicant makes reference to feeling "harassed;" "threatened" and "bullied" by the applicant. However, she provides little detail of what the respondent did or said to her to cause her to feel "bullied," "harassed" or "threatened." The applicant refers to she and the respondent being present on the property on 15 February 2022.
24. The applicant asserts that the respondent spoke "in a demeaning and abusive manner" and "demanded I send other tradespeople out of the house saying words to the effect "get rid of them." The applicant states "Steve Dunn and other tradesman (sic) were present at my home that day."
25. Importantly, 15 February 2022 is the date the applicant asserts in the Points of Claim that she terminated the agreement with the respondent to renovate the bathroom. However, her witness statement provides scant information as to what occurred on that day; and the reasons why she terminated the agreement by telling the respondent that he could not further attend the property.
26. The applicant's affidavit contains a number of annexures in addition to the text messages previously referred to. They are summarised as follows:

Letter of Mr Grentfell dated 20 May 2022

1. There are various assertions in this letter about the good character of the applicant and that she suffers from Multiple Sclerosis. However, what is important is the reference to factual events.
2. Mr Grentfell states that he knew the applicant as he and his brother painted another property owned by the applicant in 2021 that had been "damaged by a tenant".
3. According to Mr Grentfell, the applicant asked him to provide a painting quotation. He attended the property. He does not identify the date, but presumably this is the date in November 2021 referred to by the applicant.
4. He states that he was at the rear of the property with the applicant. Mr Cox, the tenant, was also in attendance. Mr Stephen Dunn and the respondent attended "to look at the kitchen and bathroom works."
5. The group "moved inside to see what Marie wanted." According to Mr Grentfell: It was discussed that the bathroom would be done first taking 3 weeks. After the bathroom was finished, I could start paining the bedrooms, hall way and the bathroom while the kitchen was being refurbished. The exterior of the property could be started immediately.
6. The statement of Mr Grentfell does not identify who spoke or what scope of works the applicant and the respondent had purportedly agreed to.
7. Mr Grentfell states that on 17 January 2022 he was "driving past the property" and saw the applicant's car there. He called into the property to discuss when he could start painting work. Mr Grentfell states that the applicant was in an "extremely distressed state" and told her that the respondent had demanded $13,000 in cash over the previous month. Work had not commenced on the bathroom. There were "goods like tiles, toilet, laundry tub, grout, cement etc scattered throughout the house." According to Mr Grentfell, the applicant told him the respondent would "turn up" with "goods" and "demand she pay for them." Mr Grentfell asserts the applicant told him that she "was never able to choose things herself" and "wasn't getting invoices."
8. According to Mr Grentfell, he went outside the house and telephoned another builder, Mr Heffernan, and asked him to come to the property and speak to the applicant. Mr Grentfell asserts the applicant was concerned about getting her money back from the respondent.
9. Mr Grentfell states that when the respondent found out that he had arranged for another builder to attend the site and speak to the applicant, he was "furious" with Mr Grentfell and "ordered" the applicant to "get rid of" Mr Grentfell and that the respondent would arrange to get the house painted for $1,000. No details are provided of any conversations or interactions between Mr Grentfell and the respondent, or how Mr Grentfell found out that the respondent had purportedly demanded the applicant "get rid" of Mr Grentfell.
10. Mr Grentfell states that the applicant was "more than happy" with his work, and the applicant "decided that she probably should stay with Peter Bostock as hopefully he would now get a move on with the job."

Letter from Heffernan Building & Construction Dated 27 July 2022

1. This document was created by Mr Eugene Heffernan, director, of Heffernan Building & Construction Pty Ltd.
2. The letter is headed "Home Renovations Mid-January 2022".
3. The letter contains reference to the applicant having Multiple Sclerosis. However, as with the letter of Mr Grentfell, the Tribunal must focus upon the relevant factual events that occurred.
4. Mr Heffernan states that he was contacted by Mr Grentfell. He does not identify the date. He attended the premises and spoke to the applicant. The applicant was "visibly distressed and in tears."
5. Mr Heffernan states that the applicant had paid the "previous contractor…$24-25,000". However, he does not state that the applicant told him this in mid-January 2022. Further, if the applicant told him she had paid the "previous contractor" $24,000-$25,000 in mid-January 2022, this is inconsistent with the statement of Mr Grentfell, who stated that the applicant had told him in mid-January 2022 she had paid the respondent approximately $13,000, not approximately $25,000.
6. According to Mr Heffernan, there were "floor tiles not matching in the loungeroom;" the toilet was "in the first bedroom on the left" and "there were 3 buckets of sand and three bags of cement and various other items purchased by the previous contractor throughout the house".
7. Mr Heffernan does not set out in his letter how he formed the opinion that the items he saw were "purchased by the previous contractor."
8. Mr Heffernan states that in his "professional opinion" there was "approximately $3,000-$4,000 work of work and materials on site. He does not provide any details as to how he formed this opinion, nor his understanding of what work had been performed by the respondent and what further work the respondent was required to do under any agreement with the applicant.
9. Mr Heffernan states that the "kitchen hadn't been installed at this stage." He does not state whether or not he understood it to be the respondent's contractual responsibility to install the kitchen.
10. Mr Heffernan states that he then attended the property for an "inspection" in "late January 2022". This is important, because it is approximately 3 weeks prior to the applicant informing the respondent that he could no longer attend the site. Mr Heffernan states as follows: In late-January, upon inspection I noted that the bathroom had been partially stripped out (very roughly). The drainage had been altered to accommodate the new WC and there was new concrete around this area (BY OTHERS (sic)). The water supply had been renewed in copper pipe. Marie didn't know or have contact details for the plumber. I contacted my plumber Rod Skerry form RSP Services. We proceeded the next day to strip the remainder of the bathroom, renovating the complete tile bed and render to the door height. We continued to renovate the bathroom through to completion including waterproofing to AS 33740. Correct wall tiles were completed and installed. RSP Services fitted out the taps and vanity. Rod Skerry also organised to have all the gas piping replaced on the external of the house, which had been stripped from the gas meter and completely removed from the house, leaving no gas appliances in the house working. We also had to strip a freshly sheeted wall (Kitchen splash back) due to a bow in the studs. This was rectified and re-sheeted. We also had a bricklayer attend to brick up the hole left when the previous contractor removed the AC unit. …
11. Importantly, Mr Heffernan does not state when such work was performed. It is entirely unclear as to whether the work was performed prior to mid-February 2022; or after that date. The applicant does not identify in her affidavit when the work was performed by Heffernan Building & Construction, which was to complete the renovation of the bathroom. Mr Heffernan also does not identify any written quotation provided for such work. He does not identify what materials on site (such as tiles) were, or were not, used in the works performed by Heffernan Building & Construction.
12. Mr Heffernan also refers to further work performed in June 2022. He states as follows: Late June 2022, Marie informed me there was (sic) now major issues with the plumbing works in the new bathroom. On further inspection new works are needed to rectify the illegal (sic) works carried out by the previous contractor. In order to gain access to the effected (sic) area, the back room needs to be jackhammered up, pipes to be replaced legally (sic) and re-cemented and tiled over. Quotes are attached for this work. No paperwork has been submitted to the Wagga Wagga City Council (Section 68).
13. The letter of Mr Heffernan does not explain what were the defects in the "plumbing work" (or who performed such work) that he refers to as being "illegal;" or why they were "illegal."

Tax Invoice of Heffernan Building and Construction Dated 24 March 2022

1. This tax invoice in in the amount of $13,201. It contains the following description: Progress Claim: Renovation works. Strip out remainder of bathroom, baton walls, sheer in "Villa-Board" and plaster to set. Supply and lay wall tiles including fixings. Lay cement bed, waterproof to AS 3740 and lay floor tiles including fixings. Strip and straighten splash-back wall in kitchen that backs onto lounge. Lay tiles including fixings. Fit 2 x solid core doors. Demolish front verandah structure (roof) and replace in steel. Rubbish to tip.
2. The tax invoice does not state when the work was performed, and as discussed previously, such evidence is not provided in the affidavit of the applicant; nor the letter of Mr Heffernan.
3. There is also no explanation as to why the document is in reference to a "progress claim." As discussed previously, no quotation for the works identified in the invoice of 24 March 2022 was provided in the documentary evidence of the applicant; nor any written contract with Heffernan Building and Construction.
4. The scope of works identified in the invoice refer to work involved in completing renovation of the bathroom. However, it also refers to demolishing and replacing a "front verandah structure." There is nothing in the applicant's evidence to indicate that the "front verandah structure" was within the scope of works that the respondent was to perform, or involved any additional work that he was involved with in any way.

Tax Invoice of Bunnings Warehouse-19 January 2022

1. This tax invoice is for $82.49. It refers to 3 items which are locking devices, hinges and padbolt.
2. There is no explanation in the applicant's affidavit as to how this invoice relates to any of the work performed by the respondent; or work that was going to performed pursuant to any agreement between the applicant and the respondent.

Tax Invoice of Bunnings Warehouse-17 February 2022

1. The date of this invoice is shortly after the applicant states she told the respondent not to further attend the premises.
2. The invoice again for door locking devices; door handle; and padbolt.
3. Again, there is no explanation as to how this tax invoice relates to work performed by the respondent; or work that was agreed to be performed by the respondent and was not performed; or rectification of any allegedly defective work performed by the respondent.

Invoice of Wagga Tiles Pty Ltd dated 16 March 2022

1. The invoice states that it is a "cash sale." The document identifies the goods purchased as "Splashback tiles; Bathroom floor tiles." The amount is $367.50.
2. There is nothing in the document, or the applicants evidence, to indicate that the "splashback tiles" were for the bathroom rather than the kitchen, or clearly establish that such items were required to rectify defective work performed by the respondent.

Tax Invoice of Reece Australia Pty Ltd dated 6 April 2022

1. The tax invoice is addressed to the applicant. The amount paid was $1,180. The items identified in the tax invoice are in respect of fittings to a bathroom (drift single waterrail; towel rail; soap dish; toilet roll holder).

Tax Invoice of Watertek Pty Ltd Dated 6 April 2022

1. This invoice is addressed to the applicant. Payment was by cash. The amount is $329. The item purchased was a "Forme 600 Rectangle Satin Black Mirror" 600 mm wide and 900 mm high.

Tax Invoice of RSP Services Pty Ltd dated 30 April 2022

1. This tax invoice is addressed to the applicant. The amount is $4,967.93. The description of the work is as follows: Fit off bathroom, supply vanity, install gas heater, replace gas lines that were removed by others, fit off kitchen. Supply labour and materials.
2. The letter of Mr Heffernan dated 27 July 2022 identifies RSP Services Pty Ltd as being Mr Rod Skerry, who Mr Heffernan refers to as "my plumber".
3. The applicant did not provide any evidence from Mr Skerry about what work he had performed; when he had performed it and who had engaged him to perform work. The applicant's affidavit does not provide any details of her engaging Mr Skerry, or Mr Heffernan engaging Mr Skerry.
4. Mr Heffernan's letter states that Mr Skerry performed works at the property. As discussed previously, Mr Heffernan did not provide any dates when the works were performed. The works that Mr Skerry was said to be involved in were (a) stripping the remainder of the bathroom; (b) renovating the bathroom with Mr Skerry fitting out taps and vanity; and (c) replacing all gas piping on the external walls of the house.
5. From the description of the works in the invoice, the work partially involves the bathroom and vanity. However, the invoice also refers to "replace gas lines that were removed by others" and "fit off kitchen."
6. When reference is made back to the letter of Mr Heffernan, it is entirely unclear whether Mr Skerry is issuing an invoice for all of the works performed by RSP Services Pty Ltd up to 30 April 2022; or not. It is also unclear why Mr Heffernan refers to Mr Skerry as "my plumber" and it appears that Mr Heffernan engaged Mr Skerry to perform works (or part of the works) but the tax invoice of RSP Services Pty Ltd is directed to the applicant to pay direct rather than payment being made to Heffernan Building Services Pty Ltd.
7. Further, there is no clear evidence from the applicant; Mr Heffernan; or Mr Skerry as to how the works relate to the works that the applicant allegedly engaged the respondent to perform, either by way of rectification of defective work or completion of incomplete work.
8. As discussed previously, there is no evidence as to when the work identified in the invoice was performed. If it was performed in April 2022, that is approximately 2 months after the applicant asserts she terminated the agreement with the respondent by instructing him not to further attend the property.

Tax Invoice of Heffernan Building & Construction Dated 8 June 2022

1. This tax invoice is addressed to the applicant and is in the amount of $5,000. The description of the works are as follows: Second Progress Claim on Bathroom, Kitchen, & Laundry renovation & rectification.
2. The invoice does not detail what works were performed; nor when they were performed.

Tax Invoice of Nimmo Plumbing Service Dated 12 July 2022

1. The tax invoice is addressed to the applicant and is in the amount of $665.50. The description of work involves clearing a blockage in the sewer line because the toilet is "blocking." There is the following comment: …Pipe runs back and connects into kitchen line. The kitchen line runs out to the back patio area and into an existing yard gully that has been built over. The toilet waste line has been incorrectly installed.
2. This tax invoice is for works that were performed approximately 5 months after the respondent last attended the site. There is no evidence from the applicant (or any independent expert report); or in the letter from Mr Heffernan; or in the affidavit of Mr Luke Webb (which will be discussed later in this decision) to establish any causal nexus between the works performed by Nimmo Plumbing Services and any defective work (or incomplete work) of the respondent or any person engaged by the respondent.

Quote/Proposal of Lancaster Homes Dated 29 September 2022

1. The quotation is for $13,990 and identifies a scope of works as follows: Cut out a section of slab in the enclosed verandah section to locate yard gully that new toilet has incorrectly been fitted to. Rectify plumbing including installation of new yard gully in acceptable location. Reconcrete section of floor tiles to back verandah and lay new floor tiles (existing tiles cannot be matched).
2. The quotation does not provide any detail to explain why the toilet had been incorrectly installed; nor is there any clear evidence from the applicant that it was the respondent who installed the toilet (or any person performing such works under the control and direction of the respondent).

Appraisal form Macarthur Real Estate

1. This document is undated. It is a brief one page document with a photograph of the premises the subject of the dispute stating that rent for the premises would be $390pw to $410 pw and "25 weeks at $400 pw" comes to a total of $12,000.
2. This evidence is very brief, and the weight to be attributed to that evidence is limited.

Accommodation Quotation Australian Homestead Motor Lodge Dated 11 September 2022

1. This is a written quotation from a local motel stating that a Deluxe One Bedroom (1 queen bed and 3 single beds) for two adults and two children is $165 per night; and the total cost for 14 nights is $2,310.

Quotation of RSP Services Pty Ltd Dated 19 July 2022

1. The document is a quotation in the amount of $9,187.20. The description of the work is as follows: Allowing to rectify illegal plumbing work carried out by previous plumber where new toilet line has been installed into the kitchen line which then feeds an existing yard gully inclosed (sic) in verandah. Allowing (sic) to jackhammer up section of concrete verandah and remove existing gully and reconnect pipes and install inspection opening to gain access to pipes at finished level. Note: Not allowing for replacement of tiles.

Quotation of Heffernan Building & Construction Dated 18 July 2022

1. The quotation is in the amount of $3,491.80. The description of the work is in respect of "re-tiling back verandah after plumbing rectification.

Quotation of Nimmo Plumbing Service Dated 12 July 2022

1. The quotation is not clearly photocopied and it is difficult to identify the amount in the quotation. However, the description of the work is: Cut section of concrete out on back verandah. Dig down existing sewer pipe. Cut out existing yard gully that has been built over. Backfill and re-concrete.

City of Wagga Wagga Documents

1. The applicant's documentary evidence contains a local Council consent to Mr Skerry of RSP Services Pty Ltd dated 1 August 2022 to perform "PartB4-Sewer" works at the property the subject of the dispute.

License Search Upon the Respondent

1. Although it was not filed in the Court Book, the applicant was granted leave to tender a NSW Fair Trading License Search on the respondent at the hearing.
2. That licence search contained the following information: 1. Since 17 September 2021, the respondent has had a licence condition that he only perform work pursuant to contracts not requiring home warranty insurance (i.e. contractual works below $20,000). 2. The licence briefly expired in the period between 8 February 2021 and 16 February 2021 but was then renewed. 3. On 23 February 2022, the respondent was fined $1,500 by NSW Fair Trading in respect of performing work that did require home warranty insurance (s 92 (2) of the HB Act).

Letter from NSW Fair Trading Dated 11 April 2022

1. This document was also not filed in the Court Book but leave was granted for it to be tendered as evidence at the hearing.
2. The letter is in response to a complaint by the applicant to NSW Fair Trading about the respondent dated 31 March 2022 (a copy of that document, however, was not part of the evidence).
3. The letter relevantly states: Your concerns were brought to the attention of Mr Peter Bostock who advised that he did not have anything to do with the job at (address of premises the subject of this dispute).

Letter of Lancaster Homes (Barden Lancaster) Dated 4 October 2022

1. This letter is addressed "Dear NCAT." It is not in the form of a witness statement; statutory declaration; or affidavit. Mr Lancaster was not called to give evidence. Accordingly, the evidentiary weight to be attributed to this document is significantly diminished.
2. The letter relevantly states as follows:
3. Mr Lancaster "inspected some of the work that has been completed at the above address and have found certain aspects of the work to be non-complying." He does not state when he conducted this "inspection." There are no photographs of the site. There is no detail of the inspection.
4. The applicant had shown him an email that she sent to Fitzpatricks Real Estate on 5 November 2021 which set out the works that were to be performed in respect of the "renovation" of the premises. A copy of that email is attached to the letter. The contents of that email are set out in detail subsequently in this decision. In essence, the email refers to renovation of the bathroom and kitchen of the residential premises.
5. Mr Lancaster was shown a copy of Mr Bostock's affidavit, and he asserts that there is inconsistency between Mr Bostock's claim that he did not know what works the applicant wanted to perform, and the contents of the email. This is a lay opinion of Mr Lancaster, and no weight is given to that assertion. As will be discussed later in the decision, what is critical is what the agreement was between the applicant and the respondent assessed objectively, not what Mr Lancaster thinks the agreement was.
6. Mr Lancaster makes comments about the applicant having Multiple Sclerosis and wanting to make the bathroom suitable for persons with a disability. He also makes comments that the "first builder" took "advantage" of the applicant. No weight is given to this opinion evidence.
7. Mr Lancaster states that he inspected the premises after the "second builder" (who he does not identify, and presumably means Heffernan Building & Construction) completed works to the bathroom. He refers to the "first builder" but does not identify who he understands to be the "first builder." The letter relevantly states as follows: … Works carried out by the 1st builder include: -Removing all gas piping rendering the home uninhabitable. Why? I understand that there has never been a problem with the gas supply in the past. Why did this happen without Marie's approval? -The removal of the original stand alone laundry tub. A new tub supplied but not fitted properly. It is a different size to the old tub leaving defective finish to the floor around the stand alone tub. Again, Marie says works to be carried out were for a new bathroom. -Connection of new toilet to existing sewer line which ran through a yard Gully. -Supply of incorrect disabled toilet. -Removal of fixtures in existing bathroom. The second builder Marie engaged to rectify the bathroom had no problems in understanding her needs and build the bathroom accordingly. Unfortunately, the first builder had started the work and plumbed the toilet into the existing kitchen sink sewer, this existing sewer line ran through a yard gully (outside the original house but under a verandah that has now been enclosed) which is fine for a sink but unacceptable for a toilet. To rectify this situation will require significant work in pulling up a section of the enclosed verandah slab and retile the entire back section of the room (the existing tiles could not be matched therefore requiring the full room to be tiled). …
8. Mr Lancaster attached (a) a quote for what the bathroom renovation "should have cost;" and (b) the repair works to the pipes/sewer. The quote for what the bathroom renovation "should have cost" was $21,450. The quote to repair the pipes/sewer and replace floor tiles was $13,990.
9. The email correspondence attached to Mr Lancaster's letter is from the applicant to Ms Danielle Calf of Fitzpatricks Real Estate. Why this correspondence was not annexed to the applicant's affidavit is difficult to comprehend. In any event, it formed part of the evidence.
10. Ms Calf is the "tenancy manager" at the real estate agency. It appears from the content of the email dated 5 November 2021 that Ms Calf is the agent managing the premises for rental purposes for the applicant. The correspondence appears to arise from the applicant having spoken to the tenant Mr Cox to inform him that she was evicting him; he being upset; and the applicant seeking the property manager speak to Mr Cox.
11. Relevantly, the email of 5 November 2021 from the applicant to Ms Calf states as follows: … I am looking at installing a new kitchen, which will be larger than what is currently there. The door closest to he stove to be removed and the archway squared off. The bathroom will be fully renovated, removing the bath and putting in a new toilet in its place. Glass screens on the shower, new tiles, lights etc. A full paint job inside and outside once the building works have been completed. Shed and carport also to be painted. The damage to the front porch will be repaired and reinforced. A new front door and a new door shed as well. Both will be weather proofed. I have asked that the big tree that is at the front gate be removed as well as the yuccas. Long term looking at higher front fence for security. Replace the security light in the driveway with normal light. The builder Peter Bostock and the cabinet maker Steve Dunn have made it known to Kevin that it will take approximately 3 weeks to install the kitchen and finish it off. Then another 3 weeks to pull out the old bathroom and reinstall the new one. Also, I have mentioned to Kevin that weather permitting, Jason will be in next week to repair and reset the roof. Keven doesn't need to be involved in that. … Kevin has assured both men that they can shower and cook next door so shouldn't be too much of an inconvenience.

Bank Records of the Applicant

1. As discussed previously, the applicant asserts that she made 7 cash payments to the respondent in the period from 7 December 2021 to 31 January 2022 int the total amount of $26,850.
2. She provided extracts of her bank records. Those bank records do not appear to be complete as they are not consecutively page numbered, and the "balance" figure on occasions does not appear to match up with the history of debits and credits. It is possible (although this issue was not explored at the hearing) the applicant has provided extracts rather than a complete consecutive record.
3. The period of the bank records on the face of the documents is from 5 October 2021 to 4 April 2022.
4. The photocopies of the records are not clear in respect of some of the dates in November and December 2021.
5. It is also unclear from the records as to whether the records are from two accounts or one. One record indicates it is in respect of account "Westpac Life." Another record indicates it is in respect of account "Westpac Choice."
6. The bank records provided demonstrate the applicant made cash withdrawals for large sums on a number of occasions. For example, the applicant withdrew $2,000 on 5 October 2021; $3,600 on 2 November 2021 and a further $2,000 on 2 November 2021.
7. According to the applicant, the first payment of cash she made to the respondent was for $5,000 on 7 December 2021. The photocopies of the bank records do not clearly show the dates of withdrawals in December 2021. There are two cash withdrawals in December 2021. One is for $5,200 and the second is for $5,000.
8. The applicant alleges that she paid the respondent $3,000 in cash on 22 December 2021. As discussed previously, it is unclear from the photocopy of the bank records provided as to the dates of cash withdrawals in December 2021.
9. The applicant alleges that she made a cash payment to the respondent of $3,000 on 13 January 2022. The bank records refer to a cash withdrawal of $6,500 on 7 January 2022; and a cash withdrawal of $10,000 on 17 January 2022.
10. The applicant alleges that she made a cash payment to the respondent of $5,000 on 17 January 2022. As discussed previously, the bank records indicate she withdrew $10,000 in cash on 17 January 2022.
11. The applicant alleges she made a cash payment of $5,000 to the respondent on 21 January 2022. The bank records, as discussed previously, indicate she withdrew $10,000 in cash on 17 January 2022.
12. The applicant alleges she made two cash payments to the applicant on 31 January 2022. One was for $1,850 (to be paid to Mr Webb for plumbing work) and one was for $4,000. The bank records indicate the applicant withdrew $8,000 in cash on 31 January 2022.
13. The bank records of the applicant do not contain a description of why she withdrew monies. As discussed previously, some of the records do not clearly show the dates. The amounts withdrawn do not match up directly with the amounts the applicant says she paid the respondent in cash on the said dates. What the records do indicate is that the applicant made a number of substantial cash withdrawals over the relevant period at various amounts.

Affidavit of Luke Webb Dated 10 August 2022

1. The applicant's documents contained an affidavit of Luke Webb sated 10 August 2022.
2. The affidavit is brief. It states that Mr Webb is a licensed plumber. In January 2022 (with the precise date not identified) the respondent contacted Mr Webb to perform plumbing work at the applicant's premises. No detail is provided as to what the respondent said to Mr Webb about a scope of works.
3. Mr Webb states he "attended the site" with the respondent and the respondent told him what works needed to be performed "for a bathroom renovation" and Mr Webb "understood" the purpose of the renovation was "to make for easier access."
4. Mr Webb states that he performed "some limited work." He does not state what work he performed or the dates he performed the work.
5. According to Mr Webb, when he was at the site he met the applicant. He had not previously met or dealt with her.
6. Mr Webb states that during the course of the works he was performing the respondent told him that the applicant "no longer wanted to complete the renovation." He received two payments from the respondent. Both were in cash. The first was for $1,000 and the second for $700.
7. Mr Webb states that he understood that the respondent was the builder, as it was the respondent who had engaged him to do work; the respondent who had directed him regarding the work; and the respondent who paid him.

Affidavit of Stephen Dunn Dated 11 August 2022

1. The applicants documents contained an affidavit of Mr Stephen Dunn dated 11 August 2022. Mr Dunn was called as a witness at the hearing and cross examined.
2. Mr Dunn describes his occupation as "kitchen joiner."
3. Mr Dunn states that he has known the applicant and the respondent "since I was about 20 years old". No details were provided as to how he knew the applicant and how he knew the respondent.
4. Mr Dunn states that in late 2021 the applicant telephoned him in respect of "doing another kitchen" for her. Mr Dunn told her that it would not be able to be completed in 2021 due to materials and labour shortages.
5. The applicant then asked Mr Dunn if he knew someone who could "renovate the bathroom." Mr Dunn said he would make enquiries.
6. Mr Dunn states that he saw the respondent at "the place I work from (Bostocks Pty Ltd in Copeland St)" and asked the respondent if he was interested in looking at the job. Mr Dunn states that he was working at that time on a "job elsewhere" where the respondent was doing work to the bathroom and he was doing work on the kitchen.
7. Mr Dunn states that he met the respondent at the applicant's premises. The date is not identified. The applicant was present. As the persons present walked through the kitchen area, Mr Dunn recommended that a standard door opening should be filled in and the door "squared off" as this would make for a better kitchen layout and be more attractive. According to Mr Dunn, the respondent said he could perform both of those jobs.
8. The applicant, the respondent and Mr Dunn then went into the bathroom. Mr Dunn "didn't say much" as the bathroom works didn't involve him. He went back into the kitchen to take measurements. He subsequently sent a plan and a quote for the kitchen renovation to the applicant.
9. According to Mr Dunn he spoke to the respondent and asked him to "look after" the applicant "as a builder" and told the applicant the respondent would "be OK" but for the applicant to keep business "very straight."
10. Mr Dunn sates that he removed the old kitchen on Boxing Day 2021 and dispose of it. After the respondent filled in the door opening Mr Dunn then installed the "new kitchen."
11. Mr Dunn states that the applicant then telephoned him "one Saturday" in a distressed state because the respondent was allegedly demanding more money. According to Mr Dunn, the applicant stated that the respondent wanted another "$4,000" and she had already paid him $21,000 in cash. Mr Dunn told her not to pay the respondent more money. According to Mr Dunn the applicant "expressed fears" that if the work done by the applicant did not proceed she would lose rent.
12. Mr Dunn states that he attended the applicant's property in February 2022 to perform work. He states that he returned to assist the applicant when she had been "attempting to remove old tiles and loose mortar behind the tiles." Mr Dunn brought a trailer to remove the tiles and mortar. The respondent attended the premises. He and the applicant had a discussion in the kitchen to discuss what tiles the respondent was going to use for the spashback. The applicant and the respondent moved to the laundry and had a further discussion that Mr Dunn could not clearly hear.
13. Mr Dunn then states "another builder became involved and Peter was taken off the job."
14. Mr Dunn states that when he "became aware" of what the applicant had paid the respondent, he telephoned the respondent. Mr Dunn does not state when this conversation occurred, or whether it was before or after the respondent was 'taken off the job.'
15. According to Mr Dunn, he recommended to the respondent "write down" the work he had performed; what the value of the work was; and refund the difference to the applicant. At that stage, Mr Dunn believed that the applicant had paid the respondent $25,000. Mr Dunn states that the respondent "didn't dispute the figures" and didn't say he would not to this. Mr Dunn's affidavit does not set out what the respondent said to him.
16. However, Mr Dunn states that the respondent approached him "a few days later" at Bostock's shed in Copeland Street, and the respondent told Mr Dunn that he had legal advice and would put "nothing in writing." Mr Dunn asserts that he said to the applicant words to the effect of $25,000 is a lot of money" and the respondent replied that he should have been paid more due to the amount of work he had performed and expenses incurred.
17. Mr Dunn asserts that another person, Raymond Armstrong, who "previously worked" for Mr Dunn overhead the conversation. No affidavit, statutory declaration, or witness statement was provided by the applicant from Mr Armstrong.

Respondent

1. The respondent's documentary evidence comprises of two affidavits from him. The first is dated 25 July 2022. The second is dated 1 December 2022.

Respondent's Affidavit Dated 25 July 2022

1. The respondent states that he received a telephone call from Mr Dunn in "around November 2021" who said words to the effect that Mr Dunn was working at the applicant's premises and requested the respondent "come and have a look at the bathroom for the lady to see what can be done".
2. The respondent states that he had known Mr Dunn because they had worked together for over 30 years.
3. According to the respondent he attended the applicant's property in December 2021. He met the applicant. She said she was performing renovations, and asked for a quote. The applicant stated she wanted to renovate the kitchen and bathroom to make the property "more accessible." The applicant did not know exactly what work she wanted done. The respondent states he and the applicant discussed "many ideas." He does not set out in any detail what the "ideas" discussed involved. The applicant said she would "think about it." The respondent said he would provide a quote when she knew what she wanted done.
4. According to the respondent, he attended the property "on about 7 occasions" between December 2021 and February 2022. He attended at the applicant's "request." He provides no details of these requests. The respondent states the applicant "changed her mind regularly" and the respondent told her he could not provide a quote until he knew the scope of works or specifics of the work she wanted performed.
5. The respondent states that the applicant requested he perform "odd jobs" for her. He asserts he told the applicant he could do such work provided he was paid in cash. The respondent states that he only performed the following "odd jobs" at the premises: 1. Removing wall mounted air-conditioner from the wall and then affixing a piece of gyprock over the hole. 2. Removing an old oven and disposing of it at the rubbish tip. 3. Removing an internal door and securing timber and gyprock over the opening. 4. Cutting a manhole in the floorboards and replacing the area with pineboard. 5. Putting a small piece of gyprock over a hold in the wall that an electrician had cut out.
6. The respondent assets he performed such "odd jobs" while waiting for the applicant to identify a scope of works for the renovations.
7. The respondent states that he was paid $4,000 in cash by the applicant for the "odd jobs". This payment took place as a single payment in January 2022. According to the respondent, the applicant agreed this was a "fair price" for the work.
8. The respondent asserts that after the air-conditioner was removed the applicant requested he perform brickwork on the outside of the home in the area where the air-conditioner was. The respondent states he told the applicant he was not qualified to perform such work and she would have to engage a bricklayer.
9. The respondent denies that he engaged any plumber to attend the premises. Rather, he asserts that he gave the applicant "names of plumbers" and was not involved in arranging, directing or co-ordinating plumbing work.
10. The respondent denies that he made an mention to the applicant about there being asbestos at the property, or took the applicant to a property in Wilks Avenue to show her tiling work. The respondent states his brother lives in Wilks Avenue and he did not perform any tiling work at his brother's house.
11. The respondent asserts that in February 2022 the applicant told him she was going to sell the house "as is" (i.e. would not proceed with the renovations) and he was no longer required. He further asserts that his relationship with the applicant was amicable and she never raised any issue with him about the quality of his work.

Respondent's Affidavit Dated 1 December 2022

1. Much of the affidavit of 1 December 2022 contains the same information as the affidavit dated 25 July 2022.
2. Some matters are further elaborated upon.
3. The respondent states that he knew Mr Webb because Mr Webb did some work for Bostocks Joinery which is "a family business." The respondent states he saw Mr Webb at the Bostocks workshop "in around December 2021" and "may have mentioned to him about a job at Bourke Street", but never engaged Mr Webb. It was the respondent's "understanding" that Mr Webb "did some works" at the applicant's property on the applicant's "instructions." He does not set out in his affidavit how he "understood" the applicant had directly engaged Mr Webb.
4. The respondent denies having taken grout of bathroom items from the premises. He continues to assert that he was told by the applicant that she was selling the property "as is" and was not proceeding with the renovation.
5. The respondent's affidavit contains copies of text messages between himself and the applicant. There are photographs of the respondent's telephone annexed to the affidavit.
6. The first photograph of the telephone screen is undated. The top of the screen has the words "Marie 189 Burke (sic) Street. The respondent asserts that it is from "late January 2022".
7. There is a photograph of what appears to be the area between the kitchen and the living room, although it is impossible to tell because the photograph is small and in black and white. Underneath the photograph is the following: Cyprock (sic) install to opening. Thank u, looking good. U had better put your feet up and have a rest.
8. The second photograph shows the phone with the heading "Marie 189 Burke (sic) Street and a photograph of a hand with bruise on it with the following message: I knew I couldn't be trusted with a hammer in my hand.
9. The third photograph shows the phone with a photograph of the gyprock patch in the wall (presumably where the air-conditioner was removed) and the following message:

Patch done to hole in the wall done.

1. The respondent asserts this message was sent by him on 28 January 2022. The phone contains the following message, which appears to be in reply: U are a champion. I will be there in the morning to do the mowing. No rest for the wicked!

CONSIDERATION

1. The applicant bears the onus of proving causes of action and damages on the balance of probabilities.
2. In making factual findings on the balance of probabilities, Hallen J in Pollock v NSW Trustee & Guardian [2022] NSWSC 923 summarised the principles as follows at [74]-[75]: Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 wrote at [48]: "When proof of any fact is required, the court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2; [1938] HCA 34; [1938] ALR 334 at 342." In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, speaking with the concurrence of McColl and Bell JJA, McDougall J, similarly, had expressed the view, at [44]-[52], that proof on the balance of probabilities required a feeling of actual persuasion; that the event in question was more likely than not to have occurred; with "a probability in excess of 50%". His Honour repeated that view in Ballard v Multiplex [2012] NSWSC 426 at [126].
3. In the circumstances of this matter, the applicant must establish on the balance of probabilities: 1. That there was an agreement between the parties to perform residential building work (ss 48A and 48K of the HB Act). If the agreement to perform work does not fall within the definition of "residential building work" under s 48A of the HB Act (for example, because the Tribunal is not satisfied that the agreement involved the provision of building goods and services of a value of over $5,000 as is alleged by the respondent), then the Tribunal will still have jurisdiction under the provisions of Part 6A of the Fair Trading Act 1989 (NSW). In such circumstances, a cause of action that may be considered is whether services have been performed with due care and skill pursuant to the consumer guarantee in s 60 of the Australian Consumer Law 2010 (NSW) (ACL). 2. If the proceedings involved residential building work and if the proceedings have been brought within applicable time limits for breach of statutory warranties, that the respondent has breached the consumer guarantees under s 18 of the HB Act. 3. In respect of breach of statutory warranties, what was the scope of works under the contract or agreement with the respondent; and what work was performed by the respondent. Further, in respect of work that was performed, the applicant must prove the nature and extent of the defects. 4. In respect of allegedly incomplete work, if that work is not part of the defective work, what is the incomplete work. If damages are sought in respect of incomplete work, the applicant is only entitled to damages if she proves that she lawfully terminated the contract. 5. Relevantly, to prove termination, the applicant must prove that the respondent repudiated the contract and she accepted the repudiation. The applicant can only be awarded damages for incomplete work (being the difference between the contract price and the increased cost of performing work under the contract) if the respondent repudiated the contract and she accepted the repudiation. It follows that the Tribunal must have information sufficient to made a finding as to what was the agreed price under the contract (or if it was not a fixed price contract; that it was a "do and charge" contract; or a "costs plus" contract). 6. If the Tribunal is satisfied that there is existing defective work in breach of the statutory warranties in s 18B of the HB Act, whether the respondent should be ordered to rectify defects by way of a work order (taking into account the provisions of s 48MA of the HB Act); or whether an award of damages should be made. 7. If damages are awarded for breach of statutory warranties, the applicable legal test is that set out in Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613. The Tribunal must be satisfied what work is necessary to put the applicant in the position that she should have been if the contract had been complied with, and that the work to rectify is a reasonable course to adopt. 8. In respect of the increased cost of completing incomplete work; what was the agreed price of the works to be performed to the respondent, so that the Tribunal can determine whether the applicant has to pay an increased amount to complete the works. Damages are not assessed on the basis of what the cost of engaging another builder to complete work, it is the amount of the increased cost. 9. In respect of monies paid to the respondent prior to the date of termination of the contract (or agreement) the applicant can only be awarded damages as a "refund" of such monies (or an amount of damages as reimbursement) if a legal cause of action is established (e.g. monies paid under a mistake or fact or law; or breach of contract in respect of monies being paid for works that were not performed at all).
4. Many of the legal principles and relevant authorities that are applicable to the disposition of this matter were discussed by the Tribunal in SDL Project Solutions Pty Ltd v Kim; Kim v SDL Project Solutions Pty Ltd [2022] NSWCATCD 10 (Kim).
5. There is diametrically opposed evidence between the applicant and the respondent as to (a) what was the terms of the agreement between the parties; (b) what work was performed; and (c) the amount of monies paid. Both parties submitted the other party's evidence was not creditable and should be rejected.
6. In such circumstances, the Tribunal must place primary emphasis on the objective surrounding facts that are either undisputed or established by contemporaneous documents; the apparent logic of events; and the inherent probabilities and improbabilities of purported events (In the Matter of Hillsea Pty Limited [2019] NSWSC 1152 at [16]-[21] and the authorities cited therein).
7. There are inconsistencies and deficiencies in the evidence of both parties. A number of those inconsistencies have been identified previously.
8. They are summarised as follows:

Applicant

1. The applicant did not provide a detailed version of events in her affidavit. In particular, there was a lack of detailed evidence as to her discussions with the respondent about the scope of works; what work was actually performed by the respondent or work organised and directed by him; when she engaged another builder to complete work; and how she terminated the agreement with the respondent in mid-February 2022.
2. There was a lack of contemporaneous photographs showing the premises in the period between December 2021 and mid-February 2022 showing the work purported done by the applicant. For example, to the extent it is asserted that the respondent stripped out the bathroom, there is no contemporaneous photographs showing those works.
3. The applicant did not file and serve any independent expert report setting out the allegedly defective and incomplete work; providing a scope of works to rectify and complete; and providing costs. Rather, the applicant relies upon the documents from subsequent builders/tradespersons she engaged; and their evidence. The lack of an expert report that complies with the NCAT Expert Witness Code of Conduct for expert witnesses does not automatically mean that a party cannot succeed in proving its case (Khan v Kang [2014] NSWCATAP 48 at [53]), but goes to the weight of evidence.
4. The evidence of the applicant in cross examination at the hearing did not clarify the terms of the agreement with the respondent. The applicant stated that "in her mind" she wanted a bathroom and kitchen renovation to make the premises more suitable for a disabled person, but agreed she had never put in writing what she wanted. The applicant agreed she had the mobile number of the respondent and sent him text messages. The applicant stated she did not have the email address of the respondent.
5. The applicant's evidence regarding the amounts of cash she asserts she paid to the respondent was not clearly verified by her bank records, which showed various large cash withdrawals at various dates.
6. There was no evidence from Mr Webb as to what work he performed at the property in respect of the payment of $1,850. Irrespective of who engaged Mr Webb, it is critical to the applicant's case on defective work that there was evidence that Mr Webb connected the toilet waste line into the existing kitchen sink sewer line, as this is the work the applicant claims needs to be rectified at a cost of approximately $14,000. However, there was no evidence from Mr Webb regarding the work he performed, and insufficient other evidence to infer that Mr Webb incorrectly connected the toilet waste line.
7. No text messages were sent by the applicant to the respondent to indicate that she had any contemporaneous complaint about the monies she had purportedly paid him; or the work he had done; or the progress of the works.
8. No clear evidence was provided by the applicant as to when she engaged Heffernan Building & Construction and the terms of her agreement with that builder.
9. The evidence from Mr Heffernan (which, as discussed previously, was not in the form of an affidavit, statutory declaration or affidavit) identifies work performed by Heffernan Building & Construction (in effect, works to renovate the bathroom and further plumbing works) but there was no clear evidence as to when those works were performed.
10. The evidence of Lancaster Homes (which again, was not in the form of an affidavit, statutory declaration or affidavit) does not clearly address a number of relevant issues. The assertion by Lancaster Homes about how much the bathroom renovation "should" have cost can only be given limited weight in circumstances where the applicant engaged Heffernan Building & Construction subsequent to terminating the respondent's engagement to perform the works to the bathroom.
11. There was no clear evidence as to what the applicant did and said to terminate the agreement with the respondent on 15 February 2022.

Respondent

1. The respondent did not provide any copies of bank records to verify that he had not made cash deposits in the period between December 2021 and February 2022, and to support his assertion that the only cash payment he had received from the applicant was $4,000.
2. The respondent's evidence regarding only doing "odd jobs" does not sit consistently with the number of times he attended the premises, or the text message he sent on 16 February 2022. If the respondent was only performing "odd jobs," then it is illogical he would send a text referring to "plumbers bill materials & labour to fit shower and all the water pipes & to connect the Laundry sink pipe work around $1000 & $800 for your kitchen slash back tiles & laundry tiles that you wanted". On the respondent's own evidence he attended the property approximately 7 times. That is a significant number of times for a person to attend who was only performing "odd jobs."
3. The evidence of Mr Dunn is inconsistent with the respondent's assertion that he was only performing "odd jobs." Rather, it is consistent with a finding that even though the applicant had not agreed with the respondent as to the detail of the "bathroom renovation" the respondent was, in the period between December 2022 and February 2022 attending the site; doing works; purchasing materials and arranging for a plumber to attend the site for the purpose of renovating the bathroom, in addition to the works performed by the respondent to remove the air-conditioner and to 'square off' the internal doorway.
4. The respondent did not seek to cross examine Mr Webb, so Mr Webb's evidence that it was the respondent who engaged him rather than the applicant was unchallenged.
5. Mr Dunn's evidence about speaking to the respondent about how much money had been paid by the applicant to the respondent, and the respondent performing an assessment of the value of the works he performed was unchallenged in cross examination.
6. The letter from NSW Fair Trading in response to the applicant's complaint refers to the respondent having 'nothing to do' with the works. That is clearly inconsistent with the respondent's evidence about what the respondent asserts occurred. The respondent referred to this in cross examination as being accurate because he was only performing "odd jobs" at the site.
7. Taking into account those inconsistencies and deficiencies, the Tribunal deals with the substance of the issues raised the in the proceedings as follows:

Terms of the Agreement Between the Parties

1. The agreed facts in the Court Book referred to it being an agreed fact that there was "no contract" between the parties. That is clearly wrong. There was no written contract between the parties, nor any contract that complied with the provisions of ss 7 or 7AAA of the HB Act. The applicant clearly asserts there was contract between the parties, but that the respondent had not complied with its obligations under the HB Act regarding the form and content of that contract.
2. However, an oral agreement is still a contract, provided it satisfies the well established principles for the formation of a contract (which involve an objective assessment). The argument of the respondent is not that there was no contract between the parties. It is that the terms of the contract were limited to "odd jobs" on a "do and charge" basis; the value of the works did not exceed $5,000; and the works did not involve "specialist works" under the HB Act (i.e. there is no obligation to comply with the HB Act as the works fall within an exception to "residential building works" under the HB Act and its Regulation.
3. Having considered the evidence of the parties, the Tribunal is satisfied that: 1. There was an oral agreement between the parties in December 2021 that the respondent would renovate the bathroom of the premises and 'square off" an internal doorway. 2. There was no clear agreement as to when the work would be completed by. 3. There was no agreement as to the cost of the works. The contract price, in those circumstances, is on a "do and charge" basis. 4. The respondent demanded some monies from the applicant for the purchase of materials, including toilet, laundry tub, tiles and grout. 5. There was no clear scope of works agreed to for the bathroom renovation. Accordingly, there were no certain terms as to the precise works involved in the bathroom renovation. Although the email of the applicant to the real estate agent in December 2021 has some detail, that email was addressed to the real estate agent and is simply evidence as to what the applicant though the works would involve, not the that the parties had, assessed objectively, agreed to a scope of works.

What Amount of Monies Did the Applicant Pay the Respondent

1. As discussed previously, this is a critical factual issue in dispute.
2. Both parties evidence was diametrically opposed. Other than the evidence of Mr Dunn about the amount of monies the applicant told him she had paid the respondent, and the respondent not directly contradicting that he had been paid monies when Mr Dunn spoke to him, there is virtually no evidence to corroborate one parties version of events over the other.
3. The Tribunal is not satisfied on the balance of probabilities that she has established that she paid the respondent $26,850. The Tribunal is not satisfied on the balance of probabilities the applicant has established she paid the respondent more than the $4,000 the respondent asserts he received (separate to the amount of $1,850 for the plumbing work performed by Mr Webb).
4. The inconsistencies and deficiencies in the applicant's evidence have been discussed previously. There is no clear correlation between the cash withdrawals in the applicant's bank records and the amounts she asserts were paid to the respondent on the dates she asserts payment was made.
5. There are no contemporaneous text messages referring to fittings and fixtures purchased by the respondent that the applicant paid the respondent for; nor any "demands" for money. There are no text messages where the applicant complains that she has paid substantial monies to the respondent, but that little or no work has been done. The only contemporaneous text messages to the respondent are of a positive nature. The evidence of the applicant that the respondent repeatedly 'harassed' and 'bullied' her for payment of monies in advance of work being performed was vague and lacked any detail of what the respondent did and said.
6. The Tribunal has taken into account Mr Dunn's version of events. However, he did not witness the applicant paying any monies to the respondent. His belief as to what was paid is based exclusively upon what the applicant told him. The respondent's failure to actively deny to Mr Dunn how much monies the respondent received from the applicant is not sufficient to persuade the Tribunal that the respondent was making an admission that he had been paid approximately $25,000 for the works.
7. Mr Dunn was only cross examined briefly. He confirmed that he did not know what scope of works had been agreed upon between the applicant and the respondent for the bathroom renovation when he was present on site in December 2022. Mr Dunn stated that he only knew of what monies the applicant had paid the respondent based upon what the applicant had told him, including the telephone conversation where the applicant complained that the respondent wanted a further $4,000 and she had already paid him $21,000. Mr Dunn was not cross examined on his conversations with the respondent when Mr Dunn asserts that he put to the respondent that the applicant had paid the respondent $25,000 and the respondent did not deny having received such an amount of money.
8. However, despite the respondent's evidence also containing deficiencies and inconsistencies, it is the applicant who bears the onus of proof, not the respondent. The applicant has failed to prove on the balance of probabilities the amount of money she paid to the respondent.

What Work Did the Respondent Perform?

1. Again, the applicant has failed to provide sufficient evidence for the Tribunal to make comprehensive findings about the amount of work performed by the respondent.
2. The Tribunal is satisfied the respondent 'squared off' the doorway; removed the air-conditioner; and supplied materials to the site including toilet; laundry tub and tiles.
3. The Tribunal is satisfied the respondent engaged Mr Webb to perform plumbing work. The Tribunal does not accept the evidence of the respondent that the applicant engaged Mr Webb direct. The contemporaneous email of the respondent is more consistent with the respondent having engaged Mr Webb and requesting monies be paid to the respondent to be passed onto Mr Webb rather than the applicant engaging Mr Webb direct.
4. Further, as discussed previously, Mr Webb's evidence that the respondent engaged him rather than the applicant was not challenged by the respondent requiring Mr Webb to attend the hearing and be cross examined.
5. The Tribunal is also satisfied the respondent had a key to the premises, as this is referred to in his email of 16 February 2022. That email states that the key won't be returned until payment is finalised. That is consistent with the respondent being engaged to renovate the bathroom rather than merely perform "odd jobs."
6. However, as discussed previously, it is not sufficient that the applicant has established that the respondent was engaged to renovate the bathroom. The applicant failed to prove what scope of works was agreed upon.

Were the Works Residential Building Work Under the HB Act?

1. The works performed by Mr Webb involved plumbing work and thus fall within the definition of "specialist work" under Sch. 1 of the HB Act. Accordingly, that work is within the definition of "residential building work" under Sch. 1 of the HB Act, irrespective of the value of the works being less than $5,000.
2. As discussed previously, the Tribunal is satisfied that the applicant paid the respondent at least $4,000, plus $1,850 for the plumbing work. Accordingly, the total value of the work is above the $5,000 threshold for residential building work by reason of the definition of "residential building work" in Sch. 1 of the HB Act, and the amount stipulated in Reg. 5 of the HB Regulation.
3. Accordingly, the Tribunal has jurisdiction under the HB Act. However, even if the work did not involve residential building work, there was clearly a "consumer contract" between the parties and the Tribunal would have jurisdiction under the provisions of Part 6A of the Fair Trading Act 1987 (NSW) to consider causes of action including breach of contract (if established) and services not provided with due care and skill (s 60 of the Australian Consumer Law 2010 (NSW), if established).

Circumstances In Which the Contract Was Terminated

1. The respondent can only obtain damages for the increased costs of performing residential building work if the respondent repudiated the contract and the applicant accepted that repudiation (DB Homes Australia Pty Ltd v Kes [2019] NSWCATAP 221 at [43]-[47]). The principles applicable to what constitutes repudiatory conduct are well established.
2. The evidence does not satisfy the Tribunal that the respondent repudiated the contract and the applicant accepted that repudiation. Rather, the Tribunal is satisfied that the applicant engaged a new builder to perform the bathroom renovation (Heffernan Building and Construction) and informed the respondent on or about 16 February 2022 that he was no longer required to attend the site. It is unnecessary to make factual findings as to whether the applicant told the respondent she was going to sell the property "as is." Repudiation by the respondent has not been established.

Recovery of Monies Paid to the Respondent

1. The first fundamental flaw with this aspect of the claim is that the applicant has failed to establish that she paid the respondent an amount in excess of $5,850.
2. The second fundamental flaw is that the applicant has failed to establish any cause of action. As was discussed in Kim; and the Appeal Panel decision in Intelligent Building Pty Ltd v Ibrahim [2023] NSWCATAP 170 (Ibrahim) and Middleton v Wrona [2023] NSWCATAP 158 the mere payment of money from an owner to a builder does not give the owner a cause of action; nor is there a cause of action in respect of "overpayment".
3. The applicant must establish a cause of action, such as breach of contract (e.g. it was a term of the contact that monies paid to the builder were held on account subject to being reconciled for the work performed; or monies were paid in advance for work that was never performed); or payments under the unjust enrichment principles of payment (see Kim at [464]-[471] and Ibrahim at [29]-[30]).
4. In this matter, leaving aside the further difficulty that no cause of action was pleaded in the Points of Claim to explain the legal basis for awarding damages based on a refund of monies paid to the respondent, the applicant has failed to establish any breach of contract by the respondent; or that the respondent was unjustly enriched.

Damages for Breach of Statutory Warranty

1. The applicable principles for proving breach of statutory warranty under s 18B of the HB Act are set out in Deacon at [46]: Although objective standards such as Australian Standards, the Building Code of Australia and the Guide are of significant relevance in establishing whether work has been performed in a proper and workmanlike manner (Wheeler v Ecroplot Pty Ltd [2010] NSWCA 61 at [10]), the absence of such evidence does not automatically mean a homeowner has failed to establish breach of statutory warranty. In our view, the relevant principle was succinctly stated by Senior Member Goldstein in G MacFayden and Anor v G Tadrosse [2014] NSWCATCD 194 at [46] as follows: …[E]vidence that work does not comply with the Building Code of Australia would establish a basis for a finding that sub section 18B(c) of the Act has been breached. Evidence of the details in which work does not comply with the contractual plans and specifications would form the basis for a finding that sub section 18B(a) of the Act has been breached. Evidence of work not being carried out in a proper and workmanlike manner would in my view involve identification of the work in question, a statement of how the expert would expect it to be carried out in in a proper and workmanlike manner and then identification of the factors which establish that the way in which the work has been carried out falls short of it being carried out in a proper and workmanlike manner. Evidence of this nature, if accepted, would form the basis for a finding that sub section 18B(a) of the Act has been breached.
2. In this matter, the applicant has failed to establish that any work performed by the respondent was defective. The references in the brief reports of Heffernan Building and Construction; Mr Skerry; and Lancaster Homes do not satisfy the Tribunal that the actual work performed by the respondent (including the plumbing work that the respondent sub-contracted to Mr Webb to perform) was defective. The Tribunal has referred in detail previously in this decision why it gives limited weight to that evidence.
3. In respect of the applicant's claim that due to the toilet being incorrectly connected to the sewer, the Tribunal notes the email of the respondent dated 16 February 2022 refers to connecting the "laundry tub" but does not mention installation or connection of the toilet.
4. Accordingly, having failed to establish any breach of the statutory warranties in s 18B of the HB Act (which include a statutory warranty that work be performed with due care and skill) the applicant is not entitled to any remedy, including the remedy of damages.

Loss of Rental Income

1. The applicant would only be entitled to loss of rental income if a cause of action was established against the respondent; the loss was not too remote; and the applicant has sufficiently proved loss.
2. No cause of action has been established, and accordingly no damages are awarded for loss of rental income.

Cost of Materials Purchased By Applicant

1. The claim by the applicant for reimbursement of monies she spent on materials also fails, as no cause of action has been proved against the respondent.

Conclusion

1. Having failed to establish to the requisite standard of proof any cause of action against the respondent the proceedings are dismissed.

The Issue of Costs

1. The orders of the Tribunal contain procedural directions to deal with the issue of costs.

ORDERS 1. The proceedings are dismissed. 2. The issue of costs are to be determined as follows: 1. Respondent to file and serve costs submissions and documents by 7 days from the date of this decision. 2. Applicant is to file and serve costs submissions and documents by 14 days from the date of this decision. 3. Respondent to file and serve costs submissions in reply by 21 days from the date of this decision. 4. The costs submissions of the parties are to include whether they consent to the issue of costs being determined without a further oral hearing in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW) and if not, why not. 5. Subject to consideration of the parties submissions the Tribunal may determine the issue of costs without a further oral hearing. 6. Either party may seek an extension of the timetable to file and serve costs submissions. However, any application for an extension must be made by the date of compliance with the particular timetable obligation.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 January 2024