$12,055 order against a builder overturned because he never knew about the hearing (NCAT, 2026)

What happened

A builder working as a sole trader did building work at the owner's home in Elanora Heights in 2025. Disputes arose. The owner complained to the Building Commission of NSW, and that complaint process ended in November 2025. During it, the builder had solicitors who wrote to the Building Commission and to the owner.

The owner said the builder did not then finish the work. He hired other contractors to complete and fix it, at a cost of $12,055. On 26 February 2026 he emailed the builder to end the contract. The builder's solicitors wrote back with a proposal to settle the dispute. The owner also had the builder's mobile number and had texted him many times.

In March 2026 the owner applied to the Tribunal. He gave only an email address and a PO Box for the builder. He gave no phone number and no details for the builder's solicitors. He withdrew that application and lodged a new one naming the builder personally, with the same contact details. He did not send the builder a copy of the application. He also did not pass on the notice he received on 11 March 2026, which set a hearing for 4 May 2026. Both sides accepted that the Tribunal posted the application and the hearing notice to the PO Box. The PO Box had belonged to the builder's mother. She had died, and he had not checked it for months and had let it lapse.

No timetable for evidence was ever set. On 4 May 2026 the builder did not attend. The owner handed up evidence that had never been given to the builder. The Tribunal member did not ask whether anything had been served (formally delivered) on the builder, whether there was a phone number for him, or whether he had a lawyer. The member went ahead and ordered the builder to pay $12,055. The order was later registered with the Local Court. When the owner told the builder about the order, the builder appealed promptly, on 25 May 2026.

What each side wanted

In the original case, the owner claimed $12,055. This was made up of an alleged overpayment of $1,000, the cost of replacement works of $10,010, and variation or replacement works of $1,045. On appeal, the builder argued he had been denied procedural fairness. Procedural fairness is the basic right to know about a case against you and to have a fair chance to answer it. He said he was never served with the application, the hearing notice or the evidence. He said he was not avoiding the dispute, since he had solicitors and was ready to resolve it. He also said important evidence was missing because he did not know about the case, and that the registered order caused him real harm. He asked to rely on new evidence, including his own statement. The owner filed his own affidavit (a sworn written statement) and documents. At the appeal hearing, he openly admitted he had not served his evidence on the builder before the original hearing.

What the tribunal decided

The Appeal Panel ordered that: (1) the appeal is allowed; (2) the orders of the Tribunal are set aside; and (3) the matter is remitted to the Consumer and Commercial Division of the Tribunal for hearing in accordance with law. "Remitted" means the case is sent back to be heard again.

The $12,055 order no longer stands. The Appeal Panel did not decide whether the owner's money claim was right. That question goes back for a fresh hearing.

Why the tribunal decided it that way

An appeal within the Tribunal can be brought as of right on a "question of law", which is a question about whether the correct legal rules and processes were applied. Appeals on other grounds need the Appeal Panel's permission, called "leave". The builder raised eight grounds. The Panel treated them as one issue: whether he was denied a fair opportunity to be heard.

The Panel found the Tribunal member did not try to contact the builder. He also did not ask whether the builder had been served with anything. The Panel said it was a serious matter, with a $12,000 order at stake and possible effects on the builder's licence. The Panel accepted that deciding a case without a party who has ignored a timetable and then failed to attend would not usually be unfair. But here no evidence had been served and no timetable had been set. It was also the first time the matter had come before the Tribunal. The Panel said these facts should have alerted the Tribunal that the builder might not know about the hearing. It found that going ahead without him was unreasonable in these circumstances. It also breached section 38(5)(c) of the Civil and Administrative Tribunal Act 2013, which requires parties to have a reasonable opportunity to be heard.

The Panel also accepted the builder's account of the PO Box. It accepted that his solicitor had copied the old PO Box onto the appeal form without checking it, while listing the solicitor's own details for service.

Because a question of law was made out, leave was not needed. The Panel added that it would have found the same result under clause 12(1) of Schedule 4 of the Act anyway. In its view, the decision was not fair and equitable. There was also a significant possibility the builder lost the chance of a better outcome. That amounted to a substantial miscarriage of justice.

What this means if you are in a similar position

This decision shows that a Tribunal order made when one side was absent can be overturned if that person did not know about the case and had no real chance to respond. If you are in a similar position, it shows the Appeal Panel looked closely at several practical questions. Which contact details did the parties actually use with each other? Was the application or evidence ever sent to the other side? Had a timetable been set? Did the other side have lawyers known to the applicant?

The decision also shows that the Panel separated two situations. In one, a party ignores a timetable and then does not turn up, which would not usually be unfair. In the other, a party may never have known the case existed. Winning an appeal on this ground did not decide who was right about the building work. It only meant the dispute had to be heard again.

In building and debt disputes generally, most people start by sending a written demand or notice to the other party setting out what is owed and why. If that does not resolve it, the next step is usually an application to the Tribunal.

How to apply: our step-by-step guide to a NCAT application. More decisions: NCAT cases and builders and building defects.

Source: Shallis v Salveron [2026] NSWCATAP 310 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.