Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Reid & Robinson Builders Pty Limited trading as John Robinson Elite Constructions v Cleal [2021] NSWCATAP 348 Hearing dates: 20 August 2021 Date of orders: 09 November 2021 Decision date: 09 November 2021 Jurisdiction: Appeal Panel Before: I Coleman SC ADCJ, Principal Member JS Currie, Senior Member Decision: (1) Time to appeal not extended. (2) Leave to appeal refused. (3) Appeal dismissed. (4) Any party seeking an order for costs must file and serve written submissions, not exceeding 5 pages in length, within 7 days of these orders. (5) Any party resisting an application for costs must file and serve written submissions, not exceeding 5 pages in length, within a further period of 7 days together with reasons for its objection (if any) to the application for costs being determined without a hearing. (6) If no objection is made to the application for costs being determined without a hearing, then, pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013, any disputed application for costs shall be determined on the written submissions of the parties without an oral hearing. Catchwords: APPEAL - order transferring proceedings to District Court - extension of time to appeal required - whether decision under appeal "interlocutory" or "ancillary"- whether, if required, leave should be granted - Respondents' claim in substantive proceedings held to be "otherwise maintainable at law"- time to appeal not extended - leave to appeal refused - appeal dismissed Legislation Cited: Australian Consumer Law 2010 (Cth) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Fair Trading Act 1987 (NSW) Home Building Act 1989 (NSW) Limitation Act 1969 (NSW) Cases Cited: Alexakis v Health Care Complaints Commission [2021] NSWCA 217 Collins v Urban [2014] NSWCATAP 17 Conquer v Boot (1928) 2 KB 336 Draybi Brothers v Bede Diab & Ors [2014] NSCATCD 67 Gallo v Dawson [990] HCA 30 Gilbert v Endean (1878) 9 ChD 259 Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 Larking v Great Western Gravel (1940) 64 CLR 221 Nanschild v Pratt [2011] NSWCA 85 Onerati v Phillips Constructions Pty Limited (In liq) (1989) 16 NSWLR 730 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Wardley Australia Limited v Western Australia (1992) 175 CLR 514 Woolcock Street Investments Pty Limited v CDG Pty Limited & Anor (2004) 216 CLR 515 Category: Principal judgment Parties: Reid & Robinson Builders Pty Limited t/as John Robinson Elite Constructions (Appellant) Wendy Kaye Cleal (First Respondent) Wayne Leslie Cleal (Second Respondent) Representation: Counsel J. Drummond (Appellant) D. Ebney (First and Second Respondents) Solicitors Nolan Commercial Law Practice (Appellant) Tranter Lawyers (First and Second Respondents) File Number(s): 2021/00173913 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 14 May 2021 Before: K. Ross, Senior Member File Number(s): HB 20/35814 REASONS FOR DECISION 1. By Notice of Appeal filed on 17 June 2021, the Appellant appealed against a decision of the Consumer and Commercial Division of the Tribunal of 14 May 2021 transferring proceedings between the parties to the District Court of New South Wales ("the Court"). On 8 July 2021 the Respondents filed a Reply to the appeal seeking the dismissal of the appeal. On 14 July 2021 the Appellant filed an Amended Notice of Appeal. Although the Respondents do not appear to have filed a Reply to the Amended Notice of Appeal, it is not in doubt that they continue to resist the Appellant's appeal. 2. In support of its appeal, the Appellant filed an outline of submissions on 28 July 2021. The Respondents filed an outline of submissions in response on 11 August 2021. On 19 August 2021 the Appellant filed a Reply to the Respondents' submissions. The appeal was heard on 20 August 2021, when Counsel for the parties made further oral submissions in support of their clients' cases. The decision of the Appeal Panel was then reserved. 3. The appeal raises a number of issues which potentially require determination. These issues emerge as: 1. whether the appeal was lodged within time; 2. if not, whether time to appeal should be extended; 3. if time is extended, whether the Appellant requires leave to appeal against an "interlocutory decision", or whether the Appellant can appeal as of right on a question of law against an "ancillary decision" 4. (4) if leave to appeal is required, whether leave should be granted; 5. (5) whether the Respondent's case in the substantive proceedings is "otherwise maintainable at law"; 6. whether, if the appeal can proceed "as of right", or pursuant to a grant of leave, the appeal should be allowed or dismissed, and; 7. whether any other orders, including orders for costs should be made. 1. We have decided the issues as follows: 1. (1) the appeal was not lodged within time; 2. (2) time to appeal should be extended if the appeal, or the application for leave to appeal is found to have merit; 3. (3) the Appellant requires a grant of leave to appeal; 4. (4) leave to appeal should be refused; 5. (5) the Respondent's case in the substantive proceedings is "otherwise maintainable at law"; 6. (6) the appeal should be dismissed; 7. (7) the parties should have the opportunity to make submissions with respect to costs, and whether an oral hearing of such application(s) should be dispensed with. These are the reasons for those decisions. 1. The Tribunal was invited to and has had regard to the submissions of the parties at first instance. Tribunal Reasons and Orders 1. The Respondents commenced these proceedings in the Consumer and Commercial Division - Home Building List of the Tribunal on 21 August 2020. On 17 May 2021 the Tribunal published reasons for its order of 14 May 2021 transferring the proceedings to the Court . 2. The Tribunal's order of 14 May 2021 arose from an application by the present Respondents to transfer the proceedings to the Court. The Tribunal recorded in its Reasons for Decision ("Reasons") at paragraph 2 that the Respondents' claim arose from residential building work carried out by the Appellant pursuant to a building contract between the parties dated 29 June 2014 ("the contract"). The basis upon which the present Respondents sought to transfer the proceedings to the Court was that "Parts of the claim are unable to be maintained in NCAT, but can be maintained in the Court". It was not in contest, either before the Tribunal, or before us that parts of the claim could not be maintained in the Tribunal. The crux of the Appellant's opposition to the transfer application was "In short that the claim for breach of contract (was) statute barred wherever it is brought", and was thus not able to be maintained in the Court. 3. The Tribunal identified the Respondents' claim for damages as: 4. (a) arising from termination of the contract following its repudiation by the Appellant; 5. (b) alternatively, for breach of contract in respect of the Appellant's failure to complete the works, or to complete them to the requisite standard (including breach of the statutory warranties); and 6. (c) alternatively, by way of breach of the consumer guarantees in the Australian Consumer Law 2010 ("the ACL"). 7. The Tribunal recorded that: 1. the Respondents asserted that they had terminated the contract with the Appellant on or about 17 September 2017; 2. each of the Respondents' three claims attracted a six year limitation period at common law, and 3. that there were "additional restraints on NCAT's jurisdiction which would preclude the Tribunal determining the majority of the claims". 1. The Tribunal recorded that the Appellant asserted that the contract was mutually terminated on or about 18 September 2014. The Appellant disputed that it failed to complete the works, and that because of the mutual termination the Respondents could not maintain a claim on that basis. 2. The Appellant contended that: 1. whilst claims based on alleged breaches of contract could not be maintained in the Tribunal, the proceedings ought not be transferred to the Court unless they were "maintainable at law". 2. as the breach of contract claim arose when the first breach occurred, which could not have been later than 5 August 2014, that claim is statute barred and cannot be maintained; 3. As the claims based upon breach of the ACL arose on 5 August 2014 they were also statute barred; and 4. as the breach of contract claims were not pleaded when the application was lodged in the Tribunal on 21 August 2020, the Tribunal had no jurisdiction to permit an amendment of the claim because any amendment would be statute barred. 1. The Tribunal referred to the Respondents' submissions in reply, the substance of which was that their claim was "reasonably available", was not statute barred and, as it could only be heard in the Court, should, together with their other claims, which could also be heard by the Court, be transferred to the Court. 2. The Respondents agreed that there was "only one cause of action in respect of defective work", but disputed that it arose when a "stage of the work is completed" as the Appellant asserted and could not arise whilst the contract is on foot. Thus, the Respondents submitted that, at the earliest, the relevant limitation period could not have commenced before 18 September 2014, their application filed 21 August 2020 thus being filed within time. 3. Under the heading "Discussion" the Tribunal revealed why it transferred the proceedings to the Court. The Tribunal did not accept the Appellant's submission that the cause of action in relation to defective work arose "on completion" of work on 5 August 2014 and recorded that "Whether a finding is ultimately made that the contract was mutually terminated on 18 September 2014, or terminated by the Applicants on 17 September 2017, these proceedings were filed within six years of that date. The claim is reasonably maintainable and is not statute barred in the court." 1. The Tribunal rejected the contention of the Appellant that the claim lodged with the Tribunal was only "a statutory warranty claim", referring to paragraphs 8.3 and 10 of the attachment to the Respondents' application filed 21 August 2020, which made clear that the claim included a claim for breach of contract. We do not understand that finding to assume significance in the appeal. 2. For those reasons, the Tribunal was satisfied that the restrictions on its jurisdiction arising from s 48K(3) of the Home Building Act 1989 precluded the Tribunal from entertaining "certain of the available causes of action", the Tribunal thus being satisfied that the proceedings should be transferred to the Court. 3. The Tribunal's reasons for its decision were concise. The Appellant does not challenge the adequacy of the Tribunal's reasons (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). Section 80 the Making of Internal Appeals 1. Section 80 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") governs internal appeals against decisions of the Tribunal (s80(1)). Section 80(2)(a) provides that an appeal in the case of a "interlocutory decision" of the Tribunal at first instance requires the leave of the Appeal Panel. In the case of any other kind of decision of the Tribunal at first instance an appeal lies as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. 2. The Civil and Administrative Tribunal Rules 2014 ("the Rules") provide that, unless an extension of time is granted under s 41 of the NCAT Act, an internal appeal must be lodged "within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is later)" (Rule 25(4)(c)). The parties were notified of the Tribunal's reasons for its decision by email on 17 May 2021. 3. The Respondents contend that the Appellant requires an extension of time to appeal. Although the extension was opposed, albeit we perceive ultimately faintly, the Respondents did not suggest that they were prejudiced in any relevant sense if an extension of time to appeal were needed and granted. 4. The Appellant did not formally seek an extension of time in which to appeal. The issue having been agitated before the Appeal Panel, nothing turns on that absence. 5. The Respondents also contend that the Appellant requires a grant of leave to appeal. The Appellant did not formally seek leave to appeal but, in submissions in reply, asserted that, if necessary, leave to appeal be granted. The issue having been agitated before the Appeal Panel, nothing turns on that absence. Extension of Time to Appeal 1. The Tribunal's orders which are the subject of this appeal were made on 14 May 2021. The Appellant asserted in its original Notice of Appeal that notice of those orders was received on 17 May 2021. The reasons of the Tribunal for its orders of 14 May 2021 are dated 17 May 2021. In those circumstances, by the operation of Rule 25(4)(c) of the Rules, the 28 days in which to appeal, or seek leave to appeal if that be necessary, commenced to run on 17 May 2021. As is not in doubt, the Appellant filed its original Notice of Appeal on 17 June 2021. The 28th day from the date of the receipt of notice of the decision of the Tribunal was 14 June 2021. If, pursuant to Rule 6(2), it is arguable that time expired on 15 June 2021, which would still necessitate an extension of time in which to appeal. 2. In Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22,("Jackson") at [18]- [22], the Appeal Panel reviewed the principles applicable to an application to extend time to appeal. Section 41 of the NCAT Act empowers the Appeal Panel to extend the time for appeal. The Appeal Panel summarised the principles emerging from the authorities to which it referred, and particularly from the judgment of McHugh J in Gallo v Dawson [1990] HCA 30, as the "considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a notice of appeal" included: 3. whether strict compliance with the rules will work an injustice upon the appellant; 4. the "vested right" of the respondent to retain the benefit of the decision in their favour, and whether the proposed appeal has "some prospects of success"; 5. the length of the applicant's delay, the reasons for the delay, whether the applicant has a "fairly arguable case" and the extent of any prejudice suffered by the respondent. 6. In Jackson, the Appeal Panel concluded its review of the principles by recording, by reference to the decision of the Court of Appeal in Nanschild v Pratt [2011] NSWCA 85 ("Nanschild"), that it may be appropriate to go into the merits of an appeal if an explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, and in such a case it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable. 7. In the present case, albeit the delay of one day was quite minimal, there is no explanation for the failure to appeal within time. 8. Under the heading "The requirement for leave to appeal", the Respondent made submissions with respect to both the question of an extension of time, and the question of leave, with particular emphasis on the question of leave. The Respondents submitted with respect to the Appellant's delay that an extension of time should not be granted because the Appellant knew of the order when it was made, did nothing to seek a stay of the order, "stood by as the order was executed" and the proceedings "came to be listed before the District Court of New South Wales" and were represented at all times. 9. Importantly, and sensibly, the Respondents did not assert any prejudice if time to appeal were extended, other than the obvious prejudice of having to meet an appeal which they would not otherwise have to meet. 10. In oral submissions, the Appellant asserted that the appeal raised significant issues of law, and relied upon the minimal length of the delay in filing the Notice of Appeal, and the absence of asserted prejudice to the Respondents if leave were to be granted. 11. On the basis of the observations of Basten JA in Nanschild to which the Appeal Panel referred in Jackson, and, in view of the minimal extent of the delay and absence of asserted prejudice to the Respondents, the preferable course is for us to determine whether there is merit in the appeal, or the application for leave to appeal; and, if there is such merit, to extend the time for the lodgement of the notice of appeal under section 41 of the NCAT Act. 12. Leave to Appeal 13. The Respondents submitted that leave to appeal was required pursuant to s 80(2)(a) of the NCAT Act as the decision of the Tribunal was "interlocutory"; and that it was "difficult to see how the Appellant could contend there to be any injustice which might justify the granting of leave to appeal." 14. In support of that contention, the Respondents relied upon the decision of the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at 84 ("Collins"), in which the Tribunal summarised the general principles governing an application for leave to appeal against decisions of the Consumer and Commercial Division of the Tribunal. 15. In Collins, the Appeal Panel: 1. noted at [80] and [81] that if an applicant for leave demonstrated a substantial miscarriage of justice on one of the grounds identified in clause 12 (1)(a), (b) or (c) of Schedule 4 of the NCAT Act, the panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act; and 2. summarised, at [84], the principles governing the discretion to grant leave to appeal in the following terms (authorities omitted): "(i) in order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact; (ii) ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." 1. The Respondents submitted that the Appellant could not enliven the discretion to grant leave to appeal in reliance upon any of the criteria emerging from Collins, and submitted that : "perhaps the clearest reason(s) of all for refusing leave was (sic) that doing so would not prevent the Appellant from raising its limitation arguments in the Court, there thus being no material prejudice to the Appellant." 1. The Appellant contended that leave to appeal was not required and that the appeal could be made as of right because the decision of the Tribunal was an "ancillary decision" within s 80(2)(b) of the NCAT Act. The crux of that assertion was that the Respondent's transfer application was an application requiring a decision as to whether the Tribunal had jurisdiction to deal with the matter" and accordingly, clearly fell within the definition of "ancillary decision" in s 4 (1) of the NCAT Act. 2. As the Appellant submitted, s 4 of the NCAT Act defines "ancillary decision" to include, for present purposes, a decision that is "preliminary" to a decision, including "a decision concerning whether the Tribunal has jurisdiction to deal with a matter". The Appellant submitted that the decision of the Tribunal falls within that definition. 3. The Respondents contended that the decision on the transfer application was an "interlocutory decision" within the definition of that term in s4 of the NCAT Act and was not an "ancillary decision". Under s 80 (2), leave is required to appeal against interlocutory decisions, but an appeal is available as of right on a question of law against an ancillary decision. 4. We do not understand that the Respondents suggest that any specific definition articulated in s 4 captures the decision of the Tribunal at first instance. The crux of the Respondents' contention that leave to appeal is required appears reliant upon the nature of interlocutory orders, it being well settled that interlocutory orders do not decide the rights of parties but, inter alia, are made for the purpose of obtaining some direction as to how a case is to be conducted, as to what is to be done in the progress of the case for the purpose of enabling the Court ultimately to decide the rights of the parties (Gilbert v Endean (1878) 9 ChD 259, at 268). 5. As is not in doubt, the only issue which the Tribunal decided, which the Appeal Panel would need to decide if the Appellant successfully agitates its complaints, is whether the proceedings remain in the Tribunal, or alternatively are transferred to the Court if, pursuant to s 81 of the NCAT Act the Panel considers that to be the "appropriate" order. Neither of those outcomes offends the principles to which we have referred. 6. The Appellant's contention that the Tribunal's decision "concerned" whether the Tribunal "has jurisdiction to deal with a matter" potentially gains support from the fact that, by reason of limitation periods, the claim of the Respondents which the Tribunal lacked jurisdiction to entertain, was submitted to lack reasonable prospects of success if the proceedings were transferred to the Court. 7. Importantly for present purposes, the relevant definition of ancillary decision in s 4 of the NCAT Act refers to "whether the Tribunal has jurisdiction to deal with a matter". It was not in dispute that the Tribunal had jurisdiction to "deal with" the Respondents' two statutory claims, and lacked jurisdiction to "deal with" their contract claim. The Tribunal was not required to, and did not decide whether it had jurisdiction to "deal with" a matter. Without diminishing the importance of the issue, all the Tribunal decided was whether the proceedings should be transferred to the Court, or remain in the Tribunal. We understand the critical issue in the Tribunal to have been whether the jurisdiction of the Court to deal with the Respondents' contract claim could be enlivened by the Respondents. Whilst the Tribunal was asked to decide that controversy, it was not asked to, and could not, decide that issue, or do so in a way which was binding on the Court. 8. Without suggesting that the issue is clear beyond doubt, on balance, we consider that the decision of the Tribunal was "interlocutory". Leave to appeal is accordingly required. As will be seen, our conclusion with respect to this issue is not dispositive of the appeal, the ultimate fate of which turns on our conclusions with respect to its merits. 9. Whether leave to appeal should be granted 10. As explained in Collins, for leave to appeal to be granted, the Appellant must satisfy one of the requirements of clause 12 of Schedule 4 to the NCAT Act, and the requirements of s80(2)(b) of the NCAT Act. A "substantial miscarriage of justice" pursuant to clause 12 arises when: 1. the decision under appeal was not fair and equitable, or; 2. the decision under appeal was against the weight of evidence, or; 3. significant new evidence has arisen. 1. In our view, the Appellant's case does not readily enliven any of the potentially relevant circumstances articulated in clause 12. There is no suggestion that significant new evidence has arisen. As the decision of the Tribunal involved no "weighing" of evidence, the asserted substantial miscarriage of justice could only arise if the Appellant establishes that the decision was not "fair and equitable". Without consideration of the Appellant's challenges to the decision of the Tribunal, we are unable to determine whether the Appellant satisfies any of the requirements of clause 12. 2. In support of its contention that leave to appeal should be granted if leave be required, the Appellant submitted (reply, paragraph 7) that the appeal raised a "significant and important question of law regarding the exercise of discretion" by the Tribunal. That question was identified as the correctness of the Tribunal's finding that the cause of action in relation to defective work does not arise until completion or termination of the contract. 3. The Respondents submitted that there are "no issues of general principle or public importance to be determined in these proceedings. They further submitted that, at least as to the underlying limitation argument, even if this were to be considered a matter of public importance, the question is one which falls outside the Tribunal's jurisdiction: so that the Tribunal would not be the proper place to resolve it. 4. The Respondents further submitted that no "clear injustice" could be established as the Appellant had not submitted that the Tribunal's decision was "not arguable", vitiated by errors of fact-finding, the Tribunal having had no occasion to determine disputed questions of fact. 5. We are not disposed to refuse the Appellant leave to appeal without considering the Appellant's grounds. We approach that task on the basis that, consistently with Collins, in the present circumstances, the Appellant must demonstrate "something more than that the decision-maker was arguably wrong in the conclusion arrived at", or, as also recorded in Collins, there must be "an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand". We accept that, if the Appellant demonstrates such "injustice", it would be appropriate to grant leave to appeal, and allow the appeal. 6. For the reasons advanced by the Respondents, which we find persuasive, we do not think the appeal raises issues of principle or that there has been an injustice of the nature described in the previous paragraph We do not understand the Appellant to advance any other basis upon which leave to appeal might be granted, in accordance with the criteria explained in Collins. 7. The grounds of appeal 8. Although there is no challenge to the adequacy of the Tribunal's reasons for the decision, in order to appreciate fully the submissions of the parties, it is appropriate to record some additional background matters, which are not controversial. 9. At all material times, the Respondents were the registered proprietors of the property known as and situate at 123 Dalveen Road, Largs in the State of New South Wales ("the property"). On 29 June 2014 the Respondents entered into an HIA NSW Residential Building Contract for Renovations and Additions with the Appellant to undertake renovations and extensions to the property for a contract price of $142,000. 10. Work commenced in accordance with the contract after its execution. Progress payments were made from time to time between the date of the contract and 5 September 2014. Each progress payment followed an inspection of the work which had been done. Although a matter likely to assume significance in any hearing on the merits, the Appellant's submissions with respect to the effect of approval of progress payments pursuant to the contract in the substantive proceedings are not matters with which the Appeal Panel needs to engage. 11. Work pursuant to the contract continued on the property until early September 2014. In September 2014 the male Respondent suffered an injury to his hand. On or about 17 September 2014 the Respondents and the Appellant agreed to mutually terminate the building contract on the basis that, as a result of his injury, the male Respondent had ceased paid employment, and was therefore unable to make further payments as required under the contract. The Appellant then rendered a final invoice to the Respondents, which was paid by them on 19 September 2014. 12. As the Tribunal recorded, the Respondents' claims filed in the Tribunal on 21 August 2020 sought damages for alleged breaches of contract, breaches of warranties with respect to completion and standard of works pursuant to the Home Building Act 1989, and damages for breach of consumer guarantees pursuant to the ACL. It is not controversial that the Tribunal has jurisdiction to determine the second and third of the Respondents' claims, but not the first. Further, it is not controversial that the Court has the power to determine the claim for damages for breach of contract. 13. As the written submissions of the parties confirm, the issue upon which the appeal ultimately turns is whether the Tribunal erred in rejecting the Appellant's assertion that, as the Respondents' contract claim was statute barred, no purpose could be served by transferring the proceedings to the Court. It was conceded that, depending upon the findings of fact made after the proceedings were heard on the merits, the jurisdiction of the Tribunal pursuant to the Home Building Act and/or the ACL may be enlivened, although, for reasons with which we need not engage for our purposes, the Appellant submitted that would not prove to be the case. 14. Is the claim "otherwise maintainable at law"? The Appellant submitted, for the reasons urged in its outline of submissions, that the Respondents' claim for damages for breach of contract, which the Tribunal did not have jurisdiction to deal with, was not "maintainable at law", and that the Tribunal had erred in law by finding that it was. 15. The Appellant referred (paragraph 27) to the decision of the Tribunal in Draybi Brothers v Bede Diab & Ors [2014] NSWCATCD 67 ("Draybi Brothers"), in which, at 128, it was said that: "In addition to considering any jurisdictional limits applicable by reason of time limitations, which might justify transfer of the application to a court, the Tribunal should also be satisfied the claim which is proposed to be transferred is otherwise maintainable at law. If not, then the Tribunal properly exercising its discretion should in my opinion dismiss the application rather than transfer the proceedings to a court." 1. Although Draybi Brothers was concerned with s 23 of the now repealed Consumer, Trader Tenancy Tribunal Act 2001, we accept that the principles emerging from the decision in that matter inform the exercise of discretion pursuant to clause 6 of Schedule 4(1) of the NCAT Act, 2. In Draybi Brothers, there were: "..significant disputes concerning whether or not the particular duty of care asserted in each case existed as a matter of fact, whether such duty in each case had been breached and when such breach occurred. These are matters ordinarily to be dealt with at a final hearing" (124). 1. The Tribunal held that it: "..must consider whether it has jurisdiction to hear and determine such disputes. It is both appropriate and convenient to do so as part of the present application to transfer in order to avoid the possibility that the matters proceed to a final hearing on all issues with the prospect that the Tribunal concludes that it has no jurisdiction in the proceedings necessitating a further consideration of the issue of transfer" (125). 1. Although the Respondents contended that the Tribunal had not erred in its decision of 14 May 2021, we do not understand them to suggest that the propositions recorded above in Draybi Brothers were not relevant in the Tribunal, or irrelevant in the determination of this appeal. 2. The Applicant's written submissions outlined the basis upon which it asserted that the claim for damages for breach of contract at common law instituted by the Respondents on 21 August 2020 was not maintainable at law. Those contentions were substantially reiterated in the Appellant's submissions in reply 3. The Appellant relied upon the Judgment of McHugh J in Woolcock Street Investments Pty Limited v CDG Pty Limited & Anor (2004) 216 CLR 515 ("Woolcock"), in which his Honour said "A cause of action in contract arises when the contract is breached. Time runs from the breach, not the sustaining of damage. This creates the paradox that those involved in the design or construction of a building may be sued in tort years after the time has expired for suing on the contract that gave rise to the duty." 4. In reliance upon Woolcock, the Appellant submitted that: "As the cause of action based upon a breach of contract at common law accrues as and from the date of the breach, time runs from that date. In the present case, as the breach occurred prior to 5 August 2014, the limitation period of six years provided by s14(1)(a) of the Liability(sic) Act 1969 expired on 5 August 2020." 1. The submission was undoubtedly intended to refer to the Limitation Act 1969 rather than the "Liability Act". The Respondents' application filed on 21 August 2020 and based upon a breach of contract at common law, was thus submitted to be statute barred. 2. The draft Statement of Claim of the Respondents makes clear that the common law claim by the Respondents is based upon the contract. No claim for damages in tort is articulated in that document. 3. The Appellant further submitted that, if it was necessary for the asserted defect to have become "patent", which it disputed, the defect was patent and readily observable as at 5 August 2014. That being so, the Appellant submitted that the Tribunal's finding that the Respondents' cause of action, based as it was upon a breach of contract at common law arising from defective workmanship did not arise until the completion or termination of the contract, was "contrary to established principle and incorrect". 4. The Appellant's submissions identified the asserted illogical and unjust consequences if the decision of the Tribunal were to be upheld. The Appellant further submitted in reliance upon the authorities identified earlier in its submissions, that: "where there arises either a breach of contract at common law or a breach of duty of care giving rise to defects in respect of works performed under a building contract then, there is just one cause of action being a breach of the obligation to perform the works in a proper and workmanlike manner"; (and that once that breach has been established), "there is but one cause of action…, with all subsequent defects falling within that cause of action as particulars only". 1. In support of its contentions, the Appellant also relied upon the decision in Onerati v Phillips Constructions Pty Limited (In Liq) (1989) 16 NSWLR 730 ("Onerati"), in which, at 746, Giles J (as Giles JA then was) said that: "There is but one cause of action, there is not a number of causes of action according to particular defects or classes of defect resulting from breach of the promise to carry out the work in a good and workmanlike manner. As there is "but one cause of action" all particulars of defects fall within that "cause of action" each defect does not therefore unless arising from a different cause of action create a new and separate cause of action". 1. The Appellant sought to further support its fundamental contention by reference to Larking v Great Western Gravel (1940) 64 CLR 221. In submissions in reply, albeit articulated in slightly different terms, the Appellant reiterated the contentions which it advanced in chief. 2. Under the heading "The Substantive Limitation Question" the Respondents asserted that the appeal should be dismissed by us without our "descending into the substantive merits of the appeal". They contended that it was not our role to attempt a determination of the substantive merits of the dispute between the parties, the only issue properly before us being as to whether the substantive merits of the case should be determined by the Tribunal, as the Appellant contends, or by the Court, as the Respondents contend. 3. It was further submitted by the Respondents that in the absence of any submission that the decision of the Tribunal was "unarguable", the appeal fails, and that it was both unnecessary and inappropriate for the Appeal Panel to reach a concluded view with respect to the Appellant's arguments, that being a matter which should fall for determination by the District Court. 4. The Respondents submitted that the "essence" of the contentions of the Appellant on appeal was that: 5. (a) a cause of action in respect of a breach of contract arises when the contract is breached; 6. (b) accordingly the Respondents' claims against the Appellant arose at the moment the Appellant made any error in the course of the works; and 7. (c) as the first error is suggested to have occurred more than 6 years before the commencement of the proceedings, any claim in contract is statute barred. 8. The first of those propositions was conceded, correctly in our view, having regard to the authorities to which the Appellant referred the Appeal Panel. The second proposition was not conceded. The factual assumption underlying the third proposition was disputed. 9. Under the heading "The Repudiation Claim", for the reasons there articulated, the Respondents disputed the Appellant's contentions with respect to the impact of the repudiation claim, and submitted that the "repudiation claim alone is sufficient to justify the transfer of the proceedings to the District Court" . 10. The Respondents also referred (to the Appellant's submission before the Tribunal (at their paragraph 19), that whether the contract was repudiated, or terminated by mutual agreement, was a disputed question of fact that can only be determined at trial. In that paragraph, the Appellant disputed: "…. that it has failed to complete the works under the Building Contract, maintaining that the Owners and the Builder mutually terminated the Building Contract on or about 18 September 2014". 1. It is clear that, wherever the proceedings are finally heard, that disputed issue will require determination on the merits. 2. The Respondents accepted that there is "but one cause of action with respect to claims arising out of allegedly defective building works", but referred to the decision in Conquer v Boot (1928) 2 KB 336, which was adopted in Onerati at 730, in which Sankey J (as he then was) said that: ".. the cause of action was firstly the contract to complete in a good and workmanlike manner and secondly the breach of the contract". 1. In that case, Talbot J accepted that, a party "having promised properly to complete a bungalow for the plaintiff for a sum of money to be paid on completion, has failed to do what he promised" and that that was the "one cause of action". 2. The Respondents' contention was then that the correct position at law is that "one cause of action" results from a failure to deliver the promised end product, and that: "a cause of action does not arise in relation to each time a nail is put in the wrong place…. but rather can only arise upon completion, because that is the only time at which the compliance or non-compliance of the finished product can be assessed". 1. The submissions of both parties identify significant disputed issues of fact. As is not in doubt, the Tribunal could not and did not make findings with respect to the disputed issues of fact which emerged in the proceedings. The Appeal Panel is in no position to do so either. It is clear in our view from the submissions of the parties to which we have referred that, whilst the law appears to be settled, and not in dispute, there remain a number of disputed issues of fact, the determination of which will inform the outcome of the proceedings. 2. Rather than summarise the critical findings of the Tribunal, it is preferable to quote them. The Tribunal did not: "…accept the builders' submissions that the cause of action in relation to defective work arose on completion of the frames, rafters and roofing. The cause of action does not arise until completion or termination of the contract. Whether a finding is ultimately made that the contract was mutually terminated on 18 September 2014, or terminated by the applicants on 17 September 2017, these proceedings were filed within 6 years of that date. The claim is reasonably maintainable and is not statute barred in the Court". 1. In Draybi Brothers, at [128], it was held that the Tribunal should be "satisfied the claim which is proposed to be transferred is otherwise maintainable at law". Inferentially, the Tribunal held that the moving party (the Respondents in this case) bore the onus of establishing that the claim is "otherwise maintainable at law". 2. In Draybi Brothers at [152] it was observed that: "Whether or not such duty in fact exists and/or has been breached is a matter for final hearing. It is sufficient to conclude that the claims are arguable at law and that these applications should be transferred to a court of competent jurisdiction because the Tribunal does not have jurisdiction to hear and determine the claims made." 1. We conclude that a claim which is, on any proper analysis, "arguable at law" is "otherwise maintainable at law". 2. We do not perceive that the Respondents' contractual claim is pleaded or particularised in a manner which precludes it from being properly arguable at law. Moreover, it is inappropriate for us to embark upon what has been described as a "mini trial". The contention of the Respondents that the fate of all their claims turns materially, and in some instances potentially decisively, on findings with respect to disputed issues of fact, gains support from the material which the parties have to date filed, which is unlikely to be exhaustive of the evidence which will be filed in the proceedings, wherever they are ultimately heard. 3. In the attachment to their application to the Tribunal filed 21 August 2020 the Respondents asserted defective workmanship by the Appellant, a failure to adhere to "contractual and legislative obligations" and defective and/or incomplete work. They disputed the circumstances in which the contract was terminated. In reliance upon their assertions, the Respondents sought compensatory damages. 4. In a statement dated 10 March 2021, the sole Director of the Appellant asserted (paragraph 25) that on or about 17 September 2014 there had been an agreement to terminate the building contract between the parties and that the: "..builder ceased work under the building contract on or about 18 September 2014. The builder did not perform any further works under the building contract as it was my understanding it had been terminated by the agreement" between the parties on 17 September 2014." 1. Without suggesting that there are not, or will not be further disputed issues of material fact, two major areas of factual dispute are apparent: 1. the circumstances in which, and terms on which building works ceased in September 2014; and 2. whether, and if so when, defective building works were performed by the Appellant. 1. In view of the inability of the Tribunal to make findings of fact on those matters, we are not persuaded that it erred: 1. by failing to find that the Respondents' cause of action in relation to defective work was not maintainable at law, or 2. by finding that that cause of action, was "reasonably maintainable". 1. The Appellant's contentions are, in our view, predicated on the assumption that disputed issues of material fact will be found in its favour, but that is not an assumption which we are prepared or permitted to make. 2. To the extent that, having regard to the authorities to which we have earlier referred, the Tribunal may have misstated the law in the first paragraph of its "Discussion" of the proceedings, for the reasons recorded above, we are not persuaded that such misstatement vitiated its decision, and rendered it erroneous in law. In our view, and by reference to the passages in Draybi cited above, it was open to the Tribunal to find that the Respondents' common law claim in relation to defective work was "maintainable at law". 3. If we are in error in concluding as we do and the Tribunal has erred in law in the manner asserted by the Appellant, in light of the fact that the issue was thoroughly agitated before us and in reliance upon the passages of Draybi to which we have referred, we would nevertheless confirm the decision of the Tribunal pursuant to s 81(1)(b) of the NCAT Act. 4. We draw comfort for those conclusions from the decisions of the Appeal Panel, and appellate courts. In Wardley Australia Limited v Western Australia (1992) 175 CLR 514, that case, at 31, Mason CJ, Dawson, Gaudron and McHugh JJ said: "We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question." 1. In Collins (at 84), the Appeal Panel recorded that "in relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions". 2. In Alexakis v Health Care Complaints Commission [2021] NSWCA 217, at 11, the Court of Appeal reiterated what it described as: "the general principle applied by this Court in dealing with interlocutory appeals from matters of practice and procedure, namely that significant restraint will be applied before granting leave". 1. We think it right that we should exercise similar "restraint". 2. In our view, the Appellant has not established a proper basis for a grant of leave to appeal in accordance with the requirements of section 80 and Rule 12 of Schedule 4 as the relevant principles with respect to them were explained in Collins at [77] to [84]. 3. Conclusion 4. As we conclude that leave to appeal is required, but should be refused, granting an extension of time to appeal can have no utility. 5. Although it is strictly unnecessary to do so, we confirm that we are not persuaded by the Respondents' contention that this appeal has no utility because the proceedings are now before the District Court and have been allocated a Court number. No authority was advanced in support of the Respondents' contentions in that regard. 6. Sensibly, it was not suggested that the transfer of the proceedings to the District Court of itself divested the Appeal Panel of jurisdiction to hear and determine the appeal. Although we express no concluded view in this regard, it would be surprising if the administrative action of physically transferring an NCAT file to the District Court precluded that Court, as a matter of jurisdiction or comity, from re-transferring file to the Tribunal if, as is the case, the present appeal is dismissed. Costs 1. As discussed with Counsel for the parties at the conclusion of the hearing of the appeal, we propose ordering that any party seeking an order for costs file and serve written submissions, not exceeding five pages in length, within seven days of our orders, and that any party resisting such application file and serve written submissions, not exceeding five pages in length, within a further 7 days. Both parties have consented to the issue costs being determined without an oral hearing in accordance with s 50 of the NCAT Act. ORDERS 1. Time to appeal not extended 2. Leave to appeal refused. 3. Appeal dismissed. 4. Any party seeking an order for costs must file and serve written submissions, not exceeding 5 pages in length, within 7 days of these orders. 5. Any party resisting an application for costs must file and serve written submissions, not exceeding 5 pages in length, within a further period of 7 days together with reasons for its objection (if any) to the application for costs being determined without a hearing. 6. If no objection is made to the application for costs being determined without a hearing, then, pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013, any disputed application for costs shall be determined on the written submissions of the parties without an oral hearing. ********** 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: 09 November 2021