Adams v Van Go Fit Pty Ltd [2026] NSWCATAP 270

Catchwords: APPEALS — Procedural fairness — Failure to provide transcript or sound recording of hearing — Attempt by appellant to rely on his own evidence of what proceeded at the hearing APPEALS — Failure to give adequate reasons — no question of principle CONTRACTS — repudiation by the consumer Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Adams v Van Go Fit Pty Ltd [2026] NSWCATAP 270 Hearing dates: 28 May 2026 Date of orders: 28 August 2026 Decision date: 28 August 2026 Jurisdiction: Appeal Panel Before: R C Titterton OAM, Senior Member Dr D Goldman, Senior Member Decision: (1) To the extent that the appeal raises a question of law, the appeal is dismissed. (2) To the extent that the appeal raises any other error, leave to appeal is refused and the appeal is otherwise dismissed. (3) If the respondent seeks costs it must file lodge with the Tribunal and give to the appellant submissions (and if necessary evidence) by 11 September 2026. (4) The appellant may respond by 25 September 2026. (5) The respondent may reply by 2 October 2026. Catchwords: APPEALS — Procedural fairness — Failure to provide transcript or sound recording of hearing — Attempt by appellant to rely on his own evidence of what proceeded at the hearing APPEALS — Failure to give adequate reasons — no question of principle CONTRACTS — repudiation by the consumer Legislation Cited: Civil and Administrative Tribunal Act 2014 (NSW), ss 36, 80; cl 12 of Sch 4 Civil and Administrative Tribunal Rules 2014 (NSW), r 25 Australian Consumer Law (NSW), ss 18, 21 Fair Trading Act 1987 (NSW) Cases Cited: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 Babstock Pty Ltd v Laurel Star Pty Ltd [2022] QCA 63 Bartel v Ryan [2018] NSWCATAP 231 Collins v Urban [2014] NSAWCATAP 17 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Gussoni v Burnheim [2018] NSWCATAP 75 Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Jiang v Earlcore Pty Ltd [2025] NSWCATAP 292 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] 61 HCA 61 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 Mifsud v Campbell (1991) 21 NSWLR 725 Palm Homes Pty Ltd v Kav’s Constructions Pty Ltd [2015] NSWCATAP 113 Pholi v Wearne [2014] NSWCATAP 78 Politis v Federal Commissioner of Taxation [1988] FCA 446 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Shevill v Builders Licensing Board (1982) 149 CLR 620 Soulmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Upton v Martin and Stein Antiques Pty Ltd [2017] NSWCATAP 175 Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 Texts Cited: J W Carter, E Peden and G J Tolhurst, Contract Law in Australia, 8th Ed (Butterworths) Category: Principal judgment Parties: George Adams (Appellant) Van Go Fit Pty Ltd (Respondent) Representation: Counsel: K J Sanders (Appellant) Solicitors: WMW Lawyers (Appellant) R Size (Van Go Fit Pty Ltd) (Respondent) File Number(s): 2025/00478478 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 13 November 2025 Before: R Collins File Number(s): 2025/00113254 REASONS FOR DECISION Introduction This is an appeal in respect of orders made on 13 November 2025 in the decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal ( Tribunal ) in application 2024/00317873 ( Primary Decision ). For the following reasons: to the extent that the appeal raises a question of law, the appeal is dismissed. to the extent that the appeal raises any other error, leave to appeal is refused and the appeal is otherwise dismissed. Our orders will include a timetable for submissions as to costs. We note that in these reasons we reproduce various emails and text messages between the parties. These emails, messages and other documents contain many typographical errors which we have not corrected. Background Application 2024/00317873 By application filed 24 March 2025, the appellant sought the following orders from the Tribunal: I ask NCAT to help me get my money back from the supplier for the missing fit out he did not supply to me and compensate for the damage to the VAN. And also take in consideration of my additional expense up to today. The reasons for those orders were stated as: New van supplied. Deposit payed. Work started as advertised for customer fitout (specifics). Work NOT supplied as expected (Floor). Design NOT made as fotos + sketch provided/ Supplier – Van G o - ? damage to ? Van excused? – we always do like this. Like this + notes advertised to customer requested design. Supplier selected AC with out consolting me + Not suitable AC. Keep asking for extra money for suppliers mishandling to be fixed. Problem: supplier did not exact ? details. Profide in advance. Unsupported design change. My design + detail requested have not been attended. Inappropriate cabinet with opening on the side !! inappropriate seat bench not as per sample given (typographical and other errors as in original) When asked in the application form [1] “ What is the Total Value of the Claim? ” , the appellant stated that the value of work goods or services was $1 81,000. The hearing of the application After directions hearings and the filing of documents, a hearing was held on 25 July 2025. For the reasons set out in the Primary Decision, the Tribunal dismissed the appellant ’ s application. The Tribunal described the application in the following terms: [2] This is a claim under the Fair Trading Act 1987 (NSW) ("FT Act") by a vehicle owner against a supplier of custom campervan fit out services to the vehicle. The applicant claims the respondent engaged in unconscionable conduct, and that the works to the vehicle were not performed in compliance with the consumer guarantee that the work would be performed with due care and skill and in a reasonable time period, that the respondent engaged in misleading or deceptive conduct in relation to the work, and made false representations as to the time for the work. At [10] of the Primary Decision, the Tribunal noted that the appellant sought compensation in the amount of $277,749.64 for: $115.000 in restitution; $42,145.01 for the lost value of the vehicle; $1,228.70 for replacement of a dirty seat cover; $3,520.00 for repairing a hole in the side of the vehicle; $7,118.10 related to a hold in the roof; $440.00 in cost of valuation; $110.00 in relation to storage costs; and $14,315.93 in interest. In summary, the Tribunal found that: the respondent ’ s conduct did not amount to unconscionable conduct in breach of the Australian Consumer Law ( ACL ); [3] the respondent did not engage in misleading and deceptive conduct; [4] the respondent did not breach the contract entered into by the parties. [5] Accordingly, the Tribunal dismissed the appellant ’ s application. The appellant’s materials before the Appeal Panel Notice of Appeal The appellant filed a Notice of Appeal on 8 December 2025. [6] That was within the time provided by r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) ( NCAT Rules ). The appellant then filed an Amended Notice of Appeal on 18 February 2026 ( ANOA ). [7] The ANOA set out the following four grounds of appeal: the Tribunal erred in law by accepting the respondent's allegation of "frequent design changes" as justifying increased charges and the finding of repudiation, in circumstances where there was no evidence quantifying the time, cost or value of the alleged changes, such that the findings were not open on the evidenc e ; the Tribunal failed to consider whether, notwithstanding any contractual right to charge for design changes, the respondent received approximately 87% of the contract price paid, in circumstances where only minor works were completed ; the Tribunal failed to give adequate reasons explaining how it was just or lawful for the respondent to retain the entire t y of the payments made, while returning an incomplete vehicle and retaining the benefits of the completed works and materials ; the Tribunal denied the appellant procedural fairness by preventing the appellant from completing submissions and addressing all issues in the proceedings, and by failing to afford the appellant an opportunity to examine or test the respondent's evidence, which materially affected the outcome of the decision . However, in the appellant ’ s submissions filed 6 May 2026 , [8] which were prepared by his solicitor, the appellant set out three grounds of appeal being: the Tribunal erred in its finding that the a ppellant repudiated the c ontract ( Ground One ) ; the Tribunal failed to give adequate reasons ( Ground Two ) : explaining the legal basis for the respondent ’ s retention of the appellant ’ s funds and the resulting condition of the appellant ’ s vehicle; examining material inconsistences in the respondent ’ s invoices, including the proportionality between time, cost and the claimed “ frequent design changes ” ; the Tribunal denied the appellant procedural fairness ( Ground Three ) by : denying the a ppellant the ability to outline the issues, complete his submissions, and test the r espondent's evidence; and failing to accommodate the appellant as a self-represented, technologically disadvantaged litigant, resulting in material evidence being excluded without adequate consideration. After obtaining instructions, Ms Sanders told us at the appeal hearing that these were the only grounds of appeal being agitated by the appellant. She also indicated that all those grounds raised a question of law. Mr Size for the respondent agreed that Grounds Two and Three raised questions of law, but submitted that Ground One did not, and that leave was required. For the reasons discussed below, Ground Three was not pressed at the hearing. Submissions On 6 May 2026, the appellant filed submissions prepared by his solicitor dated 19 April 2026. Attached to those submissions was an affidavit of the appellant sworn 19 April 2026, of 7 pages in length, to which was attached 40 pages of annexures. We will return to this matter , which relates to Ground Three, below. Evidence before the Tribunal At the commencement of the appeal hearing, Ms Sanders sought to tender the appellant ’ s evidence which he relied on at the Tribunal hearing. Despite directions to file those materials (made on 31 January 2026), he had not done so. As the respondent did not oppose the tender of the material (which we note was not available in hard copy form, but only electronically) we allowed the tender, it also being consistent with the guiding principle in s 36 of the Civil and Administrative Tribunal Act 2014 (NSW) ( NCAT Ac t ) , namely the just, quick and cheap resolution of the real issues in the proceedings. Nevertheless, it is inconvenient, to say the least, for a large volume of materials (and we are talking about approximately 200 pages of evidence) to be tendered without notice at a hearing , in electronic form . The respondent’s materials before the Appeal Panel Reply to Appeal The respondent filed a Reply to Appeal on 20 March 2026. [9] Other materials On 7 May 2026, the respondent filed a 254 page bundle of materials [10] comprising: s ubmissions dated 5 May 2026 (being 12 pages including an attachment); and the evidence of the respondent before the Tribunal (242 pages). The affidavit of the appellant sworn 19 April 2026 Shortly after the commencement of the hearing , we heard argument on whether the appellant should be allowed to rely on his affidavit sworn 19 April 2026. We did not allow the tender of the affidavit, and indicated that we would give our reasons in these reasons. Appellant’s submissions After obtaining instructions , Ms Sanders indicated that the only paragraphs of the affidavit pressed were [23]-[25], which she said related to Ground Three, being the alleged denial of procedural fairness. Those paragraphs stated: Procedural Fairness 23. During the Hearing, I attempted to submit further documents to the Tribunal to refute the Respondents claims as to the added time and cost and subsequent invoices. However, I was told to make an application to NCAT which I did not understand and also, within a time frame I could not manage due to a family emergency overseas. 24 As such, I respectfully submit that the following issues are considered by the Tribunal: a. The Airconditioning selected by the Respondent was a Dometic RTX 2000. This is a system for trucks and accordingly was not appropriate for the vehicle. b. The issues as to the Respondents Invoice dated 22 April 2024 at paragraph 13 above; c. Two windows fitted are missing flyscreens; d. One of the windows installed only opens half of its capacity; e The internal walls do not align with the windows. 25 At many times during the hearing, the Respondent made statements which I did not agree with and sought to test based on documents and my understanding at the time, however, I was continually cut off by the Member from participating in this regard. (emphasis added) In summary, Ms Sanders submitted that this evidence that was not available previously, and comprised the observations of the appellant of the hearing. Ms Sanders said that ordinarily a transcript of the hearing would be relied on “ to run that point ” , but that the transcript was not technically required. Ms Sanders agreed that a transcript and sound recording would be “ completely better ” , but it was not an “ absolute mandatory requirement ” , noting that transcripts were not always available. We put to Ms Sanders that the appellant, indeed both parties, had been directed to file the sound recording of the Tribunal hearing and a transcript (or relevant part thereof) of the proceedings if what happened at the Tribunal was being relied on at the appeal hearing. This is a direction the Appeal Panel always makes prior to an appeal hearing . Ms Sanders said that the only submission she could make was that the appellant lacked the financial capacity to obtain a sound recording and then have a transcript prepared, which would have required both a solicitor and transcriber. Ms Sanders said that her client had made “ a call ” in the conduct of the proceedings that they “ would do it ” in an alternative way. Ms Sanders submitted that “ this NCAT, being the Tribunal which is all about affording un represented litigants without means a way of airing their grievance and their case, should [not] be taking a definitive view that in all circumstances a transcript is required ” . Ms Sanders then submitted tha t t he Primary Decision was an interlocutory decision, not a final one, and if the respondent disputed anything in pars [23]-[25] of the appellant ’ s affidavit, “ they could have got the transcript ” , which “ they hadn ’ t ” . Respondent’s submissions The respondent relied on their counsel ’ s written submissions. In summary, the respondent: accepted that whether there was a failure to afford procedural fairness raises a "question of law" within the meaning of s 80(2)(b) of the NCAT Act: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)]; submitted that Ground Three ought to be rejected; submitted that there was no evidence to sustain the finding that the Tribunal prevented the appellant from completing submissions, addressing issues, or examining or testing the evidence in a way that constituted a denial of procedural fairness; submitted that, notwithstanding that the appellant was ordered to lodge a transcript of the relevant parts of the hearing and complete recording of the hearing, he ha d instead opted to rely upon his own affidavit evidence as to what happened at the hearing. It was submitted that this was an inadequate foundation for a finding that the Tribunal denied the appellant procedural fairness; reading between the lines of the appellant's account of the hearing at [24]-[25] of his affidavit, it appear ed that the Tribunal did not deny the appellant procedural fairness, but rather: expressed concerns that the appellant was taking an undue amount of time making submissions about matters of indirect relevance to the real facts in issue; and attempted to prevent the appellant from interrupting (the respondent ’ s director) Mr Atkins when he was making submissions on behalf of the respondent . Finally, the respondent submitted that, i nsofar as the appellant wishe d to argue that he was denied procedural fairness because the Tribunal did not consider additional material he filed on 27 August 2025 [11] and his affidavit at [26], the argument ought to be rejected. This is because the hearing was conducted on 25 July 2025. The appellant filed further documents on 27 August 2025. On 1 September 2025, the Tribunal ordered the appellant to file an application requesting the Tribunal to consider the further documents and explaining why he seeks the material to be considered by 8 September 2025. The appellant gives evidence at [26] of his affidavit that he sought an extension of time. However, the correspondence annexed to his affidavit and marked "N" not only does not seek an extension of time, it predates the Tribunal's order of 1 September 2025. In brief oral submissions, Mr Size noted that on 21 January 2026 , the appellant had been ordered to lodge, if what had happened at the Tribunal hearing was being relied on, a sound recording and transcript. Mr Size submitted that the appellant was in breach of that order, noting that the costs of obtaining a sound recording was “ something like $50 ” . Mr Size submitted that that the appellant had been represented at all times since the order was made, and that his solicitor was present at the directions hearing when the orders were made. Mr Size further submitted that, if the affidavit were admitted, he would want to cross-examine the appellant about his recollection, and were the Appeal Panel to rely on it, this would be both unfair to the appellant and the Senior Member who constituted the Tribunal. Appellant in reply In repl y, Ms Sanders accepted that an order had been made about both sound recording and transcript , but that “ a call ” had been made by the appellant to not obtain the sound recording or to prepare a transcript. Ms Sanders indicated that the issue was not the $50, but the time and expense of preparing a transcript. Consideration As noted, we refused to allow the appellant to rely on his affidavit. This was the for the following r e asons. First, on 21 January 2026, the Appeal Panel relevantly made the following order s : 5 The Appellant is to lodge with the Appeal Registry and give to the Respondent by 18 March 2026: (a) All the evidence given to the Tribunal at first instance on which it is intended to rely; (b) Any evidence not provided to the Tribunal at first instance in making the decision under appeal, on which it is intended to seek leave to rely; (c) The Appellant's written submissions in support of the appeal; and (d) If oral reasons were given and/or what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing. It is self-evident that the appellant was in breach of Order 5(d). This is a routine order the Appeal Panel makes for the management of appeals. We note that the appellant was represented at the directions hearing by his solicitor. Secondly, as to the expense involved in preparing a transcript, a s we indicated at the appeal hearing, the Appeal Panel regularly sees transcripts which are prepared by the litigant themselves. There was nothing preventing the appellant from doing so. There is no necessity for the transcript to be transcribed by a professional service, let alone in the presence of a solicitor. It appears that, after obtaining legal advice, t he appellant decided not to do so. Thirdly, and in any event, it is clear that there is a risk that pars [23]-[25] were a selective representation of what actually happened at the Tribunal hearing. After we indicated that we refused leave to the appellant to rely on the affidavit, Ms Sanders indicated that she was instructed not to press appeal Ground Three. Nature of an appeal Section 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal . A question of law In Prendergast at [13], the Appeal Panel set out a non-exhaustive list of possible questions of law giving rise to an appeal as of right: whether there has been a failure to provide proper reasons; whether the Tribunal identified the wrong issue or asked the wrong question; whether a wrong principle of law had been applied; whether there was a failure to afford procedural fairness; whether the Tribunal failed to take into account relevant (that is, mandatory) considerations; whether the Tribunal took into account an irrelevant consideration; whether there was no evidence to support a finding of fact; whether the decision was so unreasonable that no reasonable decision-maker would make it. These matters were clarified and expanded by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204. Relevantly, the Appeal Panel stated: 35 It has become commonplace for parties, and their lawyers, to simply copy from various items listed in Prendergast as questions of law and present them in a Notice of Appeal, without modification of clarification to meet the circumstances of the relevant appeal. 36 Commonly, that will be wrong. 37 What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen (1968) 118 CLR 186 at 194; [1968] HCA 51. … 39 Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required. 40 In light of the above authorities, a question of law should be articulated with sufficient precision to allow an Appeal Panel to identify it as a pure question of law. Leave of the Appeal Panel on any other grounds Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: the decision of the Tribunal under appeal was not fair and equitable; or the decision of the Tribunal under appeal was against the weight of evidence; or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSAWCATAP 17 , the Appeal Panel conducted a review of the relevant cases at [65] – [79] and concluded at [84](2) that ordinarily it is appropriate to grant leave to appeal only in matters that involve: issues of principle; questions of public importance or matters of administration or policy which might have general application; or an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal ’ s decision and not merely peripheral, so a factual error that was unreasonably arrived at and clearly mistaken; or the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. Ground One A s noted, the appellant submitted that this ground raised a question of law, the respondent submitting otherwise. In our view, Ground One raises a mixed question of fact and law, and therefore leave to appeal is required: Ding v Schneider [2026] NSWCATAP 259 at [26]; [29(4)]. Ground Two We accept that Ground Two raises a question of law: see Prendergast at [13 (1) ] . Consideration of Ground One Ground One was that the Tribunal erred in its finding that the appellant repudiated the contract between the parties. Appellant’s submissions Relevantly, for the purposes of appeal Ground One, the Tribunal found: 53 On 5 December 2023, the applicant instructed the respondent to "STOP" work by way of text message. The Tribunal finds that on 7 December 2023, the applicant asked the respondent to complete the works at the respondent's own expense, and for the respondent to then sell the vehicle on consignment. This offer was refused. The applicant then made a similar offer on the same day for the respondent to sell the van and the parties to share the proceeds of the sale. The Tribunal finds that these representations amounted a statement that the applicant was not willing to pay for the completion of the works. 54 The Tribunal finds that the repeated requests to the respondent to sell the vehicle amount to a repudiation of the contract by the applicant. The respondent accepted this repudiation of contract and terminated the Contract on 5 February 2025 by offering for the vehicle to be removed. In the appellant ’ s written submissions, the summary, the appellant submitted as follows. First, the Tribunal relied on the following facts in determining repudiation: (a) the appellant sent "STOP" as an SMS to the respondent; (b) the appellant offered for the respondent to purchase the van from him; and (c) the appellant proposed that the respondent sell the van and share in the profits of sale. The appellant submits that the Tribunal's characterisation of this conduct as repudiation was attended by legal and factual error. The appellant submits that matter (a) above was in respect of the work on the bench seat design, and matters (b) and (c) above were an offer to come to a commercial resolution due to the timing delays surrounding completion of the contract. Secondly, the principles of repudiation are set out by Brennan J in Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623: repudiatory conduct conveys to the other party the defaulting party's inability to perform the contractor promise or his intention not to perform it or to fulfil it only in a manner substantially inconsistent with his obligations and not in any other way. The test, per Deane and Dawson JJ at 658 , is an objective test, whether the conduct would “convey to a reasonable person, in the situation of the other party, repudiation or disavowal either of the contract as a whole or of a fundamental obligation under it ” . Thirdly, the Tribunal's finding appears to have proceeded on the basis of anticipatory repudiation, that is, a party's conduct before the time of performance, evinces an intention not to perform its contractual obligations when the time arrives. The appellant submitted that the courts (here the Tribunal) should take a cautious approach to anticipatory repudiation: Babstock Pty Ltd v Laurel Star Pty Ltd [2022] QCA 63. Fourthly, the High Court has consistently held that the courts should not too readily infer repudiation from equivocal conduct: Shevill v Builders Licensing Board (1982) 149 CLR 620 at 625-626. Where the conduct is capable of a construction consistent with a continuing intention to perform, the Tribunal was required to adopt that construction. Fifthly, the Tribunal failed to recognise the relevant context surrounding the appellant's conduct. Sixthly, an acceptance of repudiation must be unequivocal and communicated clearly to the repudiating party. A party cannot both accept a repudiation and continue to negotiate performance of the contract. Despite the alleged acceptance of repudiation by the respondent, the respondent subsequently continued to negotiate with the appellant and offered to complete the works. This conduct is wholly inconsistent with a genuine and unequivocal acceptance of repudiation. The appellant submits that the Tribunal failed to grapple with this inconsistency, which fatally undermines the factual foundation of the repudiation finding. The appellant submits that the respondent cannot, on the one hand, assert that the contract was repudiated by the appellant and, on the other, continue to assert a right to complete the works and receive further payment. The appellant says that the Tribunal erred in not addressing this contradiction. In her oral submissions at the appeal hearing, Ms Sanders: referred to the relevant legal authorities on repudiation, in particular Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] 61 HCA 61 at [44]; submitted that clear conduct amounting to repudiation had to be established, and the conduct of the appellant relied on by the Tribunal to found repudiation was not “ clear enough ” ; submitted that the conduct and statements of the appellant were not considered in all their surrounding circumstances. Respondent’s submissions The respondent ’ s written submissions of 5 May 2026 (filed 7 May 2026) do not address Ground One at any length, save for the following. First, the respondent submits that there was a substantial body of evidence to support the finding, being the text messages sent by the appellant on 7 December 2023 (respondent ’ s bundle of materials ( RB ) ) , at 205-214). The respondent submits that, in response to texts from Mr Atkins about the air conditioner the appellant texted as follows: [12] STOP Fitting this aircon I don't need aircon with 7 hours running time Then, in response to a text from Mr Atkins asking the appellant to confirm what he wanted to do with the air conditioning, the appellant texted: [13] The van cost me Purchase 82-000 Your cost 115000 Total 197000 Do what you want and sell it I Just need 197000 back I have a business to runn and have to consentrate on this And have no more time for this So sell and organise my money And the rest is yours My bank details BSB 637000 ACC. 781006467 To this Mr Aktins responded: "No worries - so you don't want it for Xmas?" to which the appellant replied: [14] No never You do what you want Sell it. Make money and pay me only 197k After you sold it within say 6 month Ok? for you? Alternative You buy it right now for what it cost me and it is yo The keys are ready Consideration Th is issue had both counsel painstakingly reviewing the evidence before the Tribunal, in particular dozens of text messages and emails between the appellant and the respondent ’ s director Mr Atkins. We do not propose reproduce the respective counsel ’ s oral references in relation to these materials. Rather we will set out the relevant material before us, summarise the parties ’ respective submissions and then state our own conclusions. The starting point was 4 October 2023. On that day, the following text or email exchanges occurred between the appellant and Mr Atkins: Appellant: I have send the pics I have given you approx my idea what I want You offered some possible fit out options Indeed [sic – I need] your input and I need your plane of progress as Christmas's is only 2.5 month away and it need to be finished by then So what can you do / offer I need to know and I need a plan Planning to see you today after Atkins George, sorry mate have a bleeding perforated ear drum and in and out of sleep. Will respond back to you as soon as I'm back at work and will come over to your shop to look at van. Sorry I cannot get back to you sooner Appellant Don't bleed to death We need you (still) But what can you do before Christmas?? Atkins Ha hopefully not!! A build from start to finish can be anywhere from 2-3 months but depending if you need your shower etc for 1st trip. Let's discuss once I'm back at work. Hopefully all of the lightweight materials we use are in stock so it can minimise wait times On 8 October 2023, the appellant requested “ progress on my van fit out ” . The following day, 9 October 2023, Mr Atkins enquired of the appellant what time he could “ come over ” that day. The appellant responde d: Anytime any day. As long as it is today. There is no tomorrow . On 10 October 2023, Mr Atkins sent the appellant an email attaching an estimate , and link to the design ( Mood Board ). The email stated: Please see attached your estimate only from our meet yesterday and Design, The estimate will need to be refined as the design is confirmed and any changes made. There is an off grid battery system included in this which is of significant value in the build. I haven't included the drop down ceiling storage but open to discussions. Next to the fridge will be half pantry half hanging space. However only 200mm wide. Open to discussions. These drawings are to scale with a 2000mm bed platform. Always an option to allow for a double bed width over a queen bed which will also allow for an extra storage area. Let me know your thoughts via email and we can discuss. The estimate was for $118,170.89 including GST, and set out that payments must be made via a 50% deposit, 40% payment before the vehicle arrives at the workshop, and 10% on completion. The Mood Board is a live document that showed not only the features of the design but also terms including for a design freeze, payment terms that additional items are extra and that additional revisions were charged at $250 plus GST. The Mood Board also records consultation notes that include narrations about design changes. On 13 October 2023, Mr Atkins enquired whether the appellant has received his email. The appellant responded “ I did. Still recovering ” , which we assume was a reaction to the amount of the estimate. On 16 October 2023, Mr Atkins texted the appellant stating : Mr George , still finalise a few items in your design. Thanks for your patience. Will update you tomorrow as its completed. On 17 October 2023, Mr Atkins sent the appellant an email which relevantly stated: Please see a link here to your Mood Board and Design refinements. Updated designs are on slides 9-11 and if you are happy with this we can begin the shop drawings for final sign off. This is a live document and you are able to comment on each page which will help me confirm the build and cabinet sizes. I have started to fill in the missing blanks on slkde15 for you as to the images on slide. 53. But no problems in changing colours. Please have a read over and let me know your thoughts on the document as I need to make sure each cabinet is allocated to either storage or appliances. This will govern your vehicle schematics and configuration and pivotal to the functionally of the vehicle and weight distribution. Once this document is confirmed l am able to confirm the quote for you. Also happy to discuss with you via a googlemeet or can have the document on the computer screen at the workshop. The email then sets out some of the changes Mr Atkins had allowed for to date. On 18 October 2023, Mr Atkins sent the appellant a text or email, referring to the email of 17 October 2023 and asking “Let me know your thoughts”. The appellant’s response was “In email you send me. I like picture 53”. After further exchanges between the appellant and Mr Atkins, on 30 October 2023, Mr Atkins sent the appellant an email stating: See here the edits to your design we discussed Wednesday. You[r] revised quote is attached which has the changes included with some additional extras at the very bottom of the quote. Please have a read over this and let me know your thoughts. It tomorrow still suits to bring the vehicle over it would be great to get templates and ordering started!! The revised quotation was for $133,338.21 including GST ( 31 October 2023 Quotation ) . On 31 October 2023, the appellant brought the van to the respondent’s workshop. The appellant accepted the 31 October 2023 Quotation on 2 November 2023 , the Tribunal finding that the parties entered into an agreement on 2 November 2023 for $133,338.21 including GST and on the terms within the terms of the 31 October 2023 Quotation (P rimary Decision at [19] ). On 2 November 2023, the appellant asked Mr Atkins to send him an invoice. Mr Atkins did so that day. In an email that day to the appellant , Mr Atkins stated: Thanks for the confirmation today. Ordering has begun, and the boys have been making templates today [smiley face emoticon] Please see invoice attached for vehicle conversion and confirmed quote. Let me know it you would like to go ahead with the extras at the bottom and I will order to Can have allowance in the ceiling for A/C module. Discuss on Monday. • Air Conditioning Unit Package - 2400W -$ 3,760.60 • Electric Side Door Step 700mm - $ 2,703.20 • 32* TV & Swivel Mount Package -$ 1,346.60 • TV Antenna -$ 809.95 Invoice for $50000+ GST attached Three days later, namely 5 November 2023, the appellant sent Mr Atkins an email stating: [15] Budget is 99,000. ?? After receiving that email, on 6 November 2023, Mr A t kins invites the respondent to “ Come around and have a chat for the build ” . Later that day, Mr Atkins sends the appellant an email attaching a revised quotation based on a budget of $99,000. The revised estimate was for $106,8333 including GST and optional extras. On 14 November 2023, Mr Atkins sent the appellant an email at 7:56AM: setting out options for the table; providing a quote for the window; providing a quote for window tinting; noting the flow on effects from including a window; estimating three days to a week of work to design and incorporate the window and wall lining requested at $120 per hour plus GST and template materials- setting out a quote for a custom mattress; noting that the appellant selecting his own mattress would require redesign of cabinets; setting out elements that will have to be removed to keep the cost under $100,000. There was a chain of correspondence the following day, 15 November 2023: Appellant window tinting All 3 windows you install, on the side’s with window tinting in dark, so you can look in you may order them already tinted includet in price Atkins That's fine, we are able to include these, however these items need to be completed throughout the build process in certain stages for productivity. workflow & cash flow. Otherwise they will need to be completed on a cost plus basis due to going back to do it a later stage is much more time consuming. Please have a read of the email from 8am yesterday and if you could respond in each section for me so it’s clear on the work we are completing I understand your financial constraints however they are a concern to bulld the conversion for you without having major set backs. At the end of the day Van Go main commitment is to find solutions for you and build you a motorhore that you can get in, enjoy and explore our Great Aussle Backyard. As discussed last email for our team to achieve your build for your budget at this stage we will be require to leave out of the bulld for now the follow items. • Mattress – TBC • Electrical and Battery system. We are able to Install the wiring and complete lights and applances however the battery components are big ticket items and will be required to be removed until more funds become avallable. Meaning no electrics will be working. • Solar unable to be installed until after roof racks due to install process • Plumbing - No plumbing is able to be installed except the HWU. • Induction cooktop - removed for now • Awning removed until roof rack installed - Also due to install process • Able to wiring in for A/C unit & Tv aerial however unable to install until roof rack is completed and funds. (A/C allowance in the future as discussed • Tv installed at later date • We have changed your benchtops from High Pressure Laminate - Blackbutt timber veneer finished in a two pack clear satin polyurethane at no extra cost. Let me know and we can keep going. Appellant this is getting to complicated everything has been spoken of to much writing just build the van and you get paid Atkins I agree. We are committed to making this process as smooth and accommodating as possible but i'm a small business and I cant afford the large components to finish your motorhome. If you have the full funds fantastic we will complete the entire bulld for xmas Let me know if we are building to 100k or the quote attached. Appellant How much money did you invest/spend so far? Atkins We have spent 24K on materials to date not including labour. However I haven ’ t released the larger orders yet which will taki it over 50k` On 16 November 2023 , there commenced an exchange of emails as follows: Atkins Have an email to send over to you this evening for confirmation and what we Can achieve for 100k and what will need to be left out. Is the budget 100k + GST Appellant Maybe more $$$$ next year There is always more money somewhere What about More for less [indistinct emoticon] Are you at the factory. Atkins Yep pop in I have a meeting at 10 Appellant Why you don't just order everything. Then give me the bills and I pay them all Then it is myne in case you go kaput and you don’t have to worries about And I pay for your work plus a bit commission The respondent submits that this was an attempt by the appellant to “ barter down ” the price. On 17 November 2023, the appellant sent Mr Atkins a text message stating: I wish I bad NEVER. Purchased this crafter So if there would be one way I can get my money bach on this vw I WILL Ok You just install a cable prior to closing in the side wall… Then the twobar / when available / and the brake controller can be installed at a later stage / time And that is all for now … So I can get more money in/ this time from the bank. Loan on my investment security The bank need a copy from our contract / signed by us And also an indication of the amount s. for material and labour listed and date of duration / completion. Can you organise that. Please So / can get $$. for you On 23 November 2023, Mr Atkins sends an email to the appellant: attaching a quote for him to send to the bank; noting that he has paid $55,000 to date; stating that they ha d dedicated a lot of time to the designs and variations to suit the appellant; stating that he is able to access the Mood Board at the link in the email; recording that they have discussed and added in a list of additional items at further cost; recording that they have discussed no plumbing will be installed until the next year unless they are air freighted. On 27 November 2023, Mr Atkins sends the appellant an email thanking him for the call on 24 November 2023, noting what will have to be left out to achieve the $110,000 budget , setting out the additional extras they had discussed and requesting confirmation of extras. On 4 December 2023, the appellant and Mr Atkins sign a copy of the 31 October 2023 Quotation for the appellant to user in obtaining finance from the bank. They handwrite “ Material + components approx. 45% of cost - $60,000 ” . On 5 December 2023 at 4:13AM, the appellant sent Mr Atkins an email or text which relevantly stated: STOP Fitting this aircon I don't need aircon with 7 hours running time In the period 27 November to 7 December 2023, [16] there were email/text exchange s between the appellant and Mr Atkins as follows: Atkins A/c yes/no Appellant AC is offered at 2100 The rest I don ’ t know So ???? Atkins + all the other components and delivery and 10% on top dealing with both suppliers to get it done I'm trying to make money in business obviously but at the end of the day you've job is costing me money than it's worth. We both want the same thing - a beautiful motorhome but atm there's so many changes (again haven't charged you for + all the material wasted and templates) But your van should be nearly completed instead it looks like we've just started Let me know on a/c before 2pm otherwise il install an aluminium panel so we can do the interior A/C 5 days from order so running out of time Appellant The van cost me Purchase 82000 Your cost 115000 Total. 19700 Do what you want and sell it I just need I197,000. back I have a business to run and have to consentrate on this And have no more time for this So sell and organise my money And the rest is yours. My bank details are … Atkins No worries – so you don’t want it for Xmas? Appellant No never You do what you want Sell it. Make money and pay me only $197 K After you sold it within say 6 month Ok? For you? End of stress As soon you then ready and agree We will then have a contract signed that you will finish the van as offered / quoted made roadworthy etc and is fully functional and compleat and ready for sale under consignment to a new owner where I will agree to and I will get the $197000 – and you will get the money above to your self Alternative You buy it right now for what I cost me and it is yours. They keys are ready. Atkins Mate I don’t have any money – van is yours come and get whenever you want Appellant You can finish the vans s o we can sell it and you have extra … contact me when you have a buyer Other option You refund my last payment of 55000 + 5000 … Think about and come up with something so we don't loose Atkins Haha there’s no money left and Im using my money to pay the boys to finish your van from all the changes. That’s the reason we create the mood board and provide the plans. So it's a design freeze before we start. Tools are down and we have other jobs to get on with. Appellant How can you claim $115,000 – for what you are showing It will be Fair trading then. (emphasis added) On 5 February 2024, Mr Atkins emails the appellant as follows: As this matter has been forward to fair trading your vehicle is creating lost opportunity for Van Go Fit Outs and we require the bay to bring a new vehicle in. Please collect your vehicle no later than Wednesday 7 th February 9am AEST. If vehicle is failed to be collected, Van Go Fit Outs Pty Ltd will be charging $500.00 + GST per week for storage until the matter is resolved and we are able to reschedule your vehicle into the workshop schedule. Secondly, in later messages, the appellant stated: "Contact me when you have a buyer"; [17] "why you we don't sell the van to someone so we both get our $$ "; [18] "I do no longer need a van ” ; [19] and "find a new owner for this van and then finish as required and get our $ $ back". [20] Thirdly, the respondent submits that: not only was this evidence upon which a finding of repudiation could be made, it is hard to imagine clearer evidence of repudiation: the appellant said he never wanted and no longer needed the van, told the respondent to sell the van, and demanded the respondent pay him from the proceeds of sale a reasonable person in the position of the respondent could only have interpreted this as the appellant renouncing the contract and being unwilling to pay for the respondent to complete the contracted works: Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited (2007) 233 CLR 115; [2007] HCA 61 at [44] per Gleeson CJ, Gummow, Heydon and Crennan JJ. In summary, the appellant submits that the Tribunal overlooked the surrounding circumstances in reaching its conclusion on repudiation, and, in particular, at [53] of the Primary Decision misconstrued the email of 5 December 2023 in finding that the appellant instructed the respondent to "STOP" (all) work. We accept that there is some substance in that argument as , when fairly considered, the work the appellant is instructing the respondent to stop does appear to be limited to air-conditioning. However, we consider that the findings made in [54] and the Tribunal ’ s conclusion on this issue were open to the Tribunal, that is , tha t the repeated requests by the appellant to the respondent to sell the vehicle amount ed to a repudiation of the contract by the appellant , which repudiation the respondent accepted by offering for the vehicle to be removed. True it is that the Tribunal did not refer to every bit of evidence in the Primary Decision, but there is no obligation to do so ; the Tribunal is not required to make findings on every argument or every submission advanced before it and to record those findings and submissions in the Primary Decision. In Gussoni v Burnheim [2018] NSWCATAP 75 at [32] , the Appeal Panel referred with approval to the statement of Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728, referring to McHugh JA in Soulmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281, who noted that a failure to explain the basis of a crucial finding of fact involved a breach of the principle that justice must not only be done but must be seen to be done. His Honour went on to state that: … it is an incident of judicial duty for the judge to consider all the evidence in the case. I t is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. (emphasis added) See too the remarks of Meagher JA in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443 - 444 (citations omitted): … reasons need not necessarily be lengthy or elaborate ... The scope of the reasons to be given is ... related “… to the function to be served by the giving of reasons”. Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlook the evidence or failed to give consideration to it ... Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to . ... Third, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well. ... In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal. … an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice… (emphasis added) As was noted in Upton v Martin and Stein Antiques Pty Ltd [2017] NSWCATAP 175 at [18], on an appeal from bodies like the Tribunal, the role of the Appeal Panel is to examine the decision appealed from in a sensible and balanced way and not to go over the reasons for decision with a fine tooth comb and an eye keenly attuned to a perception of error: Politis v Federal Commissioner of Taxation [1988] FCA 446 at [14] per Lockhart J. At [15]-[36] of the Primary Decision, the Tribunal considered and refer red to conduct of the parties in the period 10 October 2023 through to 5 February 2024 . In particular, the Tribunal consider ed conduct on 10 October 2023, [21] 17 October 2023, [22] 30 October 2023, [23] 31 October 2023, [24] 2 November 2023, [25] the period 6 to 23 November 2023 , [26] 23 November 2023, [27] 27 November 2023, [28] the period between 7 and 11 December 2023, 11 December 2023, [29] and 5 February 2024. [30] In particular, we note that at [30] of the Primary Decision, the Tribunal referred to the appellant making various proposals to the respondent in the period 7 to 11 December 2023 for the respondent to retain the vehicle and refund all amounts paid. Thus , we reject any submission of the appellant to the effect that the Tribunal failed to take into account the surrounding circumstances. In the respected text of J W Carter , E Peden and G J Tolhurst , Contract Law in Australia , 8 th Ed, relied on by the appellant, the author s state (footnotes omitted): [30-31] Ways of proving repudiation. There are two ways of establishing repudiation: (1) by reference to the promisor’s words and conduct - refusal to perform or a sufficiently serious prospective breach; or (2) by reference to the promisor's inability to perform as a matter of fact. The distinction between the two ways of proving repudiation is important. In (1), the evidence concerns what the promisor has said and done. Whether the promisor was able to perform is irrelevant. In (2), the evidence relates to the promisor's actual position. The question is whether, as a matter of fact, the promisor was able to perform. 150 Obviously, (1) is more appealing to a promisee. [30-32] The requirement of seriousness. Repudiation is usually established on the basis that the conduct of the promisor amounted to a refusal to perform the contract. Such a refusal may be express or an inference from the promisor's conduct. In order to satisfy the requirement of seriousness, the promisee must prove that the conduct is inconsistent with the promisors obligation to perform the contract according to its terms.151 A clear case is therefore an express refusal by the promisor extending to all the promisors remaining performance duties. 152 However, a refusal may be implied, including from conduct by the promisor that materially increases the risk of nonperformance by the promisor. 153 Applying that first test, we consider that the Tribunal was justified in coming to its conclusion at [54] that the repeated requests of the appellant to the respondent to sell the vehicle by offering for the vehicle to be removed. Accordingly , we would not allow the appeal based on Ground On e . Our conclusion is that, in relation to Ground One, as leave to appeal is required, leave to appeal should be refused, wi th the result that the appeal is otherwise dismissed. Consideration of Ground Two Ground Two was that the Tribunal failed to give adequate reasons : explaining the legal basis for the respondent ’ s retention of the appellant ’ s funds and the resulting condition of the appellant ’ s vehicle; examining material inconsistences in the respondent ’ s invoices, including the proportionality between time, cost and the claimed “ frequent design changes ” . Appellant’s submissions Under the heading “ Empty Shell and Defects ” , the appellant submi t s as follows . First, the Tribunal dismissed the application as a whole and made no finding as to the monies that the appellant had paid under the subject c ontract, and the resulting works that were completed by the respondent. The Tribunal is required to provide adequate reasons for its decision and that obligation is not satisfied by a bald conclusion. The Tribunal must address the significant issues raised in the proceedings and explain, with sufficient particularity, why it has preferred one party's evidence over another's: H ousing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378. Secondly, it is not in dispute that the appellant paid the respondent $115,000.00 under the c ontract. It is also not in dispute that the v ehicle was returned to the a ppellant in a condition described as an empty shell, stripped of all fixtures, fittings, and inclusions that had previously been completed. Thirdly, the total value of completed works returned to the appellant was in the order of approximately $15,000.00. Notwithstanding this disparity, the Tribunal dismissed the application in its entirety and made no finding as to: the legal basis upon which the respondent was entitled to retain the sum of $115,000.00; the value of works actually completed and returned to the appellant; whether the a ppellant was entitled to any restitutionary relief for a total or partial failure of consideration; or whether the r espondent's stripping of the v ehicle and retention of all completed works and materials constituted a conversion or unjust enrichment. Fourthly, while the respondent asserts that fixtures were removed to make the vehicle safe for road travel, the respondent did not offer the appellant the opportunity to collect the completed fixtures or fittings. Instead, the respondent retained the fixtures and fittings and insisted that the Vehicle be returned to the workshop for completion of the works at a further cost of $40,270.00. Finally, the Tribunal’s failure to address these issue constitutes a failure to provide adequate reasons and is an error of law going to the foundation of the Primary Decision. Respondent’s submissions We summarise the respondent ’ s submissions as follows. First, this ground of appeal appears to relate to three findings made by the Tribunal: the finding at [52] that the respondent had performed works in respect of the sum paid by the appellant , that i s, that the respondent had not been overpaid; the finding at [35] that the appellant collected the van from the respondent's premises after the respondent proposed to charge a storage fee of $500 per week ; the finding at [36] that the respondent removed the bed and cabinets that were inside but not secured within the vehicle so as to ensure the vehicle was roadworthy before the van was collected by the appellant. Secondly, Ground Two is misconceived as the Tribunal did not conclude that it was "just or lawful for the respondent to retain the entirety of the payments made, while returning an incomplete vehicle and retaining the benefits of the completed works and materials". Rather, the Tribunal concluded that the appellant had not established any entitlement to damages because he had not established that the respondent breached s 21(1) of the Australian Consumer Law, s 18 of the Australian Consumer Law, or the contract. Thirdly, underlying Ground Two appears to be a concern that the respondent has retained the bed and cabinets in circumstances where the appellant, by reason of the payments he made before he repudiated the contract, ought to be considered the owner of the bed and cabinets. That issue was not before the Tribunal, and, therefore, was not something about which the Tribunal was required to give reasons. Moreover, there does not appear to have been any evidence before the Tribunal that the appellant ever requested the respondent to deliver up the bed and cabinets. Consideration The written submissions were further ventilated orally by both counsel at the hearing. We accept the respondent ’ s issues on this issue. We do not see that the matters now raised were live issues before the Tribunal. What the Tribunal had to decide, and did decide was: whether the respondent ’ s conduct amount ed to unconscionable conduct in breach of the ACL; whether the respondent engage d in misleading and deceptive conduct; and whether the respondent breach ed the contract entered into by the parties. As the Appeal Panel stated in Bartel v Ryan [2018] NSWCATAP 231 at [25], the High Court of Australia said in Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 at [9] , it is elementary that a party is bound by the conduct of their case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against them, to raise a new argument which, whether deliberately or by inadvertence, the party failed to put during the hearing when they had an opportunity to do so: see too Palm Homes Pty Ltd v Kav’s Constructions Pty Ltd [2015] NSWCATAP 113 at [27] and Jiang v Earlcore Pty Ltd [2025] NSWCATAP 292 at [50], if an issue was not raised in the proceedings under appeal, it cannot be raised on appeal. This ground of appeal is dismissed. We note that , during the course of the appeal h e aring, we were informed that the appellant had never asked for the return of the bed and cabinets, and that, as far as the respondent was concerned, the appellant was welcome to come and collect those items. Costs The appellant has been unsuccessful. If the respondent seeks costs it must file lodge with the Tribunal and give to the appellant submissions (and if necessary evidence) 14 days from publication of these reasons. The appellant may respond within 28 days from publication of these reasons. The respondent may reply within 35 days from publication of these reasons. Submissions are to be limited to three pages. We propose to deal with costs on the papers and without a hearing: see Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 at [85]. Any party opposing that approach must address that issue in their submissions. Orders the Appeal Panel orders: To the extent that the appeal raises a question of law, the appeal is dismissed. To the extent that the appeal raises any other error, leave to appeal is refused and the appeal is otherwise dismissed. If the respondent seeks costs it must file lodge with the Tribunal and give to the appellant submissions (and if necessary evidence) by 11 September 2026 . The appellant may respond by 25 September 2026 . The respondent may reply by 2 October 2026. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar Endnotes 1. Being the Consumer Claim Application for Goods and Services lodged 24 March 2025. 2. Primary Decision at [1]. 3. Primary Decision at [37]-[41]. 4. Primary Decision at [42]-[49]. 5. Primary Decision at [50]-[59]. 6. Marked for identification as MFI 1. 7. Marked for identification as MFI 2. 8. Marked for identification as MFI 3. 9. Marked for identification as MFI A. 10. Marked for identification as MFI B. 11. Primary Decision at [4]. 12. RB, at 205 13. RB, at 211 14. RB, at 211. 15. The respondent submitted that this email itself could be characterised as a repudiation of the contract, as the appellant is indicating an inability to pay the price head agree to “two days before”. 16. We note that the respondent states this date range in the chronology prepared by Mr Size. However, most of the emails/texts in the respondent’s bundle of materials were not dated, so we cannot verify the claimed dates. That said, the date range was not disputed by the appellant at the appeal hearing. 17. RB, at 213 18. RB, at 215 19. RB, at 215 20. RB, at 216. 21. Where the respondent provided the quotation to the appellant: Primary Decision at [16]. 22. Where the respondent provided the appellant with a link to the Mood Board: Primary Decision at [17]. 23. Where the respondent provided the appellant with a new link to the Mood Board: Primary Decision at [18]; [23]; [24]. 24. When the appellant brought his vehicle to the respondent’s workshop: Primary Decision at [120]. 25. When the parties entered into an agreement: Primary Decision at [19]; [25]. 26. When the appellant made further requests to amend the design of the vehicle: Primary Decision at [27]. 27. When the respondent provided the appellant with a further updated quotation: Primary Decision at [28]. 28. When the respondent sent an email to the appellant detailing scope changes required to meet a total budget of $110,000: Primary Decision at [29]. 29. When the respondent informed the appellant that it was suspending work on the vehicle. 30. When the respondent informed the appellant that \a storage fee of $500 would be ap[plied to the vehicle. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2026