MEMBER: And in preparation for this hearing with your solicitor Mr Lloyd, you prepared a statement. In fact, you've done it twice, because it has been changed, but it's headed up What is the Dispute About - a typed statement. Hello, can you hear me?---Yes.

Yes. Okay. And this was - this had changes made to it, alterations, after you did it the first time. You did it another time?---Yes.

All right. And you tell us that everything that you have put in that document headed What is the Dispute About is to the best of your recollection a truthful account of your view of what happened?---Yes.[38]

1. It is apparent that the tribunal was, from this point, treating the document as the respondent's witness statement. In its oral reasons, when ruling upon whether the CCTV was authorised, the tribunal said:

... the only sworn evidence before me is Ms Hirsch's evidence that the CCTV work was not authorised.[39]

1. The respondent did not give that evidence orally. It was given by means of her answering "Yes" when asked by the tribunal whether the document was to the best of her recollection "a truthful account of your view of what happened". In the original document, the respondent did not suggest that the CCTV was not authorised. That claim was made in paragraph 4 of the amended document, varying paragraph 4 in the original document.
2. Mr Chen sought to ask the respondent questions about the inconsistencies between the original and amended versions of the document. The appellant submitted that the tribunal erred by not permitting him to do so.
3. It is clear from the transcript that the tribunal did not permit cross-examination on topics in the document that Mr Chen wished to test. I give some examples.
4. When seeking to ask the respondent questions about the quote for Contract 1 and the words "I received by email a quotation with an invoice embedded" appearing in the amended document, the tribunal said: "Mr Chen, this is not helpful, and it's not relevant. Move on" [40]
5. When seeking to test the respondent's original claim that she had paid $566.50 rather than $534.60, in an effort to test her credibility, the tribunal interjected to say the question was not relevant and directed Mr Chen to "move on". When the respondent offered to "say something" about the amount paid, the tribunal said: "You don't need to, Ms Hirsch. You really don't need to. Move on, Mr Chen."[41]
6. Mr Lloyd did not object to any question Mr Chen sought to ask.
7. In issue is whether the Tribunal erred by not permitting the cross-examination.
8. A tribunal must manage the orderly conduct of a hearing. It must try to ensure the efficient use of hearing time, and that evidence sought to be led is at least arguably relevant to the matters to be decided. It may, of its own initiative, not permit a question or line of questions that it considers objectionable, irrelevant or asked for an improper purpose.
9. When eliciting evidence, whether in chief or by cross-examination, some questions are clearly permissible or objectionable, but often the tribunal is obliged to exercise a discretion whether to permit or disallow the question.
10. On appeal against a discretionary decision, the appeal tribunal should interfere only if the tribunal was clearly wrong, for example because it acted on a wrong principle or incorrect facts or allowed extraneous or irrelevant matters to guide the exercise of discretion. In Russo v Russo, the Victorian Supreme Court, per Sholl J, commented that a discretionary determination "involves a considerable latitude of individual choice of a conclusion".[42] In Australian Coal and Shale Employees' Federation v Commonwealth, with reliance on earlier principles in House v The Queen,[43] the High Court commented on principles to be applied where appellant jurisdiction is exercised in respect of decisions involving discretionary judgement. The Court said:

[T]here is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the Court of Appeal is satisfied that it is clearly wrong.[44]

1. In relation to this ground of appeal, the question is whether the tribunal was "clearly wrong" not to permit Mr Chen's cross-examination of the respondent for the purpose of testing her credibility. In this respect, the following exchange occurred in the course of Mr Chen's cross-examination of the respondent:

MR CHEN: Okay. Now [Ms Hirsch] I want to take you to the fourth paragraph of your original which you filed back in May. The question is - - -

MEMBER: No, Mr Chen. Take her to the amended one, please, attachment 1. I'm not going to go backwards and forwards to documents that have been altered.

MR CHEN: Senior member, with due respect, we - - -

MEMBER: The witness will be taken to the document it was agreed this morning was what summarised what the dispute is about, and that is the amended one. Kindly get it out and if you're going to take her to something in it, take her to that and only to that.

MR CHEN: So I'm not allowed to ask questions in relation to credibility at all?

MEMBER: You have not got even close to the threshold for raising credibility issues at the moment.

MEMBER: Mr Chen, hearings are not an occasion for an advocate to do what he or she thinks they would like to do. What do you wish to do with respect to the amended What is the Dispute About?

MR CHEN: Well, in that case, your Senior Member, I do not have - I do not wish to cross-examine any further.[45]

1. The fourth paragraph of the amended document, about which Mr Chen wished to ask a question but was not permitted, was the paragraph in which the respondent asserted that the CCTV was not authorised. In the absence of any corroborative evidence, the respondent's credibility was clearly in issue. The absence of any suggestion in the original document that the CCTV was not authorised was an obvious line of questioning, even if only for clarification. Questions should have been permitted to suggest, at least, that the respondent was confused about use of the jetter, use of the CCTV, what was waived or authorised and the cost of each. In my view, the tribunal was clearly wrong not to permit the cross-examination on what was the central issue regarding Contract 1.
2. The remaining question is whether the refusal to permit the cross-examination affected the result. Plainly it did. Having shut down the cross-examination, the tribunal then relied on the respondent's evidence as the "only sworn evidence" to deny the appellant's claim for payment for the CCTV. I allow ground 7.

1. The appellant contended that the tribunal erred by not allowing the appellant's claim for its use of the CCTV on the grounds that the work was not authorised. The appellant referred to the tribunal's reasons:

... we then turn to the second issue which is, was the CCTV use actually authorised? Now, Ms Hirsch says in her statement that she didn't authorise it. I have no written statement from Mr Carlson as to it. And I note in particular that when Mr Chen was cross-examining Ms Hirsch, who gave her evidence over the phone this morning, he did not ask her any questions with respect to the CCTV work being authorised or not authorised. And I am therefore in a position where I should accept the evidence before me, and the only sworn evidence before me is Ms Hirsch's evidence that the CCTV work was not authorised. It follows that the respondent company was never in a position where it could charge for the CCTV work.

1. Mr Chen pointed to the improbability of the appellant's plumbers doing work that was not authorised. He referred to the evidence that Mr Carlson would have given that the respondent's husband authorised the work because she was at work, as later stated in his witness statement.
2. Mr Lloyd submitted in reply that there was no error on the part of the tribunal, or that would have been shown had Mr Carlson's evidence been admitted, because there was (and there is still) no evidence that the respondent authorised her husband to accept the quote.
3. The tribunal's findings and reasoning are contrary to the evidence. For example, the quote for Contract 1 contained the contemporaneous record that the respondent "would like to go with options 1/2".
4. Also, the respondent's evidence was not the only evidence from a witness on the topic. Ms Buffey's statement, giving evidence to the contrary, was accepted into evidence as exhibit R1 without objection. Mr Lloyd did not seek to ask Ms Buffey any questions about it.[46] Paragraph 9 of Ms Buffey's statement states:

Our record shows that Mrs Hirsch accepted both Option 1and Option 2, but we ended up waiving the cost of high-pressure water jetting because she and her husband authorised the excavation.

1. Paragraph 9 quoted from Contract 1 which notes that the respondent "would like to go with options 1/2" and quoted the price: "$1001 plus gst 50" to reflect the $50 seniors discount.
2. On appeal, Mr Lloyd agreed that Ms Buffey's evidence was not considered "at all".[47] He agreed that for the tribunal to find that the only evidence on the topic was that of the respondent was "a proper basis for concern".[48]
3. Mr Lloyd's submission that the work was not authorised because the respondent did not authorise her husband to accept the quote was not persuasive. The respondent's claim in the original proceeding was that the CCTV was not authorised at all. She did not suggest she did not authorise her husband to authorise the work. Nor do I think she would sensibly do so.
4. The remaining question is whether the error affected the result. In my view it did. The contemporaneous documented evidence recorded in the quote and in the invoice for Contract 1 should have been preferred to the respondent's oral evidence, unsupported by anything. The tribunal failed to acknowledge Ms Buffey's evidence on the topic, or at all. I allow ground 8.

1. Where an appeal is allowed, it is necessary either to remit the matter to the tribunal (even if sometimes differently constituted) to determine according to law or for the Appeal Tribunal to rehear the matter entirely or to the extent necessary. Applying the principles set out in section 7 of the ACAT Act, what course to take should be guided by questions of fairness, efficiency and a cost to the parties and the tribunal that is proportionate to the issues in dispute.
2. The appellant, in its application, sought orders that the appeal be allowed and that the matter be reheard afresh by a differently constituted tribunal. At hearing, I queried the appropriateness of that pathway having regard to the small quantum involved and the amount of time, effort and (I presume) money that had already been expended. I asked, if the appeal were allowed, whether I should do my best to quantify the outcome to bring the matter to conclusion. Both parties asked me to do so.[49]
3. I first acknowledge that the respondent's engagement of the appellant and the costs that then unfolded must have been extremely stressful for her. Mr Finley's report about the work necessary to repair the blocked drain and the cost for doing so must have compounded her stress. Mr Finley's report well illustrates the importance of the old adage: obtain three quotes before proceeding.
4. That, however, is not an answer to the respondent's liability to the appellant. Wisely or otherwise, the respondent and/or the respondent's husband on her behalf contracted with the appellant for it to carry out the work described in Contracts 1 and 2 for the prices quoted. The fact that a different plumber might have rectified or attempted to rectify the problem in a different way for a lesser price is irrelevant.
5. Looking first at Contract 1, I am satisfied on the evidence (per the note in JN 34859) that the appellant agreed to waive its fee for using the jetter if the respondent agreed to Contract 2 and paid the deposit ($1,947). The respondent's husband accepted that offer and paid the deposit. The respondent paid the fee for the CCTV ($534.60), but not the contracted fee for the jetter ($566.50). I considered what should be made of the $50 'seniors discount' offered under Contract 1, consequent upon the waiver. The best evidence was that it fell away as part of the waiver, hence the tax invoice showing nothing owing under Contract 1. I am satisfied that the respondent owes nothing under Contract 1. Where the contract was valid, the appellant is entitled to retain the money paid under the contract for the CCTV.
6. The tribunal's reasoning that the respondent owed the appellant $31.90 arising from the appellant's use of the jetter where she had had paid only $534.60 (being the cost of the CCTV), to make up the shortfall, was misconceived.
7. Referring to Contract 2, the tribunal found that the appellant must refund the deposit because, in its view, the work was of "no value" save for digging the hole.
8. I first note that the tribunal, when making its calculations, confused the deposit paid ($1,947) with the amount owing ($1,945.90). However, more importantly, the tribunal's reasoning for why the deposit should be refunded was, in my view, legally flawed.
9. The tribunal did not refer to any principle of contract law in support of the proposition that a person is not liable to pay for services provided under contract on the grounds that the services provided are not necessary. Nor am I aware of any such principle. The appellant stated in its quote, and in detail, the work it intended to do and its quoted price for the work. The respondent accepted the quote. The contract was valid and enforceable. That another plumber might have rectified the blockage in a different way and/or for a different price is irrelevant. The purpose of a contract would collapse if a person could avoid its obligation to pay for services provided for such a reason.
10. Mr Lloyd did not seek to defend the tribunal's reasoning. Rather, he drew on principles of equity (or fairness) to submit that the appellant should refund the deposit. He relied on two factors. First, he relied on the plumber's alleged statement to the respondent that they would not proceed with the work under Contract 2 unless she agreed to the quote for repair to the stormwater drain and paid a 50% deposit. Second, he said that the work "clearly went wrong"[50] - referring to the substantial excavation work and then the stormwater damage that caused the respondent to doubt the competence of the plumbers and to lose trust in them.
11. I understand why these factors caused the respondent to terminate Contract 2 and order the plumbers from her premises, but I am not persuaded that these factors absolve the respondent from her contractual obligations arising from her termination of the contract.
12. Referring to the tribunal's decision to order a refund of the deposit because the work done was of "no value" save for digging the hole, I considered whether that decision was defensible for reasons of fairness or equity. There are difficult questions about whether the Tribunal has power to do so, but they did not need to be considered because the proposition that the appellant's work was unnecessary does not withstand scrutiny.
13. If the tribunal had conducted the hearing in a procedurally fair manner, Mr Finley would have been cross-examined about his opinion and the appellant would have been given the opportunity to lead evidence in reply, namely the evidence of Mr Carlson. Their reports were before me. In summary, the reports are different opinions from different plumbers about how to clear the blockage.
14. I do not have the benefit of evidence that Mr Finley or Mr Carlson would have given, had they been cross-examined on their reports, but I envisage that each would have maintained their respective views about how they would have rectified the blockage but would have acknowledged that there are different approaches and that opinions can reasonably differ. In particular, Mr Finley does not state that the work done by the appellant's plumbers was "unnecessary": that was the tribunal's opinion. Mr Finley simply expressed his opinion that there were other options by which the work could have been done for a cheaper price. I reject the proposition that a contract should be set aside on such grounds.
15. Where Contract 2 was valid and enforceable, but the appellant did not perform all the work required under the contract upon being asked to leave the respondent's premises, the question is how much should the respondent pay.
16. On appeal, the appellant sought an order that the respondent pay the appellant 70% of the contract price on a quantum meruit basis.
17. The quote for Contract 2 included a hyperlink to "Terms and Conditions" and a hyperlink to a website address where the terms and conditions could be found. For the sake of resolving this dispute, I am prepared to accept that the hyperlink, or the reference to where the terms and conditions could be found, was sufficient to include those terms and conditions within the contract. Among them is clause 25, termination of contract, which governed the parties' respective obligations if the contract was terminated prior to completion of the work.
18. Clause 25.1 provided for the buyer's termination of the agreement "before initiation of the work". It concludes with the following sentence:

Any and all deposits that have been paid by the BUYER prior to cancellation shall be forfeited as liquidated damages.

1. At the original hearing, the appellant relied on clause 25.1 to contend that it was entitled to retain the deposit paid ($1,947) as liquidated damages, in addition to any further payment ordered to be paid on a quantum meruit basis. On appeal, no reference was made to clause 25.1 although (perhaps) that was thought unnecessary where the appellant sought an order that the respondent pay it 70% of the contract price.
2. I am not persuaded that clause 25.1 causes the forfeiture of the deposit paid.
3. Clause 25.1 is directed to termination of the agreement "before initiation of the work". It permits the buyer to terminate, but causes the buyer to become liable to a "standard call-out/assessment fee" if the booking for the work is not cancelled "prior to 24 hours before the technician's arrival time". Forfeiture of any deposit paid under clause 25.1 is in the context of termination prior to any work occurring. That is not this case. The respondent terminated the contract after work had commenced.[51]
4. A construction that clause 25.1 does not apply where work has commenced is consistent with subsequent clauses 25.2 and 25.3 which apply where the buyer instructs the company "to cease work before work is completed".
5. Clause 25.2 requires the buyer to "pay for all necessary inspections, all work carried out and material and equipment used up to the time [the company] ceases work" and to pay any deposit forfeited. Clause 25.2 provides "If the amount due exceeds the amount of the deposit" the buyer must pay the balance to the company.
6. Clause 25.3 provides:

If the amount due is less than the deposit the COMPANY must refund to the BUYER, the surplus balance within seven (7) days of the COMPANY calculating the amount due and owing to it.

1. When clauses 25.2 and 25.3 are read together, it becomes clear that a deposit is not automatically forfeited under clause 25.2. Forfeiture, wholly or in part, is calculated by reference to the value of work done.
2. In this case, the appellant has not calculated the amount due and owing to it. The only evidence, as best I can ascertain, is Ms Buffey's statement that it is "safe to say" that the appellant's plumbers "had finished approximately 60-70% of the quoted works"[52] at the time they were ordered to leave the site. I disagree.
3. The work described to be done under Contract 2 had 14 components: (1) organise materials pick up and have delivered to site; (2) organise plumbers shovels, picks, jackhammers, tools and equipment to site; (3) mark out area to be excavated; (4) cut concrete 1m x 1m to gain access to the ground; (5) excavate down and expose overflow relief; (6) cut existing overflow relief gully and layout new 100mm PVC drain and connect to existing sewer main line and installed a new overflow relief gully picking up existing kitchen line; (7) concrete under the overflow relief gully for support; (8) install crushed rock to support new 100mm sewer line; (9) book a plumbing inspection and hand in a certificate of compliance; (10) once inspection is approved, backfill; (11) photograph work carried out and upload to job profiles; (12) remove rubbish; (13) supply compliance form; (14) fence off any trenches for safety reasons.
4. The quote also involved hiring a 1.7 tonne excavator, but there was no evidence about the cost of the hire. The quote also involved locating and tracing gas mains and electricity lines, but there was none.
5. Doing the best I can, I think the work under Contract 2 can be broken down into five essential steps: (1) accessing the blocked sewerage pipe; (2) replacing the blocked part of the sewerage pipe with 100mm PVC pipe and reconnecting to the sewer line; (3) securing the integrity of the new pipe with supporting crushed rock and concreting under the overflow relief gully for support; (4) filling in and cleaning up; and (5) preparing necessary compliance documentation.
6. Step 2, replacing the blocked pipe, would seem to be the primary task. I accept that views could reasonably differ, but in an effort to quantify the work done I apportioned the work under Contract 2 by reference to the five steps as follows. Step (1): 25%, Step (2): 35%, Step (3): 20%, Step (4): 10%, and Step (5): 10%.
7. Mr Chen submitted that, whatever the apportionment between work done and not done, the appellant should be paid the whole of the amount payable under Contract 2 "less the $809.60 that Ms Hirsch has forked out to get somebody else to complete the work".[53] I disagree. That approach is to mix improperly the quoted work and quoted price under one contract with the quoted work and quoted price under another. The correct approach, in my view, is to determine what portion of the work had been done under Contract 2 and require the respondent to pay for that portion as a portion of the total contract price.
8. Ms Buffey acknowledges that when the plumbers were asked to leave, they "had not repaired/replaced the ORG or the sewer", that being the primary task under the contract. That is confirmed by a photograph in Mr Carlson's report immediately preceding paragraph 15 which shows the replaced stormwater line and that work under Contract 2 had progressed only to the point of exposing the blocked sewerage line.
9. In other words, applying the five steps described above, the appellant's plumbers had completed only the first step when ordered to leave the site.
10. A settled principle of modern contract law is that parties did not intend the terms of their contract to operate unreasonably.[54] Applying that principle, a calculation of the amount due and owing for work done needs to be reasonable.
11. Applying that principle, clause 25.3 requires the respondent to pay a reasonable amount for the work done calculated by reference to the value of Contract 2 as a whole. Where I estimate the appellant had completed 25% of the work to be done under the contract at the time work ceased, so I determine that the respondent is liable for 25% of the amount payable under Contract 2: $884.75 plus GST, being a total of $973.23.
12. The appellant's claim that the Tribunal should determine an amount payable on a quantum meruit basis is misconceived. A quantum meruit claim arises where there is not an enforceable contract or where the parties have a contract that is silent as to price. Principles of quantum meruit involve a court or tribunal implying a term that the purchaser pay a reasonable price and then quantifying that price as best it can to avoid a circumstance of unjust enrichment.[55] That is not this case. Indeed, were I to apply principles of quantum meruit, the evidence in Mr Finley's report suggests that a reasonable amount payable to the appellant for work done would be minimal.
13. At the original hearing, the appellant sought payment for repair of the stormwater line that its plumbers damaged in the course of their excavation work to reach the sewerage line. Sensibly, at the appeal hearing, Mr Chen abandoned any claim for the cost of repairing the stormwater line.[56]
14. At the appeal hearing, Mr Lloyd contended that the respondent should be compensated for the additional remediation works arising from the appellant's plumbers excavating a hole to access the blocked sewerage line that was substantially larger than the excavation Mr Carlson had indicated as necessary. That claim is borne out by the photographs immediately above paragraphs 12 and 15 of his statement, which show the eventual excavation was substantially greater than that intended consequent upon the need to repair the stormwater line.
15. On the appeal, Mr Chen accepted that the extra digging would not have been necessary had the plumbers not broken the stormwater pipe.[57] He accepted that the respondent therefore needed to re-concrete a much larger area than would have been necessary had the damage not occurred. Mr Chen offered $200 by way of compensation to cover that cost.[58] There was no evidence about the cost of the repairs, and no resistance to the offer from Mr Lloyd. I am prepared to accept the offer as reasonable in the interests of resolving a small issue.
16. On the appeal, the respondent did not press any claim that the appellant should reimburse her for any part of Mr Finley's costs. I agree with that approach. Mr Finley, in effect, 'picked up' where the appellant left off. Where the respondent is not liable to pay for any work not done, so the appellant is not liable for the cost of any subsequent work. That Mr Finley needed to fill a larger hole is, in my view, immaterial.
17. The last task is to quantify the parties' respective claims. Neither party owes the other anything under Contract 1. The respondent owes the appellant $973.23 under Contract 2. The appellant should pay the respondent $200 to compensate for the additional concrete work. The respondent's net debt is therefore $773.23. The respondent has already paid the appellant $1,947, with the result that the appellant must reimburse the respondent the difference: $1,173.77.
18. In her claim, the respondent sought interest calculated from 12 February 2021 being the last day the plumbers performed work at her property. In my view, interest should be calculated by reference to when the appellant became liable under clause 25.3 to refund the "surplus balance". If the appellant had acted in good faith, I estimate a calculation of the amount owing could have been done within seven days with the result that the surplus balance would have been due and owing to the respondent within a further seven days. I will therefore order that the appellant pay statutory interest on that amount ($1,173.77) calculated from 26 February 2021 to the determination of the appeal: $80.51.
19. The more difficult issue is the Tribunal's filing fees that the respondent paid for the purposes of her original claim ($162.50) and that the appellant paid for the purposes of its appeal ($1,186).
20. In the result, the appellant is successful in principle, but not in quantum. The respondent's original application should not have succeeded. The appellant therefore should not pay the respondent's filing fee of that application or her other costs.
21. The appeal filing fee raises different issues. Although I have found the appeal should be allowed, in my view the respondent should not be ordered to pay the filing fee. The appeal succeeds primarily because of the tribunal's failure to provide procedural fairness, but this did not arise from the conduct of the respondent. Mr Lloyd did not seek to call the respondent to give evidence in the absence of a witness statement. He had no part in Mr Finley's report being accepted into evidence without Mr Chen having an opportunity to object. He did not suggest that the appellant not have an opportunity to cross-examine Mr Finley. He did not oppose the appellant calling Mr Carlson to give evidence in reply. All of these actions and decisions, and their attendant errors, were the initiative of the tribunal.
22. In my view, the respondent should not be ordered to pay the appeal filing fee in circumstances where she had no role in the errors that occurred. However, where the appeal was successful, the appellant is entitled to its filing fee. In the exceptional circumstances of this case, I will therefore recommend to the tribunal registrar that the tribunal repay the appeal filing fee to the appellant.

[3] The respondent originally claimed $2,912.40. This was amended to $2,880.50 consequent upon the respondent realising she had paid the appellant $534.60, rather than $566.50, towards Contract 1.

[4] The claimed amount appears to be incorrect. The applicant's tax invoice shows the deposit to be $1,947 and the amount owing to be $1,945.90

[5] In addition to the sum claimed, the respondent sought payment of the Tribunal filing fee, a company search fee and interest.

[6] Transcript of original proceeding, 26 November 2021, page 65, line 36 - page 66, line 38

[7] Transcript of appeal proceeding, 30 March 2022, page 2, lines 28-45

[8] Transcript of original proceeding, 26 November 2021, page 7, line 24

[9] Transcript of original proceeding, 26 November 2021, page 7, lines 28-34

[10] Transcript of original proceeding, 26 November 2021, page 21, line 40- page 22, line 14

[11] Transcript of original proceeding, 26 November 2021, page 31, lines 29-42

[12] Transcript of original proceeding, 26 November 2021, page 31, lines 42-43

[13] Transcript of original proceeding, 26 November 2021, page 32, line 24

[14] Transcript of original proceeding, 26 November 2021, page 32, lines 30-33

[15] Transcript of original proceeding, 26 November 2021, page 32, lines 35 - 43

[16] Transcript of original proceeding, 26 November 2021, page 33, lines 17-22

[17] Transcript of original proceeding, 26 November 2021, page 34, line 19

[18] For some examples, see paragraph 95 of these Reasons

[19] Transcript of original proceeding, 26 November 2021, page 36, lines 26-28

[20] Transcript of original proceeding, 26 November 2021, page 36, line 31

[21] Transcript of original proceeding, 26 November 2021, page 36, line 33

[22] Transcript of original proceeding, 26 November 2021, page 36, line 35 - page 37, line 4

[23] Coutts v Close [2014] FCA 19 at [120]

[24] Transcript of appeal proceeding, 30 March 2022, page 34, lines 30-34

[25] Transcript of appeal proceeding, 30 March 2022, page 35, lines 20-21

[26] Transcript of original proceeding, 26 November 2021, page 53, lines 30-34

[27] Transcript of original proceeding, 26 November 2021, page 56, lines 9-14

[28] Transcript of original proceeding, 26 November 2021, page 45, lines 38-47

[29] Transcript of appeal proceeding, 30 March 2022, page 38, lines 45-46

[30] Clements v Independent Indigenous Advisory Committee [2008] FCFCA 143 at [8], cited in Wittman v Dennis & Anor [2022] ACAT 4 at [83]

[31] Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [46] - [55]; Harada v Barnes [2012] ACAT 66 at [5]- [10]

[32] Transcript of original proceeding, 26 November 2021, page 22, lines 2-6

[33] Transcript of original proceeding, 26 November 2021, page 25, lines 8-9 and page 30, lines 8-9

[34] Appellant's outline of submissions on appeal dated 17 February 2022, paragraph 5

[35] Transcript of original proceeding, 26 November 2021, page 31, lines 36-42

[36] Transcript of original proceeding, 26 November 2021, page 26, lines 31-39

[37] The revised claim was to seek $534.60 paid under Contract 1, rather than $566.50. It is apparent that the respondent recognised she had confused the payments for options 1 and 2 under Contract 1

[38] Transcript of original proceeding, 26 November 2021, page 35, line 1 - page 36, line 3

[39] Transcript of original proceeding, 26 November 2021, page 65, lines 14-15

[40] Transcript of original proceeding, 26 November 2021, page 39, lines 44-45

[41] Transcript of original proceeding, 26 November 2021, page 41, lines 26-27

[42] Russo v Russo [1952] VicLawRp 31; [1953] VLR 57 at [62], cited in Colbran and Spender, Civil Procedure Commentary and Materials (8th edition, 2022)

[43] House v The Queen (1936) 55 CLR 499

[44] Australian Coal and Shale Employees' Federation v Commonwealth (1953) 96 CLR 621 at 627

[45] Transcript of original proceeding, 26 November 2021, page 44, line 37 - page 45, line 21

[46] Transcript of original proceeding, 26 November 2021, page 51, lines 27-36

[47] Transcript of appeal proceeding, 30 March 2022, page 33, line 38

[48] Transcript of appeal proceeding, 30 March 2022, page 34, line 12

[49] Transcript of appeal proceeding, 30 March 2022, page 42, lines 20 - 46

[50] Transcript of appeal proceeding, 30 March 2022, page 40, line 46

[51] If termination had occurred before work commenced, I would still regard the clause as unenforceable. To retain 50% of a contract price to conduct plumbing repairs where no work has been done should, in my view, be characterised as a penalty, not liquidated damages, irrespective of its description in the contract with the result that it is unenforceable. The amount payable would, instead, be calculated in accordance with common law rules of damages. See generally Boucaut Bay Co Ltd v The Commonwealth [1927] HCA 59; (1927) 40 CLR 98, 107 and Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71; (2005) 222 ALR 306, 313

[52] Witness statement of Heather Buffey, 13 September 2021, paragraph 25

[53] Transcript of appeal proceeding, 30 March 2022, page 29, lines 24-26

[54] See, for example, TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130, 146

[55] See generally Chetty & Anor v Automotive Computer Diagnostic Centre (ACDC) Pty Ltd [2016] ACAT 38 at [12]- [17]

[56] Transcript of appeal proceeding, 30 March 2022, page 42, line 20

[57] Transcript of appeal proceeding, 30 March 2022, page 27, lines 9-44

[58] Transcript of appeal proceeding, 30 March 2022, page 29, lines 26-28