Vlaanderen v Schuessler [2023] NSWCATAP 126

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Vlaanderen v Schuessler [2023] NSWCATAP 126 Hearing dates: 16 January 2023 Date of orders: 10 May 2023 Decision date: 10 May 2023 Jurisdiction: Appeal Panel Before: S Thode, Principal Member D Goldstein, Senior Member Decision: (1) Leave to appeal is granted. (2) Appeal allowed in part. (3) Order 1 made on 18 August 2023 in HB 22/20601 is set aside. (4) In lieu thereof the Appeal Panel orders Joshua Schuessler to pay Martin Vlaanderen and Huilin Vlaanderen the sum of $3561 immediately. (5) The remainder of the appeal is dismissed. Catchwords: APPEAL – HOME BUILDING – dismissal of compensation claim – no error of law – no issue of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Civil and Administrative Tribunal Rules 2014 (NSW), Cases Cited: Collins v Urban [2014] NSWCATAP 17 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: Martin and Huilin Vlaanderen (Appellants) Joshua Schuessler (Respondent) Representation: Appellants in person Respondent in person File Number(s): 2022/00287923 Publication restriction: Nil Decision under appeal Court or tribunal: Consumer and Commercial Division Jurisdiction: NSW Civil and Administrative Tribunal Citation: [2020] NSWCATCD Date of Decision: 22 August 2022 Before: J Lynch General Member File Number(s): HB 22/20601

Reasons for decision

Background to appeal 1. The appeal concerns proceedings arising out of a contract to do alterations and additions at a property in Bermagui entered into on or about 1 February 2019 between the owners Martin and Huilin Vlaanderen, and the builder Joshua Schuessler. 2. Work commenced in or about February 2019 and was completed on 13 June 2020 being the date that is 18 months after the issue of the owner builder permit for the work (see s 3B(3)(d) of the Home Building Act 1989 (the HB Act)). 3. The appellants commenced proceedings HB 22/20601 against the respondent by filing an application in which they claimed damages for defective and incomplete work in the sum of $12,912.

The decision of the Tribunal 1. The application was listed for hearing on 22 August 2022 and the Tribunal published the following orders and written reasons for decision: 1. the builder is to pay the owners the sum of $800 before 30 August 2022 immediately. 1. The remainder of the appellants' claim for damages for defective work pursuant to s18B of the HB Act was dismissed. 2. The appellants' have appealed the Tribunal's decision.

The Notice of Appeal 1. We refer to the Notice of Appeal filed on 27 September 2022 and annexures. 2. The critical grounds of appeal are set out at page two of the Notice of Appeal and in written submissions. 3. It is convenient to set out the appellants' ground of appeal in full: 1. The Tribunal Member ignored the fact that the Contractor's evidence is contradictory to statements made at the hearing. 2. The Tribunal Member ignored the fact that the Contractor was unlicensed for the work subject of the majority of the work. 3. The Tribunal Member ignored the fact that the Contractor has a liability under the Home Building Act to rectify defects to work carried out by the Contractor. 4. The Tribunal Member selectively accepted verbal statements made by the Contractor over evidence provided by independent qualified third parties. 5. The Tribunal Member has made a subjective assessment of the definition used by the independent building inspector when he classified defects as "Fair" – "some minor defects and (sic) requires minimal maintenance or repair". There is no definition of what minor or minimal repair means. The member has used her subjective interpretation as a reason to dismiss some of the claims. 1. In the section entitled "orders the NCAT Appeal Panel should make" the appellants state as follows: 1. Applying the Contract Agreement between the Owner Builder and Contractor 2. Waterproof of entrance $6821.28 3. Kitchen Rectification $2761 4. Waterproofing Store Room $4600 5. Shower $330.

Reply to Appeal 1. In his Reply to Appeal filed on 20 December 2022 the respondent support the orders made on 22 August 2022. By way of summary the respondent submits he has no responsibility for defects in the residential building work because Mr Vlaanderen was an owner builder and held the relevant licence, and the respondent merely acted as a carpenter and supervisor for the appellants.

Applicable legal principles governing appeals 1. Section 80 of the CAT Act provides as follows: "(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made — (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may — (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances." 1. Clause 12 of Schedule 4 to CAT Act states: "An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)." 1. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as examples of error of law: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable. 1. Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]–[79] and [84(2)] as follows: "74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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. 75 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. 84 The general principles derived from these cases can be summarised as follows: … (2) Ordinarily it is appropriate to grant 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." 1. Even if the appellant establishes that he may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the CAT Act, the Appeal Panel has discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Appeal Panel's consideration of whether to exercise that discretion. 2. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: "An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."

The appellants' submissions 1. The appellants were present in person at the appeal hearing . We proceeded on the basis that the appellants bring their appeal on the basis that the findings of the Tribunal were against the weight of evidence, therefore the appellants require the leave of the Appeal Panel in order to succeed. 2. We have had regard to the owners "Appeal Summary" and the grounds set out therein. As best we can we ascertain the grounds of appeal are as follows:

Ground 1 - Applying the contract 1. The appellants refer to this ground of appeal as "Applying the Contract Agreement between the Owner Builder and Contractor". Contrary to the writing requirements of the HB Act the respondent failed to provide a contract in writing for residential building work exceeding $20,000. The fact that the respondent states that he was merely a supervisor for the owner builder, Mr Vlaanderen, does not release the respondent from the writing and insurance requirements of the HB Act. 2. The appellants submit they entered into a contract on a "do and charge" basis and that the respondent was paid on an hourly basis. It is not contentious that the respondent was paid approximately $135,000. The residential building work in question therefore clearly exceeded the prescribed amount of $20,000 and the respondent was required to provide a written contract conform with s7 of the HB Act. 3. There is a contract document included at pp 57 to 82 of the material tendered on the appeal. This document is only signed by the appellants who submit that this document formed part of the written contract entered by the parties. 4. There is a further document entitled "Addendum" at page 83 that states: The contractor assumes liability for work that does not meet the design, engineering detail, Australian Standards, council requirements or the National Construction Code where it was your responsibility to ensure that it conformed. The contractor is responsible for poor quality of work, damage to materials where it is clearly your fault and for rectifying these non-conformances. The contractor is responsible for assisting with selection of trades and ordering materials, organising and coordinating trades, organising and coordinating the purchasing and delivery of materials, ensuring quality of work is to Australian standards and National Construction Code, ensuring engineers inspections are carried out at required hold points, notifying the principle certifying authority (council) at required stages and ensuring inspections are carried out before progressive works, timely reporting issues to ourselves, ensuring work is carried out in an efficient and timely manner, ensuring hired in plant and equipment is on site for the minimum time required, completing their house by February 2020 or thereabouts. Safety onsite. We the owners will be responsible for engaging, paying and communicating with other contractors 1. The appellants submit that the Addendum formed part of the contract. 2. The respondent denies that the documents form part of the contract that he entered into with the appellants. He is particularly adamant that the Addendum document did not form part of the agreement between the parties because it purports to shift responsibility entirely to the respondent who submits he is not liable for any defects because it was Mr Vlaanderen's responsibility as an owner builder to ensure that work was performed in a proper and workmanlike manner. 3. In respect of both the Contract and the Addendum, the Tribunal arrived at the following findings: The Home owner (sic) has not established that the written document represents the terms of the contract between the parties. 1. Instead the Tribunal concluded that the parties entered into an oral contract on a do-and-charge basis. 2. The appellants submit that the finding is against the weight of evidence.

Consideration: 1. We have been provided with an outline of submission. The appellants' documents at pages 1-5 (of 171) address the contractual issue. 2. First we are not of the view that the Tribunal erred in finding that the Contract and the Addendum was not binding on the parties as no meeting of the minds had occurred and as the document was not signed by the respondent. 3. Secondly, and critically, we are not of the view that this ground of appeal is relevant to the issues that must be determined by the Appeal Panel in the disposition of the appeal. 4. The critical findings made by the Tribunal are that the respondent performed residential building work for value exceeding $20,000. As such the respondent was required to provide a contract in writing in accordance with s7 of the HB Act, and failed to do so. Having provided residential building goods and services, the respondent is liable for any defects pursuant to section 18B of the HB Act, and the Tribunal has jurisdiction to hear a building claim brought by the appellants seeking damages for defective work under s18B of the HB Act. 5. A building claim is defined in section 48A of the Act 48A Definitions (1) In this Part— building claim means a claim for— (a) the payment of a specified sum of money, or (b) the supply of specified services, or (c) relief from payment of a specified sum of money, or (d) the delivery, return or replacement of specified goods or goods of a specified description, or (e) a combination of two or more of the remedies referred to in paragraphs (a)–(d), that arises from a supply of building goods or services whether under a contract or not, (emphasis added) 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. building dispute means a dispute that has been notified as referred to in section 48C. building goods or services means 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. goods, services and supply have the same meanings as in Part 6A of the Fair Trading Act 1987. 1. The definition of "building claim" specifically states that residential building work includes supervisory work, see Schedule 1 clause 2: "residential building work" means any work involved in, or involved in co-ordinating or supervising any work involved in-- … the construction of a dwelling". 2. Supervisory work is therefore by definition residential building work, and therefore a claim by the appellants against a supervisor is by definition a building claim under section 48A of the HB Act unless the residential building work performed by the supervisor is excluded from the definition of residential building work. (3) Each of the following is excluded from the definition of "residential building work" – (i) the supervision only of residential building work- (i) by a person registered as an architect under the Architects Act 2003 , or (ii) by a person supervising owner-builder work for no reward or other consideration, or (iii) by any other person, if all the residential building work is being done or supervised by the holder of a contractor licence authorising its holder to contract to do that work, 1. None of the exclusions apply in the instant case and the fact that Mr Vlaanderen held an owner builder license does not mean the relevant work performed by the respondent is excluded from the definition of 'residential building work'. Further the warranties under s18B of the HB Act are implied into every contract entered by the parties to do residential building work, whether Mr Vlaanderen is the holder of an owner builder licence or not. We are satisfied that the Tribunal proceeded on the correct critical finding, namely that the respondent carried out 'residential building work' and is liable for the statutory warranties under s18B of the HB Act. 2. Whether or not the contract or Addendum documents were agreed between the parties is not relevant to the enquiry whether the respondent, who performed the residential building work, is liable for damages for defective work. The definition of a building claim includes the provision of building goods and services "whether under contract or not". The Tribunal therefore correctly proceeded on the basis that the respondent is liable for any defective work, whether he signed the Addendum or not. The critical findings in this respect are found at paragraph [39] and following: "the contractor is responsible for directing and ensuring the work was done correctly". 3. We find that there is no error in the critical findings reached by the Tribunal that defects, if found, are the responsibility of the respondent, regardless of whether or not the Addendum formed part of the contract documents.

Ground 2 – Waterproofing of Entrance - $6821.28 1. The appellants' submissions are contained at page 5 of the Notice of Appeal. The appellants claim is the entrance door is not waterproofed and leaks into the garage and storage void underneath, causing mould. The initial claim for waterproofing rectification was $6821.28. 2. The written reasons for decision identify the following critical findings of fact. The work was undertaken by a third party tiler, and there was no evidence to support the claim for damages for defective work. The appellants relied upon an independent report from Town and Country Building Pty Ltd dated 22 March 2022, but the writer did not identify his qualifications and did not come to a concluded view as to the cause of the water ingress. The report does not identify the precise nature or cause of any defect. The report merely suggests "may require further investigation". The "report" in respect of this alleged defect contains a single photograph accompanied by a 15 word caption. In light of the minimal comment by the writer it is clear that the document does not comply with the expert code of conduct, and does not satisfy the minimal requirements for expert evidence. 3. There were three significant findings based on the evidence that were adverse to the appellants. The report author does not specify the cause of the mould water damage nor the nature of the minimal maintenance or repair recommended; the quote obtained on behalf of the appellants for work in the sum of $6821 is not independent; and the appellants seek rectification of work that extends beyond the scope of the original work agreed between the parties. 4. The only defect found established by the Tribunal is a lack of silicone between the tiles and the rendered wall. The Tribunal found, correctly in our view, that an application of silicone between tiles was agreed between the parties and is the appropriate remedy given the appellant's own expert did not identify a defect and merely recommended "further investigation". 5. We are satisfied that irrespective of the issue of the mould and water damage to a cornice in the entrance area, a matter of which the Tribunal was aware, the Tribunal found that there were no identified reasons for ingress of water. Those findings were open to the Tribunal on the evidence. The Tribunal did not make a finding without any evidence; nor did it approach the process of making factual findings in an unorthodox or unreasonable manner. 6. The reasons at [37] are clearly sufficient to explain the basis of the Tribunal's finding that the owner has established a defect; the appropriate method of rectification was established; and the cost of rectification of $500 was awarded. 7. This ground of appeal is dismissed.

Ground 3 – Kitchen Rectification - $2761 1. The appellants submitted that the kitchen stub wall is protruding by 75mm contrary to the plans and specifications causing the wall to be visibly uneven. The Tribunal made findings at [42] and following that the appellants inspected and therefore "approved" the defective fame work. We are of the view that the work is prima facie defective and that the findings of the Tribunal that no defect is established is against the weight of evidence. 2. The respondent who provides residential building work "whether under contract or not" must ensure that the building work conforms with the plans and specifications. There is no dispute that the stub wall in the kitchen protrudes 75mm beyond the plans and that the deviation is visible. The plans confirm the anomaly of 75mm. The stub wall is therefore not installed in accordance with plans and specifications and the residential building work is defective within the meaning of section 18B of the HB Act. 3. The fact that the appellants "approved" the frame work by reason of their inspection is in our view not a defence under s18F of the HB Act to a claim for damages for defective or incomplete work. Section 18F In proceedings for a breach of a statutory warranty, it is a defence for the respondent to prove that the deficiencies of which the plaintiff complains arise from a. instructions given by the person for whom the work was contracted to be done contrary to the advice of the defendant or person who did the work, being advice given in writing before the work was done, (b) reasonable reliance by the defendant on instructions given by a person who is a relevant professional acting for the person for whom the work was contracted to be done and who is independent of the defendant, being instructions given in writing before the work was done or confirmed in writing after the work was done. 1. Although Mr Vlaanderen conceded that he "inspected" and by inference "approved" the defective framing work, insofar this raises a defence under section 18F of the Act, this does not conform with the writing requirements of s18F. The appellants did not give an instruction, contrary to advice by the respondent that the work was deficient, nor was there an instruction given in writing that the framing work was deficient in any respect. 2. We are of the view that it is against the weight of evidence for the Tribunal to find the appellants have not established the grounds to make a money order. The evidence at page 88 demonstrates that a report alerted the respondent to the defect. In the section entitled 'kitchen' it states: "not built as to drawing. Wall next to oven microwave wrong dimensions the stub wall protrudes 75mm further than the design. Defect under the Home Building Act 1989-s18B". There was a concession by the respondent that the wall was not built to plan. In our view, it was not open to the Tribunal to dismiss this claim for damages and instead the Tribunal ought to have accepted the work was defective. It was open to the Tribunal to accept the evidence of the appellants in relation to measurement of plumbness (see material tendered at p88 of the appellant's bundle). We are of the view that the Tribunal erred when it came to a contrary view. 3. We are satisfied that the Tribunal's overall findings were against the weight of evidence. If the issue of the appellants' inspection of the kitchen frames is taken out of the equation, the evidence establishes a defect and a method of rectification which is to cut back the wall and to replaster and reset the wall. The cost of the work is quantified as $2761. Given the limited scope of work, we conclude that this cost is reasonable and the scope of work is justified to bring the contract work into conformity (Belgrove v Eldridge). To the extent that the Tribunal's finding of no defect was against the weight of evidence, we have taken into account the relatively modest cost of rectification when considering whether to grant leave to appeal. 4. We consider that this ground of appeal must succeed and vary the amount awarded in favour of the appellant by $2761.

Ground 4 – Waterproofing Storeroom - $4600 1. The appellants submit that the cavity under the entrance is a storeroom, and that the storeroom was not adequately waterproofed. The appellants quantify the cost of the defect as $4600 but have provided no evidence to support this claim. The appellants seek the installation of a ventilation system to address moisture allegedly caused by a poorly applied waterproof membrane (see documents p [65]). 2. The respondent submits that the plans disclose that the area in question is not deemed "habitable" and as such there is no requirement to waterproof a subfloor void under the entrance hall. The respondent claims he waterproofed the wall with a waterproof membrane and two coats of bituminous paint in accordance with the plans and specifications (see plans Triaxial MX10540.00 S.03 on page 27 of the appellants' material). It was further submitted by the respondent that the plans tendered by the appellants in respect of this defect were superseded by new engineering drawings by Technibuild Engineers and that the appellants failed to tender the relevant plans and that very little weight should be given to the appellant's tendered material in support of this ground of appeal. 3. The Tribunal made relevant findings at [64] and following: The independent building report notes: Back Storage Room: May require further investigation. Signs of water ingress through blockwork. Overall Condition Fair. The report defines 'Fair' as "in the inspector's opinion the item has some minor defects and requires minimal maintenance or repair." 1. The Tribunal finds at [65], correctly in our view, that "the independent report does not identify the cause of the water ingress and states it requires minimal maintenance and repair. This is a correct summary of the appellants' own expert report. 2. In the notice of appeal the appellants submit that the Tribunal gave too much weight to their own expert report that states "the item has minor defects and requires minimal maintenance or repair." Instead the Tribunal should have placed weight on a quote from Mr Matt Farnham as a more persuasive opinion. We have had regard to the letter from Mr Farnham. Mr Farnham did not provide an opinion that the respondent carried out defective building work or the nature of the defect alleged. The evidence does not establish a causal connection between the quote provided by Mr Farnham and the work carried out by the respondent. We reject the contention that the Tribunal should have placed less weight on the appellants' own expert report. The appellants tendered it. It was open to the appellants not to tender the report of Town and Country Building as it does not support the appellants' case and does not provide an opinion that the respondent is liable for defective or incomplete work. However as the report is in evidence, the Tribunal was entitled to take it into account and to weigh it appropriately. Transcript of the hearing has not been provided and there is no suggestion that the appellants sought to persuade the Tribunal that no weight should be given to their own expert report. 3. In respect of this ground of appeal, in light of the explanation set out above, we do not grant leave to appeal as the appellant has provided no probative expert evidence that the respondent has carried out defective work, and the appellants cannot establish that they have suffered a substantial miscarriage of justice because the decision was not fair and equitable, or that the decision was against the weight of evidence. This ground of appeal is dismissed.

Ground 5 – Shower $330 1. The appellants seek an order for compensation for a leaking shower screen that they ordered and asked the respondent to install. The findings and orders are recorded at [59]: "the homeowner has not established the grounds required to make an order regarding the showerscreen installation. This item is dismissed." 2. The basis for the Tribunal's reasons in respect is set out in paragraph [56] above: Mr Vlaanderen's opinion in evidence is [t]he shower glass was designed according to Australian standards which "indicates probably faulty installations". The [h]omeowner's expert states: "may require further investigations Gaps in shower screen when fully closed. Relevant specialist: Glazier. fair condition." 1. The Tribunal concluded that there is no evidence from a glazier or independent expert to support the owners' submission that the showerscreen is defective and that the defect was caused by the respondent's failure to install the shower screen with due care and skill in contravention of s18B of the HB Act. 2. The grounds of appeal set out by the appellants are set out on page 7 of 171. It is submitted that the Tribunal member overlooked that the respondent is not a licensed glazier and not qualified to provide an opinion. The appellants maintain that the respondent did not know how to install shower glass and that Mr Vlaanderen's opinion should have been preferred. 3. The appellants submit that they have provided an independent expert assessment at page 163 of the appellants' bundle. Based on this assessment the Tribunal should have found the contractor liable. We have had regard to page 163 of the appellants' bundle. It consists of a text message from an unidentified writer: Supply and instal new frameless shower magnets 135 degrees and adjust top brace. Total $300 cash price otherwise if paying via EFT transfer and invoice it's an additional 10%. Koda from ultimate glass solutions 1. Presumably this is a quote to the repair the shower screen. "Koda" does not express an opinion that the shower screen has been defectively installed and there is no evidence contained in the appellant's bundle that demonstrates that the respondent was liable for defective or incomplete work in respect of the shower screen. In their submissions the appellants concede that they received an opinion from the shower screen installer by telephone and that he did not attend the premises. 2. In respect of this ground of appeal we do not grant leave to appeal as the appellant has provided no probative expert evidence that the respondent has carried out defective work. The appellants cannot establish that they have suffered a substantial miscarriage of justice because the decision was not fair and equitable or the decision was against the weight of evidence. This ground of appeal is dismissed

Conclusion 1. We are satisfied the Member's decision was against the weight of evidence in respect of Ground 3, the kitchen rectification. We are satisfied the decision was not fair and equitable in respect of that ground of appeal. A basis for leave to appeal under cl. 12 of Sch. 4 of the NCAT Act has been established by the appellants, and we do grant leave to appeal in accordance with the principles set out in Collins v Urban.

Orders 1. The orders that we accordingly make are as follows: 1. Leave to appeal is granted. 2. Appeal allowed. 3. Order 1 made on 18 August 2023 in HB 22/20601 is set aside. 4. In lieu thereof the Appeal Panel orders Joshua Schuessler to pay Martin Vlaanderen and Huilin Vlaanderen the sum of $3561 immediately. 5. The remainder of the appeal is dismissed.

********** 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: 10 May 2023