Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Manca v Tullipan Homes Pty Ltd [2022] NSWCATAP 296 Hearing dates: 30 May 2022 Date of orders: 9 September 2022 Decision date: 09 September 2022 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member G Furness SC, Senior Member Decision: (1) The appeal is allowed in part. (2) Order 1 made on 21 October 2021 is varied to add the words ", and items 85, 138, 139 and 159 in the T1 Joint Schedule" after the number "143". (3) The items the subject of the appeal other than items 8.01, 8.08, 8.09, 8.10, 8.11 and 8.13 claimed in the Building Inspection Report of Barry Morris dated 21 September 2018 are remitted to the Tribunal as originally constituted for reconsideration without any further evidence. (4) A hearing to determine the costs of the appeal is dispensed with. (5) If the parties are in agreement as to the costs of the appeal, then they shall provide proposed consent orders to the Appeal Panel within 14 days of the date of the orders in these reasons for decision. (6) If the parties are not in agreement as to the costs of the appeal, then: (a) the appellant is to file and serve a costs application, submissions which shall be limited to five pages, and any evidence in support by way of affidavit, within 14 days of the date of the orders in these reasons for decision; (b) the respondent is to file and serve any submissions which shall be limited to five pages, and any evidence in opposition by way of affidavit, within 28 days of the date of the orders in these reasons for decision; (c) the appellant is to file and serve any submissions in reply which shall be limited to three pages within 35 days of the date of the orders in these reasons for decision. Catchwords: APPEALS — Constructive failure to exercise jurisdiction — Failure to address a material issue and material evidence APPEALS — Procedural fairness — Failure to address a material issue and material evidence APPEALS — Procedural fairness — Failure to give reasons — Adequacy of reasons Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 50, 60, 80, 81, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), rr 25, 38 Home Building Act 1989 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Murnane Carpentry Pty Ltd v Kalinovski [2015] NSWCATAP 30 NSW Land and Housing Corporation v Orr [2019] 100 NSWLR 578; [2019] NSWCA 231 Origin Concepts Pty Ltd v Wynne [2022] NSWCATAP 31 P8 Auto Ltd t/as European Automotive Ballina v Dolling [2022] NSWCATAP 41 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: M McHugh AO QC, 'Preparing and arguing an appeal', NSW Bar Association Bar News, Winter 2010 Category: Principal judgment Parties: Dion Robert Manca (Appellant) Tullipan Homes Pty Ltd (Respondent) Representation: Counsel: D F Feller SC and I George (Appellant) J Granger (Respondent) Solicitors: LAS Lawyers (Appellant) Lionheart Lawyers (Respondent) File Number(s): 2021/00329551 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 21 October 2021 Before: C Paull, Senior Member File Number(s): HB 19/48190 REASONS FOR DECISION Overview 1. This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal made on 21 October 2021 in proceedings between Dion Robert Manca (Mr Manca), who is the owner of a property at Gwandalan (the property), and Tullipan Homes Pty Ltd (Tullipan), which is the builder, in respect of alleged defective building work carried out at the property. The Tribunal made a work order under the Home Building Act 1989 (NSW) (HB Act) in favour of Mr Manca (the Tribunal Decision). 2. We have decided to allow the appeal in part, to vary the Tribunal Decision and to remit part of the proceedings for reconsideration to the Tribunal as originally constituted. We have made an order and procedural directions about the costs of the appeal. The factual background 1. The following persons were involved in the events giving rise to the proceedings: 1. Mr Manca; 2. Chelsea Lee Manca (Mrs Manca), who is the wife of Mr Manca; 3. Barry Morris (Mr Morris), who was the expert witness retained by Mr Manca; 4. Mary Tullipan (Ms Tullipan), who is the director of Tullipan; 5. Jacob Tullipan (Mr Tullipan), who is a builder employed by Tullipan; 6. Howard Ryan (Mr Ryan), who was the expert witness retained by Tullipan. 1. On or about 20 July 2016, Mr Manca and Mrs Manca (together referred to as the Mancas) entered in a lump sum building contract in the standard form HIA NSW Residential Building Contract under which Tullipan agreed to carry out residential building works being the construction of a new home at the property (the building contract). 2. Disputes arose between the Mancas and Tullipan as to whether Tullipan had carried out defective building work. The proceedings between the parties in the Tribunal 1. On 22 October 2019, Mr Manca as the applicant commenced proceedings HB 19/48190 against Tullipan as the respondent by filing a home building application in which Mr Manca sought a money order and a work order under the HB Act. 2. On 17 and 18 May 2021, the Tribunal heard the proceedings, and on 18 May 2021 reserved its decision. 3. Mr Manca adduced the following written evidence: 1. the Affidavit of Mrs Manca dated 16 October 2020; 2. the Affidavit of Mr Manca dated 15 October 2020 (the 15/10/2020 Mr Manca affidavit); 3. the Affidavit of Mr Manca dated 11 May 2021; 4. the Affidavit of Mrs Manca dated 11 May 2021; 5. the Building Inspection Report of Mr Morris dated 21 September 2018 (the 21/9/2018 Morris report); 6. the Supplementary Building Report (Scott Schedule & Bill of Quantities) of Mr Morris dated 26 October 2020 (the 26/10/2020 Morris report); 7. the Amended Supplementary Building Inspection Report of Mr Morris dated 4 February 2021. 1. Tullipan adduced the following written evidence: 1. the Affidavit of Ms Tullipan dated 4 May 2021; 2. the Affidavit of Mr Tullipan dated 4 May 2021; 3. the Report in Reply of Mr Ryan dated 18 October 2021 (the 18/10/2021 Ryan report). 1. There were two joint schedules prepared by Messrs Morris and Ryan which were received into evidence: 1. a Scott Schedule dated 5 p.m. on 13 May 2021 (the joint report); 2. a note prepared at the hearing (the joint note). 1. On the first day of the hearing, oral evidence was given by Mr Manca, Mrs Manca, Mr Tullipan and Ms Tullipan. On the second day of the hearing, oral evidence was given by Mr Morris and Mr Ryan. 2. Mr Manca filed the following written submissions: 1. Applicant's Written Submissions which are undated (the Manca hearing submissions); 2. Applicant's Written Submissions in Reply which are undated (the Manca hearing submissions in reply). 1. Tullipan filed written submissions dated 8 July 2021 (the Tullipan hearing submissions). 2. On 21 October 2021, the Tribunal made the Tribunal Decision which contained: 1. the following orders (the 21 October 2021 orders): "1 The Respondent at its own expense is to rectify the items specified in the following paragraphs of these Reasons being paragraphs 66 and 67; 89 to 93; 103;134;142 and 143. 2 The Respondent is to commence the work referred to in 1 above no later than 12 November 2021 and to complete that work within 6 weeks of commencement and is to ensure such work is done by appropriately licensed and qualified persons and is carried out after giving the applicant 5 working days notice. 3 The parties have until 12 November 2021 to seek leave to apply for costs" 1. reasons for the 21 October 2021 orders. The Tribunal Decision 1. In the Tribunal Decision, the Tribunal relevantly made the following findings: 1. as to the background to the proceedings ([1]-[7]); 2. there were two joint schedules prepared by Messrs Morris and Ryan, the first encapsulating their views at the conclave and as expressed at the hearing (being the joint report) and the second prepared at the hearing (being the joint note), and marked as exhibits T1 and T2 ([7]-[8]); 3. as to the position of the parties on various issues, including Mr Manca's contention that of the original 196 items of alleged defective building work there remained 80 items in dispute ([9]-[19]); 4. there were the following four issues ([19(1)-(4)]): "(1) Has the application been lodged within the 2 year time limit imposed under the HBA? (2) If so, has the applicant established his case relying on the statutory warranties under the HBA? (3) Does the flooring the respondent supplied and installed amount to a breach of the contract? (4) If the Tribunal finds in the applicant's favour, is it appropriate to make a work order under s 48M HBA?" 1. the application had been lodged within the two year time limit imposed under the HB Act ([20]-[21]); 2. the circumstances in which exhibits T1 and T2 were prepared by Messrs Morris and Ryan ([62]-[65]); 3. as to the item numbers of the 42 items that were agreed defects ([66]-[68]); 4. as to the item numbers of the 41 items that were agreed not to be defects ([69]-[70]); 5. as to items 3, 53, 153, 159, 164, 195, 196 and 197 pertaining to painting and to painting related matters, there is insufficient evidence to establish that Tullipan had done other than comply with the applications of paint required by the building contract and that the applications of that paint breached any standard or regulation. Nor does the photographic or any other evidence sufficiently support the orders Mr Manca sought. Mr Manca had failed to establish his case in relation to these items ([71]-[74]); 6. as to items 5, 12, 15, 16, 17, 19, 34, 35, 37, 38, 47, 54, 57, 65, 66, 72, 76, 77, 81, 86, 87, 88, 95, 96, 107, 109, 115, 146, 147, 148, 158, 161, 164, 166, 171 and 192, Mr Manca's case was not strong. Although Mr Morris adhered to his views of non-compliance with specified guidelines, Mr Ryan was at pains to emphasise that Mr Morris could put the matter no higher than guidelines amounting to general advice, direction and instruction. Mr Morris' opinion in many instances was not reinforced by supporting and substantiating evidence, such as referencing to any specific mandatory requirements that may apply, a practical "hands on" investigation and inspection, "persuasive" photographs, and no measurements or calculations. In some instances Mr Ryan was able to substantiate his opposing opinion by a more hands on investigation, placing before the Tribunal actual measurements and more persuasive photographic evidence. Mr Manca had failed to establish his case in relation to these items ([75]-[80]); 7. as to item 21, while Mr Morris adhered to his views this was refuted by Mr Ryan. There was conflicting lay evidence as to what transpired between the parties as to the instructions given in relation to the item with no reason to prefer the evidence of one party over that of the other. When these matters were considered with the lack of persuasive evidence to show an actual existing defect, Mr Manca had failed to establish his case ([81]-[83]); 8. as to item 22, Mr Morris' opinion of membrane failure was insufficiently substantiated and was directly refuted by what Mr Ryan attested to seeing on his inspection. Mr Manca had failed to establish his case ([84]-[85]); 9. as to item 27, the assertion by Mr Morris as to the consequences of what he considered to be a failure to comply with the guidelines he raised, was not strong. There were conflicting accounts by the parties themselves as to how matters unfolded in relation to the item with no reason to prefer the account of one over the other. Mr Manca had not discharged the onus of proof he bore to establish his case ([86]-[88]); 10. as to items 31, 32, 33, 144, 145, 156, 167 and 169 pertaining to the Trend windows and doors supplied and installed by Tullipan, while the experts agree as to the defects Tullipan casts the blame at Trend Windows, the manufacturer. Tullipan was liable to ensure rectification, but not in relation to scratches. There would be a work order as agreed by the parties ([89]-[93]); 11. as to item 45, Mr Manca had not placed sufficient evidence before the Tribunal to allow a finding that Tullipan was required to paint this air conditioning unit. Mr Manca had failed to establish his case ([94]-[95]); 12. as to item 47, the experts advised that this is the same issue as that in item 12 and the same finding was made ([96]); 13. as to items 60, 61, 62, 63 and 64 relating to the garage area, Mr Morris' opinions amounted to unsubstantiated assertions of non-compliance with guidelines. This evidence is directly refuted by Mr Ryan, whose approach when on-site appeared more thorough (for example, by the taking of measurements) and hence adding weight to his opinions. Mr Manca had not discharged the onus of proof he bore to establish his case ([97]-[100]); 14. as to item 65, the experts advised that the item was in keeping with item 54 and the same finding was made ([101]); 15. as to items 80 and 83, the experts agreed that these items were in keeping with item 70 which did not constitute a defect ([102]); 16. as to item 82, there was dispute as to whether the experts agreed that the item was a defect. However, as there seemed to be a sameness between the item and item 74, where there was agreement as to there being a defect, there would be a work order ([103]); 17. as to item 91, there was dispute as to whether the experts agreed upon the item. The Tribunal understood that the experts agreed there was no defect as there was no breach of any standard ([104]-[105]); 18. as to item 95, the issues were considered in item 57 and the same finding was made as in item 57 ([106]); 19. as to item 96, for the reasons given to the related item 77, the same finding was made as in item 77 ([107]); 20. as to item 107, for the reasons given to the related item 57, the same finding was made as in item 57 ([108]); 21. as to item 109, for the reasons given to the related item 57, the same finding was made as in item 57 ([109]); 22. as to item 117, the Tribunal understood that the experts agreed that the item was a matter for lay evidence. There was no reason to prefer the lay evidence of one party over that of the other and as Mr Manca bore the onus no order was made ([110]-[112]); 23. as to item 122, there was a dispute as to whether the experts agreed the item was a defect and reference was made to item 70. As there was a correlation between the item and item 70, where the experts agree there was no defect proven, the same finding was made ([113]); 24. as to item 124, the photographic evidence on which Mr Manca relies does not establish his case and there is a finding against him ([114]); 25. as to item 125, it was not realistically possible to put the blame of the looseness of the toilet holder with Tullipan and there is a finding against Mr Manca ([115]); 26. as to item 127, there was some disagreement as to what joint finding the experts made. Mr Manca had insufficient evidence to establish a defect for which Tullipan was liable ([116]-[117]); 27. as to item 128, while there was agreement that the shower door was constructed to open outward causing it now to make contact with the towel rail, there was insufficient evidence to establish how this came about, whether it was in fact a defective item, and what was the reasonable and necessary method of rectification. Mr Manca had failed to establish his case ([118]-[119]); 28. as to item 129, there was disagreement between the experts as to whether the shower hinge has been installed in accordance with the building contract, and how the current situation had come about. As Mr Morris seemed to agree, it was for lay evidence with no reason to prefer one version of that lay evidence over the other. In addition, as the evidence to establish the gravity of the situation was not persuasive. Mr Manca had not proven his case ([120]-[124]); 29. as to item 137, the parties disagreed on the item, but it appeared that it was in line with the matters addressed in item 57 and the same finding was made as for item 57 ([125]); 30. as to items 146, 147 and 148, the experts gave evidence that access to inspect these items was denied at the conclave. The evidence was that of Mr Morris, based on a guideline in respect of which he had failed to substantiate his opinion. For the same reasons as given for item 51 Mr Manca had failed to prove his case ([126]-[128]); 31. as to item 150, Mr Morris had not proffered an opinion leaving it to lay evidence. Mr Ryan remained firm that any raising of the floor boards was a consequence of direct sunlight exposure. As the allegation concerned a defect it was the expert evidence that must be looked at. Mr Manca's expert evidence did not support the case he sought to make and therefore he had not succeeded in prosecuting this matter ([129]-[132]); 32. as to item 153, for the same reasons as given for item 5, Mr Manca had failed to prove his case ([133]); 33. as to items 155, 156, 167 and 169, they related to items manufactured by Trend Windows for which Tullipan was liable ([134]); 34. as to item 158, for the reasons given for item 5, Mr Manca had not established his case ([135]); 35. as to item 161, for the reasons given for Item 5, Mr Manca had not established his case ([136]); 36. as to item 164, it raised matters relevant to item 53 and the same finding was made as for item 53 ([137]); 37. as to item 166, for the reasons given for item 5, Mr Manca had not established his case ([138]); 38. as to item 168, it is difficult to attribute the liability for the marks in question to Tullipan. Mr Manca had not established his case ([139]-[140]); 39. as to item 171, it was agreed that the item raises the same issues as item 77 and the same finding was made ([141]); 40. as to item 176, the shower door hit the rail which should not occur. The Tribunal agreed with Mr Manca's submission that the experts agreed that this is a defect. There would be a work order ([142]-[143]); 41. as to item 179, Mr Manca's evidence on there being a miscolouring in the tiles was not persuasive and was further weakened by Mr Morris' acceptance, when put to him, that this might be the result of reflecting light. This evidence, coupled with Mr Ryan's conflicting evidence, led to the conclusion that Mr Manca had failed to establish his case ([144]); 42. as to item 182, while Mr Manca contended the experts reached no agreement, Tullipan pointed to exhibit T2 and the agreement that the item rested on the same issues as item 70. This was the understanding of the Tribunal and for the reasons given for item 70 the same findings were made and no order was made ([145]-[146]); 43. as to item 188, as it was difficult to attribute blame for the scratching, Mr Manca had not established his case ([147]); 44. as to item 189, Mr Manca submitted that the experts agreed that there was a defect. Tullipan submitted to the contrary. There was no opinion to speak of by Mr Morris. Added to this was Mr Ryan's view of the impact of direct sunlight on the floor boards. Mr Manca had not established his case ([148]-[152]); 45. as to item 192, it was in line with item 57 and the same finding was made as for item 57 ([153]); 46. as to item 194, the experts could not assist on how and when these marks and damages arose. Further, Mr Ryan's evidence was that he did not observe the matters complained of, to the degree complained of. There was insufficient evidence of the extent and sizing of the marks to make a finding in Mr Manca's favour ([154]-[156]); 47. as to the issue of whether the flooring Tullipan supplied and installed amounted to a breach of the building contract which was item 191 ([157]-[158]): 1. Mr Manca relied on the tender document which stipulated "Extra/Over amount to provide the supply and installation of n180x14mm Select Grade, Blackbutt T&G timber floorings laid over the entire first flooring area (excluding wet areas) Glue fixed and top nailed with holes filled and sanded, with a sanded then lime wash and sealed finish" ([159]); 2. the evidence of Mr Morris was that AS2792.2 (the Standard) contained the definition of "Select Grade" ([160]); 3. Mr Manca's case was that Tullipan supplied and installed Hurford Hardwood, which included a mixture of moderately and lightly featured boards, whereas only lightly featured boards are prescribed under the Standard for "select grade" ([161]); 4. the Tribunal accepted Tullipan's submission that the building contract provided no definition of "Select Grade" ([162]); 5. Tullipan appeared to accept that it did not supply the "Select Grade" timber referred to in the building contract, arguing that it was not possible to obtain that grade in the sizing required. Instead, it supplied "Prestige" grand, being the best quality available for the flooring dimensions required ([163]); 6. the evidence at the hearing centred largely on a meeting said to be held between a Mr Thomas and Tullipan, in early October 2017, as a result of which it was advised that the manufacturer classified the supplied "Prestige" timber as being of the same quality as "the Select Grade" referred to in the building contract ([164]); 7. there was also some suggestion that Tullipan may have obtained a specific report on the flooring. It appears that at the conclave the experts referred to such a report and apparently left the matter hanging on the basis that this report was to be produced ([165]); 8. Mr Manca submitted that as Mr Thomas gave no evidence and no report was produced the Tribunal should draw a Jones v Dunkel inference against Tullipan on these matters. Further, Mr Ryan's report hardly addressed the flooring issue ([166], [168]); 9. the evidence given to the Tribunal by Ms Tullipan as to the matters arising around any October meeting concerning the flooring and as to a flooring report was less than convincing ([167]); 10. whilst the matters that Mr Manca raised were persuasive, they did not overcome the fundamental hurdle of discharging the burden he bore to prove a breach of the building contract ([169]); 11. as the report of Mr Morris was insufficient to meet the burden of proof Mr Manca bore of establishing not only that the floor supplied was not the floor contracted for, but also what damages flow from the difference between what was supplied and what was provided for in the building contract, the Tribunal declined to make the orders sought ([170]-[172]); 1. as to the issue of whether if the Tribunal finds in Mr Manca's favour it was appropriate to make a work order, as both parties accepted the making of a work order for all matters where there were findings in Mr Manca's favour, save as to the floor, a work order would be made ([173]-[175]); 2. as to the issue of whether Mr Manca could obtain monetary recoupment for damages paid in relation to items 51 to 59 and 60 to 64, as there had been no finding in his favour for these items, no such order could be made ([176]). The history of the appeal 1. On 18 November 2021, Mr Manca as the appellant commenced proceedings 2022/00329551 against Tullipan as the respondent by filing a notice of appeal in which he asserted that the Tribunal made several errors of law including a failure to provide adequate reasons, and other errors for which leave to appeal should be granted, the appeal should be allowed, the 21 October 2021 orders should be set aside and that the proceedings should be remitted to the Consumer and Commercial Division of the Tribunal for redetermination by a differently constituted Tribunal and Tullipan pay his costs of the appeal (the notice of appeal). 2. On 8 December 2021, the Appeal Panel gave leave to the parties to be legally represented. 3. On 17 February 2022, Mr Manca filed an amended notice of appeal in which he repeated the existing grounds of appeal in the notice of appeal and added one further ground of appeal (the amended notice of appeal). 4. On 8 March 2022, Tullipan filed its reply to the amended notice of appeal, in which it contended that the Tribunal had not made any errors of law and opposed the granting of leave to appeal (the reply to appeal). The scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law and otherwise with leave of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. An internal appeal is not a re-hearing of the original proceedings or a mere opportunity for a party dissatisfied with the outcome in the original proceedings to re-argue its case: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must establish an error of law has occurred, or otherwise an error of the type that it is appropriate to grant leave to appeal. 3. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law, which relevantly includes whether there has been a failure to provide proper reasons and whether there was a failure to afford procedural fairness. 4. Whether there has been a constructive failure to exercise jurisdiction is a question of law. In Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [9] Basten JA said (Beazley JA at [1] agreeing): "[9] The adoption, on an appeal limited to errors in point of law, of language derived from the supervisory jurisdiction of the court must be undertaken with caution. It is, no doubt, an error of law for the trial court to fail to exercise its constitutional function, which is to resolve a dispute presented to it by the parties by applying the law in accordance with proper procedure. In the present case, that function was almost entirely satisfied by the resolution of disputed factual issues. The term "constructive failure to exercise jurisdiction" is used to describe a situation where the court has purported to resolve the parties' dispute but has not in fact done so. Thus, particularly with a court or tribunal required to provide reasons for its decision, it may become apparent from those reasons that a material issue has simply not been addressed or that material evidence has been overlooked. Examples of circumstances which may properly give rise to a concern on this kind were referred to by Gummow ACJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [23]. On occasion, the function of the decision-maker (which should include a court) has been identified as being to "give proper, genuine and realistic consideration to the merits of the case": Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 (Gummow J). …" 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: "… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." (emphasis in original) 1. In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that: 1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. 2. In Collins, the Appeal Panel at [84(2)] stated as follows concerning exercise of that discretion: "[84] The general principles derived from these cases can be summarised as follows: … 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 Appeal Panel may decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing: s 80(3)(a) of the NCAT Act. Further, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to any one or more of orders that the appeal is to be allowed, the decision under appeal is to be varied, and the whole or any part of the case is to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel: s 81(1)(a), (b) and (e) of the NCAT Act. The hearing of the appeal 1. On 30 May 2022, we heard the appeal by telephone. Mr D Feller SC and Mr I George of counsel appeared for Mr Manca. Ms J Granger of counsel appeared for Tullipan. 2. The amended notice of appeal of Mr Manca comprising 29 pages in addition to the printed form: 1. in section 5.A. entitled "Orders challenged on appeal" contains 20 paragraphs which were in the nature of grounds of appeal; 2. in section 5.B. entitled "Grounds of appeal" contains 28 paragraphs. Each paragraph or in some cases more than one paragraph is referrable to an item or several items of alleged defective building work listed under 20 headings. All but one paragraph contains subparagraphs. For example, paragraph 1 which is referrable to items 117 and 191 contains 17 grounds of appeal. There are in excess of 100 grounds of appeal which relevantly include: 1. a ground of appeal alleging a failure to provide adequate reasons in respect of several of the items or group of items of alleged defective building work listed under a separate heading; 2. a ground of appeal alleging a failure to provide procedural fairness or a constructive failure to exercise jurisdiction by filing to consider its evidence and/or submissions in respect of several of the items or group of items of alleged defective building work listed under a separate heading; 1. in section 5.C. entitled "Orders that the NCAT Appeal Panel should make" contains the following five paragraphs: "1. Order granting the Appellant leave to appeal in respect of those grounds of appeal involving questions of fact or mixed questions of fact and law. 2. Order that the Appeal is allowed. 3. Order that the Tribunal's decision with respect to each of the alleged defects the subject of the appeal be set aside. 4. Order that the matter be remitted to the Consumer and Commercial Division constituted by a member other than the member who made the original decision to determine each of the defects the subject of this appeal in accordance with the decision of the Appeal Panel and otherwise according to law. 5. Order that the Respondent pay the Appellant's costs of and incidental to the Appeal, such costs to be agreed or assessed." 1. in section 6.B. entitled "Leave to appeal …" contains 17 paragraphs which is referrable to an item or several items of alleged defective building work listed under a heading. Each paragraph contains two paragraphs, one dealing with the reasons why the Tribunal Decision is not fair and equitable, and the other dealing with the reasons why the Tribunal Decision is against the weight of evidence. 1. The reply to appeal of Tullipan: 1. asserts the grounds of appeal in the amended notice of appeal are more in the form of submissions than grounds of appeal; 2. uses the same headings as in the amended notice of appeal, and each respect of each item or group of items under a separate heading combines to its reply to the grounds of appeal and leave to appeal grounds; 3. does not accept that there was failure to provide adequate reasons in the Tribunal Decision; 4. asserts that there was no denial of procedural fairness; 5. asserts that there is no basis for leave to appeal to be granted; 6. accepts that a work order should be made in respect of specified items. 1. At the commencement of the hearing Tullipan accepted that a work order should be made in respect of the following four items the subject of the amended notice of appeal: 85, 138, 139 and 159. 2. Mr Manca relied on the following written submissions: 1. Appellant's Outline of Submissions dated 9 May 2022 (the Manca appeal submissions); 2. Appellant's Submissions in Reply dated 26 May 2022 (the Manca appeal submissions in reply); 1. Tullipan relied on Respondent's Outline of Submissions dated 16 May 2022 (the Tullipan appeal submissions). 2. Each of Mr Manca and Tullipan made oral submissions. 3. Each of Mr Manca and Tullipan agreed that the costs of the appeal should be dealt with on the papers. 4. At the conclusion of the hearing, we reserved out decision. 5. Subsequent to the hearing, pursuant to leave Tullipan filed a further version of the Tullipan appeal submissions containing references. The issues 1. We are satisfied that the appeal was commenced within the time of 28 days prescribed under r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). 2. In relation to drafting grounds of appeal former High Court judge, the Hon Michael McHugh AO QC, in Preparing and arguing an appeal, NSW Bar Association Bar News, Winter 2010, at 85-92, wrote: "The cardinal rule for drafting a notice of appeal is to be selective. If the appeal notice contains too many grounds, the best points are likely to be hidden in a thicket of weak points. The notice of appeal should identify only those errors of ultimate fact or law which affected the result, and the fewer the better. As Justice Branson has explained (Sydneywide Distributors Pty Ltd & Anor v Red Bull Australia Pty Ltd & Anor (2002) 55 IPR 354 at 355-356): 'Not every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Findings as to subordinate or basic facts will rarely, if ever, found a ground of appeal. Even were the Full Court to be persuaded that different factual findings of this kind should have been made, this would not of itself lead to the judgment, or part of the judgment, being set-aside or varied. This result would be achieved, if at all, only if the Full Court were persuaded that an ultimate fact in issue has been wrongly determined. The same applies with respect to steps in the primary judge's process of legal reasoning. Although alleged errors with respect to findings as to subordinate or basic facts, and as to steps in the process of legal reasoning leading to an ultimate conclusion of law, may be relied upon to support a ground of appeal, they do not themselves constitute a ground of appeal.'" 1. As we have set out in [31] above, the amended grounds of appeal do not follow that advice. We have found it difficult to determine the issues arising for determination in the appeal from consideration of the amended notice of appeal due to its length. Further, the amended grounds of appeal have been organised under headings referrable to an item or a group of items of alleged defective building work without cross reference to the applicable paragraphs of the Tribunal Decision. 2. As the parties made their written and oral submissions by reference to an item or a group of items of alleged defective building work under 20 separate headings which have been referred to as a ground of appeal, we have treated this appeal as containing 20 grounds of appeal. However, to avoid unnecessary repetition we have considered grounds of appeal together which raise the same question of law. 3. If any of the grounds of appeal is upheld, then the issue will arise as to whether we deal with the appeal by a rehearing or the remittal of the whole or part of the proceedings for reconsideration in the Consumer and Commercial Division. 4. Finally, it will be necessary to decide the costs of the appeal. Grounds 1 to 6, 7, 10, 12 to 15, 17 and 18 – the failure to provide adequate reasons 1. In the amended notice of appeal Mr Manca has contended that the Tribunal erred in law by failing to provide adequate reasons for rejecting his claim for a work order in respect of items which are the subject of grounds 1 to 6, 12, and 15 to 18. It is unnecessary to consider ground 16 because of the concession of Tullipan that a work order should be made in respect of item 159 (which is dealt with in the Tribunal Decision at [72]-[74]). 2. In the Manca appeal submissions Mr Manca referred to Murnane Carpentry Pty Ltd v Kalinovski [2015] NSWCATAP 30 (Murnane Carpentry) at [14], and made brief submissions as to the inadequacy of the reasons in the Tribunal in relation to grounds 1 to 6, 7 so far as item 125, 10, 12 to 15, and 18. Although the amended notice of appeal did not contend there was a failure to provide adequate reasons in respect of ground 7 so far as item 125, 10, 13 and 15 we have treated the alleged failure to provide adequate reasons as encompassing these grounds. 3. In the Tullipan appeal submissions Tullipan agrees that a failure to provide proper reasons is an error of law in respect of which an appeal as of right lies, submits that the reasons in the Tribunal Decision are adequate in respect of grounds 2, 4, 5, 6, 7 so far as item 125 and 10, and refers to the observation of Allsop P in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 (Mitchell) at [2] (with McColl JA at [3] agreeing): "There are ample statements of this Court and of the High Court to express the duty upon judicial officers as to the giving of reasons. … In many cases, however, a judge may, in dealing with large bodies of evidence, be forced to economise in expression and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression. Judgment writing should not become a process that is oppressive and that produces unnecessary prolixity. Not every piece of evidence must be referred to. That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed and resolved." 1. We accept that grounds 1 to 6, 7 so far as item 125, 10, 12 to 15, 17 and 18 so far as they raise the failure to provide adequate reasons raise a question of law, and Mr Manca can appeal as of right in respect of these grounds. 2. In NSW Land and Housing Corporation v Orr [2019] 100 NSWLR 578; [2019] NSWCA 231 (Orr) Bell P at [66], [68], [70], [71] and [77] set out the following principles with respect to the adequacy of reasons of the Tribunal (with Ward JA at [109] agreeing): "[66] In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 (Bisley)." "[68] In terms of the former parameter, the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] per French CJ and Kiefel J (Wainohu). Thus even superior courts are not required to give reasons for every interlocutory decision: Wainohu at [56], [98], Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [42]; Lodhi v Attorney General (NSW) [2013] NSWCA 433; 241 A Crim R 477 at [29]; R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269 at [27]) and other aspects of decision making such as findings on pure credibility or matters that necessarily call for estimation or impression may require less or only allow for limited reasoning to be exposed: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 but cf. Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], Pollard at [65] and see the discussion in Resource Pacific at [48]−[58]." (emphasis in original) "[70] As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court." (emphasis in original) [71] That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. [77] These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [14] (Gleeson CJ); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Pozzolanic at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291." 1. The observations in Orr at [66], [71] and [77] have been recently applied by the Appeal Panel: Origin Concepts Pty Ltd v Wynne [2022] NSWCATAP 31 at [20]-[23]; P8 Auto Ltd t/as European Automotive Ballina v Dolling [2022] NSWCATAP 41 at [18]. In view of the recency of Orr and its direct application to decisions of the Tribunal, it is unnecessary to consider the applicability of the principles in Murnane Carpentry at [14] and Mitchell at [2]. 2. The following parts of the Tribunal Decision identified in brackets deal with these grounds: 1. ground 1: item 191 – Timber Flooring Grade ([110]-[112]); item 117 - Timber Edging Grade ([157]-[172]); 2. ground 2: items 150 and 189 – Timber Flooring Joists ([129]-[132]; [148]-[152]); 3. ground 3: items 22 and 158 – Tiled External Deck ([84]-[85]; [135]); 4. ground 4: items 34 and 35 – Bi-Fold Doors ([75]-[79]); 5. ground 5: items 57, 95, 107 and 109 – Ground Floor Tiles ([75]-[79]); 6. ground 6: items 127, 128 and 129 – Shower Screens, Shower Heads and Shower Hinge ([116]-[124]); 7. ground 7: item 125 - Toilet Holder ([115]); 8. ground 10: item 21 - Drainage Channel on Deck ([81]-[83]); 9. ground 12: items 12, 15 and 47 – Site Cleaning ([75]-[79]); 10. ground 14: item 64 – Poor Painting in Garage ([97]-[100]); 11. ground 15: item 88 – Pink Stain on Floor ([75]-[79]); 12. ground 17: item 179 – Miscoloured Tile ([144]); 13. ground 18: item 188 – Scratch on Basin Tap ([147]). 1. Except so far as ground 2, we have determined the Tribunal Decision does not meet the minimum acceptable standard for reasons for the following reasons: 1. ground 1 - items 191 and 117: so far as item 191, there is no summary of the competing lay evidence and the reason why the preferable evidence cannot be determined. So far as item 191, there is there is no explanation as to why the report of Mr Morris is insufficient to meet the burden of proof Mr Manca bears; 2. ground 3 - item 22: there is no explanation as to why Mr Morris' opinion of membrane failure is insufficiently substantiated; 3. ground 3 - item 158; ground 4 - items 34 and 35; ground 5 - items 57, 95, 107 and 109; ground 12: items 12, 15 and 47; ground 15 – item 88: these items are included in the collective consideration of 36 items without any reference to the evidence in respect of particular items and the content of the guidelines relied on by Mr Morrison. There is no indication as to whether the Tribunal had measurements and photographs in relation to these items, and if so there is no explanation as to why the photographic evidence of Mr Ryan was more persuasive; 4. ground 6 - items 127 and 128: there is no summary of the evidence of Mr Manca and there is no explanation as to why that evidence is insufficient to establish a defect; 5. ground 6 - item 129; ground 10 - item 21: there is no summary of the competing expert and lay evidence and the reason why the preferable evidence cannot be determined; 6. ground 7 - item 125: there is no explanation as to why it is not realistically possible to put the blame of the looseness of the toilet holder on Tullipan; 7. ground 14 - item 64: there is no explanation as to why Mr Manca has not discharged the burden of proof he bears in circumstances where the opinion of each of Mr Morris and Mr Ryan was that this item was defective; 8. ground 17 - item 179: there is no explanation as to why the evidence of Mr Manca is not persuasive. Further, there is no summary of the conflicting evidence of Mr Ryan; 9. ground 18 - item 188: there is no summary of the competing evidence for the scratching and there is no explanation as to why at this stage it is difficult to attribute blame for its occurrence. 1. As to as ground 2, the reasons in the Tribunal Decision meet the minimum acceptable standard for reasons. The Tribunal determined that there was no expert evidence of Mr Morris and accepted the evidence of Mr Ryan that any raising of the floorboards is a consequence of direct sunlight exposure. 2. As we have upheld grounds 1, 3 to 7, 10, 12 to 15, 17 and 18, it is unnecessary to further consider the alleged other questions of law, and whether leave to appeal should be granted, in respect of these grounds. Grounds 2, 8, 9, 11, 19 and 20 – the failure to afford procedural fairness or the constructive failure to exercise jurisdiction by failing to address a material issue or by overlooking material evidence 1. We accept that grounds 2, 8, 9, 11, 19 and 20 so far as they raise the failure to afford procedural fairness or the constructive failure to exercise jurisdiction by failing to address a material issue or by overlooking material evidence raise a question of law, and Mr Manca can appeal as of right in respect of these grounds. Ground 2 1. Ground 2 concerns items 150 and 189 – Timber Flooring Joists ([129]-[132]; [148]-[152]). 2. The evidence of Mr Manca before the Tribunal included: 1. the plans of the home; 2. the 15/10/2020 Mr Manca affidavit in which he gave evidence that the defects were present prior to hand over of the site; 3. the reports of Mr Morris in which he expressed the opinion that the joints on timber floors were raised, and cracking was a defect, being a breach of clause 19.2 of the Guide to Standards and Tolerances, and that rectification works were required in the form of re-sanding, stain and slurry seal. 1. The evidence of Tullipan before the Tribunal included the oral evidence of Mr Ryan in cross-examination that the floorboards were exposed to sunlight and that in his opinion this was the cause of the alleged defect. 2. The following notation appears in the joint report for items 150 and 189: "Refer to floor report & matter for lay evidence". 1. There was no floor report adduced in evidence before the Tribunal. 2. In the Manca appeal submissions and the Manca appeal submissions in reply, Mr Manca submitted that he made submissions before the Tribunal that the evidence established that the defect existed in areas which were not subject to exposure to sunlight, and that such defects existed prior to handover of the site by Tullipan. 3. In the Tullipan appeal submissions, Tullipan made the following submissions: 1. it is insufficient for Mr Manca to lead evidence that the floorboards were raised, without providing some evidentiary basis upon which the Tribunal could be satisfied that it was the result of a defect for which Tullipan was liable. The Tribunal did not misdirect itself by expressing the view that the defect could only be proven by expert evidence; 2. Mr Morris did not express an opinion as to the cause of this alleged defect. No other evidentiary basis was proffered; 3. Mr Ryan's view was that the rising of the floorboards was not a defect, and rather was a result of sunlight exposure. Given the defect was for Mr Manca to prove, it matters not whether the Tribunal accepted or rejected the evidence of Mr Ryan or accepted or rejected the submissions made by Mr Manca as to whether the area was subject to exposure to sunlight (as such submissions if accepted would serve only to disprove Mr Ryan's view, but not prove the cause of the rising floorboards). In any event, Mr Ryan gave evidence in cross-examination to the effect that the floorboards were exposed to sunlight and that, in his opinion this was the cause of the alleged defect. The Tribunal noted Mr Ryan's consistent evidence in cross-examination. The submissions by Mr Manca as to the extent of sunlight in that area were gratuitous, not the subject of lay evidence, nor were these matters put to Mr Ryan in cross-examination. 1. We are satisfied that the floor plan, the evidence of Mr Manca that the defects were present prior to hand over of the site, the reports of Mr Morris in which he expressed the opinion that the joints on timber floors were raised and cracking was a defect were material evidence. In these circumstances, we are satisfied that the Tribunal failed to afford procedural fairness or constructively failed to exercise jurisdiction by failing to consider this evidence and the submissions of Mr Manca as to whether items 150 and 189 constituted a defect. For these reasons, we uphold ground 2. Ground 8 1. Ground 8 concerns items 8.01, 8.08, 8.09, 8.10, 8.11 and 8.13 claimed in the 21/9/2018 Morris report. 2. Mr Manca at the hearing before the Tribunal sought to rely on the 21/9/2018 Morris report. Tullipan objected to the report to the extent that it included defects not recorded in the joint report. The Tribunal admitted the 21/9/2018 Morris report as exhibit A3 to the extent it related to matters still in issue. We are satisfied that this ruling limited the admission of the report to the items contained in the joint report. 3. In the Manca appeal submissions and the Manca appeal submissions in reply, Mr Manca made the following submissions: 1. items 8.01, 8.08, 8.09, 8.10, 8.11 and 8.13 claimed in the 21/9/2018 Morris report were not addressed by the Tribunal; 2. he addressed these items in the Manca hearing submissions and the Manca hearing submissions in reply, and Tullipan addressed them in the Tullipan hearing submissions; 3. the Tribunal's failure to acknowledge his arguments in support of these claims or even to rule on whether it would entertain them suggests that the Tribunal entirely overlooked the matter. 1. In the Tullipan appeal submissions, Tullipan made the following submissions: 1. Mr Manca filed a final Scott Schedule in October 2020 and at no time prior to the hearing in May 2021, did he alert Tullipan to the fact that he relied upon other items or sought damages for alleged defects other than as recorded in that final Scott Schedule; 2. the Tribunal admitted the 21/9/2018 Morris report to the extent of the defects recorded in the joint report; 3. Tullipan did, and was entitled to, proceed on the basis that the issues identified in the joint note as not agreed were the only defects still in issue in the proceedings. 1. We are not satisfied that the Tribunal was in error in failing to address items 8.01, 8.08, 8.09, 8.10, 8.11 and 8.13 claimed in the 21/9/2018 Morris report in circumstances where it had refused to admit the report to the extent that it included these items. For these reasons, we reject ground 8. Ground 9 1. Ground 9 concerns items 8.30 and 8.31 in the joint report. 2. In the 26/10/2020 Morris report Mr Morris expressed opinions as defects recorded as 8.30 and 8.31. 3. The following notations relevantly appear on pages 43 and 44 of the joint report: "8.30 Defects caused by settlement and movement as well as shrinkage in the new dwelling … BM STANDS ON PAINTING ISSUES HR _ NO BREACH NO DEFECT" "8.31 Mouldings/trims separated from cladding boards and eaves linings. Gaps exist … AS PER PREVIOUS PAGE 43" 1. In the Manca appeal submissions, Mr Manca made the following submissions: 1. items 8.30 and 8.31 claimed in the 26/10/2020 Morris report were not addressed by the Tribunal; 2. he addressed these items in the Manca hearing submissions and the Manca hearing submissions in reply. 1. In the Tullipan appeal submissions, Tullipan made the following submissions: 1. the evidence at the hearing related to mould on bi-fold doors; 2. there would be a gross lack of natural justice if Mr Manca were permitted to agitate a claim which strayed beyond the issues raised in the joint report. 1. We are satisfied that the Tribunal was in error in failing to address items 8.30 and 8.31 in the joint report. In these circumstances, we are satisfied that the Tribunal failed to afford procedural fairness or constructively failed to exercise jurisdiction by failing to consider the evidence as to whether items 8.30 and 8.31 as recorded in the joint report constituted a defect. For these reasons, we uphold ground 9. Ground 11 1. Ground 11 concerns items 13 - - Silt Fence Removal, 40 - Scratched Paintwork, 79 - Scratch on Tap and 120 - Stain Drip on Timber Tread [69]. 2. The following notation appears in the joint report for items 13, 40, 79 and 120: "13 – AGREED – COUNCIL REQUIREMENTS TO STAY DURING OWNERS LANDSCAPING PROCESSES" "40 – AGREED - NOT ON HANDOVER LIST" "79 – AGREED NOT ON HANDOVER LIST" "120 – AGREE MATTER FOR LAY EVIDENCE - NOT ON DEFECT/HANDOVER LIST" 1. In the Manca appeal submissions and the Manca appeal submissions in reply, Mr Manca submitted that contrary to the finding of the Tribunal that Messrs Morris and Ryan had agreed that items 13, 40, 79 and 120 were not defects: 1. as to item 13, the agreement was limited to the fact that council required the silt fence to stay during the landscaping process not that the failure of the Tullipan to remove the silt fence was not a defect; 2. as to items 40, 79 and 120, the agreement was limited to the position that such items were not on a handover report, rather than an agreement that the items were not defects. 1. In the Tullipan appeal submissions, Tullipan submitted that the Tribunal has not erred in its understanding of the joint report or the joint note; but even if it has this has not resulted in Mr Manca suffering a substantial miscarriage of justice. 2. We are satisfied that the Tribunal misunderstood the notation in the joint report for items 13, 40, 79 and 120 in finding that the experts agreed that these items were not defects. In these circumstances, we are satisfied that the Tribunal constructively failed to exercise jurisdiction by failing to address whether items 13, 40, 79 and 120 constituted a defect. For these reasons, we uphold ground 11. Ground 19 1. Ground 19 concerns items 85, 138, 139 and 143 - Creaking Floorboards. Is it unnecessary to consider items 85, 138 and 139 because of the concession of Tullipan referred to in [33] above. 2. The joint report for item 143 records the agreement of Messrs Morris and Ryan that there is a defect requiring rectification and an absence of any agreement as to the reasonable costs of rectification together with the following notation: "143 – NO ACCESS AS OWNER CHILD WAS ASLEEP IN THIS ROOM & DENIED THE EXPRTS ACCESS MATTER FOR FURTHER EVIDENCE" 1. We are satisfied that the Tribunal failed to consider item 143. In these circumstances, we are satisfied that the Tribunal constructively failed to exercise jurisdiction by failing to address item 143, and in particular to consider whether a work order should be made. For these reasons, we uphold ground 19 so far as item 143. Ground 20 1. Ground 20 concerns items 68, 74, 82, 108, 126, 132, 133, 136, 173-177, 181, 183 and 186 in respect of which the Tribunal made a work order. 2. Mr Morris in the 26/10/2020 Morris report has relevantly recorded his opinion as to the method of rectification for items 132, 133 and 136. 3. Mr Ryan in the 18/10/2021 Ryan report has relevantly recorded his opinion as to the method of rectification for items 132, 133 and 136. 4. Messrs Morris and Ryan have recorded in the joint report their respective opinions as to the method of rectification for items 68, 74, 82, 108, 126, 173-177, 181, 183 and 186. 5. We are satisfied that the Tribunal failed to decide the method of rectification for items 68, 74, 82, 108, 126, 132, 133, 136, 173-177, 181, 183 and 186. In these circumstances, we are satisfied that the Tribunal constructively failed to exercise jurisdiction by failing to address the method of rectification for these items. For these reasons, we uphold ground 20. Leave to appeal 1. Grounds 1 to 20 cover all of the items in respect of which leave to appeal is sought. In view of our decision on grounds 1 to 20, it is unnecessary to decide whether leave to appeal should be granted to Mr Manca. Rehearing or remittal for reconsideration 1. In view of our findings, we are satisfied that the items the subject of the appeal other than items 8.01, 8.08, 8.09, 8.10, 8.11 and 8.13 claimed in the 21/9/2018 Morris report should be remitted to the Tribunal as originally constituted for reconsideration without any further evidence. The costs of the appeal 1. We are satisfied that we can determine the costs of the proceedings on appeal on the papers, and accordingly have decided to dispense with a hearing on the costs of the appeal pursuant to s 50(2) of the NCAT Act and to make procedural directions for the filing of evidence and submissions. In making any costs application Mr Manca will need to indicate whether it is made under s 60(2) of the NCAT Act or r 38A of the NCAT Rules. Orders 1. In view of the concession of Tullipan referred to in [33] above it will be necessary to vary order 1 of the 21 October 2021 orders to include items 85, 138, 139 and 159 in the joint report. 2. We make the following orders: 1. The appeal is allowed in part. 2. Order 1 made on 21 October 2021 is varied to add the words ", and items 85, 138, 139 and 159 in the T1 Joint Schedule" after the number "143". 3. The items the subject of the appeal other than items 8.01, 8.08, 8.09, 8.10, 8.11 and 8.13 claimed in the Building Inspection Report of Barry Morris dated 21 September 2018 are remitted to the Tribunal as originally constituted for reconsideration without any further evidence. 4. A hearing to determine the costs of the appeal is dispensed with. 5. If the parties are in agreement as to the costs of the appeal, then they shall provide proposed consent orders to the Appeal Panel within 14 days of the date of the orders in these reasons for decision. 6. If the parties are not in agreement as to the costs of the appeal, then: 1. the appellant is to file and serve a costs application, submissions which shall be limited to five pages, and any evidence in support by way of affidavit, within 14 days of the date of the orders in these reasons for decision; 2. the respondent is to file and serve any submissions which shall be limited to five pages, and any evidence in opposition by way of affidavit, within 28 days of the date of the orders in these reasons for decision; 3. the appellant is to file and serve any submissions in reply which shall be limited to three pages within 35 days of the date of the orders in these reasons for decision. ********** 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 September 2022