This document summarizes a District Court appeal from a decision of the Consumer, Trader and Tenancy Tribunal regarding a building dispute. The Tribunal found that there was an agreement for the plaintiff to pay $36,000 upon completion of the slab, but the District Court found there was no evidence to support this finding. The District Court allowed the appeal, set aside the Tribunal's orders, and remitted the matter to the Tribunal for a rehearing in accordance with the District Court's reasons.

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District Court
New South Wales
Case Title: Fordham v Dewsash Pty Ltd t/as S.P. & W.
Hobson
Medium Neutral Citation: [2012] NSWDC 109
Hearing Date(s): 25/05/2012 and 28/05/2012
Decision Date: 27 July 2012
Jurisdiction:
Before: P Taylor SC DCJ
Decision:
1. Allow the appeal.
2. Set aside the orders of the Tribunal.
3. Remit the matter to the Tribunal for a
rehearing in accordance with these reasons,
pursuant to ss 67(3)(b) and (4) of the CTTT
Act.
4. Order that the plaintiff's costs of the
appeal be costs of the proceedings in the
Tribunal.
Catchwords: Appeal from Tribunal - question with respect
to matter of law - no evidence - agreement -
mitigation of loss - quantum of damages -
estoppel - costs
Legislation Cited: Consumer, Trader and Tenancy Tribunal
Act 2001
Cases Cited: Kostas v HIA Insurance Services Pty
Limited [2010] HCA 32
Mahlo & Ors v Westpac Banking
Corporation Ltd [1999] NSWCA 358
Pavey & Matthews v Paul (1987) 162 CLR
221
Texts Cited:
Category: Principal judgment

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Parties: James Arthur Fordham (plaintiff)
Dewsash Pty Limited t/as S.P. & W. Hobson
(defendant)
Representation
- Counsel: Mr J Young (plaintiff)
Mr S V Shepherd (defendant)
- Solicitors: Blackwell Short Lawyers (plaintiff)
Creaghe Lisle Solicitors (defendant)
File number(s): 2011/165234
Decision Under Appeal
- Court / Tribunal:
- Before: Tribunal Member S Smith
- Date of Decision: 17 March 2011
- Citation:
- Court File Number(s) HB 09/25483; HB 10/21874
Publication Restriction: No
JUDGMENT
A. Introduction
1 This is an appeal from a decision of the Consumer, Trader and Tenancy
Tribunal ("the Tribunal") under s 67 of the Consumer, Trader and Tenancy
Tribunal Act 2001 ("the CTTT Act"), in respect of a building dispute.
B. Background
2 The facts as found by the Tribunal were as follows.

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3 Mr Fordham, the plaintiff, owned some rural land at Bendick Murrell in the
central west of New South Wales. He had plans to build a cottage. He
negotiated with Mr Hobson, the owner of the defendant's building
company, and on 25 June 2002 the parties entered a standard HIA
contract for the building of the house. The contract provided for a price of
$187,000 with no deposit, and a schedule of progress payments
commencing with $50,000 when the slab and underfloor plumbing were
complete.
4 Site work commenced in November 2002, and after many inspections and
rectifications the main part of the slab was poured on 13 May 2003.
5 In April 2003, shortly before the slab was poured, the defendant presented
the plaintiff with invoices totalling $36,000. As the slab had not been
poured, the plaintiff may have been within his rights to make no payment
until all works referable to the first progress payment were substantially
complete. In any event, on about 28 April 2003 the plaintiff paid the
defendant $29,000.
6 After the slab was poured, a further dispute arose between the parties
concerning the adequacy of the slab. Experts were retained. After some
debate those experts, Mr Simpson for the defendant, and Mr Noonan for
the plaintiff, agreed on a rectification procedure whereby a concrete
topping would be put on the existing slab to allow for a shower set down
and to provide some stiffening of the overall structure.
7 Ultimately, no concrete topping was installed. The plaintiff engaged a new
builder, and demolished the existing slab.
C. The Tribunalproceedings

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8 The Tribunal member determined that the matter required him to
determine three issues:
(a) Was the slab as built a breach of the building
contract;
(b) Did the plaintiff mitigate his loss if there was a
breach; and
(c) Which party had the right to terminate the contract.
9 In the course of dealing with these three issues, the Tribunal member
made findings which can be summarized as follows:
(i) Contrary to the defendant's contention, there
was no agreement prior to 28 April 2003
(when the invoices were supplied) that
$36,000 was payable upon the pouring of
the main slab with the veranda slab to be
poured separately.
(ii) On about 28 April 2003 the contract was
varied by agreement (or by the plaintiff
allowing the defendant to imagine that he
agreed) so that a further amount of $7,000
(in addition to the $29,000 paid on that day)
was to be paid on completion of the slab.
(iii) The refusal by the plaintiff to pay the
additional $7,000 indicated an unwillingness
by the plaintiff to be bound by the contract
as agreed and empowered the builder to
stop work.
(iv) This variation of the contract was an
informal variation, such that the builder
could not assert a right to payment under
the contract but was entitled to rely on a
quantum meruit.
(v) The plaintiff was estopped from disputing
that the value of the slab was an additional
$7,000 in addition to the $29,000 already
paid.
(vi) The builder was entitled to succeed on the
cross-claim for $7,000.
(vii) There is an argument that the slab satisfied
the contractual requirements, but because
other aspects of the case are fatal to the

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plaintiff's claim the question of breach of
contract need not be decided.
(viii) The compromise reached between the
experts about a topping slab was binding on
the parties, and governed their rights and
responsibilities.
(ix) The need to strengthen the slab was a
consequence of the way the builder
constructed the slab and so the builder must
bear the cost of the extra works.
(x) The only evidence of the value of the extra
works was Mr Simpson's estimate of $8,000,
which was accepted.
(xi) Were there a breach of contract by the
builder, the plaintiff had a duty to take all
reasonable steps to mitigate his loss, by
selecting the cheapest solutions reasonably
available.
(xii) The plaintiff's expert, Mr Noonan, withdrew
his approval to the slab topping even though
he had agreed previously. It was possible he
had succumbed to pressure from the
plaintiff, and as a result, little weight could
be given to Mr Noonan in measuring
reasonableness. Mr Simpson seemed
ready, willing and able to certify the slab
topping, and his evidence was preferred to
Mr Noonan's.
(xiii) The plaintiff unreasonably refused to
proceed with the topping slab and failed to
mitigate his loss, which would otherwise be
$8,000.
(xiv) The plaintiff should pay the defendant's
costs.
D. The Appeal
10 The plaintiff appealed from the Tribunal decision pursuant to section 67 of
the CTTT Act. Section 67 contains the following provisions:

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"(1) If, in respect of any proceedings, the Tribunal decides a
question with respect to a matter of law, a party in the proceedings
who is dissatisfied with the decision may, subject to this section,
appeal to the District Court against the decision.
...
(3) After deciding the question the subject of such an appeal, the
District Court may, unless it affirms the decision of the Tribunal on
the question:
(a) make such order in relation to the proceedings in which
the question arose as, in its opinion, should have been
made by the Tribunal, or
(b) remit its decision on the question to the Tribunal and
order a rehearing of the proceedings by the Tribunal.
(4) If such a rehearing is held, the Tribunal is not to proceed in a
manner, or make an order or a decision, that is inconsistent with
the decision of the District Court remitted to the Tribunal."
11 The plaintiff may have commenced the appeal shortly after the prescribed
statutory period, without leave. The defendant did not oppose an order for
leave to be granted, and accordingly I granted an extension of time for the
filing of the appeal to the date of the filing of the appeal.
12 In Kostas v HIA Insurance Services Pty Limited [2010] HCA 32, French CJ
at [25] held that:
"The words "question with respect to a matter of law" are wide
enough to encompass a question of mixed law and fact. Questions
of fact and law are often closely intertwined."
13 The plurality in Kostas (Hayne, Heydon, Crennan, Bell JJ) determined at
[90] and [91]:
"It is sufficient, for present purposes, to determine that the ground
usually described as a "no evidence ground" raises a question of
law...
Whether there was no evidence to support a factual finding is a
question of law, not a question of fact...What amounts to material
that could support a factual finding is ultimately a question for
judicial decision. It is a question of law."
14 The plurality declined at [88] to determine in the abstract the precise ambit
of the words "question with respect to a matter of law".

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15 The plaintiff asserted the following errors by the Tribunal:
"1 The finding that the there was an agreement for the Plaintiff to
pay $36,000 on completion of the slab.
2 The finding that the Defendant is entitled to a quantum meruit.
3 The finding that the Plaintiff is estopped from asserting that the
value of the work related to the completion of the slab was other
than $7,000.
4 The finding that the Defendant was entitled to stop work until the
$7,000 was paid.
5 The Tribunal failed to make any finding as to Plaintiff's claim for
breach of contract.
6 The finding without evidence that Mr Simpson would have
certified the slab as built and will certify the slab as augmented.
7 The finding that there was a compromise agreement binding on
the parties.
8 The finding without evidence that Mr Noonan resiled from his
previous opinion offered.
9 The finding without evidence that Mr Simpson had designed the
topping slab and was ready, willing and able to certify it.
10 The finding without evidence that the Plaintiff's entitlement to a
quantum of loss of $8,000.
11 The finding that the Plaintiff had failed to mitigate his loss.
12 The finding without evidence that the Plaintiff's claim demolition
and reconstruction was (as pleaded) $91,000 in round figures.
13 The Tribunal treated the hearing as a final hearing when it was
a hearing on liability and part of quantum only."
Ground 1: The agreement to pay $36,000.
16 This ground relates to finding (i) and (ii) of the Tribunal set out in
paragraph 10 above.
17 The plaintiff alleges that the finding of an agreement falls within s 67 on
two bases: it is a mixed question of fact and law, and in any event there
was no evidence to support the finding. It is clear from Kostas that the
second basis falls with the ambit of the appeal jurisdiction created by s 67.
I am also of the view that in the circumstances of this case, a finding of an
agreement is a mixed question of fact and law, which would fall within the
ambit of s 67 according to the decision of the Chief Justice in Kostas at
[25].

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18 The undisputed evidence was that on or about 28th April 2003, before the
slab was poured, the defendant gave the plaintiff three documents, these
being:
(a) Tax Invoice 0184 for $36,000;
(b) Part A Progress Claim No. 1 for $29,000 dated 27th
April 2003; and
(c) Part B Progress Claim No. 1 for $7,000 dated 27th
April 2003.
19 On 28 or 29 April 2003, the plaintiff paid the defendant $29,000. The
plaintiff's evidence as to the circumstances under which this amount was
paid is set out in detail in Annexure "K" to his witness statement dated 30
November 2009 filed with the Tribunal and adhered to under cross-
examination at T28/7/2010 p 23.5:
Q: I mean the reality is, Mr Fordham, if you haven't paid the builder
the $29,000, he wouldn't have poured the slab.
A: Would have been good if he hadn't.
Q: But he wouldn't have poured it if you hadn't paid it.
A: Paul rang me a couple of days before that date that I paid, and
asked me, because of the delay in time, and the fact that his
contract - he couldn't pay his contractors, he'd outlaid a lot of
money and he couldn't pay his contractors, the kids were - their
kids were starving, could I make an advance on progress payment
number 1, and I agreed to that. He couldn't tell me how much he
wanted upon that date. Three or four days later when he turned up
on the Sunday, he had these payments already - progress
payments already made out, and I was astounded at the amount,
because the amount of work that had been done to that date didn't
amount to $29,000. Nevertheless, I paid him the $29,000 which is
what he asked for, and then when I saw the second progress
payment, number 2B or whatever he called, for $7,000, that's
when I said, "No, that's $21,000, its not due until the veranda slabs
are done and all that sort of thing".
Q: Would he have poured the slab if you hadn't paid him the
$29,000?
A: I doubt it, I'm sure that he wouldn't have.
20 This evidence denies an agreement to pay the further sum of $7,000. The
defendant asserted that it was open to the Tribunal to reject the plaintiff's
evidence, and, in that event, the Tribunal's finding of an agreement to pay
a total of $36,000 was not so illogical or against the weight of the evidence
as to constitute an error of law.

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21 The difficulty with the defendant's submission is that the rejection of the
plaintiff's evidence does not operate to supply the contrary evidence. The
Tribunal accepted that the sum of $50,000 was due under the contract
when the slabs were complete. I accept that the invoices delivered to the
plaintiff constitute evidence of an offer by the builder for a variation to the
effect that $29,000 be paid on 28 April 2003 and that $7,000 be paid after
the pouring of the main slab.
22 However, I do not think that the payment of $29,000, without more, is
sufficient to support a finding of an agreement that a further $7,000 would
be paid after the main slab was poured.
23 The evidence of Mr Hobson was as follows (T29/7/2010 pp 6.45-7.11):
Q: What you were saying yesterday is the contract says, "slab
complete $50,000". You were saying, "Oh no, that's what it might
say, but in my mind, slab complete means the home and the
house slab because I built the veranda later". Mr. Shepherd led
evidence from you yesterday to indicate that there was a variation
to that $50,000, based on conversations which allowed you then to
submit a claim for $36,000, remember that?
A: Mm-hmm.
Q: Why was it necessary to have a variation if the contract said
$50,000 on completion of slab, and you, in your mind, had
completed the slab that you thought was included in that $50,000?
A: The word variation, wasn't actually a variation. Like it was - it
was just - the figures were all there, and because the time lapse
went on for so long, I had made a claim for the money that I
actually put into the place at that time, and that came to that
amount for the slab, and the difference was for the veranda slab.
Now, to me, a variation is when there's a plus or minus cost, and
there's no plus or minus, I was just requesting a payment for what
I've done.
And at T28/7/2010 p 63.45-63.50:
Q: If the contract was to be varied by postponing the construction
of the veranda, why did you not document it as you did with the
three minor variations?
A: Possibly because I didn't believe it as a variation because no
money is going to be on it, plus or minus. Like to me, it's not a
variation, it's just a different program of work. Wasn't going to cost
me any money or Mr. Fordham.

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24 This evidence does not seem to me to support a variation of the
agreement to require a payment of a total of $36,000 after the pouring of
the main slab. The Tribunal member noted that no claim of duress or lack
of consideration was maintained by the plaintiff in respect of the variation
but the absence of such a claim does not supply evidence of acceptance
by the plaintiff of the obligation to pay a further $7,000. There is no
conduct or words by the plaintiff in any of the evidence that indicates an
acceptance of the proposal by the defendant. I do not regard invoices sent
after the event as supplying evidence of an agreement.
25 Accordingly, I find that there was no foundation for any findings of a varied
agreement by the Tribunal other than an agreement to pay $29,000 in late
April 2003. To some extent this lack of evidence is recognized by the
Tribunal by its alternative finding of "allowing Mr Hobson to imagine that he
agreed". This alternative finding suggests that there was no acceptance,
rather that the conduct of the plaintiff gave rise to some form of estoppel.
An estoppel by conduct requires that there be evidence of the conduct
giving rise to an assumption, or reliance, by the defendant so as to act to
its detriment. These are not matters the subject of findings by the Tribunal,
and do not appear to be supported by evidence. I do not regard the finding
quoted earlier in this paragraph as sufficient to establish an estoppel.
26 It follows that ground 1 is established: the finding by the Tribunal of an
agreement between the parties for the plaintiff to pay a further $7,000 on
the pouring of the slab is an erroneous finding with respect to a matter of
law.
Ground 2: the defendant is entitled to a quantum meruit
27 The Tribunal also relied upon quantum meruit and the decision in Pavey &
Matthews v Paul (1987) 162 CLR 221 (see finding (iv) in paragraph 9
above.

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28 An action in indebitatus assumpsit for the value of the work done and
materials supplied, otherwise known as an action on a quantum meruit,
depends on proof by the builder that he did the work and that the owner
accepted the work without paying the agreed remuneration: Pavey v
Matthews at 228.
29 In the present case, it is not in dispute that the builder did the work, but the
owner's acceptance of the work and the agreed remuneration remain
matters in dispute. I have already decided that there was no evidence of
an agreed remuneration upon the pouring of the primary slab. Nor do I
think, in circumstances where the parties have been found to have agreed
upon the need for a topping slab, that there was acceptance of the work
done, at least not without rectification.
30 The defendant submitted (at [53] of its submissions):
"...the position as at the time the applicant terminated the contract
was that the common ground was that the builder had completed
this work and therefore must be entitled to payment for what he
had done as at the time the contract was terminated. Any putative
entitlement to damages for breach of the contract must
nevertheless account for the builder's entitlement to payment for
work done."
31 Of course, the owner must give credit for any work done. But if the owner
has terminated the contract for breach, the builder is only entitled to
payment for work done to the extent that the costs to complete the work
(including payments already made to the builder) are less than the contract
value. So much was provided for in clause 36.4 of the contract which
stated:
36.4 If the costs incurred by the owner are:
(a) more than the unpaid balance of the contract price the
builder must pay the difference to the owner within 7
working days of receiving the notice from the owner; or
(b) less than the unpaid balance of the contract price the
owner must pay the difference when giving the notice as a
debt due and payable. [emphasis omitted]

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32 It follows that the value of the work done by the builder must take account
of the cost of the remedial topping slab, and, potentially, the cost to
complete the work. It was an error for the Tribunal to ignore these costs
and simply award the builder the $7,000 as the additional value of the work
done to date.
Ground 3: the plaintiff is estopped from asserting the value of completing
the slab was other than $7,000.
33 This finding of the Tribunal ((v) in paragraph 9 above) is dependent upon
the finding of an agreement. The Tribunal member found:
"I note that at least one count in the builder's claim was founded
on an estoppel. In my opinion the part played by estoppel in this
matter goes to the amount of the quantum meruit being the value
of the work done. Because Mr Hobson acted to his detriment on
the promise of Mr Fordham to pay the outstanding balance of
$7,000 for the completion of house slab, I do not think he can be
heard now to say that its value is other than $7,000.00 and that it
is payable forthwith."
34 The Tribunal's reasons indicate that the estoppel claim is not an alternative
to the agreement, but an addendum: there was an agreement to pay for
the value of the work on completion of the slab, and the plaintiff is
estopped from denying (for the purposes of that agreement) that the value
of the slab is a further $7,000.
35 If there is no evidence of agreement, this finding also must be in error.
36 Further, an estoppel by conduct requires a party to act to its detriment. The
detriment in this case was alleged to be the pouring of the slab.
37 There was evidence from Mr Fordham that the builder would not (or would
not likely) have poured the slab if the $29,000 was not paid. But there was
no evidence from either party that the builder would not have poured the
slab if the owner had not promised to pay a further $7,000 on completion
of the slab, and no questions to that effect were directed to the owner. I do

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not accept that the mere tendering of an invoice for $7,000 by the builder
can be conduct sufficient to support an estoppel, in circumstances where
there was discussion and agreement in respect of payment of the invoice
for $29,000 in return for the pouring of the slab.
38 The builder submits that it was:
"...entirely open to the tribunal to conclude that the applicant
encouraged the respondent to act on an assumption that a contact
would come into existence or a promise be performed by the
applicant (i.e. payment of $36,000) and the applicant intended the
respondent to act on that assumption (by part performance of that
promise in paying $29,000) and the respondent did act on that
assumption to his detriment in that work was performed that
otherwise would not have been done and he has not been paid the
outstanding amount for which he undertook that work."
39 To make out this submission, there needed to be some evidence, perhaps
from the builder, to the effect that he poured the slab because of some
conduct of the owner in respect of the invoice for $36,000, or the invoice
for $7,000. No such evidence was identified. In the absence of evidence of
"encouragement" or "acting on an assumption", there was no basis for the
Tribunal's finding. I have already found that the mere tender of an invoice
is insufficient.
Ground 4: the defendant could stop work until the $7,000 was paid.
40 Again, finding (iii) in [9] above is dependent upon an agreement in respect
of the $7,000, which I have rejected on the basis that there was no
evidence to support it. It follows that there was no evidence to support an
entitlement in the builder to stop work until the $7,000 was paid.
Ground 5: failure to make a finding of breach of contract by the builder.
41 It is correct that the Tribunal did not make a finding in respect of breach of
contract and expressly reserved that question. However, the Tribunal's
finding (based on the finding of a varied agreement) that the builder was

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"empowered to stop work" precluded a finding of breach by the builder in
so doing.
42 In the absence of a valid variation, the Tribunal would need to determine
whether either party was in breach of the agreement.
Conclusion to Grounds (1) - (5)
43 All of these grounds arise out of the Tribunal's decision that there was an
agreement between the plaintiff and the defendant to pay $7,000 on
completion of the pouring of the main slab. I have found that there is no
evidence to support such an agreement, so these grounds are made out. It
follows that findings (ii) to (vii) are not supported by any evidence and must
be rejected.
Grounds 6 and 9: Mr Simpson designed and would have certified the
topping slab
44 These grounds concern finding (xii) in [9] above.
45 Mr Noonan, the plaintiff's expert, wrote on 5 August 2007:
"The topping slab rectifications proposal by Mr Simpson is a
suitable strength rectification provided it is designed and installed
correctly."
46 On 24 August 2007, Mr Simpson noted that he was:
"...preparing a rectification plan and specification. The plan will
involve a systematic inspection of the underside of the edge beam,
the removal of any soft plant material found; the refilling of any
gaps with compacted granite or high strength concrete slurry: the
machine grinding/roughening of the slab surface; the installation of
[unreadable] placing of reinforcing mesh and the pouring of a
topping slab in two or three segments."
"The structural characteristics of the new slab are intended to
easily accommodate any movements in the founding soil through
settlement or moisture content related shrinking and levelling. In
reality the rectified slab will be far stiffer than the original design."

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47 The evidence also included a facsimile to Mr Fordham from Mr Simpson
dated 28 October 2007 which comprised a topping slab plan with notes
and specifications, a rectification procedure, and detailed sections at the
edges of the existing slab and at the construction joint.
48 Mr Noonan responded on 19 November 2007, writing:
"We therefore advise that method of rectification is acceptable
provided the additional notes are included in the design drawings
for the edge beam rectification."
49 In these circumstances it seems clear to me that there was evidence on
which the Tribunal could conclude that Mr Simpson had designed the slab
and was willing to certify as built. I therefore reject grounds 6 and 9 of the
appeal.
Ground 7: there was a compromise agreement concerning the slab
rectification which was binding on the parties
50 This ground concerns finding (viii) in [9] above.
51 I refer to the evidence quoted under the previous ground. That evidence
supports a finding that there was a compromise agreement concerning the
slab rectification, which was binding upon the parties. The plaintiff did not
appear to submit otherwise. The primary submission on this ground was
that it did not relieve the Tribunal of the need to determine breach (a
matter dealt with under another ground of appeal):
"If, as it appears, the Tribunal found that there was a compromise
agreement between the parties that would govern the way the
rectification of the slab progressed, then the Tribunal did not then
go to decide which party was in breach of that compromise
agreement. This was an error with respect to a matter of law."
52 The plaintiff also submitted that no final plans were prepared. The
evidence indicates that an updated plan was to be prepared which might
not have been completed, but I think the plans provided at pages 105-106
of the Blue Appeal Book, together with the specifications and rectification

16. - 16 -
procedure recorded thereon, were sufficient to enable a finding that a
compromise agreement had been reached.
53 Accordingly, I reject ground 7 of the grounds of appeal.
Ground 8: Mr Noonan resiled from his previous opinion.
54 This ground concerns finding (xii) in [9] above.
55 It does not appear to be in contest that Mr Noonan did resile from his
previous opinion of agreement with Mr Simpson's slab topping proposal. At
least Mr Noonan thought that, for reasons which he set out, demolition of
the slab was a preferable course.
56 Save for one matter, which is dealt with below, I do not find any errors with
the way the Tribunal dealt with Mr Noonan's evidence. Mr Noonan
withdrew his approval of the agreed topping slab solution, as the Tribunal
found. Also, as the Tribunal found, Mr Noonan's reasons for so doing were
not relevantly technical. Mr Noonan did not find that the topping slab would
be defective or inappropriate in some way, but was concerned with matters
of liability and costs.
57 I think it was open to the Tribunal to adopt Mr Simpson's topping slab
solution, as a reasonable and cost effective procedure, on the basis that
Mr Noonan had once agreed with it but subsequently changed his mind.
However, the Tribunal did not proceed on this basis. Rather, it found that
there was a "possibility that Mr Noonan succumbed to pressure from Mr
Fordham", and that "as a result" Mr Noonan's revised opinion was given
little weight.
58 The defendant refers to a letter from the plaintiff's solicitor (Blue AB 492-3)
as "evidence to support that the change of opinion had been encouraged
by the plaintiff's solicitors". Although that may be so, I do not think it was

17. - 17 -
open to the Tribunal to attribute this possible motivation for Mr Noonan's
change of mind and to reject his evidence because of it, in circumstances
where Mr Noonan was not cross-examined and the possibility was not put
to him. The Tribunal must be cautious before attributing an extraneous
motive to an expert, and should not do so unless there is some factual
foundation for it.
59 Notwithstanding this error, as I have said, the ultimate finding of the
Tribunal on the reasonable rectification procedure was open to it. It would
be a matter for the Tribunal to decide whether it now makes the same
finding in circumstances where (in the absence of further evidence) it was
not entitled to reject Mr Noonan's revised view on the basis of the alleged
possibility that Mr Noonan had succumbed to pressure from Mr Fordham.
Ground 10: plaintiff entitled to $8,000 only
60 The plaintiff submits that there was no evidence to support the finding that
the cost of rectification of the slab was $8,000 (see finding (x) in [9]
above).
61 The Tribunal found:
"As it turns out, Mr Simpson's estimate of the cost of rectification
was the only one before me. He indicated the cost at about $8,000
and I accept that estimate".
and
"In the circumstances of the present case I am well satisfied that
Mr Fordham has not acted reasonably in rejecting the topping slab
and has failed to mitigate his loss which would otherwise be
$8,000."
62 The basis of this finding is that in re-examination of Mr Simpson on the
topic of the topping slab, the following exchange occurred:
"Q. Would that have been cheap?
A. Without doing the - work, it would have been in the ballpark of
$8,000 to $10,000, maybe $12,000."

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63 It may be that the Tribunal has elevated the evidence of the cost of a slab
topping to a level slightly higher than it bore. However, I think the evidence
of Mr Simpson is some evidence that the cost of the slab may be $8,000.
The fact that a finding of a cost of $9,000 or $10,000 may sit more
comfortably with that evidence is not sufficient, in my view, to allow a
finding by this court that the cost of $8,000 for the topping slab as found by
the Tribunal had no evidentiary basis.
64 The question whether the cost of the topping slab was the proper amount
of the plaintiff's damage under the contract, if any, is another matter. I
have already dealt with this issue under grounds 1 to 5. I should note that
the Tribunal did not find that the plaintiff's loss was $8,000, rather that if
there was a breach of contract, "it would sound in damages equal to the
homeowners loss according to law, here the $8,000 for the topping slab".
Ground 11: the plaintiff failed to mitigate his loss.
65 The finding at (xiii) in [9] above is criticised by the plaintiff on the basis that:
"such a finding is relevant where a breach of contract is
established [but that] the Member...expressly stated that he was
making no finding of breach by the defendant."
66 I accept the plaintiff's submission that the question of a failure to mitigate
loss only arises where the Tribunal is endeavouring to assess the damage
consequent upon a breach of contract. In the absence of a finding of
breach of contract, a finding of a failure to mitigate loss is unnecessary.
However, that does not assist the plaintiff on this appeal. If anything, it may
support an argument that the $8,000 awarded to the plaintiff could not be
sustained.
67 This is another reason (or perhaps the same reason expressed another
way) as to why the Tribunal needed to make a finding about breach of
contract by the defendant. Unless it did so, there was no cause of action

19. - 19 -
established which justified an award of $8,000 or some other sum, in
favour of the plaintiff.
68 However, there was a basis (as set out above with respect to grounds 6 to
10) for the Tribunal to find that by not installing a topping slab the plaintiff
had failed to mitigate any loss to which he was entitled. I would therefore
not reject this finding of the Tribunal.
Ground 12: the plaintiff's claim was for $91,000.
69 On 19 October 2009, Member Durie noted:
"That the owner has now obtained an owner/builder license and is
proceeding with works. It may be necessary (with the consent of
the parties) to have an initial hearing on liability and part of the
quantum, and a later hearing on the balance of quantum."
and on 19 November 2009, Tribunal Member Rossa noted:
"The Tribunal further notes that the parties are agreed that the
hearing of the application will be in two parts, with liability and part
of the quantum to be determined initially, with the balance of the
quantum to be determined at a later stage (if liability is
established)."
70 It was proposed that, as the Plaintiff submitted:
"...the hearing was to determine liability on all issues and, subject
to that decision on liability, then go on to determine quantum for
the limited component of demolition and reconstruction of the
slab."
71 It is not readily apparent to me how the Commissioner could determine
"part of the quantum". The difference between the cost of the slab, and the
amount paid by the plaintiff to the defendant, is not a proper amount of
damage. Certainly the cost of the slab is a component of the overall cost,
and the amount paid to the builder is a relevant component of the
calculation of the damages to which the plaintiff may become entitled. But
the proposal by the parties to separate the cost of the slab from the
amount of damages suffered by the plaintiff was misconceived, and seems
likely to have contributed to the error made by the Tribunal.

20. - 20 -
72 In the result, nothing turns on this ground, other than perhaps the question
of costs. The plaintiff argued that on the question of costs:
"...the amount awarded of $8,000 has been compared to the total
claim of $91,129.91 instead of the amount referable to the more
limited claim for the defective slab claim of $58,790.91. This has
had an effect on the costs analysis".
73 I do not accept this submission. Although the Tribunal member noted the
claim for $95,000 in deciding the question of costs, the Tribunal member
reserved liberty to the parties to make submissions on costs.
74 The Tribunal member revisited the question of costs on 21 April 2011, and
gave a decision which, although not in the Blue Appeal Book, was
annexed to an affidavit of the plaintiff's solicitor read on the appeal and
was thus part of the evidence before the court.
75 The Tribunal member decided:
"In response to orders and reasons published on 17 March 2011
the parties have filed and served detailed submissions on the
question of costs.
I have considered those submissions in deciding the question of
costs.
As I indicated in my written reasons, the builder has achieved
substantial success in his claim but the homeowner's claim in the
final analysis was more like $50,000.00, not over $90,000.00 as
mentioned in my reasons. While that may be so, the claim as
pleaded was in the higher amount and the bulk of the litigation was
conducted on that basis. In any event, the difference between the
two amounts in relation to the whole of the case and its outcome
would have little effect on the exercise of the costs discretion."
76 In the circumstances, I do not think that the Tribunal's decision on costs
miscarried because of a failure to recognise that the claim was for $58,000
approximately rather than $91,000. The final decision by the Tribunal in
respect of costs contemplated the lower value of the claim.

21. - 21 -
77 However, the decision on costs was affected by the findings considered
under grounds 1 to 5 above, which I have found to be in error. Accordingly,
the question of costs will need to be revisited by the Tribunal.
Ground 13: not a final hearing
78 I have dealt with this matter above. The Tribunal needed to determine
whether there was a breach of contract in order to determine whether the
plaintiff was entitled to an award of $8,000 on the primary claim. Such an
award would have an impact on the appropriate costs order. Generally a
plaintiff is entitled to the costs of a successful claim and the defendant
would be entitled to the costs of the successful cross-claim, but the costs
of a cross-claim would only be those costs which were in addition to those
which were incurred in the primary claim: see Mahlo & Ors v Westpac
Banking Corporation Ltd [1999] NSWCA 358 at [88]. Whether that general
rule should apply in this particular case would be a matter for the Tribunal.
Conclusion
79 The parties jointly submitted that if the Tribunal's decision was in error
such that the orders could not be affirmed, I should send the matter back
to the Tribunal for further consideration. In view of my findings in respect of
grounds 1 to 5 of the appeal, the findings of the Tribunal must be set
aside, and the matter remitted to the Tribunal for further consideration in
accordance with these reasons. In accordance with s 67(7) of the CTTT
Act, further evidence "may be given on the rehearing".
80 As to the question of costs, the plaintiff has had some success on the
appeal but not on all points. In these circumstances I propose to order that
the plaintiff's costs on the appeal be costs of the proceedings in the
Tribunal.
E. Conclusion and orders

22. - 22 -
81 Accordingly, the orders are:
1. Allow the appeal.
2. Set aside the orders of the Tribunal.
3. Remit the matter to the Tribunal for a rehearing in accordance with
these reasons, pursuant to ss 67(3)(b) and (4) of the CTTT Act.
4. Order that the plaintiff's costs of the appeal be costs of the proceedings
in the Tribunal.
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