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[2025] ACAT 89
General information, not legal advice.
ACT Civil and Administrative Tribunal
2025-12-16
Presidential Member J
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ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WOMBAT HILLTON PTY LTD ACN 101 147 853 T/A DAVID REID HOMES v TEMPLETON & ANOR (Appeal) [2025] ACAT 89
AA 75/2025 (XD 818/2024) Catchwords: APPEAL – civil dispute – appeal from award of damages to home owners arising from home building contract – whether Original Tribunal erred in its application of the onus of proof – whether it erred in awarding damages for items the subject of rectification orders – whether Original Tribunal erred in awarding damages in relation to matters not covered by the contract, or in relation to matters where contract allegedly varied – whether contract had been varied in relation to stair treads, staircase void and hot water system Legislation cited: ACT Civil and Administrative Tribunal Act 2008, s 82 Competition and Consumer Act 2010 (Cth), Sch 2 (the Australian Consumer Law) Fair Trading (Australian Consumer Law) Act 1992, s 7
Cases cited Feng v UP 840 [2023] ACAT 8 Fox v Percy [2003] HCA 22 Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 Kase Industries Pty Ltd v Revill [2025] ACAT 78 Khan v Filardo Ercan Architects Pty Ltd ACN 647 677 263 [2024] ACAT 22 Mansour v Dangar [2017] ACAT 49 Saunders v South Canberra Holdings Pty Ltd ACN 606 747 602 [2023] ACAT 34 Templeton v Wombat Hillton Pty Ltd ACN 101 147 853 t/a David Reid Homes [2025] ACAT 53 The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207 Zeng v Crane [2022] ACAT 70 Tribunal: Presidential Member J Lucy Date of Orders: 8 December 2025 Date of Reasons for Decision: 8 December 2025 Date of Publication: 16 December 2025 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 75/2025
BETWEEN: WOMBAT HILLTON PTY LTD ACN 101 147 853 T/A DAVID REID HOMES Appellant AND: MICHELLE TEMPLETON First Respondent BRENDAN TEMPLETON Second Respondent APPEAL TRIBUNAL: Presidential Member J Lucy
DATE: 8 December 2025 ORDER The Tribunal orders that:
The appeal is allowed in part.
The orders made in proceedings XD 818/2024 on 16 July 2025 are set aside and the following orders are made in substitution for those orders.
Within 28 days, the appellant is to pay the respondents the amount of $20,434, comprised of: (a) $10,000 Cladding (b) $1,375 Blade wall (c) $2,500 Staircase treads (d) $5,924 Window and skylight (e) $635 Tribunal filing fee
In addition to the amount payable in Order 3 above, the appellant is to pay the respondents statutory interest of $2,384.07 to the date of this decision and $4.2581 per day thereafter in statutory interest to and including the date of payment, rounded to the nearest cent at the date of payment.
……………………………….. Presidential Member J Lucy REASONS FOR DECISION Introduction 1. A builder has appealed against orders that it pay homeowners damages for defective building work in relation to a home building contract.
I have found that the Original Tribunal erred in respect of two items for which damages were awarded. In both cases, the Original Tribunal found that the home building contract had been varied, and that the builder had breached the contract, as varied. I have concluded that the contract was not varied, such that there was no breach.
I have dismissed the builder’s remaining grounds of appeal, finding that the builder did not establish any error in relation to other items for which damages were awarded.
As a result, I have reduced the damages awarded to the homeowners from $24,584 to $20,434 and have altered the amount of statutory interest payable.
Background
On about 6 March 2018, the Templetons obtained plans from Studio 56 Building Design Pty Ltd (Studio 56) for the construction of a home.
Around the same time, the Templetons were engaged in discussions with representatives of the appellant (Wombat Hillton) in relation to the construction of their home.
On 10 September 2018, the Templetons and Wombat Hillton executed a contract 1 which included the following documents: (a) a document entitled “Draft contract” dated 14 June 2018 which contained a list of standard inclusions and a list of upgrades, with prices; (b) a Master Builders ACT Home Building Contract with Special Conditions and Specifications attached;
1 The Templetons provided the contractual documents to the Original Tribunal in accordance with its direction on 3 December 2024 (c) a list of prime cost and provisional sum allowances; (d) a selection schedule; (e) a copy of Studio 56’s drawings of the proposed home.
It appeared from the date of the document entitled “Draft Contract,” that it had been provided to the Templetons months before they signed the contract (and before the date on which they initialled the Draft Contract) and that they had selected the upgrades which formed part of it.
Clause 6 of the Draft Contract provided: 6. Process Our draft contract is estimated in 2 stages. We firstly estimate your home on our standard inclusions. We call this draft contract 1 You then provide us with a list of your upgrades to our standard inclusions. We call this draft contract 2. As said, being a 2 stage process
Clause 9 of the Draft Contract set out a list of standard inclusions.
The Draft Contract contained a list of upgrades, in clause 14, beginning on page 10, entitled “Non Standard Upgrades for Draft Contract 2.” On page 11, next to the word “Stairs,” appeared the words: “Concrete Tread with Black Rises.”
Clause 7 of the Special Conditions to the Master Builders ACT Home Building Contract provided: The draft contract 1 outlines our allowances for each and all inclusions. The allowances are included in the progressive payments. Any cost greater than that allowed for becomes a variation. Once an invoice/s total exceeds an allowance, it is claimed by variation. Draft contract 2 carries your variations credit. A variation can only be claimed once draft contract 1’s total and the CSS’s total exceed draft contract 2’s total.
On 8 November 2018, Mr Ryan, the director and secretary of Wombat Hillton, gave the Templetons a sketch which he had drawn, showing plasterboard under the stringer of the proposed staircase.
In November 2018, Wombat Hillton obtained a quotation from a stair company, Beach House Stairs, which indicated that cement sheets would be used for stair treads. It provided a copy of this quotation to the Templetons.
On 19 November 2018, Wombat Hillton emailed the Templetons, providing a plan showing that solar tubes would be installed above Bedroom 2 and asking 2 them to confirm whether they were happy with the proposed solar tube location. 3 Mr Templeton confirmed that location by email on the same day.
On 17 February 2019, the Templetons served a Variation Notice (on a Form 5) on the Builder. Thereafter, a total of 19 variation notices were served, the final one being served on 3 May 2019.
Relations between Wombat Hillton and the Templetons deteriorated during the construction of their home, with disputes arising about issues such as whether the stair void was required to be closed in.
Handover of the home from the builder to the Templetons occurred in July 2019.
On 17 September 2019, the parties completed a defects list, containing a column of matters identified by the Templetons as defects, and another column containing the builder’s response.
In 2022, the Templetons engaged Peak Consulting to assist them in relation to disputes with Wombat Hillton. Peak Consulting prepared a “Special Purpose Inspection Expert Defects Report” for them in March 2022. The report identified a number of defects, including defects allowing water to leak into the house.
In November 2022 and March 2023, the Deputy Construction Occupations Registrar issued rectification orders to Wombat Hillton in respect of the construction of the Templetons’ home. Those orders mainly related to rectification of water ingress issues.
Wombat Hillton carried out the required rectification works.
2 Templetons’ material filed on 22 October 2024, attachment OO 3 Templetons’ material filed on 22 October 2024, attachment PP
On 8 August 2023, a certifier wrote a report in which he stated that he was satisfied that the rectified works had addressed “the intent of the order to stop 4 water ingress into the building.”
On 11 September 2023, the Assistant Director, Construction and Planning Investigations, of the Construction, Utilities and Environment Protection Branch, Access Canberra (the Assistant Director) emailed the Templetons about the rectification works. The Assistant Director stated that, on review of the certifier’s report, the Construction Occupations Registrar was satisfied that the defects addressed by the rectification order had been satisfactorily rectified. The Assistant Director also identified some remaining issues, including that a Cemintel panel above a window appeared bowed, a Cemintel panel was installed with an evident scuff mark, a Cemintel panel was chipped during installation and the lower Cemintel panels repel water, while the older top panels appear to absorb it. The Assistant Director recommended that the Templetons seek independent legal advice regarding their rights to claim via a civil action.
On 23 October 2023, the Deputy Construction Occupations Registrar (who is the same person as the Assistant Director), wrote to Mr Ryan, indicating that the 5 Rectification Order had been satisfied and had ended.
In June 2024, the Templetons applied to the Tribunal for compensation concerning alleged defects in the construction and rectification of their home. They sought the cost of Peak Consulting’s fees for handover assistance and the cost of the Peak Consulting report; rectification order expenses; damages in relation to the staircase treads, staircase void, window and skylight positions and the position of the solar hot water system.
Directions were made to prepare the matter for hearing. Wombat Hillton filed a response and both parties filed submissions and a significant amount of evidence in advance of the hearing.
4 Document 33 of Wombat Hillton’s Response filed on 11 November 2024 5 Document 15 of Wombat Hillton’s Response filed on 11 November 2024
A hearing was held on 26 November 2024 before the Original Tribunal. The Templetons represented themselves and Mr Ryan represented Wombat Hillton. Following the hearing, the Original Tribunal made directions for the applicant to file a copy of an agreed contract and for the parties to file further submissions. The Original Tribunal reserved its decision.
After the hearing, the parties provided the additional material, as directed. 6
On 16 July 2025, the Original Tribunal provided written reasons for decision and awarded the Templetons $24,584, comprising: (a) $10,000 for cladding; (b) $1,375 for the blade wall; (c) $2,500 for staircase treads; (d) $1,650 for the staircase void; (e) $5,924 window and skylight; (f) $2,500 solar hot water installation; and (g) $635 Tribunal filing fee.
The Original Tribunal also ordered Wombat Hillton to pay statutory interest on $23,949 to the date of the decision (being 16 July 2025).
By an application for appeal lodged on 11 August 2025, Wombat Hillton appealed from those orders on a number of grounds. It identified the errors in its application for appeal as follows: Throughout the complete deliberation, Member/s understanding of evidence provided, facts presented, and events associated with this case are incorrect. … Member/s orders gave applicant the opportunity ‘submission I reply.’ Applicant used this reply to submit 3 pages to directly defamation respondent that has NOT been reported in the said deliberation.
6 Templeton v Wombat Hillton Pty Ltd ACN 101 147 853 t/a David Reid Homes [2025] ACAT 53
Wombat Hillton provided a detailed submission, included with its application for appeal, as to why the Original Tribunal had made errors.
On 3 September 2025, at a directions hearing, President Daniel made timetabling orders and also directed that the appeal would proceed by way of review unless the appeal tribunal otherwise orders. The President ordered that the Original Tribunal’s orders be stayed until the hearing of the appeal on 24 October 2025.
On 23 September 2025, in accordance with the appeal tribunal’s orders, Wombat Hillton submitted a further, more concise list of errors of fact, errors of law or errors in the exercise of discretion which materially affected the decision.
On 15 October 2025, the Templetons filed a response to the list of errors lodged by Wombat Hillton, arguing that Wombat Hillton’s alleged errors were, at best, disagreements with factual findings and that the appeal should be dismissed.
Hearing of the appeal
I heard the appeal on 24 October 2025. Mr Ryan appeared for the appellant and the Templetons appeared on their own behalf.
Mr Ryan made oral submissions in support of the appeal. Mr Templeton and Ms Templeton made oral submissions opposing the appeal.
At the end of the hearing, I extended the stay of the Original Tribunal’s orders until the final determination of the appeal. I then reserved my decision.
Nature of the appeal
An appeal tribunal may, as it considers appropriate, deal with an appeal as a new 7 application or as a review of all or part of the Original Tribunal’s decision. Generally, the appeal tribunal determines how it is going to deal with an appeal 8 at the first directions hearing, as it did in this case.
I dealt with the appeal as a review of the Original Tribunal’s decision and informed the parties at the beginning of the appeal hearing that that was what I
7 ACT Civil and Administrative Tribunal Act 2008, s 82(1) 8 Mansour v Dangar [2017] ACAT 49 at [23]; See Order 6 of Orders made on 18 June 2025 9 was going to do. An appeal which is dealt with as a review is what is usually 10 called a rehearing.
In Mansour v Dangar [2017] ACAT 49, Presidential Member Daniel (as she then was) summarised the distinguishing features of the two different approaches to an appeal as follows: For a new hearing, established principles dictate that the hearing starts afresh, evidence is given again, and the appeal tribunal’s view on any question of fact or law is determinative of the issue. Any discretion to be exercised by the original tribunal is exercised anew by the appeal tribunal. By contrast, for a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal’s findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal’s primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal is not at liberty to interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion. (Footnotes omitted)
I have adopted that approach to an appeal by way of rehearing in this case.
In order to succeed on appeal, the appellant must establish an error of fact, law or 11 discretion. The appellant must also demonstrate that the error was material to 12 the result.
Each of the grounds advanced by Wombat Hillton on the appeal is dealt with below.
Alleged errors re handover and “defamatory statements”
9 Transcript of hearing dated 24 October 2025, page 2, lines 21 to 25 10 The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207 at [13]-[14]; see also Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [36]-[37] 11 See, for example, Feng v UP 840 [2023] ACAT 8 at [7] 12 Zeng v Crane [2022] ACAT 70 at [27]; Feng v UP 840 [2023] ACAT 8 at [7] 13 Templeton v Wombat Hillton Pty Ltd ACN 101 147 853 t/a David Reid Homes [2025] ACAT 53 at [1] said that the member’s “whole mindset is [the Templetons] haven’t lived in the 14 home for two and a half years which is incorrect.”
I asked Mr Ryan how he said that the error affected the outcome of the case. He said that it affected the outcome, because the member’s “mindset is they couldn't move into the home for two and a half years, then he’s feeling poorly towards the 15 builder, isn’t he?”
The Templetons submitted that, at most, the appellant had identified a minor 16 clerical oversight, insufficient to amount to an appealable error of fact or law.
I accept that the handover occurred in 2019, as Mr Ryan claims, and that the statement that the Templetons engaged Peak Consulting to assist with the handover of their home in 2022 is erroneous. However, I am not satisfied that this error materially affected the decision. The Original Tribunal stated elsewhere in its reasons that the Templetons obtained the certificate of occupancy on 19 July 17 2019, so it is possible that the member did understand that the Templetons occupied the house from that date. Even if he did not, however, Wombat Hillton has not persuaded me that it follows that the member would therefore have felt “poorly” towards Wombat Hillton, nor that this error may have affected the outcome of the case.
Wombat Hillton also claimed that the Original Tribunal did not allow it to respond to the Templetons’ written submission in reply (filed after the hearing) which meant that the “appellant could not reject 41 defamatory statements in that submission.” Mr Ryan said, at the appeal hearing, that those “defamatory statements” were directed at him “personally.”
When asked how he said that affected the outcome of the case, Mr Ryan said that the Original Tribunal member read the comments and may have taken them into account.
14 Transcript of hearing dated 24 October 2025, page 3, lines 34 to 35 15 Transcript of hearing dated 24 October 2025, page 3, lines 37 to 41 16 Respondents’ response to the list of errors lodged by the appellant, filed on 15 October 2025 17 Templeton v Wombat Hillton Pty Ltd ACN 101 147 853 t/a David Reid Homes [2025] ACAT 53 at [4]
The Templetons disputed that they had made any defamatory statements and submitted that there was no procedural unfairness.
It is not necessary for me to consider whether the statements were “defamatory.” Even if they were, Wombat Hillton has not demonstrated that there is anything in the Original Tribunal’s reasons for decision which indicates that the member took adverse statements about Mr Ryan, made in the reply submissions, into account in its reasoning.
I am not satisfied that Wombat Hillton has established any error on the part of the Original Tribunal in relation to statements made in the Templetons’ reply material.
The first ground is dismissed.
Alleged error re onus of proof
Wombat Hillton contends that, despite recognising that the Templetons bore the onus of proof, the Original Tribunal in fact did not refer to Wombat Hillton’s evidence or apply the onus of proof correctly. Wombat Hillton said that the 18 Original Tribunal failed to reference “crucial facts” favourable to it.
At this level of generality, the appeal ground cannot be sustained. However, I understand this alleged error to be advanced in support of the appellant’s submissions about other alleged errors. These are considered below.
Alleged error re cladding
Wombat Hillton contended that the Original Tribunal erred in the way it dealt with the Templetons’ claim in respect of cladding.
The Templetons had made a claim in respect of Wombat Hillton’s work on the cladding to their home. In their submission lodged on 22 October 2024, the Templetons identified that the issue of “damage to cladding” concerned Wombat Hillton’s “improper installation of front-facing CSR Barestone Centinel sheets.” They stated, among other things, that Access Canberra issued a rectification order
18 Appellant’s Reasons for appeal, lodged on 23 September 2025. on 15 March 2023, requiring Wombat Hillton to replace the front-facing sheets 19 due to water ingress issues. At the hearing before the Original Tribunal, Mr Templeton said that they were “claiming $14,866.50 to rectify improperly installed CSR Barestone Cemintel sheets that compromise the façade’s structural 20 integrity anaesthetics [sic].” 21
The Original Tribunal described the Templetons’ claim as follows: The applicants advanced that Access Canberra identified significant deficiencies in the respondent’s work including that the panels were installed backwards; there was improper fastener placement; bowing or cupping of the panels and that the panels were damaged.
In its written submissions, filed on 17 December 2024, after the hearing, Wombat Hillton stated that it had rectified the issues with the cladding the subject of the rectification order. It submitted, with reference to the evidence, that the following professionals had passed the works: (a) A senior technical advisor of CSR Customer Solutions; (b) Director for Construction Planning Investigators; and (c) McKenzie Group Senior Building Certifier.
Wombat Hillton also referred to the Assistant Director’s email, expressing satisfaction that the rectification period had ended on 23 October 2023. Wombat Hillton accepted that one sheet had been installed in reverse, but said that that had 22 been rectified.
The Original Tribunal stated, in its reasons for awarding damages in respect of 23 the cladding: I accept that Access Canberra identified significant deficiencies in the cladding. Although the respondent has attempted some rectification, the
19 Applicants’ submission lodged on 22 October 2024, at [2.1.1]-[2.1.4] 20 Transcript of hearing (in proceedings XD 818/24) dated 26 November 2024, page 38, lines 45 to 47 21 Templeton v Wombat Hillton Pty Ltd ACN 101 147 853 t/a David Reid Homes [2025] ACAT 53 at [20] 22 Submission of Wombat Hillton in XD 818/24, dated 17 December 2024, pp 3 and 4 23 Templeton v Wombat Hillton Pty Ltd ACN 101 147 853 t/a David Reid Homes [2025] ACAT 53 at [53] applicants alleged ongoing problems caused by the respondent’s acts during the attempted rectification.
The Original Tribunal awarded the Templetons $10,000 in respect of the cladding, instead of the claimed $14,866.50, finding the lower amount to be 24 “more reasonable in the circumstances.”
Wombat Hillton submitted on appeal that the award of damages, and the reasons for that award, were affected by error. It submitted that Access Canberra had not identified “significant deficiencies” in the cladding, relying upon an email from the Assistant Director to the Templetons dated 11 September 2023. The builder also challenged the Original Tribunal’s comment that “the respondent has attempted some rectification,” stating that all matters were rectified.
Wombat Hillton claimed that the quotation relied upon by the Templetons, in support of their damages claim, was invalid because it did not provide the 25 Templetons’ address and should therefore have been “discounted as evidence.”
Wombat Hillton also argued that the Original Tribunal erred in awarding $10,000 in respect of the cladding when Mr Ryan had submitted that the defects were “minimal” and this was supported by Access Canberra. Mr Ryan said that, in these circumstances, Wombat Hillton should not have had to pay for a complete 26 wall replacement. In his words, “You don’t award $10,000 for a minor or 27 minimal situation.” Mr Ryan said that the government had passed the home, and in those circumstances the member should not have awarded a substantial amount of money for the replacement of a complete wall.
The Templetons submitted to the Appeal Tribunal that Wombat Hillton had conflated closure of the rectification order with full remediation. They submitted that the evidence, taken as a whole, supported the conclusion that there were “significant deficiencies” in respect of the cladding. One of those deficiencies
24 Templeton v Wombat Hillton Pty Ltd ACN 101 147 853 t/a David Reid Homes [2025] ACAT 53 at [54] 25 Appellant’s Reasons for appeal, lodged on 23 September 2025 and Transcript of hearing dated 24 October 2025, page 7, line 18 26 Transcript of hearing dated 24 October 2025, page 9, lines 5 to 6 27 Transcript of hearing dated 24 October 2025, page 10, lines 1 to 2 was that the top layers of the cladding still absorbed water, while the bottom 28 layers repelled water. Ms Templeton also took the Appeal Tribunal to photographs which showed that the battens and the types of screws that were used 29 and the fixings that were used were not in line with the installation instructions. Mr Templeton described the bowing, which the Assistant Director had referred 30 to in her email, as “quite significant.”
In response to the builder’s submission that the quotation upon which they relied was “invalid,” the Templetons submitted that the missing street address on a site- 31 inspected quote was a trivial clerical omission.
An appeal court or tribunal will generally not interfere with factual findings unless the facts as found are glaringly improbable or contrary to compelling 32 evidence. As this Tribunal has observed, an appellant must demonstrate that the 33 finding of fact which is challenged is “clearly in error.”
I am not satisfied that the Original Tribunal’s description of Access Canberra having identified “significant deficiencies” in the cladding, or its comment that “the respondent has attempted some rectification,” are clearly in error. The rectification order of 15 March 2023 identified water ingress issues associated with defects in the cladding. In her email of 11 September 2023, the Assistant Director indicated that there were “remaining issues” after rectification work had been done by the builder, including that a Cemintel panel appeared bowed, one was installed with a scuff mark, one was chipped during installation, and some panels repelled water whilst others absorbed it. The Assistant Director noted that the certifier raised the possibility that the panels had been installed the wrong way round.
28 Transcript of hearing dated 24 October 2025, page 58, lines 7 to 10 29 Transcript of hearing dated 24 October 2025, page 59, lines 19 to 21 30 Transcript of hearing dated 24 October 2025, page 60, line 32 31 Respondents’ response to the list of errors lodged by the appellant, filed on 15 October 2025. See also Transcript of hearing dated 24 October 2025, page 60, lines 4 to 23 32 Fox v Percy [2003] HCA 22 at [29] 33 Khan v Filardo Ercan Architects Pty Ltd ACN 647 677 263 [2024] ACAT 22 at [6]; Saunders v South Canberra Holdings Pty Ltd ACN 606 747 602 [2023] ACAT 34 at [7]; Zeng v Crane [2022] ACAT 70 at [27]-[28]
The Original Tribunal was entitled to have regard to the quotation on which the Templetons relied, even though it did not reference the Templetons’ address. The quotation named the client and described the issue. It was a reasonable inference that the quotation related to the Templetons’ property.
It was open to the Original Tribunal to reject Wombat Hillton’s claim that the remaining deficiencies, in relation to the cladding, were “minimal,” having regard to all of the evidence. Access Canberra’s email was only one aspect of the evidence.
As Wombat Hillton submitted, the Assistant Director did refer, in her email of 11 September 2023, to “minor outstanding issues,” following the rectification works. However, it is not clear what the Assistant Director meant by “minor,” and whether she only considered the outstanding issues to be “minor” in the context of all of the building issues the subject of the rectification order. The Assistant Director recommended in her email that the Templetons seek “financial compensation” from Wombat Hillton. She did so after referring to the builder’s “lack of attention to detail,” making the assessment that “[r]equiring the Builder to return and re-do this work may take an unsatisfactory amount of time” and suggesting that, if the Builder was required to return, the work may not be 34 completed to a higher standard than previously.
The Assistant Director’s email, read as a whole, does not establish that the remaining defects were “minimal.” Her email was, in any event, only one piece of evidence before the Original Tribunal. The Original Tribunal was required to have regard to the evidence as a whole. That included lay evidence, photographic evidence and expert evidence.
Wombat Hillton has not established that the Original Tribunal erred in the way it dealt with the Templetons’ cladding claim or in the reasons it gave for its award of damages in respect of that claim.
34 Email from Access Canberra to the Templetons dated 11 September 2023 Alleged error re damage to blade wall
Wombat Hillton submits that the Original Tribunal erred in ordering it to pay damages in respect of the blade wall. It relied upon the Assistant Director’s email, in which the Assistant Director expressed satisfaction that the defects addressed 35 by the rectification order had been satisfactorily resolved. Wombat Hillton also submitted that the Original Tribunal had awarded damages from a quote for a complete acrylic re-render, which it should have not done in circumstances where 36 the Assistant Director stated that the repair matched the area relatively closely.
The Templetons’ claim in relation to the blade wall related to damage said to be caused by Wombat Hillton when carrying out rectification works. The Templetons contended that, during the repairs, Wombat Hillton “used unapproved scaffolding, bolting timber battens directly onto the blade wall as a 37 safety barrier,” and that this caused damage to the wall.
Wombat Hillton submitted, before the Original Tribunal, that the blade wall had been passed by the building certifier and said that the Templetons had not “confirmed” incorrect scaffolding methods.
The Original Tribunal found that the damage was recoverable, that the amount 38 claimed, being $1,375, was reasonable, and awarded that amount.
As the Templetons submitted, Access Canberra’s closure of the rectification order focused upon the water ingress issues the subject of the order, not the broader render or surface damage. There was other evidence before the Original Tribunal supporting the Templetons’ claim. This included photographic evidence and the Templetons’ oral evidence that the blade wall was damaged during the 39 rectification process.
35 Wombat Hillton’s Reasons for appeal, filed on 23 September 2025, page 2 36 Wombat Hillton’s Reasons for appeal, filed on 23 September 2025, page 2 37 Templetons’ material filed on 22 October 2024 at page 17, [3.1.3] 38 Templeton v Wombat Hillton Pty Ltd ACN 101 147 853 t/a David Reid Homes [2025] ACAT 53 at [55] 39 Transcript of hearing (in proceedings XD 818/24) dated 26 November 2024, page 22, lines 22 to 23
Wombat Hillton did not provide any competing quotations for repairing the blade wall and did not make any written submissions, before the Original Tribunal, to the effect that the quotation upon which the Templetons relied improperly 40 required a complete acrylic re-render. Mr Ryan did not make any submissions about the blade wall at all at the hearing before the Original Tribunal. As I have 41 observed in a previous appeal decision: The general principle is that a party is bound by the conduct of the party’s case and that, except in the most exceptional circumstances, a party would not be granted leave to raise a new argument which the party failed to put during the hearing. However, in some cases where a question of law is raised on appeal, upon facts which are admitted or beyond controversy, it may be expedient in the interests of justice that leave be granted to raise the issue. (footnotes omitted)
In the circumstances of this case, Wombat Hillton is not entitled to raise the new issue of the award of damages for a complete acrylic re-render on appeal without leave, which it has not sought. There do not appear to be any exceptional circumstances which would justify the grant of leave, even if it were sought.
For these reasons, Wombat Hillton has not established that the Original Tribunal erred in awarding damages of $1,375 in relation to defects in the blade wall.
Alleged Error re staircase treads
Wombat Hillton submitted on appeal that the Original Tribunal erred when making findings about the stair treads.
The Templetons claimed, in the proceedings before the Original Tribunal, that Wombat Hillton had installed fibre cement sheets as staircase treads, where the contract required it to install concrete treads with black risers. They relied upon the list of upgrades in the Draft Contract. On page 11 of the Draft Contract, next to the word “Stairs,” appear the words: “Concrete Tread with Black Rises.” The Templetons submitted that the use of fibre cement sheets was a breach of contract and also submitted that the fibre cement sheets were not fit for purpose under
40 See Wombat Hillton’s submission filed on 16 December 2024 at p 5 and response filed on 11 November 2022 at pp 2-3 41 Kase Industries Pty Ltd v Revill [2025] ACAT 78 at [52] 42 section 60 of the Australian Consumer Law. They sought damages of $4,592.50, being the cost of installing new treads.
Before the Original Tribunal, Wombat Hillton submitted that the purpose of the “Draft Contract” was to provide allowance allocation for costs in construction, 43 and that the words “Concrete tread” were just a heading for the allowance. It said that the fibre cement sheeting was agreed.
The Original Tribunal found in favour of the Templetons and awarded them 44 $2,500 in damages in respect of the stair treads.
Mr Ryan submitted at the appeal hearing, as he had submitted before the Original 45 Tribunal, that the Templetons had upgraded their stair treads after construction. He relied upon a quotation from Beach House Stairs from November 2018 to 46 show that the parties had agreed on cement sheets for the stair treads. The Beach House Stairs quotation referred to MDF 15mm cover tread material. Mr Ryan 47 said that the quotation formed part of the contract. Mr Ryan also referred to a drawing, completed by him, which included arrows pointing to the stair treads with the word “mdf.” At the top of that drawing was written “Please allow for 15 mm cement sheets to go on top of treads in green.”
Mr Ryan maintained at the appeal hearing, as he had throughout the proceedings, that the list of upgrades in the “Draft Contract” was “purely used for allowance 48 purposes” and that there was nothing in the contract requiring the treads to be concrete. He submitted that he had no knowledge that the Templetons wanted 49 concrete treads until 2024, after the other treads had been installed.
42 The Australian Consumer Law is contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) and is applied in the Australian Capital Territory by the Fair Trading (Australian Consumer Law) Act 1992, s 7 43 Wombat Hillton’s submission filed on 16 December 2024, page 6 44 Templeton v Wombat Hillton Pty Ltd ACN 101 147 853 t/a David Reid Homes [2025] ACAT 53 at [56] 45 Transcript of hearing dated 24 October 2025, page 31, lines 39 to 40 46 Transcript of hearing dated 24 October 2025, page 14, lines 34 to 40 47 Transcript of hearing dated 24 October 2025, page 18, lines 13 to 17 48 Transcript of hearing dated 24 October 2025, page 22, line 19 49 Transcript of hearing dated 24 October 2025, page 26, lines 18 to 19
Mr Ryan also relied upon a contractual variation notice dated 3 May 2019, where the Templetons had written: “Please remove paint and rebate.” This was on a “Form 5,” referable to clause 17 of the contract (that is, to the Master Builders ACT Home Building Contract, signed by the parties on 10 September 2018). Clause 17 relevantly provided: (c) (i) If the Owner or the Builder requires variation to any part of the Contract then a written Variation Notice must be served on the party before the variation is undertaken… (ii) Upon service of the Variation Notice the Builder will within ten (10) days serve a written Cost Variation Notice on the Owner for their approval.…
The variation notice dated 3 May 2019, submitted by the Templetons, read as follows: Staircase/hall Proceed with plans that DRH and Joiner have come up with to meet Australian safety standards. As previously stated posts as per joiners drawing Please remove paint and rebate Can any fixings used be in a matt black finish, and a matt black finish on the alloy bottom of stair case outer South plaster board edge where is [sic] meets floating floor.
Mr Ryan submitted at the appeal hearing, in relation to the sentence “Please 50 remove paint and rebate”: Now, that paint is for the ceiling of the cement sheet stairs. Therefore, they knew they were cement sheet and they knew they'll do it later to save some money because they paint them themselves. So they knew what was installed.
Mr Ryan submitted that the Templetons had removed the paint (or lacquer) from 51 the contract due to budget issues.
Mr Ryan referred, during his appeal submissions, to the defects list dated 17 September 2019 consisting of a table in which the Templetons had identified defects in one column and Wombat Hillton had provided a response in another column. Next to the word “Staircase,” in the Templetons’ column they have written: “Treads are made from material that is not fit for purpose. Fibre cement
50 Transcript of hearing dated 24 October 2025, page 27, lines 31 to 34 51 Transcript of hearing dated 24 October 2025, page 28, line 25 sheeting material used is porous, and wears away, scuffs and chips with every use.” In Wombat Hillton’s column is written: “Client approved plans of materials on 8/11/18. If you would like to prevent marks you can lacquer them this will prevent further marks.”
Having referred to the defects list, Mr Ryan said at the hearing, that he could not 52 lacquer the stairs, because the Templetons removed the lacquer under variation.
Wombat Hillton has not established that the Original Tribunal erred when finding that it was a term of the contract that the stair treads were to be made of concrete with black risers. It was open to the Original Tribunal to make that finding on the evidence about the contract which was before it. The document containing a list of allowances (the “Draft Contract”) formed part of the contract between the parties and was initialled on the date of the Master Builders Contract. It plainly recorded an allowance for concrete treads with black risers.
The quotation given to Wombat Hillton by a staircase manufacturer was not a contractual document as it did not evidence the parties’ agreement and it post-dates the agreement for concrete treads. There was no variation to the contract, according to the procedure set out in the contract, changing the requirement for concrete treads.
The contractual variation on which Wombat Hillton relied at the appeal hearing said nothing about whether the material of the staircase treads was to be concrete or not. It referred only to paint. Whilst that might suggest that the parties had an understanding that the treads were to be made of fibre cement sheeting, the removal of an allowance for painting (with no reference to stair treads) does not effect a variation to the requirement that the treads be made of concrete. In any event, that proposed variation was rejected by Wombat Hillton. The contract clearly stated that the stair treads were to be concrete and that an allowance had been made for that.
This ground has not been established.
52 Transcript of hearing dated 24 October 2025, page 30, lines 42 to 43 Alleged error re staircase void
Wombat Hillton challenged the Original Tribunal’s award of damages in respect of the staircase void, on the basis that there was no agreement in 2018 for the 53 finish of the stair void area. The builder contended that there was no contractual requirement for it to undertake the work the subject of the Templetons’ claim.
In its case before the Original Tribunal, the Templetons claimed damages of $1,650 to rectify the void beneath the staircase caused by what they said were 54 Wombat Hillton’s deviations from the approved plans. Their position was that it had been agreed that there would be plasterboard under the stringer of their 55 staircase, but that the builder did not put any plasterboard there. The Templetons relied upon a hand-drawn drawing by Mr Ryan, provided to them on 8 November 56 2018, showing plasterboard under the stringer. They provided a quote from Rex 57 Plastering Pty Ltd for $1,650 to close the staircase with plasterboard.
Wombat Hillton submitted to the Original Tribunal that the Templetons had not provided any contractual evidence to verify that it had approved the design for the staircase void. The builder relied upon a contractual variation, submitted by the Templetons on a “Form 5” (the form for submitting variations), in which they 58 stated that they had removed the requirement for the wall to be plastered. 59
The Original Tribunal stated, in its reasons for decision: There was significant evidence and disputation concerning the void at the hearing. I accept that it was a variation of the agreement. I do not accept the respondent’s argument that the drawing of what was agreed did not bind the respondent.
53 Wombat Hillton’s Reasons for appeal, filed 23 September 2025 at pp 2-3 54 Transcript of hearing (in proceedings XD 818/24) dated 26 November 2024, page 39, lines 36 to 37 55 Transcript of hearing (in proceedings XD 818/24) dated 26 November 2024, page 92, lines 16 to 19 56 Transcript of hearing (in proceedings XD 818/2024) dated 26 November 2024, page 155, line 45 to page 157, line 47 57 Templetons’ material filed on 22 October 2024, attachment EE 58 Wombat Hillton’s submission filed on 16 December 2024 at p 6 59 Templeton v Wombat Hillton Pty Ltd ACN 101 147 853 t/a David Reid Homes [2025] ACAT 53 at [57]
The Original Tribunal did not discuss, in its reasons, the contractual variation removing the requirement for the wall to be plastered. It awarded the Templetons $1,650 to close the staircase void.
It was submitted for Wombat Hillton at the appeal hearing that the drawings on 60 which the Templetons relied related to stair treads only and not to the stair void. 61 Mr Ryan submitted: There was no agreement in 2018 for the finish of the stair void area nor was there plans provided by respondent to confirm otherwise. Under balance of probabilities, how can Member state of what was agreed for stair treads be for the future stair void issue? There was no balustrades ever even communicated at that stage until May 2019. 62
Mr Ryan continued: At this stage in early construction, we were just trying to look at the staircase. We had no idea of the stair void thing. There's nothing on the construction plans. There's nothing anywhere that wasn't brought up at the end of construction when that May, which this is six months later, about there being a balance - down here, I drew a big line, it was like that. So there's a hole under here, okay. And it was all finished, and under there were floating timber walls, all finished beautifully, and the applicant - sorry, the respondent didn't like it and went forward then with a new design which we had many emails going backwards and forwards and variation notices to install a timber frame because we need a balustrade. There's no balustrades on plan. There was an allowance put in by myself for a balustrade but in construction, generally speaking, you allow that the balance of those things to - later on in construction and we'll talk about, which is exactly what we did. And this is a problem now was a stair void that wasn't talked about until basically April- May 2019.
Mr Ryan reiterated that “there was nothing about stair treads, nothing about stair 63 voids, nothing about balustrades on plan.” Mr Ryan also referred to another drawing, which he said was dated 18 April 2019, which showed a stringer and 64 balustrades and the void underneath.
60 Transcript of dated 24 October 2025, page 16, lines 5 to 9 61 Transcript of hearing dated 24 October 2025, page 32, lines 38 to 43 62 Transcript of hearing dated 24 October 2025, page 33, lines 6 to 21 63 Transcript of hearing dated 24 October 2025, page 35, lines 27 to 29 64 Transcript of hearing dated 24 October 2025, page 36, line 44 to page 37, line 6
Mr Templeton said at the appeal hearing that the drawings provided by Mr Ryan 65 were plans for the whole of the staircase. The “drawing” to which he referred was a hand-drawn sketch by Mr Ryan, showing plasterboard under the staircase, which did not form part of the contractual documents signed on 10 September 2018. He indicated that they did not want the void because it “collects dust” and 66 is an “area where toys and socks end up.”
Ms Templeton referred to various emails between the Templetons and Wombat Hillton between February and April 2019 in which the Templetons raised the issue of the staircase void and in which Wombat Hillton did not agree to alter it 67 as they requested. In an email to the Templetons dated 15 April 2019, Mr Ryan stated: “There is no contractual record of the detailed requirements that you are claiming” and explained why it was not possible, in his opinion, to have the void 68 space closed.
Ms Templeton said at the appeal hearing in relation to the contractual variation submitted by the Templetons for the staircase void: And when we get to, ‘Staircase void,’ you'll see that there was a significant case of duress on our part because just getting through the staircase - while construction with this builder was very fast, just getting through the staircase took three to four months and he had threatened to cease construction on us.
She explained that the context was that they “were desperate, desperate for that void to be closed” but had got “straight denial.” After months of this, they “gave up” although they decided they would come back to it, including in the defects 69 list.
I am satisfied that the Original Tribunal erred in law when finding that the contract had been varied to require the builder to close the staircase with plasterboard. There was no requirement to do this in the contractual documents
65 Transcript of hearing dated 24 October 2025, page 72, lines 40 to 42, referring to Templetons’ material filed on 22 October 2024, attachment BB 66 Transcript of hearing dated 24 October 2025, page 73, lines 28 to 30 67 Transcript of hearing dated 24 October 2025, page 73, lines 37 to 39, referring to Templetons’ material filed on 22 October 2024, attachments WW, AAA, BBB, CCC and DDD 68 Templetons’ material filed on 22 October 2024, attachment DDD. 69 Transcript of hearing dated 24 October 2025, page 74, lines 11 to 27 signed on 10 September 2018. The only basis for inferring any contractual obligation to close the staircase appears to be a sketch which Mr Ryan did by hand. However, the contract provided, in clause 17(c)(i) of the Master Builders Contract document, that if variation was required, a variation notice had to be served. No variation notice accompanied the sketch. Further, there was no consideration provided for a variation at common law.
Even if the parties had varied the contract, as illustrated by Mr Ryan’s drawing, the Templetons varied it again by submitting the “Form 5” on which they stated that they had removed the requirement for the wall to be plastered. I do not accept that this contractual variation was vitiated by duress, as Ms Templeton suggested. Although she referred to being under duress at the hearing before the Original 70 Tribunal, no submission was made that the contractual variation was ineffective due to duress and the Templetons have not counterclaimed or sought leave to make that argument on appeal. The evidence is not, in any event, sufficient to establish duress.
Contrary to the finding of the Original Tribunal, the Templetons were not entitled to be compensated for breach of contract in respect of the stair void, because there was no such breach.
The Templetons’ application to the Original Tribunal included claims in respect of misleading conduct, and breach of consumer guarantees under the Australian Consumer Law, in relation to the staircase void. Those claims need to be considered given that the Templetons’ contractual claim, which succeeded before the Original Tribunal, has failed on appeal.
There is a question as to whether the Templetons are “consumers” to whom the Australian Consumer Law applies, given the amount of their entire building 71 claim. I do not need to resolve this, however, because I am not persuaded that there was any breach of sections 18, 60 or 61 of the Australian Consumer Law even if they were. There was some dispute about whether the void was necessary for mounting the safety screen (as claimed by Mr Ryan), a claim the Templetons
70 Transcript of hearing dated 24 October 2025, page 92, lines 36 to 37 71 Australian Consumer Law, s 3 (definition of “consumer”) said was misleading. However, they did not focus on this at the hearing before the Original Tribunal and have not established that the builder engaged in misleading and deceptive conduct, or conduct likely to mislead or deceive, within section 18 of the Australian Consumer Law, causing them loss. Nor did the Templetons establish before the Original Tribunal that Wombat Hillton’s failure to plaster the wall constituted a failure to deliver services with due care and skill 72 or that this rendered the staircase not fit for purpose. Their Australian Consumer Law claims in respect of the void have not been substantiated.
Alleged error re window and skylights
Wombat Hillton appealed from the Original Tribunal’s order awarding damages in respect of the position of a window and the position of skylights. 73
The Templetons contended, before the Original Tribunal, that: the window and skylight positions were misaligned and disrupted the home’s design and symmetry and were caused by [Wombat Hillton’s] deviation from the approved plans.
They claimed that the two skylights were positioned “almost a full meter away 74 from their specified locations in the construction plans.” They also claimed that Wombat Hillton “installed the upstairs WC window in the incorrect location, 75 attaching it to the external blade wall.”
The Templetons provided photographs showing where the window and skylights had been installed and a copy of the plans showing the agreed position of the 76 window and skylights. They said that they had engaged Studio 56 in June 2021 “to redesign the façade for a fee of $924” and had obtained quotes for façade modification and a new skylight installation.
72 See Australian Consumer Law, ss 3 (definition of “consumer”), 60 and 61 73 Templeton v Wombat Hillton Pty Ltd ACN 101 147 853 t/a David Reid Homes [2025] ACAT 53 at [13](g) 74 Templetons’ materials filed on 20 August 2024, p 30; see also Templetons’ materials filed on 22 October 2024, p 28 75 Templetons’ materials filed on 20 August 2024, p 30 76 Templetons’ materials filed on 20 August 2024, pp 31-32
The Templetons also relied upon a witness statement of Cristian Gonzalez, a 77 director of Studio 56, dated 22 October 2024. Studio 56 created the plans which formed part of the contract. Mr Gonzalez stated that the “misalignment” of the skylights “undermines the purpose of their inclusion in the design.” He also stated that the “WC window was placed along the column, not as per design and has 78 created façade issues that we were later engaged in to rectify.”
Mrs Templeton indicated at the hearing before the Original Tribunal that she may 79 be able to make “the architect,” Mr Gonzalez, available for cross-examination. 80 However, Mr Ryan declined to cross-examine Mr Gonzalez.
Mr Ryan stated in his response, in relation to the position of the WC window, that there were no measurements on the plan and that the WC window on the plan was 81 not symmetrical to the door frame, but it now does have symmetry. In relation to the skylights, he said (amongst other things) that the skylights and plan “are NOT symmetry in the room space” and that “Bunnings do NOT provide truss 82 layout prior to delivery, and High-Country Trusses subcontract to Bunnings.”
Mr Ryan did not make any oral submissions or give any oral evidence, at the hearing before the Original Tribunal, about the positions of the window and skylights. However, Wombat Hillton addressed the issue of the windows and skylights again in submissions filed after the hearing, on 17 December 2024, 83 denying that there had been any breach of contract.
In its reasons for decision, after setting out the parties’ positions, the Original Tribunal made the following findings about the positions of the window and 84 skylights:
77 Templetons’ material filed on 22 October 2024, Attachment II 78 Templetons’ material filed on 22 October 2024, Attachment II at [3]-[4] 79 Transcript of hearing (in proceedings XD 818/24) dated 26 November 2024, page 45, line 38 to page 47, line 23 80 Transcript of hearing (in proceedings XD 818/24) dated 26 November 2024, page 120, lines 26 to 47 81 Response filed on 11 November 2024, p 4 82 Response filed on 11 November 2024, p 4 83 Submissions of Wombat Hillton of 17 December 2024, p 7 84 Templeton v Wombat Hillton Pty Ltd ACN 101 147 853 t/a David Reid Homes [2025] ACAT 53 at [58] The evidence of Gonzalez was compelling. I do not accept the evidence of the respondent that there were no plans for the positioning of the skylights. If the positioning was due to installation issues, then these issues needed to be fully explained to the applicants and for them to be able to consider and respond. If necessary, the applicants could have raised the issues with Gonzalez. The respondent’s argument that the installation was in accordance with the manufacturer’s instructions does not defeat the applicants’ claim. The issue is positioning rather than correct installation. I accept that the windows and skylight will need to be repositioned in accordance with the original plans. I am prepared to allow the architect fees of $924 but I do not accept the façade modification quote of $4,746 and the skylight rectification quote of $5,810. Although these amounts were not directly challenged by the respondent the amounts claimed in my view are high. I am prepared to allow an additional $5,000. In light of the above, I award the applicants $5,924.
In its appeal submissions, Wombat Hillton challenged a number of statements made by the Original Tribunal in its reasons in relation to the position of the WC window and skylights, including: (a) “The evidence of Gonzalez was compelling”; and (b) “I do not accept the evidence of the respondent that there were no plans for the positioning of the skylights.”
In circumstances where Mr Ryan chose not to give oral evidence at the hearing about the positions of the window and skylights, and chose not to cross-examine Mr Gonzalez, it was open to the Original Tribunal to accept Mr Gonzalez’s evidence.
Mr Ryan pointed out that Mr Gonzalez was a building designer and not an 85 architect, describing him as a “glorified draftsman.” Although the Original Tribunal referred to allowing an “architect’s fee,” the circumstance that Mr Gonzalez was a building designer does not establish a material error. I note that, even if I am wrong about that, Mr Ryan did not make any submission to the effect that Mr Gonzalez was a building designer at the hearing and has raised this argument for the first time on appeal.
85 Transcript of hearing dated 24 October 2025, page 39, lines 45 to 46 Position of window
In his submissions about the position of the window, Mr Ryan took the Appeal Tribunal to Drawings 201 and 300, being plans drawn by Studio 56. He said that the plans showed “a tiny gap between the window and the column or the blade 86 wall” (as they did). He said that the window was in the correct location, but that the blade wall was 600mm wide instead of 500mm wide. He told the Appeal Tribunal: “the reason it’s 600 millimetres wide is it’s made out of polystyrene on 87 timber frame not brick.” He said that he and the Templetons had talked about it and “come up” with polystyrene, and had agreed to replace the brickwork with 88 polystyrene.
The Templetons accepted that the builder had discussed the change from brick to polystyrene but denied that he had told them that that would cause a change in 89 the design. Wombat Hillton has not provided any evidence that the change was the subject of a variation notice, in accordance with the contract.
I accept the Templetons’ submission that damages for the façade modification were compensatory for the failure to comply with placing the window in the correct place relative to the column (a defect apparently caused by constructing a column thicker than that in the design). Whilst the window may have been in the correct absolute position (contrary to what the Original Tribunal found), it was not in the correct position in relation to the column. The construction of the column to a width thicker than that allowed for in the plans was a breach of contract.
I would not interfere with the Original Tribunal’s award of damages in circumstances where moving the window would likely have been much more expensive than modifying the facade.
86 Transcript of hearing dated 24 October 2025, page 42, lines 1 to 2 87 Transcript of hearing dated 24 October 2025, page 42, lines 9 to 11 88 Transcript of hearing dated 24 October 2025, page 42, lines 17 to 21 89 Transcript of hearing dated 24 October 2025, page 81, lines 39 to 43 Position of skylights
As for the position of the skylights, Mr Ryan relied upon a plan provided by “High 90 Country Truss & Frames” showing the truss layout. Mr Ryan commented at the appeal hearing: “So that’s what’s supplied to me and somehow I’m supposed to know the truss is in the wrong - that one of the skylights is in the wrong place.”
Contrary to the submissions made on behalf of Wombat Hillton, and as submitted 91 by the respondents, Drawing 201 does show measurements. It also plainly shows that the skylights are to be positioned directly over the staircase. The drawing of the truss layout, provided by the truss company, does not affect Wombat Hillton’s obligation to construct the building in accordance with the contractual plans.
Wombat Hillton challenged the award of damages for installation of a new 92 skylight, where there was no quotation for the cost of moving the skylight. The respondents’ submission was that the new skylight was necessary to provide light to the whole of the stairwell, so as to remedy the defect caused by the skylight 93 being wrongly positioned. I accept that submission.
Wombat Hillton has not persuaded me that the Original Tribunal erred in awarding damages for the cost of a new skylight. The cost of moving the existing skylights would have been much greater.
Conclusion on positions of window and skylights
90 Transcript of hearing dated 24 October 2025, page 43, lines 16 to 19; Document 29 in Wombat Hillton’s material filed on 11 November 2024 91 Transcript of hearing dated 24 October 2025, page 77, lines 4 to 32 92 Wombat Hillton’s Reasons for appeal, filed on 23 September 2025, pp 3 to 4 93 Transcript of hearing dated 24 October 2025, page 80, lines 25 to 31 Alleged error re solar hot water system position
Wombat Hillton contended that there were a number of errors in the Original Tribunal’s findings and orders concerning the solar hot water system.
The Templetons had claimed that the solar hot water system was incorrectly installed by Wombat Hillton and that that had led to a reduction in the energy efficiency of the home. In material before the Original Tribunal, they referred to plans provided to them by Wombat Hillton in an email sent on 19 November 2018, showing that solar tubes would be installed above Bedroom 2 and asking 94 them to confirm whether they were happy with the proposed solar tube location. Mr Templeton confirmed that location of the solar tubes by email on the same 95 day. It is not in dispute that the solar tubes were installed above the living room instead of Bedroom 2. The Templetons said that the deviation from the agreed installation location restricted the use of the north-facing roof for solar panels, resulting in a smaller 6.6kW system being installed instead of the planned 9kW 96 system.
The Templetons relied upon a statement of Mr Suhkjeet Singh of Solar 4 Life, 97 who installed the solar system at the property, dated 21 October 2024. Mr Singh’s evidence was that he had informed the Templetons that installing a 9kW system was not possible due to space constraints on the roof. He stated that, in his professional opinion, if the solar hot water system had been installed on a different section of the rooftop, a 9kW system would have been feasible.
Ms Templeton indicated at the hearing before the Original Tribunal that she may 98 be able to make Mr Singh available for cross-examination. However, Mr Ryan 99 declined to cross-examine Mr Singh.
94 Templetons’ material filed on 22 October 2024 at p 32 [7.1.2] and attachment OO 95 Templetons’ material filed on 22 October 2024, attachment PP 96 Templetons’ material filed on 22 October 2024 at p 32 [7.1.3] and attachment RR 97 Templetons’ material filed on 22 October 2024, attachment RR 98 Transcript of hearing (in proceedings XD 818/24) dated 26 November 2024, page 45, line 38 to page 47, line 7 99 Transcript of hearing (in proceedings XD 818/24) dated 26 November 2024, page 120, lines 26 to 47
In its response to the Templetons’ claims before the Original Tribunal, Wombat Hillton stated that there were no agreed plans in relation to the solar hot water installation and suggested that Mr Singh had caused damage to the roof. The builder pointed out that the Templetons did not provide a Form 5 direction (to 100 vary the contract) in relation to the solar system.
The Original Tribunal made the following findings in relation to the solar hot water installation: Correct positioning of the solar hot water system was integral to the functionality, economy and aesthetics of the home. The plans relied upon by the applicants clearly show the expected positioning of the panels. The respondent disputed that the panels had been incorrectly placed. Although the applicants had knowledge of the placement, it does not mean that they accepted it. The solar hot water system is functional, but from the documents tendered it is not in the position agreed to in the contract that would have met the expected energy production. In their written submissions the applicants quantified their loss as energy production over 20 years. No evidence was provided to support this proposition. In any event, if the applicant succeeds on damages for rectification and if it is rectified, than [sic] their calculation of loss energy production over 20 years would fall away.
The Original Tribunal awarded $2,500 for compensation in respect of the positioning of the solar hot water system, rather than the $5,256 claimed by the Templetons. It stated in its reasons: I am prepared to allow a modest sum for compensation and to allow $2,500. I am not prepared to allow a claim for the lost energy production.
The Original Tribunal did not include any discussion, in its reasons for decision, of Wombat Hillton’s submission that the contract had not been varied to require the solar hot water system to be placed above Bedroom 2.
Wombat Hillton took issue with some of the statements made by the Original Tribunal in its appeal submissions, including: (a) “Correct positioning of the solar hot water system was integral to the functionality, economy and aesthetics of the home”; and
100 Wombat Hillton’s response filed on 11 November 2024, pp 27 to 30 (b) “The plans relied upon by the applicants clearly show the expected positioning of the panels.”
Wombat Hillton submitted that the solar panels faced north, meaning that they did meet the expected energy production. It also submitted that the Original Tribunal should not have awarded the Templetons compensation in circumstances where they had sought compensation for lost energy production and the Tribunal had not allowed that claim.
The member’s comment about the positioning of the solar hot water system being integral to the functionality, economy and aesthetics of the home, if it was in error as claimed by Wombat Hillton, was not material to the outcome. The critical question was whether the solar hot water system had been placed incorrectly. The Original Tribunal found that it had been, on the basis of the “plans” relied upon by the Templetons.
I accept Wombat Hillton’s submission that the plans which formed part of the contract which the parties signed on 10 September 2018 do not show the location of the solar hot water system. The upgrades for “Draft Contract 2” include “solar hot water with gas boost – sup/install” and “solar hot water – rebate.” The contract does not, however, specify where the solar hot water system is to be located.
Mr Ryan was asked by the Templetons at the hearing before the Original Tribunal 101 about his compliance with clause 3 of the ACT Home Building Contract, which relevantly provided: 3. DISCREPANCIES AND AMBIGUITIES a) Any discrepancy or ambiguity in the Contract will be resolved by interpreting them in the following order of priority: i) These clauses including Special Conditions ii) Approved Plans annexed or referred to in this Contract iii) the Specifications annexed or referred to by this Contract iv) other drawings or documents annexed to this Contract b) the Builder will serve the Owner with written notice of any discrepancy or ambiguity and ask for instructions.
101 Transcript of hearing (in proceedings XD 818/24) dated 26 November 2024, page 149, line 3 and following … e) … Notwithstanding any other provision, any additional work as a result of any discrepancy or ambiguity will be a variation in accordance with Clause 17.
Mr Ryan’s answers when cross-examined about the application of the clause were initially non-responsive. He eventually said that the clause did not apply and 102 referred to his written submission.
The key question is whether the emails exchanged between the parties on 19 November 2018 constituted a variation of the contract, requiring Wombat Hillton to position the solar hot water system in the proposed location, above Bedroom 2. There is no suggestion that the Templetons provided any consideration for a variation to the agreement to place the solar hot water system above Bedroom 2. Further, there is no suggestion that the contract was varied in accordance with the procedure set out in clause 17 of the contract for variations.
That strongly suggests that the contract was not varied to require Wombat Hillton to locate the solar hot water system above Bedroom 2.
Although the Templetons asked Mr Ryan questions about clause 3 of the contract, they did not make any submissions about the effect of not serving a notice of a discrepancy or ambiguity. It might be doubted that the contract’s omission to refer to the location of the solar hot water system is an “ambiguity or discrepancy” within clause 3 of the contract. One view is that the contract gave the builder a discretion as to where to place that system.
I am persuaded by Wombat Hillton’s submissions that, to the extent that the Original Tribunal concluded that the positioning of the solar hot water system above the living room was a breach of contract, this was erroneous. The contract did not provide for the location of the solar hot water system. Although Wombat Hillton had proposed placing it above Bedroom 2, and the Templetons had agreed to that, that agreement was not binding.
102 Transcript of hearing (in proceedings XD 818/24) dated 26 November 2024, page 151, lines 22 to 26 Conclusion
I have found that the Original Tribunal erred in awarding the Templetons $1,650 in respect of the staircase void and $2,500 in respect of the solar hot water system. This means that the total damages of $23,949 should be reduced to $19,799. The Templetons are still entitled to the filing fee of $635, making a total of $20,434.
The Original Tribunal awarded interest on damages of $23,949 from 21 June 2024, being the commencement of proceedings, to the date of its decision (16 July 2025). As that decision has been stayed, I consider that the Templetons are entitled to statutory interest on damages of $19,799 from 21 June 2024 to the date of my decision (8 December 2025), being $2,384.07. They are also entitled to $4.2581 per day in statutory interest for each day after the date of my orders on which the damages remain unpaid.
……………………………….. Presidential Member J Lucy
Date of hearing: 24 October 2025 Appellant: Mr D Ryan Respondents: In person
WOMBAT HILLTON PTY LTD ACN 101 147 853 T/A DAVID REID HOMES
TEMPLETON & ANOR