Scaffolding refund order cut from $19,965 to $6,000 and sent back for a fresh hearing (NCAT, 2026)

What happened

A builder contracted to build a single-storey home in the Hunter region of New South Wales. The contract took in a consolidated tender dated 28 March 2025 which fixed the price at $945,858 including GST. Item 30 of that tender read: "Provide heavy scaffold to the perimeter of the house to comply with WHS requirements. $18,150.00". Item 31 added a note that scaffolding was required because the ceiling height was over 3000mm.

In January 2026 the home owners applied to the Consumer and Commercial Division of NCAT. They said several items had been charged for in the tender but left out or only partly done, and they wanted their money back. By the time of the hearing they were claiming $26,150 (excluding GST) in credits and compensation for omitted and defective work, plus a refund for stormwater pipe over-lengths. The items in dispute were perimeter scaffolding, Telstra conduit and trenching, stormwater pipe lengths, and internal doors they said had been drilled without authority.

On 30 June 2026 a tribunal member ordered the builder to pay the home owners $25,965 on or before 28 July 2026. That was made up of $19,965 including GST as a refund of the scaffolding item, $5,000 for the internal doors drilled without authority, and $1,000 for the Telstra conduit and trenching. The rest of the claim was dismissed.

The member's reasons recorded two things that became the heart of the appeal. First, that the person appearing for the builder had made "a formal concession that heavy perimeter scaffolding was not erected on site". Second, that it was "an agreed fact" that heavy scaffold to the perimeter had not been supplied. The transcript of the hearing, produced on appeal, showed that when the member asked whether it was an agreed fact that there was no heavy scaffolding on site, the builder's representative answered "There was heavy scaffolding on site, yes" and later "We did use scaffolding, yes".

What each side wanted

The builder appealed on two points. It said the $18,150 in the tender already included GST, so adding GST to reach $19,965 was wrong, and it said no concession had been made and it was not an agreed fact that heavy perimeter scaffolding was absent, pointing to the sound recording and transcript of the hearing. The home owners accepted the GST point. On the concession they argued that the member had made findings that were open to him after considering the contract, the tender, photographs, witness evidence and oral submissions, including the finding that swapping localised facade scaffolding for heavy perimeter scaffolding was a wholesale omission of the scope in item 30. The home owners could not point to anything in the transcript or the other evidence that supported a formal concession or an agreed fact.

What the tribunal decided

The Appeal Panel allowed the appeal. It varied Order 1 "to reduce the amount payable by $19,965.00 to $6,000.00". The $6,000 left standing is the $5,000 for the internal doors and the $1,000 for the Telstra conduit and trenching, which were not appealed.

The Panel also ordered that the matter "be remitted to the Consumer and Commercial Division of the Tribunal for hearing and redetermination on all issues concerning the homeowners claim for a refund of $18,150.00 by a differently constituted Tribunal on such evidence as the parties lodge in accordance with any directions made by the Tribunal for the hearing". In plain terms, the scaffolding claim starts again from scratch in front of a different member, and the home owners may still succeed on it or may not.

The Panel granted the builder leave to amend its appeal so that it correctly targeted the $19,965 figure rather than $18,150. Because the scaffolding claim was going back for a complete rehearing, the Panel said it did not need to deal with the builder's separate argument that the member had misread the contract.

Why the tribunal decided it that way

An internal appeal at NCAT is not a second go at the same case. Under section 80 of the Civil and Administrative Tribunal Act 2013 (NSW), a party can appeal as of right only on a question of law. Anything else, such as a mixed question of fact and law, needs the Appeal Panel's permission, and permission is only given where the decision is open to enough doubt to be worth reconsidering, usually where there is an issue of principle or a reasonably clear injustice. Being arguably wrong is not enough.

The Panel found errors of law here, so it did not need to reach the question of permission. A finding of fact made when there is no evidence at all to support it is an error of law, and that is what the Panel found: on the transcript it "was simply not open to the Member" to find a formal concession, or an agreed fact, that heavy perimeter scaffolding was not erected. The builder's representative had said the opposite, more than once, in answer to the member's own questions.

The second error flowed from the first. Because the member treated the point as conceded, he never decided the real question in dispute, which was what scaffolding was in fact supplied, whether that breached the contract, and if so what refund followed. The Panel described this as a failure to engage with a substantial and clearly articulated argument the builder had advanced, and a failure to determine a critical factual issue. Each of those is a question of law.

The GST point was simpler. Items 30 and 31 of the tender showed the $18,150 was part of the overall tender price, so GST should not have been added on top. The home owners accepted that, which meant the order had to come down by $1,815 at the very least. In the first decision the member had relied on section 36 of the Australian Consumer Law (wrongly accepting payment for services not supplied) and on section 48O(3) of the Home Building Act 1989 (NSW) together with section 79U of the Fair Trading Act 1987 (NSW), which require orders to be fair and equitable. Those conclusions all rested on the concession that was not made, so they go back to be decided again with the facts properly tested.

What this means if you are in a similar position

If you are in a similar position, this decision shows how narrow an appeal is. The Appeal Panel did not re-weigh the evidence or decide whether the scaffolding money should be refunded. It looked only at whether the first decision contained an error of law, found two, and sent the question back to be heard properly. Winning an appeal of this kind often means getting another hearing rather than getting a final answer.

It also shows how much the record of what was said at a hearing can matter. Here the whole $19,965 order rested on the member's understanding that a concession had been made, and the transcript of the hearing was what unpicked it. Equally, where a contract or tender itemises a price, whether that figure includes GST is worth being clear about, because both sides accepted on appeal that adding GST to a GST-inclusive item was wrong.

In disputes of this kind, which are about whether itemised work in a fixed-price build was actually supplied, the step most people take first is a written notice or demand that lists each item, what the contract or tender said about it, and what is said to be missing or defective, with a deadline to respond. If that does not resolve it, the dispute moves on to a tribunal application, and if an order is made that contains an error of law, an appeal or set-aside application is the next stage after that.

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

Source: Hunter Homes Pty Ltd v Burg [2026] NSWCATAP 346 (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.