Home owners’ appeal dismissed after $438,000 refund claim lacked evidence of actual loss (NCAT, 2026)

What happened

In May 2022 the home owners engaged the builder, Baxco Homes Pty Ltd, to build a new house. In November 2024 they applied to the NSW Civil and Administrative Tribunal (NCAT). They asked for the seal under the front door to be replaced, for cracked and raised hybrid flooring in the meals area to be repaired, and for the builder to supply several certificates and a form check survey. They said the house had been set out on the site to an earlier version of the plans rather than the version approved by the certifier, that they could not obtain an occupation certificate as a result, and they sought "compensation and accountability" for that. The application put the value of the claim at $20,000.

The builder did not appear at the first listing in December 2024 and did not appear again in January 2025. The Tribunal decided the case in the builder's absence (ex parte) and made a work order: the builder was to replace the weather seal removed from the front door, repair the damaged hybrid flooring (about five boards) and finalise certificates WMA/2615/2022, PD/780/2022 and RDA/617/2022 and the form check survey, all by 28 February 2025, in a proper and workmanlike manner. The owners were given leave to renew the proceedings, on payment of the filing fee, by 6 January 2026 if the orders were not complied with.

The owners filed a renewal application in May 2025, saying the flooring repair and the certificates had still not been done. The builder again did not appear and filed no evidence. At a hearing on 28 August 2025 the Tribunal heard the application in the builder's absence, considered the owners' evidence bundle and written submissions, and allowed one of the owners to give oral evidence. In written reasons dated 25 November 2025 the Tribunal awarded $2,990.00 for the flooring defects, payable by 12 December 2025. It said it was "not entirely clear" what the owners were seeking about the missing certificates, so it reserved its decision on the rest of the claim and asked both sides for written submissions on what order it should make about the certificates.

Only the owners filed submissions. They asked for $438,223.74, described as a refund of the total cost they had paid to build the house, on the basis that it had not been built to the Building Code, the building contract or the conditions of the development consent. On 17 April 2026 the Tribunal ordered that "the balance of the application is dismissed". The owners appealed. They had been self-represented in the Tribunal; on the appeal they were represented by solicitors and counsel, as was the builder.

What each side wanted

On appeal the owners ran three grounds. First, they said they were denied procedural fairness: once the Tribunal formed the view that a full refund was not the right measure of damages, it should have adjourned, told them an adverse outcome was being considered, and asked for further evidence and submissions, especially as they were self-represented. They also argued the final decision was in effect a hearing "on the papers" and that section 50 of the NCAT Act required the Tribunal to ask the parties first before dispensing with a hearing. Second, they said the decision was against the weight of the evidence, because their evidence of the rebuilding cost of $438,223.74 was uncontested. Third, they said significant new evidence was now available, including a valuation comparing the value of the house with an occupation certificate against its value without one, plus rectification quotes and an expert opinion on the sewer zone of influence that they were still obtaining. The builder, which had not taken part in the earlier hearings, filed a reply and submissions opposing the appeal.

What the tribunal decided

The Appeal Panel made two orders: "(1) Leave to appeal is refused. (2) The appeal is dismissed."

That left the decision of 17 April 2026 standing, so the balance of the owners' application, including the claim for $438,223.74, remained dismissed. The appeal was against that decision only. No further money order was made on the appeal.

Why the tribunal decided it that way

Appeals within NCAT are governed by section 80 of the Civil and Administrative Tribunal Act 2013 (NSW). An appeal can be brought as of right on a question of law, which includes a failure to give procedural fairness, meaning a fair chance to put your case. Any other ground needs leave, that is, the Appeal Panel's permission. Under clause 12 of Schedule 4 of that Act, leave can only be given if the Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, was against the weight of the evidence, or because significant new evidence has arisen that was not reasonably available at the time. A substantial miscarriage of justice means there was a significant possibility, or a chance fairly open, of a different and more favourable result.

On procedural fairness, the Panel accepted that NCAT must give parties a reasonable opportunity to be heard, and that section 38(5) of the Act requires it to take reasonably practicable steps to help parties understand the proceedings and explain its procedure if asked. But on the facts the owners had been given that opportunity: directions had told them what documents might be relevant, including expert reports and submissions on the orders sought; a hearing was held on 28 August 2025 where their evidence and oral evidence were received; and when it was unclear what order they wanted about the certificates, the Tribunal gave them a further chance to make written submissions. Drawing on court decisions about self-represented parties, the Panel held that a tribunal's duty is to give information about practice and procedure, not to advise a party how to run their case or to point out that their evidence is inadequate. Doing that, the Panel said, would arguably itself be an error, and the Tribunal's role is not to actively assist one side even where the other side has not engaged. The section 50 argument failed because the Tribunal never dispensed with a hearing: it held one in August 2025 and then simply allowed extra submissions afterwards, and the April 2026 date was the date of the decision, not a hearing. This was, in the Panel's words, a case of a party failing to take best advantage of the opportunity it had, which caused the owners considerable detriment but was not a denial of procedural fairness.

On the weight of the evidence, the first Tribunal had accepted that the builder breached the statutory warranties in section 18B of the Home Building Act 1989 (NSW) and had not complied with the earlier orders. The question was what order to make. The Tribunal held the right measure of loss was either the reduction in the value of the property or the cost of making it compliant so the certificates could be issued, not a refund of the whole build. There was no demolition order from the council or any other authority and nothing to suggest the property was worthless, and there was no valuer's or agent's report on any reduction in value and no evidence of certifier or council costs wasted. The owners carried the onus of proving their loss, and the Tribunal said it could not guess or estimate to make good that failure. The Appeal Panel held that conclusion was open on the evidence.

On new evidence, the Panel applied the test that the evidence must be significant, in the sense of going to a decisive issue, and must have been unavailable in the sense that no person could reasonably have obtained it. The valuation failed both limbs: reduction in value was not an issue at the hearing because the owners had asked for a refund of the build cost, and the material was objectively available at the time. Limiting fresh evidence in this way exists to give proceedings finality and to keep cases just, quick and cheap, and an appeal is not an opportunity to have a second go at the hearing.

What this means if you are in a similar position

If you are in a similar position, this decision shows how NCAT approaches proof of loss in a building dispute. Establishing that a builder breached the statutory warranties, or even ignored an earlier tribunal order, is only half the task. The tribunal still has to be shown, with evidence, what the breach cost in money, and it works from a particular measure of loss, usually the reduction in the property's value or the cost of putting the work right, rather than the total price paid. Where the evidence does not address that measure, the decisions show the tribunal will not fill the gap with an estimate of its own.

It also shows the limits of what help a self-represented person can expect. A tribunal will explain its procedure and give directions about the kinds of documents that may matter, and in this case it gave extra chances to file submissions. What it will not do is tell a party that the remedy they have chosen is the wrong one, or that their evidence falls short, because that would be running their case for them. On an appeal, the same evidence problem is generally not fixed by producing new material later: reports that could reasonably have been obtained before the hearing, and material that does not go to the order actually sought, do not usually meet the test for significant new evidence.

The practical first step most people take in a dispute like this is a written notice or demand to the builder that lists each defect or outstanding item, says what is required and sets a deadline, keeping copies of everything. If that does not resolve it, the next stage is an application to the tribunal, supported by the documents and expert evidence that put a figure on the loss being claimed.

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

Source: Pearsall v Baxco Homes Pty Ltd t/as Baxco Homes [2026] NSWCATAP 296 (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.