Hawach v A & A Building Services Pty Ltd

1. [1]

   The plaintiffs, Mr Hawach and Ms Reimers, live together in Lindfield, NSW. They decided to do building works at their home (the Property) and for this purpose Ms Reimers, as sole registered owner of the Property, obtained an owner-builder permit under the Home Building Act 1989 (NSW) (the Act). Mr Hawach organised the work on behalf of Ms Reimers. Mr Hawach was introduced to Mr Eassey, the director of the defendant, in around 2016. In 2021, the plaintiffs brought a claim in the NSW Civil and Administrative Tribunal (the Tribunal) contending that in October 2017 they contracted with the defendant for the defendant to carry out or to arrange to carry out a range of building works at the Property, that the defendant breached its obligations under this contract and that the defendant was accordingly liable to pay damages for breaches of warranties under s 18B of the Act, for breach of contract and for negligence and breach of the statutory duty of care in s 36 of the Design and Building Practitioners Act 2020 (NSW).

2. [2]

   The defendant denied that it had entered into the alleged contract. The defendant contended, in its written submissions before the Tribunal, that there was an agreement between the plaintiffs and the defendant pursuant to which the defendant would order building products and undertake labour hire on behalf of the plaintiffs in circumstances where the plaintiffs retained their obligations to supervise and manage the works. The defendant submitted that monies were owing to it pursuant to that arrangement, which was not regulated by the Act. It sought that those sums be set off against any damages ordered against it. In this regard, the Tribunal found that the defendant assisted the plaintiffs by recommending subcontractors to them and allowed the plaintiffs to use the defendant’s trade account to order materials and to obtain trade discounts that would otherwise not be available to them (I will describe this as “the Arrangement”). There is no challenge in this Court to that finding.

3. [3]

   On 13 June 2023 the Tribunal dismissed the plaintiffs’ claim with costs: Hawach v A & A Building Services Pty Ltd [2023] NSWCATCD. The Tribunal analysed each claim for defective work, considering whether there was a contract for the defendant to perform the relevant work, and found that the only residential building contract (falling under the Act) between the plaintiffs and the defendant was for the defendant to perform limited waterproofing works at the Property, specifically on the western balcony and in the bathrooms and ensuites. That work was found to be defective leading to losses of $25,595.76. That work was carried out by Mr Frew, an employee of the defendant.

4. [4]

   The Tribunal rejected the defendant’s contention, as set out in its Response to the plaintiffs’ Amended Points of Claim at [42], that Mr Hawach had entered into an agreement with the defendant where Mr Hawach agreed that he would pay the defendant for the costs associated with the defendant ordering goods and services on his behalf and that the plaintiffs had paid $303,377.89 pursuant to that contract. The Tribunal found, however, that the defendant was entitled to set off the sum of $30,000 (the set off) which was an amount expended by the defendant for the benefit of the plaintiffs, which the Tribunal said was “the lowest amount” that the plaintiffs had conceded they owed to the defendant. The Tribunal rejected the plaintiffs’ contention that the set off was precluded by ss 10 or 92 of the Act.

5. [5]

   The plaintiffs appealed under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) to the Appeal Panel of the Tribunal (the Appeal Panel). By decision dated 19 July 2024 the Appeal Panel refused leave to appeal and otherwise dismissed the appeal: Hawach v A & A Building Services Pty Ltd [2024] NSWCATAP 138.

6. [6]

   By Further Amended Summons (the summons) filed in Court (without objection) on 25 September 2025, the plaintiffs sought leave to appeal on a question of law against the Appeal Panel’s decision. The questions of law relied upon by the plaintiffs in substance were:

   1. (1)

      Whether the Appeal Panel erred in law in misconstruing concessions by the plaintiffs as to amounts owing to the defendant and in its construction of ss 7, 10 and 92 of the Act as not precluding the set off (questions (a) and (f) and grounds one and eight in the summons);

   2. (2)

      Whether the Appeal Panel constructively failed to exercise jurisdiction in finding that there was no evidence that there was a term of a contract that the defendant would provide a waterproofing certificate for the works it completed or whether that finding was unreasonable or perverse (questions (b) and (c) and grounds two and three in the summons); and

   3. (3)

      Whether the Appeal Panel erred in law by failing correctly to apply principles of law in relation to post-contractual documents or by not considering evidence of post-contractual documents, conduct and admissions in determining the scope and construction of the alleged contract between the plaintiffs and the defendant (questions (d) and (e) and grounds four, five and seven in the summons).

7. [7]

   As was observed in Dokas v Gallagher (No 2) [2024] NSWCA 236 at [66], the principles applicable to an appeal under s 83(1) of the CAT Act were highlighted in Targeted Property Investment Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416; 20 BPR 43,135 at [33] where Griffiths AJ explained that:

8. [8]

   There was no issue about the principles governing the question of leave. Leave to appeal will ordinarily only be granted “concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what [is] merely arguable”: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; see also Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[37]; Corcoran v Far [2020] NSWCA 140 at [12].

9. [9]

   None of the plaintiffs’ proposed grounds of appeal are made out. Leave to appeal should be refused. As is clear from my reasons below, the plaintiffs’ contentions do not go beyond the merely arguable and there is no reasonably clear injustice, nor is any matter of public importance raised.

Question one – alleged errors of law in relation to the Appeal Panel’s conclusions as regards the set off

1. [10]

   As alluded to above, the plaintiffs alleged two errors of law as regards the Appeal Panel’s conclusion that the defendant was entitled to set off the sum of $30,000 against the sum of $25,595.76 which the Appeal Panel found the plaintiffs were entitled to as damages in respect of the defective waterproofing works. The first, in ground one of the summons, was that the Appeal Panel erred in law by adopting an incorrect interpretation or construction of ss 7, 10 and 92 of the Act. The second, in ground eight of the summons, was that the Appeal Panel erred in law by misconstruing or misunderstanding the basis of a concession given by the plaintiffs in relation to monies owed to the defendant which the plaintiffs contend was the only basis on which a set off was awarded. There was no contention that the Tribunal did not have power to order the set off if the contention set out above were rejected.

2. [11]

   It is convenient to deal first with the contention that the Appeal Panel erred in law in misconstruing or misunderstanding concessions made in the plaintiffs’ submissions before the Tribunal. As advanced before this Court, this ground was largely premised upon a contention that neither the Tribunal nor the Appeal Panel found that the defendant had a legal right to reimbursement as against the plaintiffs, and that the plaintiffs’ concessions could not support a conclusion that the defendant was entitled to a set off. On that basis, the plaintiffs contended that it was an error of law for the Tribunal to uphold the set off and for the Appeal Panel to have dismissed the appeal against that finding. To the extent that this contention focussed upon the decision of the Tribunal, consistent with the principles set out above at [7], the relevance of the Tribunal’s decision goes only to whether or not there is a question of law arising from the decision of the Appeal Panel and whether the Appeal Panel relevantly erred.

3. [12]

   Broadly, the plaintiffs’ contention was that the Tribunal expressly eschewed the defendant having any contractual entitlement to be reimbursed for monies it expended pursuant to the Arrangement. In these circumstances, the plaintiffs contended there was no legal basis for the Tribunal to order a set off. They submitted, further, that this lacuna was not cured by the Appeal Panel’s decision. The plaintiffs contended in this regard that the concessions made in their written submissions (which I discuss below at [16]-[18]) related solely to amounts owing under the residential building contract which they alleged had been entered into between the plaintiffs and the defendant. They submitted that the concessions could not be relied upon by the Tribunal or the Appeal Panel in any way once the Tribunal had rejected the plaintiffs’ contention that this residential building contract was entered into.

4. [13]

   The defendant’s contention, by contrast, was that on a fair reading of the decisions of both the Tribunal and the Appeal Panel, both were satisfied that there was at least a debt due from the plaintiffs to the defendant, such that the plaintiffs had a legal obligation to repay the defendant for monies it had expended pursuant to the Arrangement. The defendant contended, further, that the plaintiffs’ concessions were factual contentions as to amounts that were outstanding from the plaintiffs to the defendant, made in a context where the amount outstanding was hotly contested.

5. [14]

   The starting point for consideration of these submissions is the defendant’s contention, referred to above, in [42] of its Response to the plaintiffs’ Amended Points of Claim. This provided:

6. [15]

   As set out above, in its written submissions before the Tribunal, the defendant also made a broad contention that monies were owing to it under the Arrangement, which was not a contract regulated by the Act.

7. [16]

   In their opening submissions before the Tribunal at [59], the plaintiffs submitted, under the heading “Outstanding moneys pursuant to the Contract”, that they “acknowledge[d] an amount outstanding of $45,000”. They submitted that the defendant said that this amount was significantly higher at around $130,000, but that the defendant had not provided any contemporaneous documentation “to that effect” other than a spreadsheet which set out amounts paid, respectively, by the plaintiffs and the defendant. The plaintiffs contended that the defendant could not enforce a set off having regard to ss 7, 10 and 92 of the Act, but in the alternative acknowledged that the amount of $45,000 could be set off against any amounts for which the defendant was liable.

8. [17]

   In closing written submissions before the Tribunal, the plaintiffs contended, again under the heading “Outstanding moneys pursuant to the Contract”, that:

9. [18]

   These are the concessions which the plaintiffs contend the Appeal Panel misconstrued and misunderstood and which they submitted was the only basis upon which the Tribunal ordered a set off.

10. [19]

    In its reasons for decision at [32], the Tribunal said of the defendant’s contention in its Response to the plaintiffs’ Amended Points of Claim at [42]:

11. [20]

    At [33], the Tribunal added:

12. [21]

    Whilst there is some opacity in the Tribunal’s reasons, I read the Tribunal in these passages as rejecting the contention that there was a mutual agreement reached between the plaintiffs and the defendant at the outset of the Arrangement in the terms described in the Response to the plaintiffs’ Amended Points of Claim at [42]. In this regard it is of some significance that the claim there made by the defendant was both that an agreement was “entered into”, which the Tribunal appears to have interpreted as an allegation that there was an oral agreement (described by the Tribunal as a “mutual agreement”), and that the claim was not just for reimbursement, but was for payment of costs associated with the matters there set out. The reference in the Tribunal’s reasons at [33] to payment for the besser blocks not establishing a contract should, on this reading, be seen as a finding that it did not establish the existence of the contract as alleged by the defendant in [42] of its Response to the plaintiffs’ Amended Points of Claim. It should not be read as a finding that the defendant had no contractual right to reimbursement. That is consistent with the structure of the reasons, whereby the Tribunal at [33] appears to be explaining its earlier conclusion at [32].

13. [22]

    Thus, on a fair reading of its reasons at [32]-[33], the Tribunal was not making any finding as to whether or not there was any contractual entitlement in the defendant to reimbursement of monies actually expended pursuant to the Arrangement. The Tribunal had, at [27] of its reasons, cited an extract from the judgment of an appeal panel in Tuck v White [2016] NSWCATAP 132, which in turn cited the well-known passage in the judgment of McHugh JA in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1998) 5 BPR 11,110 at [16]. His Honour there set out that there may be contracts which are inferred from the acts and conduct of the parties where the parties’ conduct, viewed in the light of surrounding circumstances, shows a tacit understanding or agreement. Contrary to the plaintiffs’ contention, the rejection of the agreement alleged in the defendant’s Response to the plaintiffs’ Amended Points of Claim at [42] did not preclude the Tribunal inferring an agreement from the conduct of the parties.

14. [23]

    In its reasons at [143]-[155], the Tribunal then upheld the defendant’s claim to a set off and found that that extinguished the plaintiffs’ claim for damages. In those paragraphs, the Tribunal made no express finding as to the jurisprudential basis for the defendant’s claim for reimbursement, upon which the set off was predicated. However, at [149] the Tribunal characterised the defendant’s set off as a claim for amounts it “expended for the benefit of the [plaintiffs] as referred to at [32]”. Whilst this is not made express in the Tribunal’s reasons, I would read the Tribunal as having characterised this claim as one premised on a contract inferred from the parties’ conduct. It is that claim that the Tribunal should be understood to have found to be the jurisprudential basis for the set off. In these circumstances, the plaintiffs’ contention that the Tribunal’s finding at [32] (extracted at [19] above) is inconsistent with it having upheld the set off must be rejected.

15. [24]

    The plaintiffs also contended that the Tribunal’s reasons at [146] are inconsistent with it having found that the defendant had a contractual right to reimbursement for moneys it expended pursuant to the Arrangement. At [146], the Tribunal said:

16. [25]

    In this paragraph the Tribunal was simply dealing with the question whether the defendant’s claim to be entitled to the set off was a claim for breach of a residential building contract, so as to fall within the ambit of the prohibition (discussed below) in s 10 of the Act. The Tribunal was not saying anything in this paragraph about whether the defendant had a contractual right to reimbursement of moneys it had paid for the benefit of the plaintiffs pursuant to the Arrangement.

17. [26]

    Finally, contrary to the plaintiffs’ contention, I would not infer that the Tribunal’s decision to uphold the set off was premised solely upon the concessions made by the plaintiffs in their written submissions before the Tribunal. The Tribunal, at [136]-[138], considered the defendant’s contention that the amount of the set off to which it was entitled was an amount of $126,553.14 which was said to be shown as the balance outstanding on a spreadsheet of expenses that the defendant said that it had incurred. In that context, at [137]-[138], the Tribunal observed that the plaintiffs’ “outline [of] submissions dated 17 August 2022 state that they acknowledge that an amount of $45,000.00 is outstanding to the [defendant]” and that the plaintiffs stated in their closing submissions that “the amount they acknowledge is $30,000.00”. In this respect, it is significant that the focus in these paragraphs is upon the “amount” reflected in the plaintiffs’ concessions and that the Tribunal refers to those amounts as being acknowledged to be “outstanding”, rather than to the plaintiffs having made any concession that they had a liability to reimburse the defendant.

18. [27]

    The Tribunal then, at [139], referred to the plaintiffs’ position being that the set off claim was “based on inadequate evidence to support the amount claimed” and observed that that “submission contradicts the previous concession that the applicants owed the respondent either $45,000.00 or $30,000.00”. Again, the focus of the Tribunal’s analysis here was upon the amount claimed by the defendant and whether it was backed by the evidence. Moreover, the plaintiffs did, in their submissions, concede that those amounts were owed, albeit that their submissions framed that concession by reference to those amounts being owed pursuant to a residential building contract (the existence of which was rejected by the Tribunal).

19. [28]

    At [140], the Tribunal said:

20. [29]

    Again, as is apparent, the focus of the Tribunal in this paragraph is upon the amount reflected in the plaintiffs’ concession. Again, the description of the concession is accurate, albeit that the concession referred to the residential building contract that the plaintiffs contended had been entered into.

21. [30]

    Then, at [141], the Tribunal said:

22. [31]

    Read in isolation this suggests that the Tribunal relied upon the plaintiffs’ concessions as to both the liability of the plaintiffs to make payment to the defendant and the amount of that liability. However, read in the context of the reasons as a whole, the better view is that the Tribunal was satisfied that the plaintiffs were liable to reimburse the defendant for amounts paid by the defendant for their benefit, and that the Tribunal’s ultimate conclusion as to set off was premised upon that conclusion together with the plaintiffs’ concessions as to the amount outstanding. Further, at [150], the Tribunal found that the set off was not seeking to enforce a remedy in respect of a breach of the waterproofing contract, confirming that the amounts sought to be set off were not amounts owing under that contract. It follows that the plaintiffs’ contentions of error on the part of the Tribunal in its conclusion as to the set off must be rejected.

23. [32]

    In reaching my conclusions as set out above, I have approached the Tribunal’s reasons consistently with the approach described by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 that “the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.

24. [33]

    The plaintiffs’ grounds of appeal before the Appeal Panel included a ground that the Tribunal had denied the plaintiffs procedural fairness by misconstruing and misapplying the concessions. In their written submissions before the Appeal Panel, the plaintiffs submitted that the Tribunal had misunderstood and accordingly misapplied the ambit and nature of the concessions, because they were only made as to amounts owing under the residential building contract that the plaintiffs alleged they had entered into with the defendant. They contended that in these circumstances the Tribunal erred in relying upon the concessions and nothing more in allowing the set off in favour of the defendant. I have already explained why that contention is erroneous.

25. [34]

    In oral argument before the Appeal Panel, the case as put by Mr Klooster, counsel for the plaintiffs, was:

26. [35]

    That is an unequivocal acceptance, by counsel for the plaintiffs, that the Arrangement was contractual. Whilst (consistent with his submission set out above) Mr Klooster did contend before the Appeal Panel that the Arrangement could not give rise to a set off because of s 10 of the Act (and I consider that issue below), the following exchanges occurred shortly after that set out above:

27. [36]

    These exchanges are significant given that the plaintiffs are bound by the conduct of their counsel below: Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [46]; O’Connor v O’Connor [2022] NSWCA 97 at [66]. The plaintiffs should not be permitted, in this Court, to criticise a finding by the Appeal Panel, consistent with the submission of Mr Klooster, that the Arrangement was contractual in nature.

28. [37]

    Turning to the Appeal Panel’s reasons, at [80] the Appeal Panel held that the concession by the plaintiffs as to the amount owing to the defendant were factual concessions that were not dependent upon the contractual context within which that money was outstanding. As to this, the Appeal Panel at [79] said that the factual context for the concessions was that “[t]here was diverse and contested evidence between the parties as to what payments had been made” by the plaintiffs and the defendant respectively. There is no error of law in that characterisation of the concessions. That is sufficient to dispose of the contention before this Court that there was legal error in the Appeal Panel’s treatment of the concessions as to the amount outstanding to the defendant. In any event, I agree with the Appeal Panel’s characterisation.

29. [38]

    It follows that there was no legal error in the Appeal Panel’s conclusion at [81] and [83] that it was open to the Tribunal to make a factual finding, based upon the plaintiffs’ concessions, that the plaintiffs owed the defendant $30,000 “irrespective of the precise terms of the contract or nature of the agreement between the parties” and that this relieved the Tribunal from having to make a factual finding as to how much was paid by the plaintiffs to the defendant and what was outstanding. Whilst the Appeal Panel here used the language of an amount being “owed”, in context, it is clear that this was a conclusion as to the amount of money outstanding rather than as to the legal basis upon which the plaintiffs were obliged to pay that amount to the defendant. Having regard to this conclusion, the plaintiffs’ contention that it was necessary that there be some additional evidentiary foundation for the Tribunal and Appeal Panel’s conclusions as to this amount should be rejected.

30. [39]

    The Appeal Panel then considered the plaintiffs’ contention that the Tribunal had not identified a proper basis in principle upon which that amount was in fact liable to be paid by the plaintiffs to the defendant and that there was a denial of procedural fairness (a contention that is not pressed before this Court). At [95] the Appeal Panel said that the Tribunal had found that the monies sought to be set off were owed by the plaintiffs to the defendant on the basis that the plaintiffs had agreed with the defendant that the defendant would assist them to procure materials at a discounted cost and to identify contractors for the plaintiffs to engage, for which, ultimately, the plaintiffs were obliged to pay. At [99] the Appeal Panel said that the Tribunal had found “that there was an ‘agreement’ between the parties that the [plaintiffs] could use the [defendant’s] trade accounts for the purchase of materials and ‘expenditure’ incurred”. Given that, save for their contentions as to ss 7, 10 and 92 of the Act (which the Tribunal rejected), the plaintiffs did not otherwise contest that a set off was available, the Appeal Panel found that the Tribunal did not err in upholding the defendant’s claim to a set off. The Appeal Panel later, at [100], characterised the defendant’s claim as “an amount owed by way of debt or in restitution”. It is unnecessary to consider whether or not the claim was appropriately described as one in restitution. The findings of the Appeal Panel make it clear that it was satisfied that the claim was contractual.

31. [40]

    It follows that the plaintiffs’ contention that the Appeal Panel misconstrued and misunderstood concessions made by the plaintiffs and founded the plaintiffs’ liability to the defendant solely on those concessions, must be rejected. The plaintiffs’ contention that the Appeal Panel misconstrued the Tribunal’s findings should also be rejected (and in reaching this conclusion I make no finding as to whether that contention raises an error of law). In any event, at [100] the Appeal Panel reached its own conclusion as to the contractual basis of the defendant’s entitlement that founded its claim to a set off. That provides a further basis, independent of Mr Klooster’s concession in oral argument, for rejecting the contention that the Appeal Panel erred in finding that there was a contractual basis for the set off.

32. [41]

    In these circumstances, ground eight in the summons must be rejected.

33. [42]

    The essence of the plaintiffs’ contention on ground one was that the set off was precluded by s 10 of the Act because it was the enforcement of a remedy for a breach of the contract to perform the waterproofing works, which was a residential building contract which did not comply with s 7(1) of the Act. As to this, it was common ground that the contract to perform the waterproofing works at the Property was a residential building contract which was not in writing, and that it thus did not comply with s 7(1) of the Act which requires a residential building contract to be in writing and signed by or on behalf of each of the parties to it. The plaintiffs contended that s 10 should be read in a beneficial way as it is remedial legislation. The defendant contended that s 10 does not preclude a set off being ordered where the set off is not sought as a remedy for a breach of residential building contract falling within the ambit of the Act.

34. [43]

    Section 10 of the Act provides as follows:

35. [44]

    The plaintiffs’ contention can be dealt with briefly. There is no reasonably available construction of s 10 of the Act that would preclude the Tribunal upholding the set off. The defendant was not, in the set off, seeking to enforce any remedy in respect of a breach of a residential building contract to which the Act applied. It was seeking to enforce a remedy in respect of the contractual obligation to repay amounts owing pursuant to the Arrangement, to which the Act did not apply. As is explained in JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies, (5th ed, 2014, LexisNexis Butterworths) at [39-005], a set off is an answer to a plaintiff’s claim which absolves a defendant of liability to satisfy the plaintiff’s claim. To similar effect, in Re Dalco; Ex parte Dalco v Deputy Commissioner of Taxation [1986] FCA 357; 67 ALR 605 at 612, Neaves J said:

36. [45]

    Properly understood, consistent with these authorities, the set off was not a remedy sought in respect of the plaintiffs’ claim or a remedy in respect of the defendant’s breach of contract. In these circumstances, s 10 of the Act did not preclude the set off being awarded by the Tribunal.

37. [46]

    This is effectively what the Appeal Panel held at [94]-[95]:

38. [47]

    I also observe that the plaintiffs made no contention in this Court that the amounts claimed by way of set off were in fact owing under the contract for waterproofing works and not pursuant to the Arrangement.

39. [48]

    In the circumstances, ground one must be rejected.

Question two: was there a constructive failure to exercise jurisdiction as regards the contractual obligation to provide a waterproofing certificate or was the Appeal Panel’s finding unreasonable or perverse?

1. [49]

   The essential contention of the plaintiffs as to this question, which is addressed by grounds two and three of the summons, was, twofold. First, that the Tribunal failed even to consider the claim for an order that a waterproofing certificate be provided. Second, that there was cogent evidence before the Appeal Panel that the plaintiffs and defendant had agreed that the defendant would certify the waterproofing works and the Appeal Panel overlooked that evidence. This, the plaintiffs contended, was a constructive failure by the Appeal Panel to exercise jurisdiction and thus an error of law (ground two) or, in the alternative, the Appeal Panel’s decision was unreasonable or perverse (ground three).

2. [50]

   These contentions must fail as they misunderstand the findings of the Appeal Panel.

3. [51]

   The submissions of the plaintiffs before the Appeal Panel extracted the following exchange during Mr Eassey’s cross-examination:

4. [52]

   An earlier exchange during Mr Eassey’s cross-examination was also referred to by Mr Klooster in oral submissions before the Appeal Panel:

5. [53]

   The defendant’s written submissions before the Appeal Panel noted the expert evidence of the plaintiffs’ expert, Mr Frizzell, at “Item 9” of the defects identified:

6. [54]

   Whilst ultimately, as the defendant also recorded in its written submissions before the Appeal Panel, Item 9 was withdrawn by the plaintiffs, this evidence shows that there were issues of water penetration in the bathrooms, which were at least in part waterproofed by the defendant. The defendant’s written submissions also noted that Mr Hawach had accepted in cross-examination that the defendant was not responsible for the “bulk of the tiling”.

7. [55]

   In response to the plaintiffs’ contention that the Tribunal should have made a “work order” that the defendant provide a waterproofing certificate, the defendant contended in its written submissions before the Appeal Panel that:

8. [56]

   One of the footnotes to this submission was as follows:

9. [57]

   The defendant also contended that:

10. [58]

    One of the footnotes to this submission said that:

11. [59]

    As is apparent, what the defendant was putting in issue before the Appeal Panel was not whether Mr Eassey had accepted that he had said that he would provide a waterproofing certificate, but whether there was an obligation to provide such a certificate in circumstances in which the work on the bathroom walls was completed by Mr Hawach and not the defendant and where the bathroom walls had been identified as having water ingress.

12. [60]

    The Appeal Panel observed at [101] that the plaintiffs’ submission was that Mr Eassey had conceded in cross-examination that the defendant had not provided a waterproofing certificate for the waterproofing works it performed for the plaintiffs. The Appeal Panel also noted at [103] that the defendant conceded that the issue of the failure to provide a waterproofing certificate was raised during the hearing before the Tribunal. The Appeal Panel went on to record at [103] the defendant’s submission as being that:

13. [61]

    As is apparent, that submission was highly factual. It was, in effect, a contention that the plaintiffs needed to prove that there was an obligation upon the defendant to provide a waterproofing certificate in the circumstances that transpired, namely where the defendant completed only some of the relevant works.

14. [62]

    The Appeal Panel noted at [108] that Mr Eassey accepted in cross-examination that the defendant had not provided a waterproofing certificate.

15. [63]

    The Appeal Panel accepted at [110] that before the Tribunal the plaintiffs had raised a claim to an order that the defendant provide a waterproofing certificate.

16. [64]

    The reasons of the Appeal Panel for rejecting the claim were then set out:

17. [65]

    The Appeal Panel’s conclusion is readily explicable having regard to the limited waterproofing works in fact completed by the defendant and the fact that, as set out in the defendant’s submissions, other work had impacted upon the integrity of the waterproofing.

18. [66]

    Nor would I infer that the Appeal Panel overlooked Mr Eassey’s evidence that he had agreed to provide a waterproofing certificate. That did not, however, go to the Appeal Panel’s fundamental reason for rejecting the plaintiffs’ contention, which was that the plaintiffs had simply not discharged their onus of showing that the defendant was contractually required to provide a waterproofing certificate having regard to the actual circumstances which arose. In this regard, it is of some significance that the Tribunal found at [48] that, whilst there was agreement by the defendant to carry out waterproofing works, “[t]he precise scope of the water proofing work was not discussed or agreed between the parties”. That finding significantly undermines the plaintiffs’ contention that their claim was made good simply on the basis of Mr Eassey’s evidence that, when he was asked to carry out waterproofing works, he agreed that he would provide a waterproofing certificate.

19. [67]

    In these circumstances, there was no constructive failure to exercise jurisdiction, nor any unreasonableness or perversity in the Appeal Panel’s decision. Grounds two and three must be rejected.

20. [68]

    It is, in any event, difficult to see how the Appeal Panel could properly have ordered that a waterproofing certificate be provided by the defendant (which was the order sought by the plaintiffs) given the matters relied upon by the defendant in its submissions before the Appeal Panel (as set out above) and in the absence of any expert or other evidence that it would have been proper for the defendant to issue a waterproofing certificate in the circumstances.

21. [69]

    I would add that it is far from clear that the contentions in grounds two and three constitute a question of law within s 83 of the CAT Act. Consistent with the principles set out above this is something which must be approached as a matter of substance. A question of law is not constituted merely by the use of phraseology associated with a question of law.

Question three: was there any error by the Appeal Panel in its application of the principles in relation to post-contractual documents, conduct and admissions where a contract is not wholly in writing?

1. [70]

   In ground four, the plaintiffs contended that the Appeal Panel erred by failing to consider whether the Tribunal had correctly applied the principles of law in relation to contracts partly oral, partly in writing and partly through conduct, and that it also erred by not having regard to important admissions made by the defendant’s witnesses in relation to what works were contracted to be done. In ground five, the plaintiffs contended that the Appeal Panel erred in law in finding that the Tribunal had not so erred and/or finding that if the Tribunal had erred, its error was not material. In ground seven, the plaintiffs contended that the Appeal Panel failed to consider evidence pleaded as being evidence of an oral contract that was partly in writing. In oral submissions, these three grounds were said to be related to whether there was an error in the application of principles of law where contracts are partly in writing or partly oral and ground seven was advanced as being derivative upon grounds four and five.

2. [71]

   The relevant principles governing the relevance of post-contractual material where a contract is not wholly in writing were set out in Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [143]:

3. [72]

   The plaintiffs’ claim before the Tribunal, as set out in its Amended Points of Claim at [6], was that a contract was entered into in or around October 2017, pursuant to which the defendant agreed to provide a range of residential building services at the Property. The plaintiffs particularised this contract by alleging that the contract was “partly express, partly implied, partly written and partly oral” and that to the extent that the contract was in writing, it was comprised in 41 communications in the period between October 2017 and March 2021, and to the extent it was oral, it was comprised in 11 conversations between January 2018 and January 2019.

4. [73]

   The key finding of the Tribunal, responding to this claim, is at [19] of its reasons:

5. [74]

   The plaintiffs contended that the Tribunal erred in finding that documents which came into existence after October 2017 (when the contract was said to have been entered into) could not evidence a contract unless stated to be a contract document. This paragraph of the Tribunal’s reasons must, however, be read as a whole. Once it is read in that way, it is clear that the Tribunal was well aware that post-contractual material could be relevant to the task of identification of the existence or terms of the contract. That is entirely consistent with the approach as set out in the passage from Marcolongo at [71] above.

6. [75]

   That is sufficient to dispose of grounds four and five of the summons. I would add that it is far from clear that the contentions under these grounds are sufficient to constitute questions of law within s 83 of the CAT Act. The contentions are in reality a disagreement with the Appeal Panel’s conclusions on the issues raised. The Appeal Panel’s reasoning plainly did not suggest that it had overlooked a substantial clearly articulated claim, nor even that it had overlooked Mr Eassey’s evidence in cross-examination. The plaintiffs’ invocation of descriptions such as a constructive failure to exercise jurisdiction or unreasonableness does not suffice to constitute a question of law for the purposes of s 83 of the CAT Act.

7. [76]

   In any event, the key reasoning of the Appeal Panel is in its reasons at [115]-[117]:

8. [77]

   The Appeal Panel added at [119]-[120]:

9. [78]

   There is no error of law in the Appeal Panel’s analysis. Nor, contrary to ground seven, is there any substance to the contention that the Tribunal failed to consider critically important evidence, noting that this ground was advanced in oral submissions as being derivative upon the contentions that the Appeal Panel misapplied the relevant principles of law.

10. [79]

    In these circumstances, grounds four, five and seven must be dismissed.

Conclusion

1. [80]

   In light of my conclusions as set out above, my orders are:

   1. (1)

      Leave to appeal is refused.

   2. (2)

      The plaintiffs are to pay the defendant’s costs.