Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jayasooriah v Wisdom Properties Group Pty Ltd [2021] NSWCATCD 84 Hearing dates: 31 March 2021 Date of orders: 13 August 2021 Decision date: 13 August 2021 Jurisdiction: Consumer and Commercial Division Before: D Robertson, Senior Member Decision: In proceedings HB 20/25790 (1) The respondent, Wisdom Properties Group Pty Ltd, is to pay the applicant, Jayasooriah, the sum of $630 as liquidated damages for delay in completion of the building works within 14 days. (2) The application in proceedings HB 20/25790 is otherwise dismissed. In proceedings HB 20/45367: (3) The respondent, Wisdom Properties Group Pty Ltd, is to carry out the following work on or before 31 October 2021 in a proper and workmanlike manner. (i) Rectify the loose bracket on the shower screen in the second en-suite, (ii) Adjust or ease the insert to the grated drain in the second en-suite so that the insert moves freely, (iii) Cut an access point in the third bedroom to inspect and fix any kinked or quashed air-conditioning ducting and make good including patching and repainting the affected area. (4) Wisdom Properties Group Pty Ltd is to pay the applicant, Jayasooriah, the sum of $5,863 within 14 days. (5) The balance of the application is dismissed. Catchwords: BUILDING AND CONSTRUCTION — Renewal of proceedings after work order — Whether applicant can raise a fresh claim not the subject of the previous orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Fair Trading Act 1987 (NSW) Home Building Act 1989 (NSW) Cases Cited: Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 Bondarek v NSW Land & Housing Corporation [2018] NSWCATAP 299 Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 Jayasooriah v Wisdom Properties Group Pty Ltd [2020] NSWCATAP 81 Texts Cited: Nil Category: Principal judgment Parties: Jayasooriah (Applicant) Wisdom Properties Group Pty Ltd (Respondent) Representation: Counsel: B Jacobs (Respondent) Solicitors: Applicant (Self represented) Holding Redlich (Respondent) File Number(s): HB 20/25790; HB 20/45367 Publication restriction: Nil REASONS FOR DECISION 1. These two matters involve a remittal from the Appeal Panel (HB 20/25790) and a renewal application in respect of the respondent's alleged failure to comply with work orders made by consent on 12 July 2019 (HB 20/45367). 2. On 24 February 2015 the parties executed a contract for the construction of a home on a property owned by the applicant. The contract followed the submission of a tender by the respondent on 1 August 2014, notice of acceptance of which was apparently received on 2 October 2014. The plans attached to the contract identified the house as an "Inspiration 30" floor plan with a "Contemporary" façade" 3. The applicant filed proceedings on 20 June 2019 and, at the first return date of the application on 12 July 2019, orders were made by consent for the rectification of certain items. On that occasion the Tribunal made orders for the preparation of other claims for hearing including an order granting the applicant leave to amend his application to "include a claim for the following: a. Liquidated damages; b. Costs associated with the relocation of a power pole which the applicant alleges was not installed in accordance with a verbal agreement." 4. The proceedings came before the Tribunal for hearing of the remaining issues on 27 September 2019. On 20 December 2019 the Tribunal delivered a written decision stating: "The matter is dismissed." 5. The applicant appealed and on 8 May 2020 the Appeal Panel delivered its decision on the appeal. 6. The Appeal Panel decision (Jayasooriah v Wisdom Properties Group Pty Ltd [2020] NSWCATAP 81) set aside the order dismissing the proceedings and remitted to the Consumer and Commercial Division, differently constituted, five claims made by the applicant, being: "(a) Power connection to AUSGRID (no amount claimed); (b) Relocation of Power Pole, amount claimed $4,230.00; (c) Price increase of fixed price tender, amount claimed $13,000.00; (d) Purported Amendment to the Agreement, amount claimed $7,566.00; and (e) Liquidated damages, amount claimed $22,308.00." 1. The Appeal Panel directed that the remitted proceedings are to be heard: (i) On the same evidence as was before the Tribunal on 27 September 2019; and (ii) At the same time as any renewal proceedings as may be brought by the applicant in connection with the 12 July 2019 orders; 1. The Appeal Panel further directed that in hearing the remitted proceedings the Tribunal is to consider whether an amendment to the appellant's claim would be necessary "as referred to in paragraph [54]" of the Appeal Panel's reasons. In that paragraph the Appeal Panel noted that the issues remitted to the Consumer and Commercial Division "include issues that were not raised in the appellant's application and were not the subject of the leave to amend the application granted when the proceedings were first before the Tribunal on 12 July 2019". 2. Because of the limitation on the evidence upon which the parties were permitted to rely in the remittal proceedings, there were some areas where the evidence was not as full as it might have been. I have made my decision on the balance of probabilities based upon the evidence that was before me. 3. It is convenient to address the remittal proceedings before turning to the renewal proceedings. I note that, as the case proceeded before me, the five issues identified by the Appeal Panel were reduced to four, as issues (a) and (b) both related to the location of a power pole. Issues (a) and (b) – Relocation of the power pole 1. Under the heading "Aerial/Underground Power supply" the contract provided: The contract allows for the power supply to be connected to the dwelling directly from the Authority's 240 volt power supply terminal not more than 18 metres away from the works. Should the power supply be further away any extension costs or heavier cable requirements needed due to low voltage or underground cable are to be carried out at the expense of the owner. Underground power, when available, shall have an electrical pillar located at the property boundary and not further than 7m from the house position. 1. The applicant submitted that the parties had agreed that the connection to the electricity grid would be by a connection to a pole belonging to Ausgrid, the external network supplier, from a private power pole at a location at the northern corner of the property which was marked "original" in handwriting on a plan included in the applicant's documents. 2. The applicant submitted that the original connection only required 8.5 metres of underground cabling and 2 metres of aerial cabling crossing over a footpath. The applicant complained that the respondent had connected the electricity to a pole at a location in the eastern corner of the property which was marked "alternate" in handwriting on the plan relied upon by the applicant. 3. The applicant submitted that the "alternate" connection required 18 metres of underground cabling and 13 metres of aerial cabling crossing over the road. The applicant submitted that the alternative connection was "without reference to the applicant and is in breach of the contract and further agreement by the parties". 4. The applicant complained that, in consequence, he was "encumbered with the maintenance of approximately 13 metres of three phase aerial crossing over a public road in perpetuity". The applicant also complained that he had incurred additional expense to provide telephone and broadband services from the property to the network service providers' pit at the "original" location. The applicant did not quantify any additional expenses that he claimed to have incurred in this regard. 5. The applicant subsequently retained a contractor at a cost of $3,850 plus GST, that is $4,230, to relocate the power connection to the location at the northern corner of the property which the applicant alleged was the position originally agreed. 6. On 28 February 2016, after the applicant had queried the location of the pole, the respondent explained the positioning of the power pole as having been a decision determined on site by the electrician in consequence of "hydraulic requirements". The respondent forwarded to the applicant an email from the electrician responsible for the connection of power to the property which stated: The decision regarding positioning of the power pole was made on the day of installation. … As we were advised by the plumber on site that a 5 metre x 1 metre infiltration trench between ground level and 1 metre depth was being installed at a later date in the location of where we were going to install our main conduit for the consumers mains to the pole. Once I was aware of this I immediately contacted Wisdom Homes to discuss. A decision was made to relocate the main pole and consumers main from the right hand side of the property due to the depth and location of the infiltration trench and the fact that the plumber would have to hand dig the infiltration trench, and work around our conduit which would consist of a live unmetered cable below ground. Due to current rules and regulations we are not permitted to run any main conduits through an infiltration trench. On an OHS issue this was avoided and the power pole was relocated to the left hand side of the property where it currently has been installed. Connection was not an issue to this side as there was a main power pole directly across the road. Connection to site has been done with no issue from Ausgrid. 1. The respondent disputed that there was any agreement between the applicant and the respondent concerning the location of the electricity connection and in particular that there was any agreement to connect to a particular external power pole. The respondent submitted that "the applicant has failed to identify any contractual provision which required a private pole to be placed at the northern corner of the block". 2. The respondent acknowledged that a final construction plan issued on 11 January 2016 shows an existing power pole "owned by the utility provider (Ausgrid) outside the boundary at the northern corner and that it is shown in the same position on the plans included in the contract." The respondent submitted that, while it was required to provide a connection to the mains power, "it was entitled to place the private pole in the best location available, which it had discretion to determine". 3. The respondent relied upon the email dated 28 February 2016 set out above as clearly articulating the reasons why the respondent was required to locate the private pole in the eastern corner of the block in order to access a different mains source of power. The respondent submitted in respect of clause 2.3 of the contract relied upon by the applicant (which I have set out above) "the wording of that clause makes it clear that it operates in the builder's favour where the power source is further away, entitling the builder to recoup any additional costs". 4. The respondent submitted that the decision to move the power supply from the position in the eastern corner, as installed by the respondent and approved by the private certifier, to the northern corner was the applicant's decision and not one for which the respondent was liable. 5. I find that the applicant is not entitled to reimbursement of the cost of moving the power pole, or any compensation in respect of the original connection to the Ausgrid network. 6. The applicant failed to establish that the contract specified the location of the power connection. The drawing relied upon by the applicant was clearly not part of the contract. 7. In the absence of any specific agreement in relation to the position of the power pole, I accept the respondent's submission that, under the terms of clause 2.3, the positioning of the power pole in order to access the grid was a matter left within the respondent's discretion. I am not persuaded that there is any basis upon which it could be said the respondent had acted in breach of the contract by placing the power pole at the eastern or south-eastern corner of the property and I reject the applicant's claim that the respondent is liable to reimburse him for the cost of moving the power pole. Issue (c) - Price increase of fixed price tender 1. Builder Condition 12 of the contract provided that the respondent's authority to commence the building works was conditional upon a number of matters including: "(v) the Builder obtaining all permits specifically for the Building Works required to be obtained by it, ie development approval, construction certificate and Water Board approval," and provided: "These requirements must be satisfied on or before 30th June 2015. … Should the Owner not satisfy all of the said requirements by the Commencement Date, the Builder shall be entitled to terminate this agreement … or the Builder reserves the right to increase pricing in line with current price lists." 1. On 12 October 2015 the respondent issued a document headed "Price Increase Clause" invoicing the applicant for $13,000 in respect of "provide base house price adjustment as per Builder Condition 12: authority to commence building work of home building agreement due to contract expiry date 30.06.15". The document identified that the base price for the house the subject of the contract had increased by $21,000 but recorded a "discounted price adjustment as agreed by management: $8,000." 2. The applicant submitted that "the price increase was purportedly to extend the tender expiry date to 30 December 2015 so as to increase pricing pursuant to Builder Condition 12 of the agreement", that "the applicant is unable to find any reference to an expiry date on the tender document", and that "upon the agreement being entered into (on 24 February 2015) pursuant to the tender, any extension of expiry date of the tender beyond the date of the agreement has no purpose." 3. The applicant also submitted that Builder Condition 12 contained an unfair contract term within the meaning of ss 23 and 24 of the Australian Consumer Law. The applicant referred to an undertaking given by the respondent to the Australian Competition and Consumer Commission in relation to a different clause in the contract which imposed confidentiality obligations on the owner. In the undertaking the respondent had admitted that the agreement was a standard form contract and that the "non disparagement clauses" were unfair terms. 4. The applicant submitted that the application of Builder Condition 12 in the circumstances caused a significant imbalance in rights and obligations in favour of the respondent in that the respondent unilaterally determined the price increase, that the provision was not necessary in order to protect the legitimate interests of the respondent, and that "the price increase and the cost of alternative accommodation required for the delays caused detriment financially to the respondent [sic applicant]". 5. Thirdly, the applicant submitted "the applicant does not concede that any of the requirements set out in clause 12.1 were not satisfied by the applicant". 6. The applicant claimed a refund of the $13,000 charge, which it was common ground the applicant had paid. 7. The respondent referred to an email dated 12 October 2015 from Ms Mulquiny, the administrative approvals manager for the respondent, which provided confirmation that a review of the applicant's file had been undertaken with regard to the tender expiry on 30 June 2015. The email stated: We concede that there have been further procedural delays both since contract signing and Senior Management have agreed to reduce the fee accordingly. and noted the "contributing factors to tender expiry" as: Client requested plan amendments to Contract Plans after Contract Signing. Client requested landscape plan amendments after initial acceptance of Issue A. Hydraulic detail amendments to suit all revised issues of landscape plans. Extended Council approval timeframe (forecast for 6-8 week approval) actual 14 weeks. 1. The respondent submitted that the tender did not refer to the expiry date because the expiry date was provided for in the tender acceptance. That document had not been included in the evidence initially put before the Tribunal and therefore was not before me. The respondent relied upon the content of the email as set out at [32] above to establish that the tender acceptance did disclose a limited period during which the tender price was fixed. 2. The respondent further submitted that Builder Condition 12 of the contract itself clearly provided for the price increase. The respondent submitted that the email of 12 October 2015 had clearly identified the fact that Council approval had not been received by 30 June 2015 and that it had been the applicant's actions, as identified in the email, which had delayed submission of the development application and therefore its approval. 3. In response to the applicant's submission that clause 12.1 was an unfair contract term, the respondent submitted: … It cannot be said that the activation of the price increase clause would cause a significant imbalance in the part[ies'] obligations (or rights) arising under the Contract. $13,000 is less than 2% of the total tender price of $476.871. As such, the enlivening of Builder's Condition 12 did not cause a significant imbalance in the parties' obligations. And in respect of the question of whether Builders Condition 12 is reasonably necessary in order to protect the legitimate interests of the Respondent, it is well known throughout the construction industry (and is a matter of commercial common-sense) that the elapsing of any significant time period may see a significant increase in the prevailing market costs of materials and/or labour in the home construction industry. What is more, it is simply not possible for a home builder such as the Respondent to lock in prices for materials and labour significantly in advance. As such, Builders Condition 12 is reasonably necessary to protect the legitimate interests of the Respondent. 1. I am not persuaded on the balance of probabilities on the evidence before me, consisting of the contract, the invoice for the price increase and the covering email of 12 October 2015, that the delay in obtaining the development approval necessary for building work to commence was caused by the respondent. 2. The contract provides for an increase in price if the commencement was delayed beyond 30 June 2015. I am satisfied that the commencement was delayed beyond 30 June 2015 and I therefore find that, under the terms of the contract, the respondent was entitled to an increase in the contract price. 3. The contract provided that the respondent was entitled to increase the contract price by reference to the list price for the construction plan chosen by the applicant. The invoice discloses that the increase in the list price in respect of the relevant plans was $21,000. The respondent only claimed $13,000. 4. Sections 23 to 25 of the Australian Consumer Law (ACL), which is made applicable as part of the law of New South Wales by s 28 of the Fair Trading Act 1987 (NSW), relevantly provide as follows: 23 Unfair terms of consumer contracts and small business contracts (1) A term of a consumer contract or small business contract is void if: (a) the term is unfair; and (b) the contract is a standard form contract. (2) The contract continues to bind the parties if it is capable of operating without the unfair term. (3) A consumer contract is a contract for: (a) a supply of goods or services; or (b) a sale or grant of an interest in land; to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption. 24 Meaning of unfair (1) A term of a consumer contract or small business contract is unfair if: (a) it would cause a significant imbalance in the parties' rights and obligations arising under the contract; and (b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and (c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on. (2) In determining whether a term of a contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following: (a) the extent to which the term is transparent; (b) the contract as a whole. (3) A term is transparent if the term is: (a) expressed in reasonably plain language; and (b) legible; and (c) presented clearly; and (d) readily available to any party affected by the term. (4) For the purposes of subsection (1)(b), a term of a contract is presumed not to be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise. 25 Examples of unfair terms Without limiting section 24, the following are examples of the kinds of terms of a consumer contract or small business contract that may be unfair: (a) a term that permits, or has the effect of permitting, one party (but not another party) to avoid or limit performance of the contract; (b) a term that permits, or has the effect of permitting, one party (but not another party) to terminate the contract; (c) a term that penalises, or has the effect of penalising, one party (but not another party) for a breach or termination of the contract; (d) a term that permits, or has the effect of permitting, one party (but not another party) to vary the terms of the contract; (e) a term that permits, or has the effect of permitting, one party (but not another party) to renew or not renew the contract; (f) a term that permits, or has the effect of permitting, one party to vary the upfront price payable under the contract without the right of another party to terminate the contract; (g) a term that permits, or has the effect of permitting, one party unilaterally to vary the characteristics of the goods or services to be supplied, or the interest in land to be sold or granted, under the contract; (h) a term that permits, or has the effect of permitting, one party unilaterally to determine whether the contract has been breached or to interpret its meaning; (i) a term that limits, or has the effect of limiting, one party's vicarious liability for its agents; (j) a term that permits, or has the effect of permitting, one party to assign the contract to the detriment of another party without that other party's consent; (k) a term that limits, or has the effect of limiting, one party's right to sue another party; (l) a term that limits, or has the effect of limiting, the evidence one party can adduce in proceedings relating to the contract; (m) a term that imposes, or has the effect of imposing, the evidential burden on one party in proceedings relating to the contract; (n) a term of a kind, or a term that has an effect of a kind, prescribed by the regulations. 1. I am satisfied that the contract between the parties was a consumer contract and that the contract is a standard form contract. 2. In considering whether Builder Condition 12 is an unfair term, I am required to take into account the extent to which the term is transparent, and the contract as a whole. I am satisfied that Builder Condition 12 is transparent. It is expressed in reasonably plain language, it is legible, it is presented clearly, and it was readily available to the applicant. 3. Pursuant to clause 24(4) of the ACL, Builder Condition 12 is presumed not to be reasonably necessary in order to protect the interests of the respondent unless the respondent proves otherwise. 4. Pursuant to s 25(f) of the ACL a term that permits, or has the effect of permitting, one party to vary the upfront price payable under the contract without the right of another party to terminate the contract may be an unfair term. 5. I am not persuaded that the term permitting the respondent to increase the price in the event work did not commence within a specified period after the submission of tender or execution of the contract was an unfair term. 6. The admission by the respondent that a different term was an unfair term does not carry any weight or significance in this context. 7. When the contract is considered as a whole it is clear that the contract vested in the respondent the obligation to obtain development consent (HIA Schedule 1 Particulars of Contract, Clause 11). It is also clear that the tender document submitted by the respondent on 1 August 2014 and amended on 16 February 2015 required the respondent to construct a home for the applicant, in accordance with the plans attached to the contract, for a fixed price. 8. The obtaining of development consent was not a matter entirely within the control of the respondent. As the evidence suggests, both by reason of delays caused by the applicant and because the Council's assessment of the application took longer than expected, the commencement of the building work was substantially delayed. 9. It was, in my view, entirely reasonable for the respondent to make provision for the adjustment of the price in the event that the building work was delayed beyond the time reasonably anticipated at the time of submission of the tender. 10. The contract does not vest in the respondent a complete discretion in relation to the adjustment of the price. 11. The adjustment was required to reflect the increase in the respondent's standard list price for the relevant set of plans. Clearly, the respondent did not have a complete discretion to increase that list price without limit. As long as the respondent continued to include the relevant set of plans in its catalogue, it was constrained in increasing the price for that set of plans by competitive market forces. The market pressure upon the respondent to ensure that its offering remained competitive in the market would ensure that it could not increase the list price by more than an appropriate amount having regard to the cost of labour and materials and market demand. 12. As the respondent submitted, it is a matter of commercial common sense that the lapse of any significant time period may see a substantial increase in the market costs of materials and/or labour in the home construction industry. 13. I am, therefore, not persuaded that Builder Condition 12 is unfair within the meaning of s 24 of the ACL. In my view the term does not cause a significant imbalance in the parties' rights and obligations arising under the contract and I am satisfied that it is reasonably necessary in order to protect the legitimate interests of the respondent. 14. For those reasons I find the contract is not an unfair contract and I dismiss the applicant's claim in relation to the price adjustment. Issue (d) - Purported Amendment to the Contract 1. The applicant submitted that the commencement date on Builder Condition 12 was amended by the respondent after the agreement was executed by the parties and that that amendment had not been agreed to by the applicant in writing. 2. The relevant amendment was the change of the date by which the requirements listed in Builder Condition 12 were to be satisfied, from 30 April 2015 to 30 June 2015. The applicant submitted that in consequence of that purported amendment the applicant incurred losses amounting to $7,566 being the loss of rent in respect of the applicant's existing accommodation, calculated as $780 a week over 9.7 weeks. 3. The respondent disputed the allegation that the respondent had altered the date for commencement without the agreement of the applicant, but noted that, in any event, the extension to the date for commencement was to the applicant's benefit, not detriment. 4. The respondent further submitted that any claim by the applicant for the cost of alternative accommodation is "in reality a claim for additional delay damages" which should be addressed in that context (ie issue (e) addressed below). 5. It is clear in my view that, whether or not the commencement date was amended by the respondent without the agreement of the applicant, that amendment could not have had negative consequences, financial or otherwise, for the applicant. The extension of the commencement date from 30 April to 30 June had no impact other than extending the time within which the pre-conditions were required to be satisfied before the respondent would have the capacity to terminate the contract or increase the tender price. 6. There is no way in which the extension of the commencement date could be said to have delayed the project. The reasons for the delay in the project have been canvassed above. They were entirely related to the delay in the obtaining of development consent. The variation of the date for commencement set out in Builder Condition 12 could not possibly have had any impact on the time when the development consent was obtained. 7. As it was explained by the applicant during the hearing, his concern regarding the amendment to the contract appeared to be more a submission that the respondent had failed to proceed with due diligence in obtaining the development consent. There was no evidence to support that submission and it is rejected. 8. Accordingly, the applicant's claim in this regard must be dismissed. Issue (e) - Liquidated damages 1. The applicant submitted that the respondent had acknowledged that there was an overrun of 75 working days in the completion of the project and had agreed to pay the applicant the amount specified by the contract as liquidated damages. That was $15 a day, amounting to $1,125. The applicant submitted that the amount calculated by the respondent was incorrect. 2. The applicant submitted that the rate of $15 applied to working days was unfair as it translated to only $75 a week compared to what the applicant claimed was his actual rental loss of $780 per week. 3. Secondly, the applicant submitted that practical completion had not been achieved on the date asserted by the respondent, that is 31 October 2016, but rather on 3 July 2017 when the applicant claimed he had taken possession of the property. 4. Thirdly, the applicant submitted that, as the contract period commenced 20 days after the letter of authority to commence construction was received on 5 November 2015, the contract period commenced on 25 November 2015 and concluded 34 weeks later, that was on 20 July 2016. 5. The applicant submitted that the correct calculation of his entitlement to damages for delay was 49.7 weeks from 20 July 2016 to 3 July 2017 at $780 per week. On that basis the applicant calculated his claim for damages for construction delay at $38,777. 6. The respondent agreed with the applicant that the letter of authority to commence construction was received on 5 November 2015. However, the respondent pointed to clause 8 of the contract which provided that the respondent was to commence the building works within 20 working days after the date that the requirements had been satisfied. The respondent submitted that "working days" was defined under clause 1.1 of the contract to exclude Saturdays, Sundays and public holidays and that the appropriate commencement date was not 25 November 2015, as the applicant had submitted, but rather 2 December 2015. The respondent submitted that, in calculating the date when the respondent was required to commence, the applicant had counted 20 days rather than 20 working days. 7. The respondent further submitted that clause 8.2 provided that the contract period commenced on the date the respondent was obliged to commence the building works under sub-clause 8.1, so that, regardless that the respondent had actually commenced works prior to 2 December 2015, the contract period commenced on 2 December 2015. 8. The respondent pointed out that the contract period specified at Item 12 of the schedule was "no more than 34 weeks" after the contract period commenced, subject to clause 9. 9. Clause 9 provided that the respondent was entitled to a reasonable extension of the contract period if the building works were delayed "from a cause beyond the sole control of the builder" including: (a) A variation or a request for a variation by the owner; … (c) adverse weather; and … (j) the industry shutdown being a 5 week period commencing on or about 22 December in each year. 1. The respondent submitted that, as the contract period commenced on 2 December, it must have included the 5 week industry shutdown and that, therefore, at a minimum the contract period must have been 39 weeks from 2 December 2015. 2. In relation to practical completion, the respondent relied upon the terms of clause 26 of the contract which were as follows: 26.1 The builder must give the owner a notice of practical completion at least 5 working days prior to practical completion being reached. 26.2 The notice of practical completion is to: (a) state the builder's assessment of the date of practical completion; (b) state the date and time for the owner to meet the builder on the site to carry out an inspection of the building works; and (c) have attached the builder's final progress claim. 26.3 The owner must meet the builder on the site for the inspection at the date and time stated by the builder in the notice of practical completion or at a date and time otherwise agreed with the builder and either (a) pay the amount of the final progress claim; or (b) if the owner believes that the building works have not reached practical completion give the builder a written notice detailing anything to be done to reach practical completion. 26.4 If the owner pays the amount of the final progress claim under sub-clause 26.3(a) the date of practical completion stated in the notice of practical completion is deemed to be the date of practical completion. 26.5 If the owner gives the builder a notice under sub-clause 26.3(b) of work to be completed: (a) the builder must carry out any work required for practical completion and give the owner a further notice of practical completion; or (b) if the builder does not agree that there is any further work to be carried out of reach practical completion the builder. 1. (i) must give the owner written notice rejection the owner's notice. In this case, such a notice with also serve as notice of the matters in dispute for the purpose of Clause 39. 2. (ii) is not obliged to carry out any further work on the site while the dispute remains unresolved. 3. 26.6 If the owner does not pay the amount of the final progress claim under sub-clause 26.3(a) or give the builder a notice under sub-clause 26.3(b): 4. (a) the amount of the final progress claim is deemed to be debt due and owning from the owner to the builder; 5. (b) the date of practical completion stated in then notice of practical completion is deemed to be the date of practical completion; and 6. (c) the owner acknowledges the building works have reach practical completion. 7. 26.7 On the owner paying the final progress claim, the builder must give keys to the building works to the owner. 1. The evidence concerning the date of practical completion was not as complete as it might have been. For example, the evidence did not include a copy of the notice of practical completion served by the respondent. By reason of the limitations placed by the Appeal Panel upon the evidence, upon which the remittal was to be determined, the respondent was unable to rectify that deficiency. Nevertheless, the respondent submitted that I could draw inferences from the documents which were before me. 2. The respondent relied upon the fact that the applicant stated in his submissions that "the respondent declared practical completion on 31 October 2019" and also the fact that the applicant had included in his evidence a "Completion Report" prepared by Canberra Sydney Inspections on 31 October 2016. 3. The respondent also relied upon the fact, acknowledged by the applicant, that the applicant had received the keys to the property on 19 December 2016. The respondent submitted that, by reason of clause 26.7 of the contract, the delivery of the keys was evidence that the applicant had paid the final progress claim following the service of a notice of practical completion prior to the inspection on 31 October 2016. 4. The respondent submitted that it followed, from the fact that the applicant had paid the final progress claim, that the applicant had accepted that the date of practical completion was the date stated in the notice of practical completion, which the respondent submitted was no later than 31 October 2016. 5. The respondent submitted, in the alternative, that practical completion could have occurred no later than the date on which the applicant received the keys to the property, that is 19 December 2016. 6. The respondent included in its submissions a number of assertions concerning the true situation, which it acknowledged it was unable to establish by reason of the limitations imposed by the Appeal Panel on the evidence which could be tendered on the remittal. The respondent submitted that those submissions were included "as, to continue to assert a position known by the respondent to be incorrect would be to mislead the Tribunal". 7. I have not paid any regard to the submissions which seek to refer to evidence which the respondent submits it would have led if it had been permitted to do so. That evidence was not before me and it would be inconsistent with the directions made by the Appeal Panel for the evidence to be allowed. I cannot proceed on the basis of evidence which is not before me. 8. The respondent submitted that, even on the basis of the material before the Tribunal, the correct calculation of liquidated damages was no more than 26 working days or $390. The respondent submitted that: the contract period commenced on 2 December 2015; the contract period was 34 weeks; the contract period was extended by at least 5 weeks for the industry shutdown; and practical completion occurred on 31 October 2016. 9. The respondent explained the $1,125 figure referred to in submissions which it had filed in September 2019, as having been based on a contract period of 30 weeks, the calculation not having allowed for the 5 week industry shutdown, and a date for practical completion of 4 November 2016. The respondent submitted that it should be entitled to correct that calculation. 10. The respondent did not perform its calculation of 26 working days by reference to the relevant integers but rather by adjusting the figure from its 2019 submissions by reference to the errors which it identified in that calculation. The difficulty with that approach is that it is impossible to reconcile the respondent's calculations with a calculation based upon the relevant integers. 11. Thirty nine weeks from 2 December 2015 expired on 31 August 2016. Allowing for the public holiday on 3 October 2016, there were 42 working days between 31 August 2016 and 31 October 2016. That suggests the correct calculation of liquidated damages (on the evidence before the Tribunal) is $630. 12. The respondent further submitted that there was no legitimate basis upon which the applicant should be permitted to depart from the contractually agreed regime for liquidated damages. Section 30 of the contract, which related to liquidated damages, was a standard clause in the Housing Industry Association standard form contract. It is a typical form of liquidated damages clause and the parties had agreed to it. 13. The respondent submitted that it could not be said that the liquidated damages clause caused a significant imbalance in the parties' rights and obligations arising under the contract. The respondent submitted that it cannot be said that the clause was not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term. The respondent submitted that in fact it was the applicant who had benefitted by the liquidated damages clause. 14. The respondent pointed out that the rate of liquidated damages provided for in the contract was not being challenged as some form of penalty. 15. In my view the evidence before the Tribunal does not establish an entitlement on the part of the applicant to liquidated damages in a greater amount than the $630 calculated at [83] above. 16. I accept the respondent's submissions concerning the calculation of the contract period under the contract. 17. However, I prefer the calculation set out at [83] above to the respondent's calculation based upon adjustments to the unexplained calculation contained in the respondent's 2019 submissions. 18. I do not accept the applicant's submission that practical completion did not occur until 3 July 2017. 19. The only evidence which the applicant relied upon to establish that practical completion was not reached until 3 July 2017 was an email from the home warranty insurer which was, at best, only indirect evidence that practical completion had been achieved on 3 July 2017. I do not find the email persuasive. 20. In my view, as the respondent submits, there is other evidence concerning the issue of a notice of practical completion, and the applicant having arranged an inspection. The delivery of the keys to the applicant was acknowledged by the applicant. There was no evidence that the applicant served notice in accordance with clause 26.3(b) of the contract disputing that practical completion had been achieved. 21. I accept that practical completion was achieved at the latest by 31 October 2016 which was the date of the Completion Report provided by CSI. The inspection the subject of that report could only have occurred after the service of the notice of practical completion. 22. Moreover, as noted above, the applicant's submissions state that the respondent declared practical completion on 31 October 2019. 23. Accordingly, although the evidence is not as complete as it might have been, such evidence as there is establishes no more than an entitlement to liquidated damages of $630. 24. I reject the applicant's submission that the contractual provisions relating to liquidated damages were unfair contract terms. 25. Specification of a sum for liquidated damages in respect of delay under a building contract is a customary and expected term in building contracts, including home building contracts. The inclusion of such a term is construed as excluding the right to claim damages for delay other than in accordance with its terms. 26. There is no evidence to establish the circumstances in which the sum of $15 a day for liquidated damages was agreed. In the absence of such evidence there is no basis to conclude that the specification of $15 a day, as opposed to any other figure, was unfair. 27. In respect of the applicant's claim for damages for delay in completion, I award the applicant the sum of $630 by way of liquidated damages. Leave to amend 1. As noted above, the Appeal Panel directed that the Tribunal consider whether the applicant should have leave to amend his claim to raise issues that were not the subject of the leave to amend the application granted by the Tribunal on 12 July 2019. 2. The orders made by the Tribunal on 12 July 2019 included the grant of leave to the applicant to amend the application to include a claim for liquidated damages and costs associated with the relocation of the power pole. 3. As I have determined that only the claim for liquidated damages can succeed in any degree, it is not necessary to consider whether the applicant needs leave to amend his claim to rely upon any of the issues raised on the remittal. Renewal proceedings 1. The relevant orders made by the Tribunal on 12 July 2019 provided, by consent, that the respondent would on or before 30 October 2019 carry out work identified as Items numbered 1 to 6 in Annexure A to the orders; and supply and install a new shower screen and install a "compliant GPO" in the second en-suite. 2. The consent orders also provided: that the respondent was to provide to the applicant the names of three building experts, from which the applicant was to choose one; that the parties agreed to be bound by the chosen expert's assessment of which, if any, defects in Annexure B to the consent orders required rectification; and that all rectification work identified by the nominated third party expert would be completed by the respondent on or before 30 October 2019. 3. The respondent filed evidence that it had attended the property with sub-contractors to carry out the work the subject of the work order, including the work identified by Mr Ryan, the building expert selected by the parties in accordance with the consent orders. 4. By the renewal application the applicant alleged that the work orders have not been complied with. The applicant relied upon a document prepared by Canberra Sydney Inspections (CSI) which identified fourteen items which it suggested had not been completed or adequately completed. 5. In the renewal proceedings the applicant also sought compensation in respect of the rectification of an allegedly defective pressure pump, which the respondent objected was not the subject of the original consent orders. 6. The evidence relied upon by the applicant in support of his renewal application consisted of: the CSI report; a number of emails between the applicant and the respondent or between the applicant and Fair Trading NSW; some correspondence between the applicant and Randwick City Council, and between the applicant and Sydney Stormwater relating to the drainage pit; and a quote and invoice from Airflow International Pty Ltd, an air-conditioning contractor. 7. The applicant also included in his bundle of documents filed in chief the report prepared by Mr Howard Ryan, the expert selected by the parties pursuant to the consent orders of 12 July 2019, assessing the defects listed in Annexure B to those orders. 8. The respondent filed in response, affidavits from: Mr Ante Blazevic, the Maintenance Supervisor employed by the respondent who was responsible for the project; Mr Harry Kotselas, an electrician who carried out the rough-in of the electrical, telephone, security and data circuits; Mr Marinos Baphis, the site supervisor employed by the respondent on the project; Mr Cheyne Clarke, the production manager at Ultra Air Conditioning Pty Ltd, which installed the air-conditioning on the project; and a supplementary report from Mr Ryan addressing Items 10 and 11 in the CSI report and the pressure pump. 9. The applicant filed an affidavit in reply addressing the affidavits filed by the respondent and Mr Ryan's supplementary report. The applicant also filed further documents, including quotations from Paint & Beyond and Spectra Electrical and Communications. 10. The respondent objected to the admission of those quotations as they were "not evidence in reply but rather an attempt to rectify shortcomings in the applicant's evidence". 11. As explained below, by reason of other shortcomings in the quotations, I have not found them relevant to the determination of any issue arising in the proceedings and, accordingly do not need to consider whether the applicant should be permitted to rely upon them. 12. In oral submissions before the Tribunal the applicant withdrew or did not press Items 5, 6 and 9 to 14 of the items listed in the CSI report. 13. The remaining items were: The ensuite 2 shower screen bracket is a loose and requires adequate fixing of the screws connection to the tiles. The ensuite 2 grated drain cannot be remove[d], requires easing for function, cleaning and servicing. The alarm PIRS in the garage record the door opening upon entry should be directed the other way. Generally the builder has failed in their agreement to consult the owner in relation to the alarms sensor position as required and stipulated in the plans. … 7. Air conditioning outlets; positions not to plan; Home office to[o] close to the door, a missing outlet in the living room, dining area outlet has restricted flow, according to the owner, temperature sensor positions are wrong according to the owner. 8. Plumbing pit defects have been rectified and new pit measuring 600 x 900 x 1200m has replaced the 600 x 600 x 1200mm pit, with provided certificate from Paul Milic of Stormwater Sydney. 1. The respondent acknowledged that Items 1, 2 and 8 required rectification. In respect of Items 1 and 2, the respondent submitted that those items only required minor adjustment and that the Tribunal should direct the respondent to carry out rectification of those items. 2. In respect of Items 1 and 2 the respondent also submitted that the applicant had not filed any evidence which should be given any weight to establish the cost of rectification of those items. 3. In respect of Item 8 the respondent indicated that "without admissions, the respondent is prepared to consent to an order to pay the applicant's liquidated costs in respect of this item in the amount of $5,863". 4. In respect of Items 3, 4 and 7 the respondent submitted that the evidence in the CSI report concerning those alleged defects should be given no weight. The respondent submitted that the conclusions in the report were not explained fully, that the report was not signed, and that the (unidentified) author of the report was not available for cross examination. 5. In respect of the pump, the respondent submitted that, the applicant not having previously raised that item, it was now too late and the applicant should not be permitted to do so. The respondent also submitted that there was no independent evidence that the pump was not working and that Mr Ryan, the independent expert appointed by the parties pursuant to the consent orders, had inspected the pump and stated that it was in fact working. 6. I will consider each of Items 1, 2, 3, 4 and 7 and the pump in turn. 1. Ensuite to shower screen (loose) 1. As noted above, the respondent did not dispute that the shower screen bracket was loose and required fixing at the screws. The respondent relied on the affidavit of Mr Blazevic, a maintenance supervisor employed by the respondent. Mr Blazevic gave evidence that, since the shower screen had been replaced, there was no record of further complaint received by the respondent from the applicant until the proceedings were filed. 2. Mr Blazevic gave evidence that: "to address this item, the screw would need to be removed and a larger plug fitted with the same screw being used. I estimate this task would take a competent person 30 minutes". 1. The applicant opposed any further work order in respect of any of the items, the subject of the renewal application. The applicant relied upon a quote from Paint & Beyond dated 24 February 2021 filed with his reply submissions which suggested that to repair the shower screen would require the removal of gyprock from the wall connecting the laundry and bathroom and the installation of a piece of treated pine timber into which the shower screen would be screwed. The quote from Paint & Beyond for that rectification work, including tidying up and subsequent painting, was $784.50 plus GST. 2. In his affidavit included in his reply submissions, the applicant pointed to an email dated 2 December 2019 in which he had raised the issue of the loose screw to the shower screen and the stuck grate in the second en-suite. 3. The applicant did not seek to challenge the evidence of Mr Blazevic concerning the work necessary to repair the loose bracket. In those circumstances I am not persuaded that the issue with the shower screen requires more work than that indicated by Mr Blazevic and accordingly I do not accept that the quote of Paint & Beyond is evidence of the cost of rectifying the shower screen and I reject the applicant's claim for the amount of $784.50 plus GST. 4. In the absence of any other evidence, I would not be in a position to assess the cost of rectification of this item and would be unable to award any compensation for it: Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 at [51]. However, as I propose making a work order, the inadequacy of the applicant's evidence of the cost of rectification does not affect my orders. 2. Ensuite 2 grated drain requires easing 1. The CSI report stated in respect of Item 2 "the ensuite 2 grated drain cannot be remove[d], requires easing for function, cleaning and servicing". 2. Mr Blazevic's evidence was that, in the course of the work carried out pursuant to the consent orders, the respondent had removed and replaced the floor tiles in the second en-suite and as part of that work a completely new grated drain was installed. Mr Blazevic stated that he had inspected the grate on 2 February 2021 and "observed that the grate was tight, couldn't be lifted out and would need a slight adjustment or easing to allow the insert to be removed freely". 3. Mr Blazevic estimated that that would be a simple task for a competent tradesperson and would take one person about one hour at a cost of about $70 to carry out that task. 4. The applicant did not put forward any evidence to establish the cost of rectification of the grate, but in oral submissions put forward an estimate of $300. The applicant did not identify any source or foundation for that estimate. 5. Were it necessary to assess the cost of rectification of Item 2, I would accept Mr Blazevic's estimate of $70. However, because I propose to make a work order, it is not necessary to make any assessment of the cost of rectification. I would not accept the applicant's assessment which appears to arise from no more than guesswork. 3. Positioning of alarm sensor in the garage 4. Failure to consult in relation to alarm sensor positions 1. As the issues raised by Items 3 and 4 raise similar issues I will consider Items 3 and 4 together. 2. The CSI report states, in relation to item 3: The alarm PIRS in the garage record the door opening upon entry should be directed the other way. 1. The report also states that the recommended action is: An electrician should be called to make a further evaluation in repairs or rectification as needed. 1. The applicant also relied upon a quote from Spectra Electrical and Communications dated 22 March 2021 filed with his reply submissions. 2. The quote was not only for the relocation of two internal sensors (presumably reflecting Items 3 and 4) but also the installation of two additional sensors downstairs and one new sensor upstairs. The total amount of the quote was $2,076.36. In oral submissions the applicant suggested an appropriate figure for the adjustment of the sensor in the garage would be $275. 3. The respondent relied upon the affidavit of Mr Kotselas, who gave evidence that an on-site meeting took place between himself, Mr Baphis and the applicant to inspect the electrical work, before the gyprock had been installed. Mr Kotselas gave evidence that during that meeting the applicant did not raise any objections to the location of the alarm sensors. Mr Baphis gave evidence to similar effect. 4. Mr Kotselas also gave evidence that the current location of the PIRS was in the best position for the room. He stated that he had never seen installed nor installed a PIRS: "to face where a roller door opens and winds up. This is because the PIRS would be covered up by the suspended bulk of the roller door and would not be able to detect anything or anyone entering into the garage." 1. In his affidavit included in his reply submissions, the applicant responded that "the purpose of the meeting was not to discuss alarm sensors and alarm sensors were never discussed during the meeting." 2. In respect of Item 4, the CSI report simply asserts: "Generally the builder has failed in their agreement to consult the owner in relation to the alarm sensor position as required and stipulated in the plans." 1. The respondent submitted that it is difficult to understand what is said to be defective with respect to this item but submitted that, in any event, the evidence makes it clear that the applicant was consulted with respect to the positioning of the alarm sensors and that that consultation occurred on site on 5 May 2016. The respondent relied upon the affidavits of Mr Kotselas and Mr Baphis, both of which stated that a meeting occurred on 5 May 2016 prior to the gyprock being installed on which occasion the electrical work was inspected. 2. Mr Kotselas also referred to a post-contract variations document dated 26 April 2016 which identifies a number of changes to the location of data points, light switches and other electrical items. 3. In the absence of any direct evidence of a failure to consult in respect of the positioning of the alarm sensors or any evidence from an appropriately qualified person that the alarm sensor in the garage is inappropriately positioned, I am not persuaded that either of Items 3 or 4 constitutes defective work requiring rectification and accordingly I will make no orders in respect of Items 3 and 4 and dismiss the application in regard to those items. 4. I do not consider that the CSI report carries any weight in this context as the unidentified author has disclosed no qualification entitling him or her to draw conclusions regarding the positioning of the sensor. Item 7 – Air conditioning outlets 1. The CSI report stated: Air conditioning outlets; positions not to plan; home office too close to the door, a missing outlet in the living room, dining area outlet has restricted flow, according to the owner, temperature sensor positions are wrong according to the owner. 1. The respondent relied upon the affidavit of Mr Cheyne Clarke, the production manager for Ultra Air, which had supplied the air-conditioning system at the property. 2. Mr Clarke stated that he had attended a site inspection on 2 February 2021 on which occasion he had taken air flow readings from all 11 vents throughout the property. Mr Clarke gave evidence that the layout plans for the property disclosed that six outlets were to be installed on the ground floor and five on the first floor of the property, and that all eleven outlets had been installed. Mr Clarke pointed out that "all outlets and dropper locations are approximate at the time of consultation as there may be changes due to construction restraints." 3. Mr Clarke referred to a document, which the applicant had signed, identified as "Upgrade Checklist". The document is dated 16 March 2015 and contains the statement: I understand that the outlet and dropper location is approximate and could change at installation date due to changes in construction. 1. That acknowledgement has been initialled by the applicant. 2. Mr Clarke stated that the thermostats had been located on the ground floor and the first floor, and that the locations in which they had been installed were central to the home which "in my experience … is the most practical location to monitor overall temperature". Mr Clarke acknowledged that, at his inspection on 2 February 2021, he found the air flow to one of the leisure room outlets was below capacity. He suggested that that might be a consequence of kinked or squashed ducting. He suggested that could be investigated by cutting an access point in the third bedroom dropper box. Mr Clarke estimated that the cost of cutting the hole, repairing any kinked or squashed ducting and patching up and repainting the hole, would be approximately $500 excluding GST. 3. In his affidavit, filed with his documents in reply, the applicant asserted that it was not correct to say that no outlets had been missed, because "there is no outlet in the living room" and also asserted that Mr Clarke had grossly underestimated the cost of the rectification works. 4. In that regard the applicant relied upon the quote from Paint & Beyond which identified four items involving ceiling repairs relating to duct work in a total amount of $2,181.80 plus GST. 5. As noted above, the respondent does acknowledge that there is potentially a kinked duct requiring investigation and repair. The quote from Paint & Beyond is not limited to the work acknowledged by Mr Clarke as being necessary. There is no evidence from any qualified person which suggests that the work for which Paint and Beyond quoted was necessary to ensure the air conditioning system functioned properly. I am not persuaded that the quote of Paint & Beyond is either reliable or relevant to the assessment of the cost of rectification of the potentially kinked duct. 6. I do not consider that the CSI report is sufficient basis to conclude that any other deficiency exists in the air conditioning system. In particular, I am not persuaded that there is any missing outlet. 7. The applicant did not expand on what he meant by the proposition that there was a missing outlet in the living room. The floor layout plans included in the contract do not identify a "living room". There is a lounge/home theatre and a large open area identified as "leisure" on the ground floor and an "upper lounge" on the first floor. 8. Mr Clarke's affidavit identifies that there is an outlet in the upper lounge, one in the theatre room, and two in the leisure room. Accordingly, there is no basis upon which I could conclude that there is any outlet required by the contract or the plans which has not been installed. 9. The applicant filed in support of his claim in respect of Item 7, quotes from Air Flow International Pty Ltd for the supply and installation of two further outlets including ductwork and the supply of two remote temperature sensors, one on each floor. The amount quoted was $1,900 inclusive of GST. The applicant also produced a tax invoice from Air Flow International in the amount of $122 inclusive of GST for the supply of two remote temperature sensors. 10. As I do not accept that the respondent failed to install any outlet which it was required to install, this evidence, even if persuasive, would not be relevant. 11. As I have determined that it is appropriate to make a work order, it is not necessary to assess the cost of rectification of the defect which the respondent acknowledges. However, were it necessary to do so, I would allow no more than the $500 which Mr Clarke has assessed as the cost of rectification. Item 8 – plumbing pit 1. The applicant did not suggest that the amount which the respondent had consented to pay, that is $5,863, was not appropriate and accordingly I will make an order that the respondent pay the applicant the sum of $5,863 in respect of Item 8. 2. The CSI report records that the plumbing pit defects had been rectified. Therefore it is not appropriate to make a work order in relation to the issues giving rise to Item 8. Item 15 – Pressure pump 1. The applicant submitted that the pressure pump was in fact part of the original claim and subject to rectification pursuant to Annexure B to the consent orders under the heading EXTERNAL*storm/rainwater. The CSI report included a photograph of the pump together with the comment "this pressure pump is still not functioning according to the owner". 2. I do not regard that as any evidence that the pump was defective. 3. The applicant's evidence in reply included two emails exchanged between the applicant and Oscar Rios, the Operations Manager of BioSeptic, which apparently also carries on business as Sydney Water Tanks. In the first email, the applicant informed Mr Rios that he had carried out a test in accordance with instructions provided by Mr Rios during a telephone conversation with him and confirmed that the pump had not worked correctly. The applicant attached a number of photographs. The second email dated 25 February 2021 from Mr Rios to the applicant apparently records matters of which the applicant had informed Mr Rios during the course of that telephone conversation and included Mr Rios' recommendations in relation to the resolution of the issue, including disconnecting service lines, to determine whether water was emerging from the disconnected lines, which would indicate the source of the problem. 4. The respondent relied upon evidence from Mr Ryan who stated in his supplementary report that "the respondent, the electrician and I carried out tests on this pump during which the pump had operated correctly". Mr Ryan also reported a conversation with the applicant in which Mr Ryan asked why the applicant had advised CSI that the pressure pump was not operating. Mr Ryan asserted that the applicant had replied "ask CSI". 5. The respondent submitted that Mr Ryan's report was evidence that the pump was working correctly and that there was "no acceptable evidence to the contrary". The respondent submitted that the evidence provided by the applicant, that is the emails to and from Mr Rios, was not "acceptable". As I understand that submission, it is that the emails are not persuasive evidence that the pump was not working. 6. The respondent further submitted: 72. This is a new claim not included in the joint expert Mr Ryan's report. Insofar as the applicant seeks to raise this issue on the renewal, it falls outside the Work Order and the application in respect of this item should be dismissed on that basis. Further, and in the alternative, the applicant is out of time to raise a new defect claim in circumstances where practical completion was achieved in 2016. 1. I accept the respondent's submission that the applicant is not entitled to raise any issue relating to the alleged defects in the pump in these proceedings or at all in the Tribunal. 2. The proceedings the subject of the renewal application were commenced by the applicant in 2019. 3. Insofar as those proceedings involved allegations of defective work, the proceedings were resolved by the consent orders made on 12 July 2019 which identified the work the respondent was required to carry out, subject to assessment by the independent expert in the case of the matters listed in Annexure B. 4. The consent orders made the determination of the expert, who it was not disputed was Mr Ryan, conclusive in relation to the necessity for rectification of elements within the matters listed in Annexure B to the consent orders. Mr Ryan did not identify that the pump required rectification and, accordingly, the respondent had no obligation to carry out any rectification work in relation to the pump pursuant to the consent orders. 5. The applicant's entitlement to renew the proceedings arose solely in relation to any alleged failure of the respondent to comply with the work orders. 6. Renewal of proceedings is permitted pursuant to Clause 8 of Schedule 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Clause 8 provides: 8 Renewal of proceedings in respect of certain Division decisions (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. (4) When proceedings have been renewed in accordance with this clause, the Tribunal— (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order. (5) This clause does not apply if— (a) the operation of an order has been suspended, or (b) the order is or has been the subject of an internal appeal. 1. In Bondarek v NSW Land & Housing Corporation [2018] NSWCATAP 299 at [44]-[45] an Appeal Panel stated: 44. the renewal power ... is not simply an aid to enforce the Tribunal's existing orders as clause 4(a) makes clear in its reference to "make any other appropriate order". There is no restriction in the clause to the existing material before the Tribunal or its existing findings on that material. 45. Rather, it is to consider what to do next given a non-compliance, but not to rehear the substantive merits already determined, and to do that on the basis of material put forward by the parties relevant to the issue of what to do next. As was said in Akratos v Papadopoulos [2016] NSWCATAP 139 at 36: the purpose of the renewal proceedings was to consider, in light of the fact that the original order was not complied with, what other appropriate orders it could have made when the matter was originally determined and not to reconsider the substantive merits of the respondent's building claim. 1. See also Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 at [46]-[53]. 2. In my view it is clear that, on a renewal application, the Tribunal may make such orders as are appropriate in consequence of a party's non-compliance with the earlier orders. It is not open to the applicant on a renewal application to expand the case that was determined by the orders the subject of the renewal application. 3. Accordingly, it is not appropriate in a renewal application to seek compensation for defective work or breaches of contract or statutory warranty that were not the subject of the orders made previously. 4. If the Tribunal had jurisdiction to determine a fresh application in relation to the pump, then it might have been appropriate to permit the applicant to amend his application to raise his claim in respect of the pump so that, consistently with the requirements of ss 36 and 38(4) of the NCAT Act, to ensure the just, quick and cheap resolution of the issues between the parties and to act without formality, the claim might have been resolved without further proceedings. 5. However, any defect in the pressure pump could not be described as a major defect in the work performed by the respondent. Accordingly, pursuant to ss 18E and 48K(7) of the Home Building Act 1989 (NSW), the Tribunal would only have jurisdiction to determine a claim in respect of the pressure pump if that claim were brought within two years of the respondent completing work under the contract. Since practical completion was achieved in 2016, that time limit has long expired. 6. In any event, Mr Ryan stated in his supplementary report that the pump was working and there was no direct independent evidence before the Tribunal that the pump was not working. Although Mr Ryan's supplementary report was obtained and tendered by the respondent, Mr Ryan was a qualified building expert and acknowledged and agreed to be bound by the President's Guideline No 3 on "expert evidence". I accept Mr Ryan's evidence, and am therefore not persuaded that there is any issue requiring rectification arising in relation to the pump. Work order or compensation 1. Section 48MA of the Home Building Act provides: 48MA Rectification of defective work is preferred outcome in proceedings A court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the responsible party) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome. 1. Although it is not usual to make a work order in renewal proceedings, as renewal proceedings will usually be brought in circumstances where the respondent has failed to comply with earlier orders of the Tribunal, s 48MA nevertheless remains applicable in renewal proceedings. 2. In this case the continued existence of three defects is not obviously the result of any deficient performance by the respondent. Moreover, the matters in respect of which I have found the applicant's complaints were justified do not require substantial rectification work. 3. I note that Mr Blazevic's evidence, that there had been no complaint from the applicant after the respondent had carried out the rectification works until the renewal application was filed, was contradicted by the email attached to the applicant's affidavit. To that extent, there is some evidence that the respondent had not responded to a complaint by the applicant concerning the adequacy of the rectification works. Nevertheless, given the limited work required, I do not find that evidence sufficient to persuade me that a work order would be inappropriate or unlikely to finally resolve the dispute between the parties. 4. In the particular circumstances of this case, I consider it appropriate that the respondent should be directed to carry out work to rectify Item 1, the loose bracket on the shower screen in the second en-suite; Item 2, the easing of the grated drain in the second en-suite; and Item 7, the investigation and rectification of any kinked or squashed ducting to the air conditioning outlet in the leisure room. 5. I note that this result is in fact probably better for the applicant than an order for compensation as I have accepted the respondent's submission that the evidence filed by the applicant does not permit a rational calculation of the cost of rectification of all of the defects. 6. In accordance with s 79U of the Fair Trading Act 1987 (NSW) I am satisfied that the orders I propose will be fair and equitable to the parties, as is required pursuant to s 48O(3) of the Home Building Act. 7. In light of the lockdown restrictions in place at the time of delivery of this decision, it is appropriate to allow the respondent an extended period to complete the work, the subject of the work orders, notwithstanding that, as the respondent itself submits, the work involved is not substantial and should not take a substantial length of time. 8. Accordingly, I will allow the respondent until 31 October 2021 to complete the work. 9. I note that the applicant was not legally represented and the respondent does not seek an order for costs. Accordingly I will make no order in relation to the costs of the proceedings. 10. My orders will be: In proceedings HB 20/25790 1. The respondent, Wisdom Properties Group Pty Ltd, is to pay the applicant, Jayasooriah, the sum of $630 as liquidated damages for delay in completion of the building works within 14 days. 2. The application in proceedings HB 20/25790 is otherwise dismissed. In proceedings HB 20/45367: 1. The respondent, Wisdom Properties Group Pty Ltd, is to carry out the following work on or before 31 October 2021 in a proper and workmanlike manner. 1. Rectify the loose bracket on the shower screen in the second en-suite, 2. Adjust or ease the insert to the grated drain in the second en-suite so that the insert moves freely, 3. Cut an access point in the third bedroom to inspect and fix any kinked or quashed air-conditioning ducting and make good including patching and repainting the affected area. 1. Wisdom Properties Group Pty Ltd is to pay the applicant, Jayasooriah, the sum of $5,863 within 14 days. 2. The balance of the application is dismissed. ********** 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: 22 September 2021