DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for leave to appeal from a decision of the Commercial and Consumer Tribunal in a proceeding commenced in the Tribunal by the appellant, a builder, for money said to be owing by the respondents homeowners. The respondents counterclaimed, and on 20 April 2007 the Tribunal ordered the appellant to pay to the respondents an amount of $113,513.20.

2. [2]
   There was a contract entered into between the parties dated 1 November 2002, which was evidently terminated prior to completion, though there was a dispute about termination before the Tribunal.  In the Tribunal the appellant claimed payment of an amount in a progress claim and for further works between that claim and the date of termination, loss of profit on the remainder of the contract, and the value of additional works done under oral variations to the contract.  The respondents counterclaimed for damages for breach of contract, and restitution of moneys overpaid.  It appears that the hearing covered some 22 days, and the Tribunal in due course delivered a judgment 131 pages long.  The grounds of appeal extend to over three close‑typed pages, although the appeal was argued on a somewhat different basis from the grounds in the notice, and ground 2 in the notice was expressly not pressed.

3. [3]
   Appeals from the Tribunal to this court are governed by s 100 of the Commercial and Consumer Tribunal Act 2003, which confines any such appeal to an error of law or excess or want of jurisdiction:  subsection (1).  Leave is required to appeal.  I accept the test for leave expounded by Wilson DCJ in Clements v Flower [2005] QDC 50:  “The applicants must show there is a reasonable prospect of demonstrating an error of law on the part of the learned member who constituted the [Tribunal], and that it could have materially affected the decision.”  I also accept that it may be relevant in a particular case to consider the gravity of the case, the amount in dispute, any public interest in the result of the particular case, or whether any question of law raised is one of wider importance than between the parties to the immediate dispute.  It is convenient in matters of this nature to hear argument on the substance of the appeal at the same time as the application for leave, and that occurred in the present case.

4. [4]
   Broadly speaking the grounds of appeal, and the matters argued, fall into three categories. The first was that the Tribunal member ought not to have heard and determined the matter because he had previously determined unfavourably to the appellant a similar dispute with other homeowners: Poiner v Fenton [2005] QCCTB 5.  It may be that the ground as advanced was rather that the decision of the Tribunal member can be seen to be affected by apprehended bias in the light of this background.  The second ground was that there were procedural difficulties in the way in which the proceedings were conducted with the result the appellant did not get a fair hearing before the Tribunal.  Thirdly, the appellant listed a number of what were said to have been clear errors in the calculation of the amount payable, which were said not to involve any questioning of any finding of fact on the part of the Tribunal.

Apprehended bias

5. [5]
   It was submitted on behalf of the appellant that there were significant similarities between the matter of Poiner v Fenton and the present matter:  both related to a domestic building contract involving the appellant as the builder, both required the determination of whether the contracts had been lawfully terminated, and both concerned the determination of the appellant’s entitlement to payment in relation to certain variations, and involved a contest of evidence between the appellant and the building owner.  It was submitted that in that matter the Tribunal member resolved every dispute on a matter of evidence against the appellant, and took what was said to be the unusual step of awarding costs against the appellant.^[1]  Various passages were cited from the earlier reasons which record findings adverse to the credibility of the appellant in that matter, and in addition there were two other comments relied on which were said to go beyond dispassionate adjudication on the dispute to expressing a personal view about the appellant and his conduct.

6. [6]
   The first of these was from para 129:

“The applicant’s approach to the 24 May notice^[2] was unreasonable and reflected a somewhat belligerent approach.^[3]  One would have thought that, acting reasonably, a builder in the applicant’s position, on receipt of such a notice, would have been propelled into action with a view to completing the works as soon as possible and avoiding further confrontation.”

7. [7]
   The second was from para 137:

“Frankly, having heard the evidence of these parties, and having observed (including through documentation) the somewhat sporadic conduct of these works, I can understand Mr Fenton’s hopes and frustrations, and that Mr Fenton’s conduct, and that of the respondents generally, must be viewed in this light.”

8. [8]
   I should say at once that it seems to me that there is nothing in any way inappropriate or excessive in those comments. I have not reviewed the evidence in that matter, but there is nothing in the terms of either comment which suggest anything other than an unfavourable view appropriately taken on the basis of the evidence before the Tribunal in that matter. There is nothing which suggests to me that that amounted to some sort of personal attack on the appellant by the Tribunal member, or which gives any reason to suspect that there might in the future be some personal vindictiveness towards him, or disposition to find against him.

9. [9]
   The respondents submitted that by not applying to the Tribunal member to disqualify himself the appellant had waived his right to attack the decision on this ground, relying on Vakauta v Kelly (1989) 167 CLR 568 at 572.  It was accepted that there was no application to the tribunal member to disqualify himself.  Counsel for the appellant noted that at p 573 the majority accepted that there would be no waiver if the basis for an appearance of impermissible bias was found in the actual decision in question.  The difficulty with that argument, however, is that there is nothing in the decision in the present case which gives any appearance of impermissible bias, in relation to any assessment of the credibility of the appellant or in any other way.^[4]  All that was relied on was the proposition that the appellant was soundly defeated in the proceedings with the findings made being overwhelmingly in favour of the respondents, but that in itself cannot be an indication of apprehended bias, and, so far as the current proceeding was concerned, was something of an overstatement.

10. [10]
    There was nothing in the reasons of the Tribunal in the present matter which suggested any apprehended bias on the part of the Tribunal member. There was some reference in paragraph 257 to what was said in paragraph 174 of the earlier decision, where the Tribunal member quoted a passage including a comment that a particular part of the appellant’s evidence was somewhat curious and “in my view lacking credibility”.  In paragraph 258 the Tribunal member then went on to say that he considered his observations on “that evidence” apposite to the current situation, but this was a reference to “Mr Eccles’ evidence”, the evidence of an architect, Mr Eccles, who had given evidence in the earlier matter, which was also referred to in paragraph 174, and in an earlier paragraph, 171, quoted by the Tribunal member at para 256.  The question of the use made of Mr Eccles’ evidence in this way is considered separately below, but it does not seem to me that this comment in itself involved any impermissible use in the present matter of any adverse view on the appellant’s credibility formed in the earlier matter.

11. [11]
    A more difficult point for the respondents, however, in reliance on Vakauta is that the joint judgment of the majority at p 572 referred to a party “who has legal representation” not being entitled to stand by until the contents of the final judgment are known before attacking the judgment on the ground of apprehended bias.  The appellant did not have legal representation before the Tribunal, so on the face of it the principle does not apply in the present case.  In Rana v Human Rights and Equal Opportunity Commission [1999] FCA 264, the principle in Vakuatu was applied in circumstances where the appellant sought for the first time on appeal to complain that the judge at first instance had been apparently biased because the appellant had been unsuccessful in other unrelated proceedings before the same judge:  [16], [17].  The appellant in that case was unrepresented in the Full Court of the Federal Court, but it is not clear whether he was also unrepresented before the judge at first instance.  The submission of apprehended bias was also rejected on the basis that no question of credit or primary fact arose in that case.

12. [12]
    However, Kirby J in Lindon v the Commonwealth (No 2) (1996) 70 ALJR 541 appears to have considered the principle of waiver applicable in the case of a litigant in person who was a part‑time barrister:  p 542.  The appellant has legal qualifications and began to practice law at the beginning of 2006, before this hearing.^[5]  There seems to me to be no reason why a litigant in person who is a lawyer should be in a different position from a litigant who has a lawyer.^[6]  It is therefore not open to the appellant now to complain about apprehended bias.  In case a different view is taken elsewhere, however, I will consider whether apprehended bias has been shown, assuming the right to complain has not been waived.

Reason of the Tribunal

13. [13]
    The reasons of the Tribunal in the present case begin by summarising the respondents’ submissions, then summarising the appellant’s submissions, then summarising the respondents’ submissions in reply. The Tribunal member then worked through the various aspects of the appellant’s claim, and then through the various aspects of the respondents’ counterclaim. There were some issues in relation to delay, and it does seem that most of these issues were resolved in favour of the respondents, although it does not appear that this involved very much in the way of direct rejection of any evidence of the appellant. There was some consideration, by reference to documentation and the evidence of one of the subcontractors, of the progress or otherwise of work in supplying kitchen cupboards and similar things, which ultimately led to the comment in paragraph 168 that:

“The only conclusion is that, at least insofar as the kitchen cabinets were concerned, but, in all probability, generally, the applicant’s job programmes lacked credibility.  Further, I doubt whether the applicant had any intention of complying with his own programmes, and that the programmes had been prepared merely to placate the respondents, and to ‘buy time’ for the applicant.”

14. [14]
    That was certainly an unfavourable finding, and presumably involved some rejection of the evidence of the appellant, who presumably did not accept such a characterisation of his position. In other respects, however, the analysis of the Tribunal member does seem to support the decision arrived at on an objective basis.

15. [15]
    The Tribunal member rejected the proposition that the appellant was entitled to lodge progress claim number 16 in accordance with the contract, although it is not clear that this conclusion was arrived at on the basis of any particular rejection of the evidence of the appellant.  It appears to have been largely a consequence of an analysis of the state of the contract works at the relevant time, and his view as to the effect of the contractual terms.  Accordingly there was a finding that there was no breach of contract by the respondents in failing to make this progress claim, which does follow.  An allegation that the respondents wrongfully gave directions to a subcontractor was rejected, in connection with which there was a rejection in paragraph 192 of what was said to be an implication in the appellant’s statement, and some adverse comment in paragraph 193, about the appellant’s not attending to the performance of a contract works because of a lack of financial capacity.

16. [16]
    An allegation that there was a wrongful refusal by the respondents to provide information was rejected, on the basis that it found no support in the evidence, though it was not clear that this was because of any rejection of the evidence of the appellant: p 217.  The other allegations of breach of contract were either withdrawn by the appellant or found not to be made out, it seems to me essentially for reasons which did not involve the credibility of the appellant.  A claim for payment for work which had been performed for which remuneration had not been provided was rejected, essentially on the basis that the appellant had had the benefit of any such work in reducing the respondents’ claim for the cost of completion as damages, which is not correct^[7] as, if the respondents did not pay either the appellant or someone else for the work, they would be getting some work done without payment.  It was also rejected on the basis that the only amount recoverable would be the value of all works completed at termination, less all payments made under the contract, since it was only if the former exceeded the latter that there could be any element of unjust enrichment,^[8] and the former had not been proved.  This conclusion was reached without any rejection of any evidence by the appellant.  The claim for loss of profit in respect of the balance of the contract necessarily failed in circumstances where the respondents were not shown to be in breach of contract.

17. [17]
    There was also a claim for variations, which had not been documented and so could only be claimed in accordance with s 84 of the Domestic Building Contracts Act 2000.  Of these eight claims, three were allowed in whole or in part; three were said not to amount to a variation, that is to say to involve work which the Tribunal member considered fell within the terms of the contract anyway; one was rejected on the basis that the respondents had not agreed to it, which did involve a finding based on credibility; and one was rejected on the basis that although what was done was slightly different from what had been contracted for, there was no discussion of any additional costs involved at the time when this was arranged and the criteria of s 84 had not been satisfied.  Apart from those claims which were successful, at one point the appellant’s evidence was expressly accepted by the Tribunal:  para 276, in relation to one of the claims where it was ultimately held that the work was covered by the existing contract and so it was not a variation.

18. [18]
    The Tribunal then worked through the various allegations in the respondents’ counterclaim. The claim for liquidated damages, which essentially depended on findings made as to termination, was accepted, but their claim for unliquidated damages was rejected: para 304.  The Tribunal member then went on to consider evidence about the cost of completing the works; he accepted the evidence of the respondents’ carpenter, which presumably involved rejection of any contrary evidence of the appellant.  The matter was addressed in paragraph 322 generally on the basis of a favourable impression of the evidence of that witness.  Much the same occurred in relation to the cost of the electrician for completing the works and some rectification work:  para 332; the electrician was the electrical subcontractor used by the appellant on the job.

19. [19]
    The Tribunal then decided whether or not a sunscreen was included in the work required to be done under the contract, by reference to the construction of the contract and without resolving any issue of credibility. An issue of whether the fitting of additional trim around windows in order to cover gaps between the external window frames and the external cladding was a variation under the contract for which extra payments should be made was resolved against the appellant essentially by reference to the evidence of building experts called by the parties. A claim for flexible sealant for other doors and windows was rejected on the basis of the evidence of the appellant’s expert: para 369.  A claim for the cost of installing head flashings to five windows was allowed only in part, essentially on the basis of the evidence of an inspector with the Queensland Building Services Authority (para 372), whose evidence was similar to that of the expert witness called by the appellant.

20. [20]
    The next claim was to have the external cladding replaced, at a substantial cost. There was a good deal of evidence about this, but from various expert witnesses. Ultimately the Tribunal decided, on the basis of the evidence of the experts, which involved some resolution of disagreements between them, and on the basis of reasons expressed as to the legal position in relation to assessment of damages in such circumstances, that it was appropriate to allow the respondents’ claim in full. That did not involve any personal reflection on the credibility of the appellant.

21. [21]
    The next claim was for the cost of sanding and repolishing the floors on both levels and the stairs. Again, this claim was resolved on the basis of the evidence of various experts, rather than any finding based on the credibility of the appellant; ultimately the Tribunal concluded that both floors needed some work, particularly the lower floor, to bring it to a tradesman‑like standard, and an amount was allowed for sanding and repolishing of both floors, but no amount was allowed in relation to the stairs because the appellant’s contractual responsibility did not extend to sanding and polishing the stairs.  A claim for consequential costs, being the cost of moving out of the house while the rectification work was done to the floors, was rejected on the basis that the respondents ought to have had that work done before moving into the house, so that there was a failure to mitigate loss:  para 451.^[9]

22. [22]
    A claim for the cost of rectifying concrete around steel stumps to the sub floor was allowed on the evidence of an inspector from the Queensland Building Services Authority, that this was required under the building code, and a conclusion (which seems to me obvious enough) that doing work required by the building code was a necessary part of carrying out the contract works: para 455.  There were then issues considered in relation to engineering matters, which turned on the evidence of various engineers, on the basis of which the Tribunal found that the appellant did not follow the engineering drawings in respect of tie‑down and bracing in various respects.  The engineering certificates required in order to obtain certification of the work by a private certifier had not all been obtained, and some additional work had to be done before engineers would issue certificates sufficient to satisfy the private certifier, all of which was covered by evidence other than from the parties, including that of the private certifier who was called as a witness.  The involvement of the appellant in relation to these matters was that the appellant prepared an estimate of the cost of doing the work necessary before the additional certification could be obtained in relation to tie‑downs and bracing, which was reviewed and adopted by an independent expert, but which conflicted with the evidence of the respondents’ expert, which was preferred; it strikes me that the difference was not very great.

23. [23]
    The Tribunal then rejected what was described as a prolongation claim in relation to air‑conditioning work, where some additional work had to be done in order to complete the air-conditioning by a particular subcontractor (introduced by the respondents), which claim was disallowed.  This was on the basis that the amount payable under the contract to the appellant was limited to the amount actually paid by the appellant, and there was no indication that the cost of finishing the air-conditioning works would be increased as a result of anything that the appellant had done or not done.  A claim for prolongation costs in relation to painting was rejected, although the cost of some additional internal painting work was allowed on the basis that this work was made necessary as a result of rectification work being undertaken by others, in circumstances where the appellant was liable for the rectification work and hence for any consequential loss.  A claim for a “builder’s clean” was allowed in the amount of $410.  A claim for the cost of replacing stone tops to vanities, or perhaps by way of general damages because the tops were not strictly in accordance with the specifications, was rejected, on the basis that the respondents acted unreasonably in not accepting the appellant’s offer to have the stone tops replaced by his subcontractor:  para 548.

24. [24]
    The Tribunal member then went through a number of variations for the purpose of an overall reconciliation. Variation 1 involved three issues; two of them were resolved in favour of the appellant, one on the basis of the objective interpretation of the documentation and one by accepting the appellant’s evidence where it was in conflict with the respondents’:  paras 567, 568.  The one resolved in favour of the respondents was resolved on the basis of the evidence of one of the tradesmen who had done rectification work on the site, whose evidence was preferred to the evidence of the appellant:  para 566.  Variations 2 and 3 were not disputed, and neither involved any extra cost.  The claim in respect of variation 4 was withdrawn by the appellant.

25. [25]
    Variation 5 involved a claim for additional works in constructing the foundations, which the Tribunal member held was work which the appellant was required to do anyway under the terms of the contract.  That involved nothing more than a determination of the correct interpretation of the contract, but the Tribunal member went on to consider aspects of the claim in relation to quantum, apparently because of the attention that had been directed to these matters, and aspects of the appellant’s argument in relation to quantum were also rejected, essentially on the basis of independent objective evidence rather that on the basis of any adverse findings of credibility against the appellant.

26. [26]
    Variation 6 related to the construction of beam footings as directed by the inspecting engineer.  The Tribunal accepted that these amounted to a variation, but said that the contract required the variation to be in writing which had not occurred so that claim could only be made under s 84 of the Domestic Building Contracts Act.  The Tribunal member accepted that it would amount to unreasonable hardship for the builder not to be recompensed for the work, but said there were difficulties because the appellant produced no plans and was said to be unable to identify with any real clarity and certainty where the works were carried out.  The works had not been properly inspected by the engineers, something the appellant should have arranged, and the appropriate certification of them by the engineers had not been obtained, also the responsibility of the appellant.  The Tribunal member noted that despite this the variation claim included an allowance for “inspection of footings by engineer”:  para 617.  The Tribunal member concluded at para 618:

“By reason of the lack of plans, inspections and certification, the applicant’s claim cannot be properly assessed and corroborated.  For reasons mentioned [earlier] ... the applicant’s claim under this variation … is unreliable, and I am not prepared to accept that it probably reflects the cost of the works required by this variation.”

27. [27]
    In view of this, and in circumstances where, because of the absence of proper certification, there was some uncertainty as to whether further works would have to be done in the area in order to achieve certification, the Tribunal member ultimately concluded that it would be unfair to the respondents for them to have to pay this variation, which was therefore rejected as not within s 84.  This conclusion certainly involved criticism of the appellant, but it was criticism based it seems to me essentially on objective facts, rather than depending on some adverse view of the credibility of the appellant.

28. [28]
    The Tribunal member then dealt with a claim which was said not to amount to a variation but to relate to the cost chargeable against a provisional sum allowed for roofing, where it was held that two amounts were properly allowable, a conclusion which it seems to me was at least to some extent a conclusion favourable to the appellant.^[10]  Variation 7 was accepted by the respondents.  A claim by the respondents in respect of the air conditioning costs was, it seems to me, treated by the Tribunal as misconceived and rejected, although the Tribunal did proceed on the basis that the only amount properly chargeable by the appellant in respect of the air-conditioning work was an amount of $1,000 paid by way of deposit to the engineering subcontractor, so that, in circumstances where the contract allowed a provisional sum of $22,000 for air-conditioning, the result was the contract price was reduced by $21,000:  para 641.  There was evidence that the air-conditioning subcontractor had claimed a greater amount from the appellant, but had not been paid and there was said to be a current dispute between those parties.  Ultimately the Tribunal concluded that it was not open to make any further allowance against the provisional sum in respect of matters subject to that dispute, a conclusion which does not seem to have had anything much to do with the credibility of the appellant.

29. [29]
    In respect of variations 8 and 34 the Tribunal concluded that the most appropriate course was to leave them both undisturbed, even though it thought there was some force in the proposition that a credit, which was ultimately allowed under variation 34, should have been allowed under variation 8.  Variation 9 was superseded by an earlier conclusion about the allowance for roofing works against a provisional sum.

30. [30]
    Variation 10 contained 11 items but items 3-9 were not disputed by the respondents except in relation to an amount of $30 for door hardware, which under the contract was a prime cost item, and which was deleted by the Tribunal on the basis that the appellant was unable to produce any documentation to demonstrate that this amount had been spent.  Item 1 was disallowed, on the face of the reasons by agreement.  Item 2 was allowed; an argument by the respondents that it ought not to have been allowed was rejected.  Item 10 was said not to be applicable and item 11 was said to have been credited in a later variation so it remained in that variation for reconciliation purposes.  Variation 11 was disallowed, on the basis that it related to some prospective work which was ultimately not done.  Variation 12 was uncontentious, and variation 13 was disallowed as it had been overtaken by the conclusion in relation to the payment for air-conditioning works.  Variation 14 was an uncontentious credit to the respondents.  Variation 15 was largely allowed, though there was a small deduction said by the Tribunal member to have been agreed between the parties:  para 668.

31. [31]
    Variation 16 claimed for four telephone points and four computer points which were said not to be covered by the contract.  The Tribunal member accepted the respondents’ submission that the schedule of finishes expressly provided for three telephone points as part of the contract work.  In these circumstances, given that there appeared to be no dispute that four telephone points were provided, the appellant was plainly only entitled to claim one of them as an extra, and the amount claimed was reduced.  This was described in para 671 as a mistake, which seems on the face of it to be a fair enough description, and in para 670 the Tribunal member said that it was difficult to understand how the appellant could maintain this variation in its original form, and that “the applicant’s oral evidence certainly gives no credible explanation.”  If he had claimed as an extra a charge for doing something which he was required to do under the contract anyway, it is unsurprising that he would be unable to give any credible explanation for this.  This is plainly not a matter which was resolved on the basis of some view taken of the appellant’s credibility, though if the appellant maintained an entitlement to be paid this amount notwithstanding the terms of the contract, one would expect that to reflect adversely on his credibility.

32. [32]
    Variation 17 was uncontroversial.  Variation 18 related to plumbing fittings and bathroom accessories said to be over that allowed in the prime cost item in the contract.  That amount was said to have been agreed at the hearing at $6,800.  The Tribunal member said that he was satisfied on the appellant’s evidence that the only proof as to the actual costs incurred in respect of the items referred to in the prime cost schedule was $3,674.73:  para 675.  The Tribunal member said that it appeared that the appellant had adopted as entitling him to payment figures in a schedule prepared by the interior designer as costs derived by him in respect of various prime cost items, an approach which the Tribunal member, understandably, rejected.  The Tribunal member held that both the contract and the Domestic Building Contracts Act envisaged proof of actual costs for prime cost items, that is to say invoices and receipts.  All that the appellant had proved in that way was the amount referred to earlier.  That seems to me with respect to be appropriate.  As a result, instead of being able to claim an extra in relation to plumbing fittings and bathroom accessories, the amount proved was less than the prime cost amount so the difference was to be deducted.

33. [33]
    The dispute as to variation 19 dealing with the cost of the front door was resolved in the appellant’s favour.  Variation 20 was disputed only in relation to the claim for smoke detectors.  These were required to be provided under the Building Code, the schedule of finishes in the contract and the approved contract drawings.  On this basis, unsurprisingly, the tribunal member found that they were part of the contract works and the appropriate amount was deducted from variation 20.  Variation 21 was not disputed and variation 22 was said to have been superseded by variation 25 and was therefore disallowed for the purpose of reconciliation.  Variation 23 was another variation which had subsequently been credited under a later variation, variation 32, which also dealt with something else.  The Tribunal dealt with this by deleting variation 23 but adjusting the amount of variation 32.

34. [34]
    Variation 24 was the adjustment to provisional sums in respect of cabinet work.  There was some inconsistency in the contract as to the amount of this provisional sum, being stated at $18,000 at one point and $19,350 at another.  The latter figure was used in the variation 24 document, and the Tribunal resolved the discrepancy in favour of the latter figure, which I assume favoured the respondents.  It was said to have been clear on the basis of the cross‑examination of the appellant and the evidence of the witness from the cabinetmakers that the amount actually paid on account of cabinet work was less than the provisional sum.  The respondents had paid an amount to the cabinetmakers directly themselves.

35. [35]
    In the result, this variation, which was said to be based to some extent on estimates of expenditure, was disallowed, and the contract price was reduced by the difference between the amount actually paid and the provisional sum. The Tribunal added at para 706:

“The applicant’s evidence suggests that the applicant performed some cabinet work, which was subject of the provisional sum.  The applicant’s evidence upon these matters was either non‑existent, or lacking any specifics, such as might support any claim by the applicant.  Any such claim, on whatever account, is accordingly disallowed.”

36. [36]
    This suggests that any such claim, which strikes me as being a somewhat unusual one in the circumstances, was rejected essentially because the appellant failed to prove it up, rather than because evidence, which if accepted would have been sufficient to prove it, was rejected. Presumably the Tribunal required specific documentation of any such claim, which was not forthcoming.

37. [37]
    Variation 25 was for the excess of the cost of kitchen appliances over a prime cost amount in the contract; there was a small adjustment to this amount on the basis that the claim had been based on quotations rather than the actual payments for the goods, the amount allowed being based on the actual cost to the appellant, which seems to me to have been correct.  Variation 26 was for a reduction of the contract price because of the deletion of internal and external painting.  There was a dispute as to whether this properly included rendering, which was resolved in favour of the respondents on the basis of an interpretation of the contract.

38. [38]
    Variation 27 related to cabinetwork in the bedroom which was based on a quotation by the cabinetmakers, which the Tribunal member found had not been paid for by the appellant, but directly by the respondents.  In these circumstances, this variation ought to have been disallowed.  It does not seem the appellant disputed that, since it was said by the Tribunal member that his evidence was that this amount was credited in variation 37, so it appears to have been common ground that this variation was appropriately disallowed.

39. [39]
    Variation 28 was a further adjustment for the plumbing prime cost item which was intended to increase the extra amount claimed over and above variation 18 by $668.35.  Because of the way the variation was expressed, which was described by the Tribunal member as misleading, it led to the respondents making a payment, which was apparently accepted by the appellant, of $3,927.66.  Because the plumbing issues had been dealt with under variation 18, this variation was disallowed, though the payment was to be taken into account as one of the payments made under the contract.  Variation 29 was not in issue.

40. [40]
    Variations 30 and 35 were dealt with together, and related to a provisional sum for landscaping in the amount of $36,000.  Variation 30 was for the deletion of a pool from the contract, which was uncontentious.  Variation 35 dealt with the construction of front and back stairs.  There was some issue about the front stairs and the Tribunal elsewhere allowed the respondents the cost of replacing them on the ground that they were defective.  There was some dispute as to the amount properly allowed for the cost of constructing them, which was resolved in a way which seems to me to be more consistent with the position of the appellant than that of the respondents, although the Tribunal did not accept his evidence insofar as it estimated the cost of labour involved in the construction of the stairs, preferring some documented figures in Exhibit 4.  The appellant’s estimates were rejected, it seems to me, not because of any issues of credibility of the appellant, but because there was no specific documentation of the time spent working specifically on the stairs.

41. [41]
    Variation 31 did not give rise to any dispute.  Variation 33 was apparently ultimately not disputed, and variation 36, which claimed an excess over a prime cost amount for shower screens and mirrors, was ultimately disallowed because it was agreed that these items had been deleted from the contract, the excess claimed as a variation having been based on quotes rather than costs actually incurred.  A later version of variation 36 was consistent with that position.  Variation 37 had already been dealt with.  Variation 38 had not been signed by the respondents, and had already been dealt with as one of the unsigned variations, or was not pursued by the appellant.

42. [42]
    There were also a number of issues arising in respect of provisional sum allowances and prime cost allowances not previously dealt with. An amount was disallowed in relation to some external handrails and balustrades, where the Tribunal accepted that most of the work had to be redone by the rectifying carpenter, and the only amount allowed was in respect of some items which were not replaced by that rectifying carpenter.^[11]  The schedule of fittings and finishes included reference to a provisional sum of $500 each for three skylights, but in circumstances where there was no evidence that there had been any skylights installed and no claim by the appellant that he had installed them, the contract sum was reduced by $1,500.  The amount spent on a laundry door was $9.60 less than the PC item in the contract.

43. [43]
    The amount the appellant was able to prove by way of invoices in respect of door furniture was $238.64 less than the PC item in the contract, so the contract price was reduced by that amount. There was a PC item for a hot water system and no claim by the appellant to have installed one, so the contract price was reduced by that amount. A dispute as to the amount spent on light fittings was resolved in favour of the appellant, essentially it seems on the basis that at one stage the respondents had conceded that amount, and had not been able to put forward a good explanation as to why that concession was not correct. The balance of the reasons consists of a reconciliation by the Tribunal of what amounts were properly payable under the contract or in respect of the contract, and what amounts had already been paid.

44. [44]
    I have been through the reasons of the Tribunal member in some detail because it seems to me that they demonstrate that by and large the resolution of the matters in dispute did not occur simply as a result of evidence of the appellant being rejected on the basis of credibility. Most of the issues turned on the interpretation of the contract, or on the resolution of conflicts of evidence between other witnesses, which when applicable were generally resolved in a way which was consistent with the evidence of the expert from the Queensland Building Services Authority, who might well have been expected to be independent. Much turned on documentation, and it does appear that the Tribunal did not regard the appellant’s documentation as adequate in many cases, and did proceed on the basis that it required documentary proof of expenditure in order to accept that expenditure had been incurred and could be charged to the respondents. I do not think that this had anything particular to do with the question of credibility of the appellant, however; it seemed to be based on the Tribunal member’s view that under the contract and under the Domestic Building Contracts Act matters of this type had to be documented in order for the relevant expenditure to be taken into account.  It has not been submitted that that interpretation was not correct.

45. [45]
    There were undoubtedly some issues which were resolved against the appellant following a conflict of evidence, though I did note that by no means all such issues were resolved against the appellant, and there was at least one occasion when a direct conflict of evidence between the appellant and the respondents was resolved in favour of the appellant. In these circumstances, there is nothing in the reasons to suggest that there was any hostility towards or bias against the appellant being displayed by the Tribunal member, or that the Tribunal member had been in any way influenced by any adverse view of the credibility of the appellant formed on the previous occasion.

The authorities

46. [46]
    There are a number of authorities which deal with a situation of this nature. In Livesey v New South Wales Bar Association (1983) 151 CLR 288 the court in a joint judgment said at pp 293‑4:

“A judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. … If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre‑judgment or bias, he should, of course, refrain from sitting.  On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party to do so on the grounds of a possible appearance of pre‑judgment or bias … .”

47. [47]
    The particular facts in Livesey are not really comparable to the present; it involved in my opinion a much stronger case.  In that case, which was being heard before the Court of Appeal of New South Wales, two members of the court had previously sat on another Court of Appeal which had dealt with a similar proceeding involving a different person who was alleged to have acted together with the appellant.  The High Court said at p 300:

“A central issue in the main charge against the appellant was whether the money which Ms Bacon lodged as bail was her own money.  Two of the three members of the Court of Appeal, which was hearing the proceedings as a court of first instance, had already held on a previous case that it plainly was not.  Another central issue in the main charge was whether, if the money lodged were not Ms Bacons’, the appellant knew that that was so.  Again, two members of the court had held in a previous case that he clearly did.  Ms Bacon was a possible and critical witness on the appellant’s behalf and was in fact called to give evidence.  Two members of the court had, in the previous case, expressed the strong view that she was a witness without credit whose evidence on the matters were relevant to the proceedings against the appellant should be rejected.”

48. [48]
    In those circumstances it was held that those two members of the court ought not to have sat. Nevertheless, their Honours said at pp 299-300:

“Each case must be determined by reference to its particular circumstances.  It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in the previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case, or about the credit of a witness whose evidence is of significance on such a question of fact.”

49. [49]
    Those principles were applied by Dawson J, one of the members of the court in Livesey, in Re Morling, ex parte Australasian Meat Industry Employees Union (1985) 60 ALJR 402.  In that case, relief was sought in the Federal Court under the Trade Practices Act by way of an injunction and for damages.  When the proceedings came before Morling J he was asked to proceed with the claim for a permanent injunction leaving the claim for damages for determination later.  That is what occurred, and after hearing evidence he granted a permanent injunction, giving reasons in the course of which he made findings as to what evidence he accepted, and commented that he regarded certain witnesses as reliable.  After the claim for damages came onto be heard later before him, proceedings were taken in the High Court to restrain him from continuing to hear the matter on the ground of apprehended bias.

50. [50]
    Dawson J said at p 403:

“I am not persuaded that there is any foundation for supposing that Morling J, in expressing the conclusions which he did upon the evidence which was then before him, was demonstrating any incapacity to bring to the resolution of the question of damages an impartial or unprejudiced mind.  The course which the proceedings before him took, and which apparently commended itself to the parties at the time, required him to reach separate conclusions in relation to the issue of injunctive relief and the issue of damages.  This must have been obvious when that course was adopted.  But having expressed his views regarding the evidence adduced upon the question of injunctive relief, there is no reason to suppose that, upon the question of responsibility of the Union for any loss or damage suffered by the claimant and the extent of any such loss or damage, his Honour will not reach his conclusions in accordance with the evidence which, having regard to the course taken, may not be the same evidence as that upon which his Honour granted an injunction.”

51. [51]
    His Honour went on at p 404 to reject an argument based on the finding that a particular person was a reliable witness, in circumstances where that person would be a crucial witness on the question of damages, because there was nothing to indicate that he “would be unresponsive to any proper attack subsequently made upon his credibility, particularly an attack made upon the basis of further material or cross‑examination.”

52. [52]
    The test in Livesey was also applied by some members of the High Court in Re: JRL, ex parte CJL (1986) 161 CLR 342.  The fact situation was completely different and need not be discussed, but Mason J, who applied the test in Livesey, said at p 352:

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.  There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties.  But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities, or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.  In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudice and this must be firmly established.”

53. [53]
    That passage was quoted with approval by Hayne J in Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 74 ALJR 68 at [11].  In Re: JRL, Wilson J at p 360 said that there must be “strong grounds for inferring the existence of a reasonable suspicion.”  Dawson J said at p 371 that “such a conclusion must be firmly established and should not be reached lightly.”

54. [54]
    I do not consider that the authorities support the proposition that, merely because there has been a previous proceeding before the same court or tribunal involving the same party, and an issue of credit was resolved against that party in the earlier proceeding, and the credit of that party will be of some relevance in the later proceeding, the same member of the court or tribunal should not decide the later proceeding. The ultimate question is whether the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the second matter. That will depend on matters such as the nature of the matter to be determined on the second occasion, and the strength with which any adverse finding was expressed on the earlier occasion. Where, as is the case here, the judgment in the second matter is available, I think it is also relevant to consider how the matter was in fact dealt with on the second occasion.

55. [55]
    What was said about the appellant in the matter of Poiner v Fenton by the Tribunal member was not, it seems to me, particularly strong.  Although various statements or propositions were said to be not credible, to some extent this was not so much a comment on the evidence being given by the appellant in that matter, as a comment on some arguments being advanced.  For example, the passage referred to from para 158 was:

“In this context the subsequent claim on account of the Bell Plumbing invoice (when added to the incomplete work) makes it less than credible that the claim relates in whole or in part to the 15% left after the progress claims claimed and paid to date.”

56. [56]
    This is really a comment on a proposition which was being argued by the appellant, which was rejected by the tribunal for the reasons given. Similarly, the comment at para 135 was to the effect that what the Tribunal did not find credible was the proposition that the other parties and their solicitors would have “countenanced any arrangement whereby the applicant was equivocal as to the date by which the works would be brought to practical completion.”  If the appellant had said that they had agreed to such an arrangement, what the Tribunal was saying effectively was that it could not believe that they would have done so in the circumstances and therefore did not accept the appellant’s evidence.

57. [57]
    At para 162 claims for labour were rejected but on the basis that the claims were poorly documented and that there was no documentation and no particulars as to what actual work had been done by the appellant and his apprentice during a particular period.  Again, this is not so much a statement that the appellant is a person not worthy of belief, as a statement that it is not sufficient simply to assert in general terms that the appellant was entitled to be paid for labour for particular periods, but that it was necessary for any such claims to be documented or properly particularised in order to be acceptable.

58. [58]
    It may well be, of course, that the effect of the earlier decision was that the extent of documentation which the appellant was able to produce was not going to be good enough to satisfy this Tribunal member in various respects; but that is not relevantly an aspect of pre‑judgment.  That is a reference to the very thing which Mason J said in Re: JRL did not give rise to any legitimate case of apprehended bias.

59. [59]
    There is nothing in the reasons of the Tribunal member in Poiner v Fenton which suggests that, in another case involving the appellant, he would or might be predisposed to reject evidence given by the appellant because of any view of the appellant as an individual formed on the earlier occasion, or that his determination of any question arising in the later matter would not be independent of any views formed or evidence that he heard in the earlier matter, in relation to the credibility of the appellant.^[12]  In all the circumstances of this case, and applying the test in Livesey, in my opinion this is not a case where it is appropriate for me to set aside the decision arrived at by the Tribunal member on the ground that he ought to have disqualified himself from hearing and determining the matter.  I would therefore not allow any appeal on the ground that there was any error of law of this nature on the part of the Tribunal member.

The Eccles’ evidence

60. [60]
    The appellant sought to challenge the use that the Tribunal member had made of evidence given by Mr Eccles in the earlier matter (Poiner v Fenton), in dealing with the appellant’s claim for the cost of the placement of particleboard beneath the tongue and groove flooring:  paras 255-260.  The Tribunal member said that it was adopted pursuant to s 47(4) of the Commercial and Consumer Tribunal Act 2003.  Section 47 of the Act relevantly provides:

“(1)This section applies to a proceeding.

2. (2)
   The procedure is at the discretion of the Tribunal, subject to this Act and the rules of natural justice.
3. (3)
   The proceeding is to be conducted with as little formality and technicality and with as much speed as the requirements of this Act and a proper consideration of the matters before the Tribunal permit.
4. (4)
   The Tribunal is not bound by the rules of evidence but may inform itself in any way it considers appropriate.”

61. [61]
    Although there had been some reference to Mr Eccles being called to give evidence as a witness in the present matter, no statement of his was put in evidence and he was not called to give evidence.  The appellant’s attack, however, was not so much on the use of the evidence as such, but on the fact that the Tribunal did not give warning of an intention to use it in this way, so as to enable him to know the case he had to meet, and to give him the opportunity if he wished, for example, to call other expert evidence to the contrary.  It was submitted for the appellant that this amounted to a breach of the rules of natural justice.

62. [62]
    Section 47 is similar to, and evidently modelled on, s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cwth).  To some extent issues of this nature have been discussed in the context of the operation of the Administrative Appeals Tribunal.  It has been said that, to the extent the Tribunal functions as a specialist tribunal, it is legitimate for it to build up some degree of expert knowledge of facts of general application on the basis of decisions from earlier cases, which can be used in a later case provided that notice of intention to do so is given to the parties in the particular case:  Secretary, Department of Veterans’ Affairs v Studdert [2001] FCA 1642 at [26] per Moore J.  It had earlier been affirmed by the Federal Court that the Tribunal could make its own inquiries as to factual matters, subject to giving the parties the opportunity to make submissions, and lead further evidence, in response to those inquiries:  Adamou v Director General of Social Security (1985) 3 AAR 321 at 326 per Wilcox J, concerning the equivalent to s 47(4).

63. [63]
    There is authority that there are no difficulties in a tribunal having reference to medical textbooks and the like in order to understand technical matters thrown up by evidence which has been admitted and debated^[13] at least so long as this does not raise some new issue not already a live issue in the proceedings.  On the other hand, it is a breach of the rules of natural justice to conduct a private inquiry into a matter not in issue in the proceedings without proper notice to the parties:  Australian Postal Corporation v Kember [2003] FCA 800.^[14]

64. [64]
    In the present case there is no question of Mr Eccles’ evidence raising some new issue; the issue about the particleboard flooring was certainly a live issue at the hearing.  The only question is whether, given that Mr Eccles had not been called as a witness in the present matter, there was a breach of the rules of procedural fairness in having regard to his evidence in the earlier matter without giving reasonable notice of the intention to do so.  The respondents had indicated that they would call Mr Eccles in this matter,^[15] although ultimately they did not do so.  The fact that notice was given of the intention to call him ought to have alerted the appellant to the need to prepare a case to meet evidence which he could reasonably have been expected to give in this matter in the light of the evidence given in the earlier matter, at least in the absence of early notice, which he does not disclose, that that intention was abandoned.  His point was that ultimately Mr Eccles was not called, and that he was not given the opportunity in this matter to cross‑examine Mr Eccles on that evidence.^[16]

65. [65]
    The statement of the owners dated 31 March 2005, a long time before the trial, said in relation to the claim for particleboard flooring in para 171:

“The owners reject this claim outright.  This is the second time in 2005 that the applicant has attempted to make such a claim.  The first time was in a dispute between the applicant and R and L Fenton CCT #B436-04.  Our response to and defence of this claim is nearly identical to this case and in fact relies on the testimony of the same witnesses (Mr Dyer and Mr Bob Eccles).  Under the current Domestic Building and Contractors Act the builder is prohibited from claiming costs for variations for works when the owners are not informed prior to the work performed, that the works are a variation.  The owners state as in the previous case that the decision to proceed with the floor in this manner was the prerogative of the applicant and that there are advantages to the applicant in proceeding in this manner (document 40).”

66. [66]
    In all the circumstances, I regard this as a marginal case. The appellant had reason to expect that on this issue he would have to meet the same case and the same evidence including the evidence of Mr Eccles, that he had had to meet in the earlier matter, and he ought therefore to have prepared his case and been in a position to meet that evidence.  It is difficult to believe that, given that he had not succeeded in dealing with that evidence just by cross‑examination in the earlier matter, if Mr Eccles had been called on this occasion he would have been more successfully cross‑examined.  It is not apparent that there was anything else that would have been any different if Mr Eccles had actually been called.

67. [67]
    Nevertheless, on balance I think that there was breach of the rules of natural justice in acting on Mr Eccles’ evidence in the earlier matter without giving reasonable notice of an intention to do so, and the opportunity to make submissions, to lead further evidence to counter that evidence, and (perhaps) to require Mr Eccles to be produced for cross‑examination, although I think that some good reason would need to be shown why cross‑examination might achieve something more than was achieved on the previous occasion.  The principles of procedural fairness are matters of some importance, and clearly apply to the Tribunal, and a failure to comply with them amounted to an error of law on the part of the Tribunal.

68. [68]
    That then gives rise to the question of whether it is appropriate that there be a new hearing because of this error. I do not think there is any reason to have a new hearing of the matter generally, but it would be possible to have a new hearing about the question of the claim for remuneration in respect of the cost of placing the particleboard beneath the tongue and groove flooring specified in the contract, in relation to which the breach of the rules of natural justice occurred. Ordinarily, where there has been a breach of the rules of natural justice the appropriate remedy is a new trial or hearing, but that is subject to the important qualification that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made at the first trial: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.  As was pointed out there, the practical question is whether further information could possibly have made any difference.  In my opinion it plainly could not, because the appellant’s case on this point was bad in law and doomed to fail.

69. [69]
    The appellant’s claim was on the basis of an unsigned variation to the contract, for particleboard flooring to both levels of the house beneath the tongue and groove flooring. The Tribunal found, and there is no reason to dispute, that although the contract required tongue and groove flooring to be laid, it said nothing about the laying of particleboard above the joists and below the tongue and groove flooring. The doing of this work therefore was not covered by the original contract. Under the contract variations were only effective if they were in writing and signed by the respondents, and evidently there was no variation signed by the respondents in relation to this work. In such circumstances, there was no right under the contract to be paid for it, and the only basis upon which the appellant was entitled to recover was if he could satisfy the requirements of s 84 of the Domestic Building Contracts Act, which was referred to by the Tribunal.

70. [70]
    That section covers a situation where the building contractor under a regulated contract gives effect to a variation of the contract which consists of an addition to the subject work, which appears to have been the situation here. Subsection (2) deals with the situation where the variation was originally sought by the building owner, which the appellant alleged was the case here.^[17]  Apart from the statute, unless the work was done at the request of the respondents, or the respondents had actually accepted the work in circumstances where they had a proper opportunity to reject it and not pay for it, they would not be liable to pay for the work, even if it was of some benefit to them to; it would simply be a gratuitous benefit for which the appellant would have had no right to be paid.

71. [71]
    Subsection (3) makes it possible for a building contractor to recover in circumstances where the variation was not originally sought by the building owner, although it is not clear whether that applies in circumstances where the building owner was not even consulted.  Assuming that this factual issue is resolved in favour of the appellant, it is still necessary in order to recover to satisfy subsection (2).  By that subsection the building owner may recover an amount for the variation:

2. “(a)
   only if the building contractor has complied with ss 79, 80 82, and 83; or
3. (b)
   only with the Tribunal’s approval given on an application made to the Tribunal by the building contractor.”

72. [72]
    Para (a) plainly could not apply, since s 79 requires the variation to be put into written form before any domestic building work the subject of the variation is carried out, unless the variation is required to be carried out urgently and it was not reasonably practicable to produce a variation document before carrying out the work.  There is nothing to suggest that this was, or was even claimed by the appellant to be, a variation to which s 79(2) applied, so the variation would have been required to be in writing, to satisfy the formal requirements of s 80, and 81, and be signed by the building contractor who must take all reasonable steps to try to ensure the document is signed by the building owner:  s 82.  A copy must be given within five business days after the variation is agreed to under s 83.  It appears clear enough that the appellant was unable to satisfy these requirements, so that it was necessary to obtain the Tribunal’s approval on an application made under para (b).

73. [73]
    Subsection (4) provides that that approval may be given only if there are exceptional circumstances to warrant the conferring of an entitlement on the building contractor for recovery of an amount for the variation or the building contractor would suffer unreasonable hardship by the operation of the requirement that ss 79, 80, 82, and 83 be complied with, and that it would not be unfair to the building owner for the building contractor to recover an amount.  The Tribunal found that there were no exceptional circumstances surrounding the claim, and it does not appear from the written submissions on behalf of the appellant that any exceptional circumstances were even alleged:  p 13.  Indeed those submissions do not address the requirements of s 84 at all; they proceed on the basis that it is sufficient that the work was carried out on instructions from and with the knowledge of the respondents, which is not enough to satisfy s 84.  There is nothing to indicate that there would be any unreasonable hardship to the building contractor in enforcing the requirements of ss 79, 80, 82, and 83 in the present case.

74. [74]
    On the face of it, if this work was required by the respondents, the appellant simply did not comply with the requirements of the statute. He ought to have required them to sign a variation before he did the work. There cannot be said to be unreasonable hardship just because he incurred some additional cost which he cannot recover, one would expect that this is precisely what the legislature intended in such circumstances. There was nothing to indicate that he would have suffered unreasonable hardship from enforcing the requirement that he comply with ss 79, 80, 82, and 83.  In my opinion, there was no proper basis on which the Tribunal could have held in the circumstances of this matter that the appellant had satisfied the requirements of s 84 to recover payment for this amount, even assuming that the work was carried out on instructions from and with the full knowledge of the respondents.  If the tribunal had found that the respondents had not requested that this work be done, it seems to me that this would simply be a further impediment to satisfaction of the requirements of s 84, since I cannot see how in those circumstances the Tribunal could have concluded that it would not be unfair to the respondents for the appellant to recover an amount for this work.

75. [75]
    In these circumstances there is no point in sending this issue back to the Tribunal for determination by another tribunal member. The evidence of Mr Eccles was really in my opinion irrelevant or perhaps superfluous to the issue that the Tribunal had to decide, which was whether the appellant had satisfied the requirements of s 84.  In my opinion he had not, and in those circumstances this claim was bound to fail.  The fact that there was a technical breach of the rules of natural justice was therefore of no consequence.

Procedural matters

76. [76]
    The appellant also complained about the respondents being allowed to amend the defence and counterclaim on the first day of the hearing and on the 17^th day of the hearing; to amend their statement of evidence on the 21^st day of the hearing; to call a number of witnesses without having filed proper statements from the witnesses, contrary to an earlier direction made by the Tribunal; and to call two witnesses without prior notice to the appellant.  It was submitted that the sheer quantity of the amendments and the departure from the directions meant that the appellant was forced to meet an ever‑changing case which compromised the preparation and presentation of his own case, leading to the result that the hearing was not just or fair.

77. [77]
    The appellant’s affidavit attached as Exhibit D the further amended defence and counterclaim dated 14 July 2006 with the amendments made by the document underlined.  Although these were extensive, it is apparent from an examination of that document that it was not a pleading in the conventional sense.  Large parts of it incorporate what are really submissions rather than material facts relied on or issues put in dispute.  Much of it appears to be in the nature of an argumentative response to some of the particular claims made by the appellant.  In these circumstances the mere bulk of the amendments is somewhat misleading, and exaggerates the appearance of additional issues being raised by the amended document.  Of course, a document in this form may well be a useful thing to have in the context of the relatively informal processes of the Tribunal, and I would not criticise the Tribunal for allowing something which might at least nominally be a pleading to incorporate a large amount of material which would not be acceptable in a pleading in a court.

78. [78]
    In these circumstances, it is not surprising that the Tribunal member allowed the amendments, and did not allow an adjournment of the hearing. It appears that what happened immediately after the amendment was the cross‑examination of the appellant.  Presumably in that process he had the opportunity to respond orally to the arguments advanced, and the factual assertions made, in this amended document.  Given that the cross‑examination extended over a number of days, if it were necessary for him to consult records in order to be able to respond properly, it seems to me that on the face of it he had an opportunity to do so.

79. [79]
    I have already referred to s 47, and would point out in particular subsection (3).  Even within courts, pleadings are frequently readily amended, particularly in circumstances where it becomes apparent that the pleading does not reflect fully and adequately the real dispute between the parties.  Even in the case of courts, compliance with the requirements in relation to matters like pleadings is not to be treated as an end in itself, and is not to result in shutting a party out from litigating an issue which is fairly arguable:  State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, where the majority expressly approved the statement by Bowen LJ in Cropper v Smith (1884) 26 CHD 700 at 710:

“It is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. … I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party.  Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.”

80. [80]
    Those principles must apply with even greater force when dealing with a Tribunal required to conduct its proceedings with as little formality and technicality and with as much speed as the requirements of the Act and proper consideration of the matters before the Tribunal permit. It may well be that a requirement that the parties file statements^[18] of intended witnesses in advance is generally useful in facilitating that process, but it would not be assisted by the rigid enforcement of that requirement, or by an inflexible refusal to allow additional evidence to be called if it emerges, even during the course of the hearing, that relevant additional evidence is available and would assist a party’s case.^[19]  A Tribunal member may well be concerned if it appears that there has been a deliberate failure to give proper notice of intention to call an additional witness, but it seems to me that a decision to allow an additional witness or witnesses to be called is necessarily going to be difficult to challenge on appeal.  I would be more likely to suspect injustice if the Tribunal refused to hear a relevant witness just because proper notice had not been given in advance and directions complied with.

81. [81]
    It must be remembered that the hearing took 22 days, and that after the first 17 days there was an adjournment for about seven weeks.  Accordingly, well before the matter finished the appellant had plenty of time to respond to amendments made on the first day, or even on the 17^th day, of the hearing.  The real difficulty with the appellant’s argument is that, although there was an assertion that he was prejudiced as a result of the various amendments that were made, and the failure to give notice of witnesses, there are no details as to how this prejudice occurred, nor is there any evidence of how the appellant was prejudiced by these things.

82. [82]
    The affidavit of the appellant filed 4 June 2007 said in para 6.22 that the prejudice suffered in allowing the amendments to proceed was as outlined in an affidavit filed in support of an application filed in the Tribunal on 13 July 2006, a copy of which was Exhibit C to the affidavit.  Apart from that, the affidavit in this court said simply that the difficulty was that the respondents frequently altered their defence and counterclaim and also constantly altered the material they were going to submit in this matter, and there was no point in time at which the pleadings of the respondents became settled either prior to or during the course of the hearing.  Plainly that was not right; at some point they made their last submissions, or said the last things they were allowed to say during the case, and at that point their case had necessarily developed to its fullest extent.

83. [83]
    I appreciate that in theory this is not the way litigation should occur, but it often occurs in practice even in this court in a way which is not unlike that, and it would be unsurprising that in a more informal tribunal there would be some refinement of the issues, and even identification of new issues, as the matter proceeded. I think this is a difficulty likely to arise if one attempts to conduct litigation of this nature in a relatively informal way, but that is a consequence of the policy decision by the legislature that these disputes should be dealt with in a relatively informal tribunal rather than in a court of law.

84. [84]
    In the affidavit filed in the Tribunal all that was said about prejudice was the assertion that if various matters foreshadowed by the respondents were permitted to be included in the hearing “the applicant shall be severely prejudiced in the proceedings if not given the opportunity to properly respond to this new material. Further, the applicant shall be prejudice if he, and his experts, are not given an opportunity to visit the house prior to the hearing” (para 20).  Whether there was any opportunity to visit the house at some stage before the hearing concluded is not clear, but there was no further complaint before me about that matter.  Presumably any visit necessary in order to prepare the matter, and to enable expert witnesses to prepare, on the basis of the material previously available should have already occurred.

85. [85]
    Otherwise, the only prejudice referred to was the need for an opportunity to respond, and the appellant certainly had plenty of time to respond before the hearing finally concluded in early November 2006. There was nothing in either his affidavit in this court or the affidavit in the Tribunal which was exhibited to that affidavit which established any factual basis for a conclusion that he was unable properly to respond to the amendments in the course of the hearing. There is no evidence that at some point there was additional evidence that he wanted to put before the hearing which the Tribunal member refused to receive. In these circumstances, there is simply no material on the basis of which I could conclude that the appellant had ultimately suffered any real prejudice as a result of any of the procedural decisions of the Tribunal that the appellant complains about, and therefore no basis upon which I could find that there has been any injustice suffered by him as a result of these decisions, either individually or collectively, or that they had prevented him from having a fair trial. There is nothing in the material I have seen which would suggest any injustice or unfairness, either in his affidavit material or elsewhere.

86. [86]
    Matters of procedure in the Tribunal are very much matters within the discretion of the Tribunal, particularly in view of the terms of s 47 of the Act.  For an appeal court to interfere with an exercise of discretion, it is necessary to show that there has been some error of law in the way in which the discretion has been exercised.  That follows from the restrictive nature of the appeal in s 100 of the 2003 Act.  Appellate courts have always been particularly reluctant to interfere in the exercise of a discretion in relation to a matter of practice and procedure:  Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177.

87. [87]
    The appellant has not shown that there was any error of principle made by the Tribunal member in the procedure followed or orders made in connection with the hearing, or that any serious injustice was suffered by the appellant as a result of the way in which the hearing was conducted. No basis for a grant of leave to appeal in relation to these procedural matters has been shown, nor has any basis been shown for interfering with the decision of the Tribunal in this respect.

Computational errors

88. [88]
    Apart from these matters, the appellant also complained about some errors in transposing findings from primary fact into conclusions as to the amount payable as between the parties. These were referred to in the outline as damages errors, and are the matters referred to in grounds 3 to 7 of the notice of appeal.  The respondents submitted that any errors of this nature were errors of fact, but as a general proposition it seems to me that if the Tribunal, having made findings of primary fact, then draws an incorrect conclusion as to what follows from these primary facts, that is likely to be an error of law.  It may be that this is because it involves a misapplication of the rules in relation to the assessment of damages, or a failure properly to determine what outcomes follow, in terms of the contract, as a result of a particular situation occurring.  I therefore reject the respondents’ submission that these errors are properly identified as errors of fact rather than errors of law, at least as a general proposition.  It will be necessary to address the particular errors alleged individually.

Prime cost items

89. [89]
    When the Tribunal member did a reconciliation at the end of his reasons, he listed on p 129 all 14 of the prime cost items identified in the contract.  There is an error in the headings to these tables; the four headings should read:  “Description; Allowance; Contract price reduced; Contract price increased”.  The Tribunal said that the appropriate course was for the prime cost items to be dealt with individually, and for them to be then taken into account in determining an adjusted contract sum:  p 685.  For example, the first item, the front door, had an allowance of $450, and the Tribunal found that the amount actually paid for the front door was $2,744.50:  para 684.  The result therefore was that the contract price was to be increased by the excess of the amount in fact spent over $450, together with a 10% margin for the appellant, which produced a total increase of $2,523.95.  That amount was allowed in the summary on p 129.

90. [90]
    On the other hand, the allowance under the contract for the laundry door was $120, and the amount actually paid was $110.40, so there was to be a reduction in the contract price of $9.60: para 749.  That was reflected in the summary on p 129.  Item 3, door furniture, was similar to Item 2; the appellant was able to document expenditure totalling an amount less than the prime cost allowance, so the contract price was reduced by the difference, $238.64:  para 750.  Item 4 related to an allowance for shower screens, it was found that these were deleted from the contract so the appropriate response for the purpose of the reconciliation was to reduce the contract price by the amount allowed for the screens:  paras 735-7.  This was appropriately reflected on p 129.  The same applied to the mirrors, Item 5, and there was a similar situation with the hot water system, which was not installed by the appellant so that the prime cost allowance for this was deducted from the contract price:  para 751.

91. [91]
    Items 7-13 inclusive covered the kitchen sink, laundry tub, bath, vanity basins, WC suites, tap ware and bathroom accessories.  The Tribunal found the actual cost proved in respect of these items totalled $3,674.73:  para 675.  The total prime cost allowance for the contract was $6,800, so overall there was a reduction in the contract price of $3,125.27:  para 680.  This was correctly reflected on p 129.  The final prime cost item was for the stove cook top and range hood, for which the allowance was $5,000.  The actual amount outlaid for these items exceeded that, and after adding the 10% builder’s margin to the excess, the Tribunal allowed an increase in the contract price in respect of this item of $13,375.14:  para 708.  That was also reflected on p 129.

92. [92]
    Overall, therefore, p 129 shows two increases in the contract price totalling $15,899.09, and six reductions in the contract price, which total $7,823.51.  The result was a net increase in the contract price of $8,075.58, but at the top of p 130 this was incorrectly described as a net reduction in the contract price of that amount.  During the reconciliation on that page, the amount of $8,075.58 was deducted from the original contract price when calculating the adjusted contract price, when that amount should have been added.  That would have produced an increase in the adjusted contract price of double that amount, $16,151.16, and the balance ordered to be paid by the appellant to the respondents was also too great by that amount.  It seemed to me that ultimately the solicitor for the respondents did not dispute that the decision of the Tribunal was in error in this respect.

Air-conditioning

93. [93]
    The contract allowed a provisional sum of $22,000 for the air-conditioning (para 641) and the Tribunal found that the appellant entered into a subcontract for the installation of the air-conditioning for a price of $13,340:  para 526.  It also found that the only amount paid by the appellant in respect of air-conditioning work was $1,000:  paras 526, 528, 533, and 641.  The Tribunal also found that the air‑conditioning subcontractor had done part of the work, and gave evidence that the value of the work completed came to $11,957 including GST, including an allowance for an outdoor unit which had not then been installed:  para 529.  In oral evidence, which was accepted by the Tribunal, the air-conditioning subcontractor gave an estimate of the cost of completing the air-conditioning work of $5,940 including GST, which included the allowance for the outdoor unit:  para 530.

94. [94]
    On this basis it was submitted for the appellant that the respondents had received the benefit of work which was valued at $8,240. This was derived by taking the sub‑contract price, said to be $14,180, less the cost of completing the work of $5,940.  The Tribunal, however, proceeded on the basis that the only amount which the appellant was entitled to have allowed in respect of the provisional sum was the amount actually paid by him, the amount of $1,000.  This followed from the terms of the contract, and the respondents also relied on s 62 of the Domestic Building Contracts Act, although I do not think that section is of great significance.^[20]

95. [95]
    There was no argument that there was any error of law in relation to the application of the terms of the contract, or that the appellant could be entitled under the contract to payment in respect of a provisional sum of an amount greater than the amount actually paid by him. This is it seems to me in substance a claim for payment on a restitutionary basis, but in circumstances where there was a contract between the parties dealing with payments of this nature, it seems to me that a restitutionary claim in parallel to the contract was not open.^[21]  The appellant was only entitled to recover the amount actually paid, and that was $1,000.

96. [96]
    It appears from the Tribunal’s reasons that there was a dispute between the appellant and the air‑conditioning subcontractor as to the subcontract.  It may be that ultimately the appellant will have to make some additional payment to the subcontractor, and if that occurs, because this dispute with the respondents has now been resolved by the judgment of the Tribunal, he will not then be entitled to recover that amount from the respondents.  But if he is ultimately found to be liable to pay the subcontractor some additional amount, that amount ought to have been paid a long time ago, and if it had been paid prior to the time when this matter was resolved by the Tribunal, presumably that payment would have been taken into account by the Tribunal.  In those circumstances, the appellant has only himself to blame if he ends up out of pocket in respect of this air-conditioning subcontract.  I am not persuaded that it has been shown that there is any error of law on the part of the Tribunal in relation to its treatment of this matter.

Sunscreen

97. [97]
    The work required under the building contract included the construction of a sunscreen shown in both the architect’s plans and the engineering drawings. The plans of both the architect and the engineer were incorporated into the building contract: para 349.  The sunscreen was not in fact built by the appellant, and the respondents claimed as part of their damages the cost of constructing it.  The Tribunal allowed the respondents damages for this of $5,625.40, based on an estimate of a cost of doing the work by the respondents’ expert witness, a Mr Dyer:  paras 356, 358.  The Tribunal found separately that the respondents were entitled to damages of $24,278.98, being the cost of undertaking carpentry works necessary to deal with breaches of contract, either by completing works left incomplete or by rectifying defective works:  para 322.  It was submitted, however, that this amount included a sum of $2,035 to complete the incomplete sunscreen.  This submission was said to be based on Exhibit 72.  The Tribunal did not make any express reference in the section dealing with carpentry works to Exhibit 72, though I note that in para 357 Exhibit 73 was said to be a document dated 7 March 2005 which costed the sunscreen works at $4,450 inclusive of GST.

98. [98]
    The work referred to was found to be (except for the front entry stairs) work performed as noted in Exhibit 4:  para 311.  The amount allowed by the Tribunal, however, was expressly based on Exhibit 89:  para 321.  This work was also said to be the items ticked in red on Exhibit 64, a document signed in July 2005 in respect of work actually performed:  para 310.  Yet the estimate of the cost of constructing the sunscreen accepted by the Tribunal was an estimate prepared in July 2006:  para 356.  Neither Exhibit 64 nor Exhibit 89 makes any reference to the sunscreen; they do refer to a couple of window awnings, but they were on the north face and the sunscreen was on the western side:  Exhibit 14.  It seems clear enough from this that the damages allowed in respect of carpentry work was for work which had been done, which did not include the sunscreen, whereas the damages allowed in respect of the sunscreen were based on an estimate of what it would cost to do the work in the future.

99. [99]
    It follows that there was no relevant computational error in respect of the sunscreen. The reasons of the Tribunal reveal that on their face there was a finding of fact as to the amount paid for work which had been done by the carpenter in a certain amount, and an allowance made in respect of the cost of work to be done in constructing the sunscreen, necessarily different things. On the face of the Tribunal’s reasons, and on the exhibits relied on, there was no overlap, and there was no reason to make any allowance for an overlap in calculating the ultimate amount payable by reference to these findings of primary fact. If there was an error in the findings in that the amount found to be payable in respect of rectification work done by the carpenter included by mistake an amount which was an allowance for the construction of a sunscreen which had not occurred, which is not what the exhibits indicate, that was in any case not an error of law; it was an error of fact on the part of the Tribunal in making its finding as to the damages.

100. [100]
     I accept that once a finding is made in respect of a particular item of damages, if that figure was then not properly taken into account in working out the final balance payable that would be an error of law, but a finding that carpentry work done cost a particular sum when that sum included a figure for work which had not then been done, if that were the case, was an error of fact. If there was an error as submitted by the appellant, it was not one which this court can correct within the scope of the appeal allowed by s 100 of the 2003 Act.

Floor sanding

101. [101]
     Variation 1 dealt with by the Tribunal from para 551 included a charge for laying timber flooring in an area downstairs in the house, the lounge and dining room area, which on the plans was originally to be a concrete slab.  In effect, the concrete slab was deleted from these areas and a suspended timber floor substituted.  A variation in respect of this in the form of an additional cost of $4,068 was claimed by the appellant, and allowed by the Tribunal:  para 565.  There is nothing in the reasons to indicate whether that variation was simply to cover the construction of the flooring, or whether it included the sanding and coating of the flooring inserted in this way, in the same way as the other timber flooring in the house.  Presumably the appellant’s claim did not include this, as will appear.

102. [102]
     One of the matters claimed by the respondents in their counterclaim was that the finish of the sanded and coated timber floors was defective, and they claimed the cost of re‑sanding and repolishing the floors upstairs and downstairs, and the stairs themselves:  para 407.  There were a number of witnesses who spoke about this issue, and ultimately the Tribunal found that the floor sanding and coating was defective, and that this gave rise to an entitlement to damages on the basis of rectification costs in accordance with the quote provided by an experienced floor sander and finisher whose evidence the Tribunal accepted:  paras 431, 439.  The Tribunal held that the contract did not cover polishing, that is to say sanding and coating, the internal stairs:  para 440.

103. [103]
     The Tribunal member at para 408 noted that he had previously found the appellant was responsible under the contract for polishing the upper and lower floors.  Part of the amount claimed by the appellant before the Tribunal was $5,040 for sanding and polishing the internal timber floors:  para 252.  This was rejected, on the basis that under the residential building specification which was incorporated into the terms of the contract, the appellant’s contractual obligations extended to sanding and coating all polished floors:  para 273, 274, and 278.

104. [104]
     What happened here was that the appellant claimed separately under two variations for substituting the timber floor for a concrete slab floor in the lounge and dining room area downstairs, and for sanding and coating all of the timber floor areas inside the house, including the substituted floor. The latter claim was advanced on the assumption that the contract on its true construction did not cover sanding and coating of the floors, but in respect of that matter, the appellant was unsuccessful.

105. [105]
     If the contract included sanding and coating of the floors, when there was a variation of the contract to increase the area of the wooden floor, the amount claimed in respect of that variation should have included an allowance for the additional sanding and coating which would be produced as a result of the contract being varied so as to increase the area of the wooden floors to be constructed. I suspect that it did not, because of the appellant’s belief, reflected in the separate variation claim for sanding and coating the floors, that he was entitled to charge extra for this, but on the true construction of the contract it ought to have done so. However, variation 1 was allowed in full in relation to the substitution of the wooden floors.  It is not as though the Tribunal member had failed to allow part of this claim.

106. [106]
     The appellant ought to have included a claim for sanding and coating the additional floor area in variation 1, but evidently that claim was not advanced before the Tribunal.  In these circumstances, there was no error of law on the part of the Tribunal in not awarding such an amount.  This is not a computational error, or an incorrect determination of the appropriate consequences that flow from a finding of primary fact.  It is in truth an afterthought on the part of the appellant, but it is too late.  No adjustment should be made on this basis.

Balustrade

107. [107]
     The contract provided a provisional sum for external handrails and balustrades of $840. The tribunal found in effect that what had been constructed by the appellant was a handrail between the steel structural posts and on top of midposts to run the length of the deck but with no balustrading: para 743.  The handrail was severely warped, having been left without a protective coating.  The carpenter did rectification work, replacing the handrail, but using some midposts with a little bit of dressing up.  The carpenter’s evidence in respect of these matters was accepted:  para 744.  On this basis, the Tribunal found that the only benefit to the respondents from the appellant’s work was the supply of posts and bolts.  What the Tribunal member did was make some allowance for that part of the work done by the appellant which was ultimately of some benefit to the respondents, that is to say the supply of posts and bolts, which was assessed at $181.84:  para 747.  Since this was less than the provisional sum, the contract price was reduced by the difference, $658.16:  p 128.

108. [108]
     The matter proceeded in this way on the basis that the respondents had not claimed the amount they paid for their carpenter who did the rectification and completion work for the amount it cost him to do the external handrails and balustrades ($1,895: para 745), and if this were correct, the treatment of this issue by the Tribunal was appropriate.  The appellant submitted, however, that the amount of $1,895 was part of the sum allowed as damages in respect of the carpenter’s work, being included in the sum of $24, 278.98 allowed at para 321.  In that paragraph the Tribunal said:

“Considering all of the above, and based upon the signed version of his itemised costs (part of Exhibit 89), [the carpenter] confirmed that the reasonable costs of carrying out his works (including replacement of the stairs, the three additional items referred to above, overhead/administration costs and at least three skip bins for rubbish) was $22,071.80 plus GST, which made a total of $24,278.98.”

109. [109]
     One of the “three additional items referred to above” was balustrading: para 319.  This referred to the handrail being in place between the steel structural posts and on top of midposts but with no balustrading, the handrail being severely warped without a protective coating.  It does appear that an amount of $1,895 was claimed for balustrading by invoice 127:  para 318(iv).

110. [110]
     The respondents did not conceded that there was an error in this respect, referring to para 745 and the reconciliation.  But there is nothing in these parts of the reasons which are inconsistent with what I have summarised above, and it seems clear that when dealing with the variation to the provisional sum allowances in p 123, the Tribunal proceeded on the basis that the respondents were not claiming the cost of their carpenter for doing the handrails and balustrades, whereas that cost was in fact included within the amount claimed and allowed earlier for the cost of the carpenter doing work necessary to complete incomplete work, and rectify defective work, under the contract.  Exhibit 89 included a reference to invoice 127 and the amount of $1,895 for removing the existing balustrading and supplying and installing new balustrading.

111. [111]
     These approaches are in my opinion inconsistent, and I think this was an error of law on the part of the Tribunal. It was perhaps not a computational error in the sense referred to earlier, but I think that it must be an error of law for the reasons of the Tribunal not to be internally consistent, that is to say, for a Tribunal member to deal with one part of the claim on a particular basis and then deal with another part of the claim on an inconsistent basis. In my opinion therefore there was an error of law in this respect. The correct approach was that adopted by the Tribunal on p 123, and it follows that the amount of $1,895 should not have been included in the amount allowed at para 321.  That amount should therefore be reduced by $1,895, and that should be reflected in a reduction to the same extent in the figure of $87,964.03 at the top of p 127, which was then repeated on p 131, and therefore a reduction in the amount finally ordered to be paid to the appellant, also of $1,895.

112. [112]
     The appellant’s argument in relation to this point was actually on a somewhat different basis. His submission was that, in view of the fact that $1,895 had been allowed for work done by the carpenter engaged by the respondents on the balustrading, it was appropriate to allow the amount by which this exceeded the $840 provisional sum allowed in the contract as an increase in the cost of the work under the contract, so that the Tribunal member should have increased the contract price by the difference, $1,055, rather than reducing it by the amount by which the provisional sum exceeded the amount of work done and materials supplied by the appellant which was ultimately found to be of benefit to the respondents. But there is plainly no substance in such an argument.

113. [113]
     The appellant cannot be entitled to recover under the contract for work done after the termination of the contract by somebody else which was paid for not by him but by the respondents. An entitlement to be paid in respect of a provisional sum could only relate to something which was done by or on behalf of the appellant and paid for by him, and where, as occurred here, the ultimate work was done by somebody else on behalf of the respondents by way of rectification and completion of defective work which the appellant had done, plainly that does not produce a payment which should be taken into account in adjusting a provisional sum which is part of the contract price. In my opinion the approach adopted by the Tribunal in relation to this matter in para 745 was plainly correct, the only difficulty being that a consideration of this matter has revealed that the approach adopted at an earlier point by the Tribunal was not correct.  The appellant has therefore exposed an error of law on the part of the Tribunal in this matter, though not the error contended for in the appellant’s argument.

114. [114]
     It follows that leave to appeal should be granted for this limited purpose; the appeal should be allowed in part, and the decision varied by reducing the amount payable by the respondents to the appellant by $18,046.16, changing it from $113,513.20 to $95,467.04. The appeal should be otherwise dismissed.

Costs

115. [115]
     With regard to the question of costs of the appeal, the application for leave to appeal and appeal have been substantially unsuccessful. There have been only two relatively minor adjustments to the decision of the Tribunal, and one (the larger) was in respect of an amount where the respondents ultimately did not dispute that an adjustment was appropriate. The other, although disputed by the respondents at the hearing, involved an amount of less than $2,000 and that adjustment was made not specifically on the basis sought by the appellant, which was wrong. In these circumstances, I think there is some force in the proposition that any necessary alteration could more conveniently have been achieved by applying to the Tribunal under s 94 of the 2003 Act, without incurring the costs of the appeal.  In view of that, and in view of the fact that the appellant has been substantially unsuccessful, I order the appellant to pay the respondents’ cost of and incidental to the application for leave to appeal and appeal to be assessed.  I will if possible fix those costs when these reasons are delivered.