Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ferntree Homes Pty Ltd v Bernleitner [2023] NSWCATAP 169 Hearing dates: 13 February 2023 Date of orders: 26 June 2023 Decision date: 26 June 2023 Jurisdiction: Appeal Panel Before: S Thode Principal Member D Goldstein Senior Member Decision: 1. The stay of the decision made on 14 October 2022 in HB 21/31536 is lifted. 2. Leave to appeal is refused. 3. Appeal dismissed. 4. In the event that a party wishes to bring a costs application, such application must be lodged in the Appeal Panel Registry and served on/given to the costs respondent within 14 days of the date of the orders either attaching or referring to the documents relied upon in support of the application. 5. The costs respondent will have 14 days after the date it or they receive the application to lodge in the Appeal Panel Registry and serve on/give to the costs applicant its or their submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon. 6. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties' written submissions and attached documents, if any, without the need for a hearing. 7. Subject to the parties' submissions, the Appeal Panel will determine any costs application made on the basis of the papers lodged in the Appeal Panel Registry. Catchwords: APPEALS – Reasons – Adequacy – Leave to appeal - Whether the appellant had suffered a substantial miscarriage of justice Legislation Cited: Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Cases Cited: Camilleri v Eastlake [2018] NSWCATAP 176 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Collins v Urban [2014] NSWCATAP 17 Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2016] NSWCATAP 210 Mamo v Surace (2014) 86 NSWLR 275 Morris v Webb [2022] NSWCATAP 54 Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 Oppidan Homes Pty Ltd v Baldwin and Granofsky [2016] NSWCATAP 109, Pholi v Wearne [2014] NSWCATAP 78 Scarano v Palm Pools and Spas Pty Ltd [2019] NSWCATAP 79 Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 Taylor v Clientel Development Pty Ltd [2020] NSWCATAP 136 Texts Cited: None cited Category: Principal judgment Parties: Ferntree Homes Pty Ltd (Applicant) Robert Bernleitner and Morena Bernleitner (Respondents) Representation: Counsel: D Robertson (Respondents) Solicitors: Adams & Partners (Applicant) Matthews Folbigg lawyers (Respondents) File Number(s): 2022/00338400 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: N/A Date of Decision: 14 October 2022 Before: S McDonald, Senior Member File Number(s): HB 21/31536 REASONS FOR DECISION 1. The appellant appeals from a decision in the Consumer and Commercial Division of the Tribunal made on 14 October 2022 in which it was ordered to pay the present respondents the sum of $99,150.27. The order was made in proceedings brought pursuant to the Home Building Act 1989 (the HB Act) in which the present respondents claimed damages arising from incomplete or defective work by the appellant in the construction of a residential dwelling. 2. In these reasons we will refer to the appellant as the builder and to the respondents as the owners. 3. In the proceedings at first instance the parties were self-represented. The proceedings were prepared for hearing without the benefit of Points of Claim or Points of Defence to make it clear what were the real issues in dispute. There was a joint expert report in the form of a scott schedule which resolved a number of the owners' defective work claims. 4. In an Amended Notice of Appeal the builder claimed that there were errors of law in the decision and that there are grounds which justify leave to appeal being granted. 5. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act') sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law, or with leave of the Appeal Panel on any other grounds (s 80(2)(b)). Errors of Law 1. The builder states that the Senior Member erred by failing to provide adequate reasons in a number of respects. We agree that a failure to provide adequate reasons will be an error of law. 2. First, the builder states that the Senior Member failed to provide adequate reasons in finding at [7]: 'Practical completion occurred in about September 2019 and the applicants thereafter moved into the residence at the Property.' 1. Secondly, the builder states that the Senior Member failed to provide adequate reasons in finding at [40] and [41]: 'The Tribunal rejects Mr Ovidi's conclusions in this respect. The Tribunal is concerned that whilst no full or final analysis of this issue appears to have been undertaken, the Applicants have been required to live with this major defect in the upper level of their residence since about 2019.' 1. Thirdly, the builder states that the Senior Member failed to provide adequate reasons when he concluded that a defect was established against the builder in connection with item 3 of the Joint Expert Report which related to Skylights and Roof Tiles. 2. Fourthly, the builder states that the Senior Member failed to provide adequate reasons in rejecting the builder's evidence that the dwelling could be partitioned so that the owners would not need to vacate the dwelling during rectification works. 3. Finally, it is submitted that the Senior Member failed to provide adequate reasons why he made a money order against what was said to be the owners' agreement to a work order. Further it is submitted that the Senior Member failed to provide adequate reasons in concluding that the builder had failed: 'to resolve these building defects' 1. In Taylor v Clientel Development Pty Ltd [2020] NSWCATAP 136 an Appeal Panel in discussing the requirement to provide reasons stated at [11] to [13]: 'An Appeal Panel stated in Camilleri v Eastlake [2018] NSWCATAP 176 at [26]: 'It is correct that a failure to give reasons is an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279. However, the extent and content of the reasons required will depend upon the particular case and the issues under consideration: Moloney v Collins [2011] NSWSC 628. The duty does not require a court or tribunal to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings:Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58].' At the same time, it is accepted that the reasons of a Tribunal Member are not to be subjected to detailed scrutiny in every respect. In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ) a case concerned with judicial review, the Full Court of the Federal Court said "[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error". This language was repeated with approval by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272. In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 the Court of Appeal considered, among other things, the obligations of a tribunal member to give reasons. At [66] - [68] the Court stated: '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). Whilst all decision makers, be they judges or tribunal members, should aspire to high quality decision making, an integral part of which is the formulation of clear reasons for decision (as Gleeson CJ explained extra-judicially in "Judicial Accountability" (1995) The Judicial Review 117 at 122), as Basten JA said in Resource Pacific at [48], "transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality." His Honour's identification of separate parameters of quantity and quality is, with respect, a useful one. 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 or 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].' 1. Along the same lines, an Appeal Panel referred to the Tribunal's minimum obligation to provide reasons in Morris v Webb [2022] NSWCATAP 54 at [16] – [48]: 16. Tribunals are required to provide a minimum acceptable standard of reasons. 17. That minimum acceptable standard will vary from case to case, but generally speaking a Tribunal is required, in its reasons, to describe any conflicting evidence of a significant nature, consider any documentary material arguably supporting a party's case in a satisfactory way and avoid using bald conclusionary statements – see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 per McColl JA, with whom Ipp JA and Bryson AJA agreed, at [62]-[64]. 18. In Gautam v Health Care Complaints Commission [2021] NSWCA 85 Leeming JA, with whom Payne JA and Simpson AJA agreed, said at [18]: "It will, generally speaking, be necessary for the Tribunal to apprehend the gravamen of each side's case, to attend to the central aspects of those cases, and the evidence bearing upon them, and to give reasons for the critical findings of fact and the evidence upon which they turn." 1. Having regard to the principles referred to in the above decisions we will now turn to the builder's Grounds of Appeal based on a failure to provide adequate reasons. First Ground 1. The finding at [7] which is stated to be lacking in adequate reasons is: 'Practical completion occurred in about September 2019 and the applicants thereafter moved into the residence at the Property.' 1. Counsel for the owners submits that the Tribunal's finding was based on a certificate of practical completion dated 27 September 2019 which is at page 94 of the owners' appeal bundle. 2. This relevance of this Ground of Appeal as stated in the builder's Amended Notice of Appeal is that if the builder is successful in establishing an earlier date of completion, the respondents' claim can only relate to major defects which are to be brought within six years of completion. All other defects would have been brought out of time and the Tribunal did not possess the jurisdiction to hear or determine them. Refer s 18E(1) of the (HB Act) . 3. The builder submits that it contended for a much earlier date of practical completion, namely February or March 2018. Precisely when or where that contention was made known to the Senior Member is not identified. There was evidence before the Senior Member which was capable of supporting the builder's submission to which we have been referred. That is an email (which was annexed to the builder's evidence at first instance) from the builder to the respondents dated 6 February 2018 which related to the resolution of an issue between the parties regarding tiling. The agreement was said to be subject to 4 conditions one of which was: 'That you pay half the practical completion progress claim say $28,500.00' 1. The email then stated, among other things: 'Further due to the delay because of the tiling issues and the possibility that the job will be delayed by a further 8-10 weeks while we wait for delivery, both parties (sic) that for the contractual purposes we have reached practical completion stage subject to outstanding works and that no further claims will be made by either party for delays' 1. The owners replied to this email on 7 February by writing their comments on the builder's email. They responded to the condition extracted above by writing, 'Ok, please provide me an invoice.' They also responded to the above paragraph by stating 'Ok.' 2. The builder also submits that the owners advised the statutory insurer that practical completion had been reached and that the insurer then contacted the owners to advise them that the defects liability period had commenced to run. 3. These matters lead the builder to submit that practical completion occurred in February 2018 when the owners part paid the practical completion progress payment, when the statutory insurer was informed and the defect period commenced. The builder also relies on the owners' expert report which contains a statement that the majority of the building work was satisfactorily completed. 4. The owners' counsel has provided written submissions which state that there was no failure by the Tribunal to provide adequate reasons because the date of practical completion was never a matter that was put in issue between the parties, requiring resolution by the Tribunal. The owners submit that the builder should not be permitted to run a case that that was not an issue that it raised before the Tribunal. We are referred to Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645 – 646. To similar effect is Mamo v Surace (2014) 86 NSWLR 275 at 289 where McColl JA, with whom Ward JA and Tobias AJA agreed, held: '[75] A party is bound by the conduct of his or her case. It has long been the law that, except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him or her, to raise on appeal (even one by way of rehearing) a new argument which, whether deliberately or by inadvertence, he or she failed to put during the hearing when there was an opportunity to do so: Coulton v Holcombe (1986) 162 CLR 1 at 7–8 per Gibbs CJ, Wilson, Brennan and Dawson JJ; approving University of Wollongong v Metwally (No 2)(1985) 59 ALJR 481 at 483; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598.' 1. This principle has been consistently applied in the Tribunal. Refer, Oppidan Homes Pty Ltd v Baldwin and Granofsky [2016] NSWCATAP 109, Scarano v Palm Pools and Spas Pty Ltd [2019] NSWCATAP 79 and in Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2016] NSWCATAP 210 at [55]. 2. In order to determine the owners' submission it is necessary to ascertain whether the builder ran a case at first instance, as it now does on appeal, that because there was an earlier date of completion, the owners' claim could only relate to major defects which are to be brought within six years of completion. If such a case was made before the Senior Member, then we agree that the date of practical completion was an issue between the parties which the Tribunal was required to determine. 3. In that context, the following extract from Camilleri v Eastlake [2018] NSWCATAP 176 at [26] referred to at [12] above is relevant: 'It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings:Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58].'(Emphasis added) 1. During the hearing the solicitor for the builder referred us to extracts from the evidence which he considered relevant. First, page 74 of the builder's appeal bundle. This is page 32 of the transcript. The passage relied upon is a statement from of one of the owners when she stated: 'Then I think it was practical completion time, or partial practical completion time. We refused to move into the house and I think it took another eight months, give or take, for John to come in and fix - rectify the issue with the floor at the back end of the house.' 1. Secondly, we were referred to page 11 of the owners' appeal bundle which is a document filed in the first instance proceedings by the owners where they conceded that they agreed to 'Partial Practical Completion' in connection with the replacement of tiles issues between the parties. 2. Thirdly, the builder's solicitor has referred us to the following exchange which is to be found at page 101 of the builder's appeal bundle: 'Mrs Bernleitner: Mr Kasbarian then claimed partial practical completion in March of 2018. Senior Member: Yes. Mrs Bernleitner: And we did not receive – we did not take possession of the house, with practical completion, until September 2019.' 1. Fourthly, in the builder's supplementary hearing bundle, in the owners' expert's 15 June 2018 report at 4.1 and 4.2 where the expert wrote: 'The majority of the building work was of satisfactory quality The building work was completed apart from various internal finishes i.e. isolated cabinetry, final paint coatings, fitting of internal doors, skirting boards, flexible sealant and final clean.' 1. In our view a review of the evidence to determine when there was practical completion is not the appropriate enquiry to undertake in order to ascertain whether the Senior Member's reasons were adequate or whether the builder ran a case at first instance that the owners' claim could only relate to major defects. We find that the correct enquiry is whether the builder at the first instance hearing made it plain that it was running a case that the Tribunal did not have the jurisdiction to determine minor defects and only had jurisdiction to determine major defects. It was only in that context that the date of practical completion being the commencement of the warranty period was 'critical to the determination of the proceedings' or 'critical to the contest between the parties'. 2. The builder's statement filed in the proceedings at first instance does not take the point that the Tribunal only had jurisdiction to determine major defects because the proceedings were not instituted within two years of completion. The statement does state that the practical completion date was 9 February 2018 so far as the respondent was concerned. It also states that an interim occupation certificate was issued on a date which was neither stated nor ascertainable and that the owners 'paid the final monies owing under the contract in October 2019 and moved in'. 3. When considering the transcript that has been provided, it is clear that the respondent did not make a submission that the Tribunal only had jurisdiction to determine major defects. In the opening phase of the hearing, Mr Kasbarian on behalf of the builder after a discussion of the parties' experts' joint expert report and scott schedule, stated at T.7(218 – 20), page 49 of the builder's bundle, that he would be seeking a work order for all of the defects referred to by the experts. We find that this position is inconsistent with a case that the Tribunal only had the jurisdiction to determine major defects. 4. Finally, we have considered the builder's final address to the Tribunal commencing at page 101 of the builder's appeal bundle. Of relevance is the following statement from the transcript at page 103 where the builder stated: 'So I said "Well that's okay, but the trouble is we've got a contract, we've got a time issue, we've got a home owners warranty, I can't have the contract extending too far, I can't have claims for delays" so I said :Well I'm doing that, I'll happily compromise and do that for you, as long as you acknowledge that 'Hey, we would have reached practical completion' and there's no more claims for any delays". They agree to that. Mr Bernleitner offered to pay half the practical completion payment I thought "Yep that's fine we don't deserve all of it but we certainly should have got some of it" so we offered half and it was all in an agreement, email sent in writing accepted in writing to say "Yeah no worries, we'll pay this, we'll wait" and so forth.' 1. Also at page 110 of the builder's appeal bundle (2821 – 2829) and critically the builder's representative stated at T68(2821 – 2826), also in final submissions: 'Just in summary, I'm saying I'll concede a money order for items 4-8. I would prefer a work order, especially if the tiling company's got the tiles in stock ready to go. I'd prefer a work order for No l, and I'd prefer a work order for Nos 2 and 3 because we don't know how much or how little work is to be involved and what the issues are and what the scope of works would be. So I don't know how you quantify that without doing that investigative work, you know.' So we'd like to go in and find out what went wrong; if it was wrong, where it went wrong, and then we'll fix it, no problem at all.' 1. We reject Ground 1 of the builder's grounds of appeal. While the question of practical completion was raised in the proceedings in differing ways by the witnesses, we find that the builder never made a case or submission that the Tribunal only had the jurisdiction to determine major defects. The last extract quoted from the transcript makes that clear. The builder's case was for a work order. In those circumstances the Senior Member was under no obligation to provide detailed reasons to explain the basis of his finding at [7] of the reasons because date of practical completion was not 'critical to the determination of the proceedings' or 'critical to the contest between the parties'. Ground 2 1. This ground of appeal is that the Senior Member failed to provide adequate reasons in [41] of his decision which states: The Tribunal is concerned that whilst no full or final analysis of this issue appears to have been undertaken, the Applicants have been required to live with this major defect in the upper level of their residence since about 2019.' 1. It is stated that there are no reasons to support the finding of the 'major defect' and that there was a defect in the upper level of the residence. 2. It is also submitted that the Senior Member failed to provide adequate reasons to reject the builder's expert's conclusions when at [40] he stated: 'The Tribunal rejects Mr Ovidi's conclusions in this respect.' 1. [40] and [41] form part of the Senior Member's consideration of item 2 of the owners' claim which is dealt with at [31] – [42] of the Reasons. 2. It is our view that the Senior Member's reasons concerning item 2 of the claim are to be considered as a whole. As stated in Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41 the Senior Member was not required to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. 3. We find that reading [39] and [40] together, the basis of the Senior Member's rejection of the builder's expert's conclusion is clear in that it was found the builder's expert agreed that the floor in question was not level, beyond allowable tolerances and rectification was required. In addition it was found that the builder's expert did not oppose the owners' expert's proposed methodology, did not suggest an alternative rectification methodology, but rather suggested that the Tribunal should only award a sum to the respondents after a full diagnosis of the issue. The basis of the Tribunal's rejection of that approach can clearly be inferred, namely that a rectification methodology had been stated by the owners' expert, it was not countered by the builder's expert except to say that something should be done after a further examination. 4. We have found that there was no case by the builder that the Tribunal only had the jurisdiction to determine major defects. Because of that we find that it was not necessary for the Senior Member to support the reference to 'major defect' in [41] with detailed reasons. We are of the view that the use of that term in [41] may be regarded as imprecise language. As stated in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ) a case concerned with judicial review: 'The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts - Lennell v. Repatriation Commission (1982) 4 ALN N.54 (Northrop and Sheppard JJ); Freeman v. Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commission v. Bushell (1991) 13 AAR 176 at 183 (Morling and Neaves JJ).' 1. We are unable to agree that further reasons are required. To find an error of law as submitted by the builder would be equivalent to construing the reasons minutely and finely with an eye keenly attuned to the perception of error, an impermissible course. This ground of appeal is rejected. Ground 3 1. This Ground of Appeal is that adequate reasons were not provided by the Senior Member in finding against the builder in connection with item 3, 'Skylights and Roof Tiles'. The Senior Member dealt with this item of claim at [43] – [51] of the Reasons. Reading that part of the decision as a whole, it is plain that the finding against the builder was based on [49] which recorded that the parties' experts were agreed on three matters. The Senior Member noted that the experts agreed that two of the matters mentioned could be costly to rectify. The Senior Member noted that the owners' expert had provided a costing for the rectification work and the builder's expert had not. 2. The Senior Member accepted the owners' expert's estimation of the rectification cost. 3. We reject the builder's submission that there were inadequate reasons provided to support the finding made against the builder. Again to accept the builder's position and to ignore the whole of the Senior Member's reasons provided for this item would be tantamount to construing the reasons minutely and finely with an eye keenly attuned to the perception of error, an impermissible course. 4. This ground of appeal is rejected. Ground 4 1. This Ground relates to [52] – [60] of the Reasons which relate to Accommodation costs, a claim made by the respondents for $30,000.00. The builder submits that the Senior Member failed to provide adequate reasons for rejecting the builder's expert's opinion. 2. This issue was whether the owners could remain in the residence while rectification work was carried out and if not, how long would it be necessary for them to obtain alternate accommodation. 3. The Senior Member made an order for the owners to recover $6,600.00 inclusive of GST to compensate them for 4 weeks alternate accommodation 4. The owners' expert was of the opinion that they would need to obtain alternative accommodation for a period of 4 – 5 weeks because of safety issues with small children and because the defects appeared to impact most of the upper floor levels, and there was no room or space where the owners and their family could reside while the remedial work was undertaken. 5. The builder's expert was of the opinion that as the house was large, the owners' family could live in a part of the house that was not impacted while remedial work was done. 6. After identifying the issues to be whether the owners could remain in the residence while rectification work was carried out and if not how long would alternative accommodation be required, the Senior Member set out the competing evidence. The basis of the decision on this aspect of the owners' claim was stated at [59] and [60] of the reasons as follows: 'All these assessments were much less than the 16 weeks to complete contained in the Applicants' Financial Compensation Summary. The Applicants had proceeded on a 16 week period assessing a fully furnished two bedroom villa in the area of Denistone East to be approximately $25,548.00 for a 4 month period. The Tribunal considers that having regard to the evidence of the experts at the hearing, the period of time quoted in the Applicants' document is probably excessive. The Applicants' quote approximately $1,600.00 per week for a fully furnished two bedroom villa in the Denistone East area on Air BnB. Even allowing that rate, the consensus of duration on average is about 4 weeks if the builder works sufficiently. In these circumstances, the Tribunal is willing to allow the Applicants the sum of $6,000.00 + GST in accommodation costs, a total of $6,600.00.' 1. We find that the reasons for finding in the owners' favour are adequately stated relying on what the Senior Member described as a 'consensus of duration'. The builder's ground of appeal is that the Senior Member failed to provide adequate reasons for rejecting the builder's expert's opinion. We find that the Senior Member made no finding rejecting the builder's expert's opinion. As stated, the Senior Member's reasons relied upon a consensus of duration. We reject this ground of appeal. Ground 5 1. This ground of appeal is that the Senior Member failed to provide adequate reasons why he made a money order against what was said to be the owners' agreement to a work order. Paragraphs [73] – [78] of the reasons dealt with a work order or a money order. At [76] and [77] of the reasons the Senior Member recited the builder's position and the owners' position as follows: 'In this instance, the Respondent has made submissions to the Tribunal to the effect that a work order is the appropriate solution. But although it is the preferred outcome, it is not mandatory. The Applicants have put in response to the Tribunal the following matters. First, the relationship between the Applicants and the Respondent had broken down. Secondly, the Respondent has failed to or refused to acknowledge the existence of defective work in the residence, either at all or to the extent suggested in the Applicants' expert building report. The Applicants also submitted that this was reflected in the commercial offers made by the Respondent to resolve or settle these proceedings. Thirdly, the Owners state in support of their submission for a money order that the Respondent has now had several years to resolve these building defects and has failed to do so and that up to 15 defect lists have been provided to the Respondent which have resulted in little remedial action. It is now more than 3 years since the Applicants moved into the residence.' 1. The Senior Member stated at [78] that for the reasons outlined by the owners he considered it appropriate to make a money order and not a work order to resolve the proceedings. 2. The making of an order for the payment of money rather than the performance of the necessary work to rectify defects was the result of an exercise of discretion by the Senior Member under s48O of the HB Act. The Senior Member's reasons reveal that he accepted the owners' submissions, and on the basis of the matters advanced in those submissions he came to the position that it was appropriate to make a money order and not a work order. The matters advanced by the owners and accepted by the Senior Member, were tantamount to findings by the Tribunal that: 1. the relationship between the parties had broken down; 2. the builder had failed to or refused to acknowledge the existence of defective work in the residence, either at all or to the extent suggested in the owners' expert building report; 3. the matters referred to in (b) were reflected in the commercial offers made by the builder to resolve or settle the proceedings; 4. the builder had several years to resolve these building defects and has failed to do so; and 5. up to 15 defect lists had been provided to the builder which had resulted in little remedial action, it being more than 3 years since the owners moved into the residence. 1. The builder's submissions in support of this ground of appeal point to various items in the evidence concerning the parties' positions on rectification work being carried out. In our view those submissions do not address the real issue of whether the Tribunal's reasons adequately revealed the basis of the decision and the specific findings that were critical to the determination of this issue. We find that the reasons satisfy those requirements. The Senior Member was not required to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. 2. We reject this ground of appeal. Leave to appeal 1. The builder seeks leave to challenge certain findings of fact on the basis that they were against the weight of evidence and not fair and equitable. 2. Schedule 4 cl 12(1) to the NCAT Act provides that leave may only be granted if builder may have suffered a substantial miscarriage of justice because: 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. Collins v Urban [2014] NSWCATAP 17 (Collins) sets out the principles applicable to the grant of leave. In Collins the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 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 builder 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.' 1. In Collins the Appeal Panel at [77] explained the against the weight of evidence ground for leave as follows: "As to the particular grounds in clause 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (2) the decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe the ground upon which a jury verdict can be set aside) when 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 – Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Ltd v Stein Heurte SA [2013] NSWSC 266 at [153]." 1. Even if an appeal from a decision of the Consumer and Commercial Division requiring leave to appeal 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. The builder must demonstrate something more than the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. 2. In Collins the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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. Practical Completion date 1. The first finding of fact challenged concerns the Practical Completion date. As stated above the Tribunal addressed this at [7] stating: 'Practical completion occurred in about September 2019 and the applicants thereafter moved into the residence at the Property.' 1. The first hurdle for the builder in seeking leave to appeal in connection with this finding of fact is to establish that it may have suffered a substantial miscarriage of justice in connection with this finding because the finding was against the weight of evidence and not fair and equitable. A stated above the hallmark of a substantial miscarriage of justice is that there was "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the builder had the finding not been against the weight of evidence or not fair and equitable. 2. As we have explained above, the builder did not raise an issue in the proceedings that the Tribunal only had the jurisdiction to determine major defects and did not have the jurisdiction to consider defects which were not major defects as defined in the HB Act. In those circumstances we have found that the Senior Member was under no obligation to provide detailed reasons to explain the basis of his finding at [7] of the reasons because the date of practical completion being the commencement of the warranty period was not 'critical to the determination of the proceedings' or 'critical to the contest between the parties'. 3. As a result of the findings referred to in the preceding paragraph, we find that the builder has not suffered a substantial miscarriage of justice as a result of the Senior Member's finding at [7] of the reasons. 4. Leave to appeal is refused. (Upper level floor) of Joint expert report 1. The builder challenges the findings made at [41] and [42] of the reasons on the basis that they were against the weight of evidence and not fair and equitable. 2. The Senior Member stated at [41] and [42]: 'The Tribunal is concerned that whilst no full or final analysis of this issue appears to have been undertaken, the Applicants have been required to live with this major defect in the upper level of their residence since about 2019.' The Tribunal in these circumstances does not consider it appropriate to delay further on compensating the Applicants for this item. Based on the quantification undertaken by Mr Nakhla and noting that Mr Ovidi undertook no quantification of this item in the JSS, the Tribunal awards the Applicants the sum of $16,682.82 being the sum estimated by Mr Nakhla in the JSS to remedy this item plus a further $3,000.00 for this item being the cost agreed between the two experts for an engineer to review the exposed flooring, advise and ultimately produce a certificate of structural adequacy for whatever work may be required to be undertaken to remedy this item.' 1. The builder refers to [35] of the decision, where in connection with upstairs floors of the residence being out of level the Senior Member stated: 'There was some uncertainty about the cause of the evenness both experts considered that there should be an allowance made of approximately $3,000.00 for a structural engineer to review the floor levels once the joists had been exposed. The upper floor level may need a certificate of structural adequacy.' 1. To the extent that it is submitted by the builder that [41] as extracted above is against the weight of evidence or not fair and equitable, we find that there is no basis for that submission having regard to what was said at [35] regarding the agreement of the experts that there should be an allowance for a structural engineer's review. To the extent that the builder submits that the reference to 'major defect' is against the weight of evidence or not fair and equitable, given that there was no issue in the proceedings as to whether the defects found by the experts were major or other defects, we find that the Senior Member's use of that term may be regarded as use of imprecise language. As previously referred to, in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ) the court stated : 'The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts - Lennell v. Repatriation Commission (1982) 4 ALN N.54 (Northrop and Sheppard JJ); Freeman v. Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commission v. Bushell (1991) 13 AAR 176 at 183 (Morling and Neaves JJ).' 1. This ground of appeal contends that the Senior Member erred in finding in [42] of the reasons that the item under consideration was a structural defect and that such finding was against the weight of evidence and not fair and equitable. We reject that contention. The Senior Member made no such finding in [42] of the reasons. The builder has not established that it may have suffered a substantial miscarriage of justice as a result of the Senior Member's finding at [41] and [42] of the reasons. 2. Leave to appeal is refused. (Skylight and roof tiles) of Joint expert report 1. The builder seeks leave to appeal against the finding of $18,367.80 in favour of the owners on this item of their claim on the basis that the award was against the weight of evidence, and not fair and equitable having regard to [50] of the reasons. 2. The builder correctly submitted that [50] of the reasons refers to an agreement between the joint experts that a structural engineer was to conduct an invasive inspection and determine cause and rectify as per structural engineer. 3. There were six (6) matters referred to by the Senior Member at [50] of the decision, including those referred to by the builder. The six (6) matters were taken from the method of rectification agreed by the experts in the Conclave Joint Report which was before the Senior Member. The six matters agreed upon by the experts were: 1. Structural engineer to conduct invasive inspection including removal of roof tiles and ceiling sections as required; 2. structural engineer to determine the cause of the issues and provide a remedial design for the rectification of the roof and truss, if determined; 3. licensed builder to complete remediation works as specified by the structural engineer; 4. structural engineer to inspect completed works and issues certificate of adequacy 5. builder to repair sagging ceiling below; and 6. builder to makegood the entire affected area. 1. The builder's submissions state that until the steps referred to in (1) and (2) were completed, the Tribunal would not be in a position to ascertain the rectification cost. On that basis it is said that the finding by the Senior Member that rectification damages of $18,367.80 were applicable was either against the weight of evidence or not fair and equitable. 2. The Senior Member found that the owners' expert had provided a costing which he found to be reasonable and satisfactory. The owners' expert's costing was for the work referred to at 7.3 of his report being: 1. Strip all ceilings to family room and dispose of plasterboard; 2. Jack/ modify roof trusses into place to alleviate wavy roof tiles and sagging ceiling; 3. strengthen roof trusses around skylight openings; 4. strip roof tiles around skylight and raise skylight; 5. install new plasterboard ceilings including setting and sanding; 6. paint all ceilings as required; and 7. final clean and make good with allowances for skip bins and materials. 1. As previously stated, the first hurdle for the builder in seeking leave to appeal in connection with the finding of $18,367.80 in favour of the owners on this item of their claim, is to establish that it may have suffered a substantial miscarriage of justice because the finding was against the weight of evidence and not fair and equitable. As stated the hallmark of a substantial miscarriage of justice is that there was "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the builder had the finding not been against the weight of evidence or not fair and equitable. 2. The Conclave Joint Report stated that the experts agreed that there were visible issues which required rectification as per the owners' expert's report. Once that is acknowledged, we find that it was inevitable that the builder would be responsible for rectification of defective work or the payment of rectification damages. The Senior Member exercised his discretion in favour of a money order, rather than a work order. Because of the admissions made by the builder's expert regarding the existence of defects, it was in our view almost certain that the builder would face liability of one type or another in connection with this item of the owners' claim. 3. The guiding principle in s36(1) of the NCAT Act is to: 'facilitate the just, quick and cheap resolution of the real issues in the proceedings.' 1. In circumstances where the experts had agreed that there were defects that required rectification as stated in the owner's expert's report, when the owner's expert had provided an estimation of the cost of the rectification work, but the builder's expert had not, when the rectification methodology agreed by the parties' experts in conclave had not been quantified, when the owners' expert's quantification traversed similar work as may have been expected to have arisen from an engineer's remedial design and when the Senior Member was obliged to implement the guiding principle referred to and was entitled to do the best that he could do to estimate the rectification cost, we are not persuaded that the builder may have suffered a substantial miscarriage of justice because the finding in favour of the owners was against the weight of evidence and not fair and equitable. In other words, because of the concession made by its expert, we find that it was inevitable that the builder would be liable to the owners and faced the possibility of an award of damages being made against it. 2. Leave to appeal is refused. Orders 1. The orders we make are as follows: 1. The stay of the decision made on 14 October 2022 in HB 21/31536 is lifted. 2. Leave to appeal is refused 3. Appeal dismissed. 4. In the event that a party wishes to bring a costs application, such application must be lodged in the Appeal Panel Registry and served on/given to the costs respondent within 14 days of the date of the orders either attaching or referring to the documents relied upon in support of the application. 5. The costs respondent will have 14 days after the date it or they receives the application to lodge in the Appeal Panel Registry and serve on/give to the costs applicant its or their submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon. 6. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing. 7. Subject to the parties' submissions, the Appeal Panel will determine any costs application made on the basis of the papers lodged in the Appeal Panel Registry. 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: 26 June 2023