Handyman Ordered to Pay Damages for Defective Work

The Tribunal dismissed an appeal, affirming the original decision that a handyman's work was defective and ordering him to pay damages. The Tribunal relied on expert evidence to determine the cost of rectification and found that the handyman was not appropriately licensed or qualified to perform the work.

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: [NAME] v [NAME] [2017] NSWCATAP 127 Hearing dates: 21 April 2017 Date of orders: 07 June 2017 Decision date: 07 June 2017 Jurisdiction: [NAME]: D Cowdroy ADCJ, QC, Principal Member K Rosser, Principal Member Decision: The appeal is dismissed Catchwords: Appeal – Whether work residential building work – assessment of damages Legislation Cited: Australian Consumer Law (NSW) 2010 Civil and Administrative Tribunal Act 2013 Fair Trading Act 1987 Home Building Act 1989 Cases Cited: [NAME] v [COMPANY] (1985) 4 NSW LR 139 Bellgrove v Eldridge (1954) 90 CLR 613 Collins v Urban [2014] NSWCATAP 17 [COMPANY] v [COMPANY] (2009) 236 CLR 272 Category: Principal judgment Parties: [NAME] (Appellant) [NAME] (Respondent) Representation: Counsel: [redacted] Self-represented respondent File Number(s): AP 17/04696 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 07 December 2016 Before: [NAME], General Member File Number(s): HB 16/31247

reasons for decision

Introduction 1. This an internal appeal against a decision made on 7 December 2016 in the Consumer and Commercial Division of the Tribunal in proceedings HB16/31247. This was an application brought by [NAME] against [NAME] under the Home Building Act 1989 (the HB Act). [NAME] claimed damages from [NAME] for allegedly defective work that was carried out by [NAME] in a residence owned by [NAME].

2. The Tribunal ordered the appellant ([NAME]) to pay the respondent ([NAME]) the sum of $18,420.74. Oral reasons for the decision were given at the hearing. The Tribunal published written reasons for decision on 13 January 2017. 3. [NAME] lodged a Notice of Appeal on 31 January 2017, which is within the 28 day time limit specified in cl 25(4)(c) of the Civil and Administrative Rules 2014 (the Rules). An Amended Notice of Appeal was subsequently filed on 28 March 2017.

4. For the reasons set out below, we have dismissed the appeal.

Scope and nature of the appeal 1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the [NAME]: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act).

2. The circumstances in which the [NAME] may [NAME] leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in clause 12(1) of Schedule 4 of the NCAT Act. In such cases, the [NAME] must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the [NAME] stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.

1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the [NAME] must still consider whether it should exercise its discretion to [NAME] leave to appeal under s 80(2)(b).

2. In Collins v Urban, the [NAME] stated at [84] that ordinarily it is appropriate to [NAME] leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e)the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,

Background and proceedings in the Tribunal 1. [NAME] is a home owner and [NAME] is a handyman. [NAME] agreed to do work for [NAME] in early 2016. The work included wall and floor tiling in a bathroom and [NAME], as well as some work in a laundry. [NAME] is not a licenced tiler. [NAME] was aware of this fact. 2. [NAME] quoted $3,950 for the work. He subsequently undertook some additional work for [NAME]. The additional work was not at issue in the application before the Tribunal or on the appeal. 3. [NAME] finished the work, the parties fell into dispute. [NAME] lodged an application with the Tribunal on 6 July 2017. She sought an order for relief from payment of the sum of $1115 and an order for payment of the sum of $19,747.74.

4. According to the Tribunal's records, the application first came before the Tribunal on 30 August 2016. On that occasion, the Tribunal made directions requiring the parties to provide to each other and the Tribunal all documents on which they proposed to rely at the hearing by specific dates. The hearing was listed on 7 December 2016. 5. [NAME] filed documents including a report prepared by [NAME], Principal Building Consultant with [NAME], which she relied on at the hearing. She gave oral evidence at the hearing. 6. [NAME] also gave oral evidence at the hearing and filed documents in accordance with the Tribunal's procedural directions. He did not provide any expert evidence in defence of the claim.

Tribunal's reasons for decision 1. As noted above, the Tribunal gave oral reasons for decision on 7 December 2016 and subsequently published written reasons on 13 January 2017. At the appeal hearing, [NAME]'s Counsel, [NAME], confirmed that no point was taken with the adequacy of the written reasons.

2. The Tribunal found that it had jurisdiction to deal with the application under the HB Act. In reaching that conclusion, the Tribunal found that the reasonable market value of the work done and the materials supplied by [NAME] was over $5000. In making that finding, the Tribunal relied on expert evidence provided by [NAME] for [NAME] which stated that the cost of retiling the en suite bathroom and [NAME] and replacing a tile cover strip in the laundry was $16,337.64. 3. [NAME] defended the proceedings in the Tribunal on two bases:

1. He had worked with due care and skill and denied that the work was defective and 2. [NAME] had previously accepted a full and final financial settlement of the matter and should not be allowed to proceed with the claim ("the estoppel issue").

1. The Tribunal considered the estoppel issue first and found against [NAME] on the basis that the parties had not reached an agreed full and final settlement of the matters raised in the application. When assessing the damages payable to [NAME], the Tribunal credited the sum of $1327, which [NAME] paid [NAME] purportedly in settlement of the issues in dispute. The Tribunal's findings and reasons in relation to the estoppel issue have not been challenged on the appeal.

2. The Tribunal then considered whether [NAME]'s work was defective. In relation to this, the Tribunal referred to [NAME]' qualifications and experience and found that his report complied with the Tribunal's code of conduct for expert witnesses. The Tribunal preferred [NAME]' opinion concerning the existence of defective work, which was based on the work not complying with relevant sections of NSW Fair Trading's Guide to Standards and Tolerances, to the evidence provided by [NAME].

3. The Tribunal also accepted [NAME]' opinion in relation to method and cost of rectification of each of the defects. [NAME]' estimate of rectification costs was prepared using [NAME]. The Tribunal noted that [NAME] had provided no quotes and no expert evidence in relation to rectification costs.

4. The Tribunal stated that [NAME] "genuinely tried to do a good job, for a handyman". However, crucially, she found that the tiling was defective, stating: It was not performed with due care and skill, or in accordance with Australian Standards and Tolerances for residential building work. The floor and wall tiling in the ensuite and the [NAME] need to be removed and redone.

1. The Tribunal also found that the tile cover slip to the wall tiles in the laundry also needed to be replaced as it did not cover the top of the wall tiles and was therefore not fit for purpose.

2. The Tribunal found that [NAME] was not appropriately licenced or qualified to do the work and that [NAME] was entitled to be compensated for the cost of the work and for the cost of the expert report she had obtained.

3. The Tribunal found that the sum of $1327 which [NAME] had already paid to [NAME] should be deducted from the amount of compensation otherwise payable. The Tribunal calculated the damages [NAME] was to pay [NAME] as: 1. $13,187.44 for the en suite bathroom; 2. $2,936.51 for the [NAME]; 3. $213.79 for the laundry; 4. $3,410 for the cost of [NAME];

5. Less $1,327 already paid to [NAME].

1. The Tribunal assessed the total damages to be paid to [NAME] at $18,420.24. No issue with the Tribunal's calculation has been taken in the appeal proceedings.

Documents and submissions 1. In determining the appeal, we have taken into account: * The Amended Notice of Appeal filed on 28 March 2017; * The Reply to Appeal filed on 14 February 2017; * A written submission filed on behalf of [NAME] on 28 March 2017; * A bundle of documents filed by [NAME] on 31 January 2017, which includes [NAME]' expert report dated 28 June 2016, written submissions provided to the Tribunal in the proceedings below and on the appeal, the 2007 Guide to Standards and Tolerances referred to in [NAME], a 2015 Guide to Standards and Tolerances produced by the Victorian Building Authority and Australian government publications in relation to consumer law. * Oral submissions made by [NAME] on behalf of [NAME] at the appeal hearing.

Amended Notice of Appeal 1. Five grounds are set out in the amended Notice of Appeal. They are expressed as follows:

1. Tribunal Member erred in applying the Home Building Act 1989.

2. The Tribunal Member ought to have found that the Home Building Act did not apply and only the ACL applied.

3. Tribunal Member erred in accepting the evidence of [NAME] as to licenced builder standards as relevant to the issues in dispute and applying his opinion in determining the claim.

4. Tribunal Member erred in finding the claim made out in light of the finding that [NAME] did a good job as a handyman.

5. To the extent necessary, the Tribunal Member erred in awarding damages in an amount representing the cost of work of a licenced builder instead of a handyman. 1. [NAME] also sought leave to appeal on two bases:

1. That the decision was not fair and equitable and 2. That significant new evidence was now available which wasn't reasonably available at the time the proceedings were heard; that evidence being a report from [NAME] dated 24 March 2017.

1. At the appeal hearing, [NAME], for [NAME], stated that [NAME] no longer sought to appeal on the grounds requiring leave. However, she applied to further amend the Amended Notice of Appeal by adding a further ground: that is, that the Tribunal had erred in awarding to [NAME] the cost of [NAME]' expert report. The amendment was allowed when [NAME] stated that [NAME] only pressed this ground of appeal on the basis that if the Tribunal found for him on one or more of the other grounds of appeal, he should not be liable for the cost of the expert report. [NAME] indicated that the ground was not being pressed on any other basis.

Reply to Appeal 1. In the Reply to Appeal, [NAME] submits, amongst other things: * She agrees with the Tribunal's reasons for decision and supports the orders made. * She is not qualified to respond to [NAME]'s questioning of [NAME]. * She is not qualified to respond to [NAME]'s questioning of the Tribunal's jurisdiction.

Consideration

Grounds 1 and 2 1. [NAME] claims that the Tribunal erred in determining the application under the HB Act and should have determined the application under the Fair Trading Act 1987 (FT Act) and the Australian Consumer Law (NSW) (ACL).

2. If the Tribunal applied the incorrect legislation, that would give rise to a question of law in respect of which [NAME] has a right of appeal. 3. [NAME] argues that the Tribunal had no jurisdiction to hear and determine the application under the HB Act, in essence on two bases:

1. The Tribunal should not have considered the "market value" of [NAME]'s work, because of the operation of s 7AAA of the HB Act; and 2. There was no proper basis for the Tribunal to determine that the value of [NAME]'s work was more than $5,000.

1. We have considered whether the Tribunal erred in applying the HB Act when determining [NAME]'s application. In doing so, we have considered relevant provisions under the HB Act, which go to determining jurisdiction.

The Tribunal's jurisdiction under the HB Act 1. The Tribunal has jurisdiction under s 48K of the HB Building Act to hear and determine a "building claim".

2. Section 48K relevantly provides: 48K Jurisdiction of Tribunal in relation to building claims (1) The Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000 (or any other higher or lower figure prescribed by the regulations). (2) The Tribunal has jurisdiction to hear and determine any building claim whether or not the matter to which the claim relates arose before or after the commencement of this Division, except as provided by this section. … (7) The Tribunal does not have jurisdiction in respect of a building claim arising from a breach of a statutory warranty implied under Part 2C if the date on which the claim is lodged is after the end of the period within which proceedings for a breach of the statutory warranty must be commenced (as provided by section 18E). ….. 1. [NAME]'s claim was for less than $500,000, so s 48K(1) was satisfied. Her claim related to alleged breaches of the statutory warranty set out in s 18B(1)(a) of the HB Act, which provides: 18B Warranties as to residential building work (1) The following warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract to do residential building work: (a) a warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract.

1. Section 18E(1) of the HB Act sets out the time limits in relation to applications for breach of statutory warranties. It relevantly provides: (1) Proceedings for a breach of a statutory warranty must be commenced in accordance with the following provisions: (a) proceedings must be commenced before the end of the warranty period for the breach, (b) the warranty period is 6 years for a breach that results in a major defect in residential building work or 2 years in any other case, (c) the warranty period starts on completion of the work to which it relates (but this does not prevent proceedings from being commenced before completion of the work), 1. It is not in dispute that [NAME] and [NAME] contracted in early 2016 and that [NAME] completed the works in the months thereafter. The Tribunal proceedings were commenced on 6 July 2016. The application was therefore brought in accordance with s 18E(1)(a) and within the time period specified in s 18E(1)(b).

2. The effect of the forgoing is that, subject to the application constituting a building claim and [NAME] being a person who was required to hold a contractor licence, the Tribunal had jurisdiction to deal with the application under the HB Act. 3. "Building claim" is relevantly defined in s 48A(1) of the HB Act as: (a) the payment of a specified sum of money, or …. that arises from a supply of building goods or services whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of building goods or services, but does not include a claim that the regulations declare not to be a building claim. 1. "Building goods or services" are defined in s 48A(1) as: goods or services supplied for or in connection with the carrying out of residential building work or specialist work, being goods or services: (a) supplied by the person who contracts to do, or otherwise does, that work, or (b) supplied in any circumstances prescribed by the regulations to the person who contracts to do that work.

1. The definition of "residential building work" is found in cl 2(1) of Schedule 1 of the HB Act as: …. any work involved in, or involved in co-ordinating or supervising any work involved in: (a) the construction of a dwelling, or (b) the making of alterations or additions to a dwelling, or (c) the repairing, renovation, decoration or protective treatment of a dwelling.

1. Bathroom and laundry tiling clearly falls within this definition.

2. Exclusions from the definition of residential building work are set out in cl 2(3) of Schedule 1 and include at cl 2(3)(a): any work (other than specialist work) the reasonable market cost of the labour and materials involved in which does not exceed the amount prescribed by the regulations;

1. Clause 12 of the Home Building Regulation 2014 provides: For the purposes of clause 2 (3) (a) of Schedule 1 to the Act, the prescribed amount is $5,000.

1. The effect of these provisions is that if the reasonable market value of labour and materials of the work [NAME] undertook for [NAME] exceeds $5000, the work falls within the definition of residential building work.

2. Further, if the work undertaken by [NAME] was residential building work for this reason, then he was required by s 4(1) of the HB Act to be licensed to do that work. This sub-section provides: 4 Unlicensed contracting (1) A person must not contract to do: (a) any residential building work, or (b) any specialist work, except as or on behalf of an individual, [NAME] or corporation that is the holder of a contractor licence authorising its holder to contract to do that work. Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.

1.

Accordingly, whether the statutory warranty set out in s 18B(1)(a) of the HB Act that the work would be done with due care and skill is implied into the contract between [NAME] and [NAME] and whether the Tribunal had jurisdiction to hear and determine the application under the HB Act turns on whether the reasonable market value of labour and materials [NAME] supplied exceeded $5000. The Tribunal was required to consider the reasonable market value of labour and materials in order to determine whether [NAME]'s work fell within the definition of residential building work.

The relevance of s 7AAA 1. Contrary to the submission made on behalf of [NAME], s 7AAA of the HB Act is not relevant to the question of the Tribunal's jurisdiction to deal with [NAME]'s application. Section 7AAA concerns the form of contracts for "small jobs" and applies where the contract is: 1. not one to which section 7 applies and 2. the contract price exceeds the prescribed amount; or 3. if the contract price is not known, the reasonable market cost of the labour and materials involved exceeds the prescribed amount.

1. The "prescribed amount" for the purposes of s 7AAA is $5,000 in respect of contracts entered into after 15 March 2015: cl 5(2)(b) Home Building Regulation 2014.

2. In this case, the contract was not one to which s 7 applied and the contract did not exceed the prescribed amount. This means that [NAME] was not required to enter into a written contract with [NAME] in the form prescribed by s 7AAA. The Tribunal did not find that he was required to do so. However, the fact that [NAME] was not required to enter into a written contract with [NAME] is irrelevant to the question of whether the reasonable market value of the labour and materials [NAME] supplied exceeded $5,000 and fell within the definition of residential building work.

Reasonable market value of labour and materials 1. The Tribunal was satisfied that the reasonable market value of the labour and materials exceeded $5,000 (Reasons for decision [9]). In doing so, the Tribunal referred (at [8]) to [NAME] which costed retiling [NAME]'s en suite bathroom and [NAME] and replacing the tile cover strip in the laundry at $16,337.74, although it did not specifically find that this sum represented the reasonable market value of the labour and materials supplied by [NAME].

2. The Tribunal's finding in relation to the reasonable market value of labour and materials supplied by [NAME] is a finding of fact. [NAME] does not dispute that this is the opinion expressed by [NAME] in the report that was before the Tribunal. However, from Annexures 4b, 4c and 4d of [NAME], it is clear that the sum of $16,337.74 is not just for retiling and replacing the laundry tile cover strip, but also for rectification costs including work such as plumbing and electrical work. This is not work that [NAME] had contracted to do.

3. To the extent that the Tribunal implies in its reasons for decision that the reasonable market value of [NAME]'s labour and materials is $16,337.74, this appears to be in incorrect. However, even if it is more than an implication and could be regarded as a finding of fact, an error of fact rarely vitiates a decision. An erroneous finding of fact of itself does not manifest an error of law where there is some evidence on which the finding of fact is based: [NAME] v [COMPANY] (1985) 4 NSW LR 139. Arguably, to the extent that the Tribunal made such a finding, it could be against the weight of evidence, for which leave to appeal is required. [NAME] has not sought leave to appeal on this ground.

4. In any event, notwithstanding the implication in the Tribunal's reasons for decision that the reasonable market value of the work was $16,337.74, we are not satisfied that [NAME] has established that the Tribunal in fact erred in being satisfied that the reasonable market value of labour and materials exceeded $5,000. This is because, in support of the written submissions lodged in the appeal, [NAME] prepared a table (Annexure "A") in which [NAME] set out what he claims were the scope of works undertaken in the en suite and the [NAME] and prices the scope of work by reference to the individual items as costed in [NAME] (at attachment 4) and in his own quote. (We note that [NAME] confirmed during the hearing that he did not give [NAME] an itemised quote in which the individual items were costed).

5. In relation to the en suite, [NAME]'s table at Annexure "A" states: [NAME]'S QUOTE Strip out floor tiles $83.62 (see task no. 4 on attach 4b) $100 Strip out wall linings/ tiles $157.20 (see task no. 5 on attach 4b $200 Waterproof $250.00 (see task no. 7 on attach 4b) $300 (waterproof included) Replace wall tiles (includes grouting) $2,880.00 (see task no. 9 on attach 4b) $1,600 (materials included glue, grout etc) Replace floor tiles $998.40 (see task no. 10 on attach 4b) $600 (materials included glue, grout etc) Total (including tiles) $4,406.22

1. What is missing from this scope of work is the replacement of wall linings, which would be a necessary intermediate step between stripping wall tiles and wall linings and replacing wall tiles. In his report, [NAME] assesses the cost of replacing wall linings at $902.40: Annexure 4b, Task 6 of [NAME]. If this is added to the scope of work for the en suite bathroom, it brings the total to $5,308.62.

2. When this was raised at the appeal hearing, [NAME] claimed that he had in fact not needed to strip and then replace the wall linings and that the reference to stripping the wall linings in the scope of work column of Annexure "A" was a mistake. The problem with this proposition is that [NAME] prepared Annexure "A" himself and it is unclear why such a mistake would be made. Further, as [NAME] did not provide a detailed scope of work when he gave a quote to [NAME], there is no contemporaneous document from which his scope of work or the cost of each item in it can be determined.

3. In such circumstances, while it appears that the reasonable market value of the labour and materials supplied by [NAME] is less than $16,337.74, we are not satisfied that the Tribunal erred in being satisfied that the reasonable market value of the labour and materials supplied by [NAME] was more than $5,000. This is so, despite the contract price being less than that sum.

4. It follows that we are satisfied that the work undertaken by [NAME] constitutes residential building work. We are therefore satisfied that [NAME]'s application was a building claim which the Tribunal had jurisdiction to hear and determine under the HB Act.

Conclusion in respect of:

Grounds 1 and 2 1. We therefore conclude that the Tribunal did not err in deciding the application as a building claim under the HB Act rather than as a consumer claim under the FT Act. Appeal grounds 1 and 2 are not established.

2. That said, even if the Tribunal had heard and determined the application as a consumer claim under the FT Act and had applied the ACL (NSW), we are not satisfied that the outcome would have been different. Our reasons for this conclusion are set out in [77] below.

Grounds 3 and 4 1. The essence of this ground of appeal is that the Tribunal erred in accepting [NAME] because that report relates to the standards that apply to licenced contractors rather than to handymen.

2. It was relevantly submitted in the submission filed on 28 March 2017: * As a handyman and not a licensed builder, [NAME] should not have been judged by standards applicable to a licensed builder or by building industry standards. * The Tribunal Member applied a "standard of perfection". * [NAME] is irrelevant to the question of whether [NAME]'s fell below the standard of due care and skill for a handyman and should have been rejected.

1. An examination of [NAME] demonstrates that [NAME]' inspected and reported on the tiling work undertaken by [NAME]. [NAME] makes clear that his opinion that the tiling work is defective is based on relevant provisions of the Guide to Standards and Tolerances 2007 (the Guide); that is, section 11, which deals with floor and wall tiling. [NAME] expressed the opinion that [NAME]'s tiling work did not meet the standards set out in section 11. He also expressed the opinion that the workmanship and finish of laundry tile cover strip was not placed in accordance with industry practice.

2. At the hearing, it was submitted on behalf of [NAME] that the Guide does not apply to work done by a handyman, but only to work done by licensed contractors. [NAME] could not refer us to any authority for this proposition, either in the Guide itself or in any source external to the Guide.

3. The Guide is, as the title suggests, a guide only. It is not a regulated standard or part of the hierarchy of legislation, the Building Code of Australia and Australian Standards which apply to domestic building work. However, it is a useful document to assess acceptable practice in a range of areas of such work. In this regard, we note that the forward to the Guide states that the Guide: …. [is] intended to be used by builders and building owners as a convenient reference to the minimum quality of building work expected.

1. There is no basis to conclude that the reference to "builders" in this context as a reference to "licensed builders", rather than a reference to people engaged in building work.

2. In our view, if [NAME]'s submission that the Guide only applies to work undertaken by licensed contractors were accepted, it would lead to a conclusion that unlicensed contractors could undertake work to any standard, presumably as long as the work does not breach legislative provisions, the Building Code of Australia or relevant Australian Standards.

3. We do not accept this proposition. If a handyman such as [NAME] agrees to do tiling work, it can reasonably be expected that the tiling work will be done to a minimum standard of quality. Undertaking work to the minimum expected standard is consistent with a requirement to perform the work with due care and skill. We are satisfied that this minimum standard is the standard set out in the Guide. A failure to meet the standard can reasonably be characterised as a failure to do work with due care and skill and therefore a breach of the warranty set out in s 18B(1)(a) of the HB Act. 4. [NAME] was the only expert evidence before the Tribunal. [NAME] had an opportunity to provide expert evidence in response to [NAME], but chose not to do so. There is no basis for us to conclude that the report does not constitute expert evidence highly relevant to the issue of whether [NAME]'s work was undertaken with due care and skill. We are not satisfied that [NAME] has demonstrated that the Tribunal erred in accepting [NAME]' evidence in determining that the work was not undertaken with due care and skill. 5. [NAME] argues that had [NAME]'s application been determined as a consumer claim under the FT Act and the ACL (NSW), the "due care and skill" requirement in respect of the provision of services would have been different.

6. In relation to this, s 60 of the ACL (NSW) provides: If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

1. The Explanatory Memorandum of the ACL provides that the level of skill required for the purpose of s 60 is "an acceptable level of skill in the particular area of services supplied". The acceptable level of skill therefore depends on factors such as the type of services provided and applicable industry standards, as well as on whether there were any representations as to the skill or experience of the service provider. 2. [NAME] did not represent that he was a licenced tiler, he agreed to undertake tiling work in the home of a consumer. We are of the view that the minimum acceptable level of skill for such tiling work is a level of skill sufficient to comply with the minimum standard of quality set out in the Guide. We conclude that even if the Tribunal had considered the application as a consumer claim to which s 60 of the ACL applied, the Tribunal would have found that aspects of [NAME]'s work had not been undertaken with due care and skill, relying on [NAME] to do so.

3. We note the Tribunal's comment (at [97] of the Reasons for Decision) that [NAME] "did a good job as a handyman". However, this comment is immediately followed by a reiteration of the Tribunal's earlier finding that the work was defective and not performed with due care and skill. We do not consider that the Tribunal's comment should be taken as a negation of the Tribunals' findings in respect of defective work. It appears to us to be more in the nature of a throwaway line, which follows on from the previous paragraph, in which the Tribunal stated: In the Tribunal's view, the respondent genuinely tried to do a good job for the home owner. He is proud of his work. However, the Tribunal is also of the view that the respondent was naïve and unsophisticated and did not appreciate how much compensation he would be exposed to paying if his work was not up to industry standard.

1. Overall, we are not satisfied that the Tribunal erred in accepting [NAME] or in finding that [NAME] did not perform work with due care and skill.

2. Grounds 3 and 4 are dismissed.

Ground 5 1. This ground relates to the award of damages. In the written submission filed on 28 March 2017 it is argued that: * If a breach was found, the maximum loss would be having the work redone by a handyman to a handyman level of due care and skill. * [NAME] is not entitled to the price of a renovation carried out by a licenced tiler, when that is not what she bought. 1. [NAME] submitted that none of the items of defective work found by the Tribunal have impacted on the use of en suite, the [NAME] or the laundry. She submitted that the bathroom is being used and that the Tribunal should have applied the "de minimis" principle in assessing damages. [NAME] cited authorities including Shipton Anderson & Co v Weil Bros & Co [1912] 1KB 574 and Highfield Property Investments Pty Ltd v Commercial and Residential Developments (SA) Pty Ltd [2012] SASC 165 at [248] as authority for this proposition. 2. [NAME] conceded during the appeal hearing that [NAME] had not made submissions concerning quantum to the Tribunal below. She also withdrew a submission that the Tribunal erred in law in accepting Mr [NAME]'s opinion as to quantum.

3. We are not satisfied that the Tribunal erred in its findings in respect of quantum. [NAME] chose to defend the proceedings before the Tribunal on two bases: that the work was not defective and that [NAME] was estopped from making a claim against him because their dispute had been settled. He was unsuccessful in those defences. [NAME] chose not to put on expert evidence in relation to liability, method of rectification or quantum, even though he had an opportunity to do so. He cannot run a different case on appeal than was run before the Tribunal.

4. We are not satisfied that the Tribunal's acceptance of [NAME]' evidence in relation to the appropriate method of rectification or the cost of rectification raises a question of law.

5. In relation to the assessment of damages, where a breach of a statutory warranty has been established the amount of damages to which a claimant is entitled is generally the sum of money required to rectify the work so as to produce conformity with the contract. The qualification to this principle is that not only must the work be necessary to produce conformity with the contract, it must also be a reasonable course to adopt: Bellgrove v Eldridge (1954) 90 CLR 613.

6. Fairly exceptional circumstances will be required for rectification works to be considered unreasonable. In general terms a contractor or sub-contractor will always be required to compensate a claimant for the full cost of bringing works into conformity with the contract, unless the rectification works are so extreme or so far outweigh the severity of the defects that full rectification would clearly be unreasonable: [COMPANY] v [COMPANY] (2009) 236 CLR 272.

7. In this case, we consider that conformity with the contract would require the tiling work to be done to the minimum standard set out in the Guide. We are not satisfied that a method of rectification designed to achieve that standard can be characterised as extreme. This is so even accepting that [NAME] is currently able to use the rooms concerned. Further, the material before us does not indicate that [NAME] argued in the hearing below that the proposed rectification so far outweighed the severity of the defects that it was clearly unreasonable. We are not satisfied that the Tribunal erred in not applying the "de minimis" principle, when it had before it expert evidence in relation to method of rectification and quantum. This is particularly so in circumstances where [NAME] provided no expert evidence in relation to these issues.

8. In relation to quantum, it was submitted on behalf of [NAME] that the cost of having the works rectified by a licensed tiler is excessive, when [NAME] had paid to have the tiling work done by a handyman. The problem with this submission is that the only evidence concerning the cost of rectification is that contained in [NAME]. He assesses the cost of rectification at $16,337.64. As noted above, [NAME] conceded at the hearing that the Tribunal did not fall into error in accepting [NAME]' evidence in respect of quantum. The cost of rectification exceeds the threshold of $5,000 for the purposes of the definition of residential building work: HB Act, Schedule 1 cl 2(3)(a). This means that an unlicensed handyman could not contract to do the work: s 4 HB Act.

9. We are not satisfied that this ground of appeal has been established.

Ground 6 1. This ground concerns the Tribunal's award of the cost of [NAME]' expert report. [NAME] made it clear at the appeal hearing that this ground of appeal was only pressed in the event that one of the other grounds was successful. As the other grounds of appeal have not been successful, it is dismissed.

Conclusion 1. The appeal is dismissed.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2017