Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Anderson v Gold Emporium Pty Ltd t/a Cordony Constructions (No 2) [2023] NSWCATCD 43 Hearing dates: On the papers Date of orders: 06 April 2023 Decision date: 06 April 2023 Jurisdiction: Consumer and Commercial Division Before: D Robertson, Senior Member Decision: (1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing in respect of the application for miscellaneous matters filed by the applicants on 9 February 2023 is dispensed with. (2) The applicants' application for a money order in place of order 1 made on 21 June 2022 is dismissed. (3) The applicants are to pay the respondent's costs of the application as agreed or assessed. Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) s 48O – Order that the respondent carry out work to rectify building defects – Application for substitution with an order for the payment of money – Tribunal has no jurisdiction to revisit orders once made except in the narrow circumstances provided by s 63 of the Civil and Administrative Tribunal Act 2013 (NSW). ADMINISTRATIVE LAW – Civil and Administrative Tribunal – Application to substitute an order for the payment of money instead of an order for the carrying out of work – Tribunal has no jurisdiction to vary orders once made except for obvious errors in the text of a notice of a decision or a statement of reasons (pursuant to s 63 of the Civil and Administrative Tribunal Act). Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Anderson v Gold Emporium Pty Ltd t/a Cordony Constructions [2022] NSWCATCD 110 Gold Emporium Pty Ltd t/as Cordony Constructions v Anderson [2023] NSWCATAP 7 Jayasooriah v Wisdom Properties Group Pty Ltd [2020] NSWCATAP 81 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 Texts Cited: Nil Category: Procedural rulings Parties: Mark Anderson and Kathy Anderson (applicants) Gold Emporium Pty Ltd t/a Cordony Constructions (respondent) Representation: Counsel: T Kent (respondent) Solicitors: Carneys Lawyers (applicants) Creagh & Creagh (respondent) File Number(s): HB 20/31442 REASONS FOR DECISION Introduction 1. I delivered my decision in these proceedings on 21 June 2022 (Anderson v Gold Emporium Pty Ltd t/a Cordony Constructions [2022] NSWCATCD 110). In that decision I made an order pursuant to s 48O of the Home Building Act 1989 (NSW) requiring the respondent to undertake work on the applicants' property to rectify defective work. 2. The respondent appealed against that decision. The appeal was dismissed on 16 January 2023 (Gold Emporium Pty Ltd t/as Cordony Constructions v Anderson [2023] NSWCATAP 7). Order 3 made by the Appeal Panel was: "3. The Respondents have leave to apply to the Consumer and Commercial Division for order 1 [the work order] to be replaced by a monetary order." 1. The only explanation in the Appeal Panel's decision for that order was paragraph [123]: "After the hearing of the appeal the Respondents solicitors wrote to the tribunal in which the Respondents made an application for the work order to be set aside and instead they sought that a monetary order be made. We are of the view that such application is to more appropriately to be made before the Consumer and Commercial Division of the Tribunal." 1. On 9 February 2023 the applicants filed an Application for Miscellaneous Orders seeking that: "The Tribunal replaces Order 1 made in the decision of HB 20/31442 (Anderson v Gold Emporium Pty Ltd t/a Cordony Constructions [2022] NSWCATCD 110) with a monetary order. " 1. On 13 February 2023 I issued directions in the following terms: "1. By 20-FEB-2023 the applicants are to file and serve upon the respondent a document setting out: (a) the money order which the applicants seek; and (b) the basis upon which the applicants submit that the Tribunal has jurisdiction to make the money order. 2. Direct the respondent to file and serve upon the applicants submissions in response to the application by 06-MAR-2023." 1. The applicants filed submissions on 21 February 2023. The respondent filed submissions on 7 March 2023. 2. Neither party sought a hearing in respect of the application. I am satisfied that the application can be adequately determined in the absence of the parties by considering the written submissions and I will make an order pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) dispensing with a hearing in respect of the application. The applicants' submissions 1. The applicants' submissions signally failed to address subparagraph 1(b) of my orders of 13 February 2023. That is, there was nowhere in the applicants' submissions any explanation of the basis upon which the applicants submit that I have jurisdiction to make the money order sought. The submissions rather acknowledged: "11. There was no cross-appeal by the applicants in relation to the decision not to order a monetary sum. There is an argument that Mr Robertson and the Appeal Panel are now regarded as 'functus'." 1. As far as I can ascertain from the applicants' submissions, the grounds for the applicants' application are: 1. First, that there is new evidence not available at the time of the original hearing which establishes that a work order is not appropriate; 2. Secondly, it appears that the applicants submit that my original decision, that it was appropriate to make a work order rather than a money order, was in any event incorrect. 1. The new evidence upon which the applicants sought to rely consisted of a statement signed by Mrs Kathryn Anderson which includes the following: "9 During the in-person Appeal hearing on 10 October 2022 I had to face both Adam and Chris Cordony which created anxiety. … 12 Following the Appeal hearing on 10 October 2022, I experienced ongoing anxiety and distress that evening which prevented me from sleeping. The experience at the Appeal hearing brought back memories of Adam Cordony confronting me in a public place on 17 December 2019 which was reported to Police (Event number 72908127) and again at my home on 16 March 2022 (reported to Police in Event number 871011156). … 16 Following the Appeal hearing on 10 October 2022, anxiety continued to grow in me. The next day (11 October 2022), I sought an urgent appointment with my doctor as I was not coping with the thought of Adam and Chris Cordony returning for possibly four months to undertake rectification work as originally ordered by the Tribunal. I felt I could not cope with the physical presence of Adam Cordony in my home and the possibility of this re-awoke the anxiety and fear I felt when I was confronted by Adam Cordony on 17 December 2019 and 16 March 2022. … 18 The prospect of Adam Cordony returning to undertake rectification work will exacerbate my adjustment disorder and anxiety." 1. The statement annexed a medical certificate from a medical practitioner dated 11 October 2022. The medical certificate is in the following terms: "I hereby certify that in my opinion, Mrs Kathryn Anderson has developed an Adjustment Disorder with anxiety after being in the same room as the the Appellant in the Appeals Court yesterday. She will not be able to have ongoing contact with them." 1. The applicants' submissions regarding my original decision were as follows: "22. In paragraphs 189 to 196, the Senior Member gives reasons as to why he did not accept a breakdown in the relationship between the parties was sufficient to award a Money Order. Whilst the Senior Member did not view the level of personal animosity sufficient to displace the primacy of a work order for defective work, he erred in not considering the relational breakdown is an element in objective assessment, as can be doubts about the builder's capacity or skills to undertake the required remediation, the builder's attitude to the standard of work done, and the likelihood of further dispute not meaning that a work order would be a timely or cost-effective resolution. … 24. The Tribunal erred in his assessment of the Respondent builder's ability to perform work with due care and skill. The Respondent's failure to follow his own scope of works (that was provided by his expert, Zervos) was evident in his failed attempt to rectify the back deck. The Tribunal did not give sufficient weight to the fact that, even with a detailed scope of works prepared by an expert, the Respondent lacks the requisite care and skill to rectify his work. Further, weight should have been given to the level of distrust the Applicant's have towards the Respondent as the result of the Respondent's inability to accept responsibility for substandard workmanship. … 26. The Senior Member was shown to be incorrect in his view expressed at paragraph 192 in light of the Respondent's Appeal submissions. The Senior Member concluded "I am not persuaded that the respondent has repeatedly failed to rectify defective work". He goes on to state "Although I have found the respondent's work was defective, I do not find the respondent unreasonably maintained the position that the work was not defective". The Respondent continues to maintain his position following the Tribunal's decision against him, and this must now be considered unreasonable given the Respondent's beliefs and position presented at Appeal. 27. The Senior Member also failed to give weight to the fact the Applicants did provide in full the first expert report (prepared by Mr Joannides from Partridge Partners) to the Respondent who rejected it. Had proper weight been given to this evidence, the grounds for the Tribunal awarding a monetary order were established. See paragraphs 9, 10, 11 and 12 of the decision." 1. It is notable that the applicants did not submit that the Appeal Panel had set aside the work order I made on 21 June 2022 or that it had remitted any question or issue to the Tribunal for reconsideration. The respondent's submissions 1. The respondent submitted that the order of the Appeal Panel was: "not the subject of argument and was made following ex parte communication to the Tribunal by the applicant while judgment was reserved." 1. The respondent asserted that: "The respondent wrote to the Tribunal objecting to the material being put before the Appeal Panel in circumstances where judgment was reserved. The order granting leave and the reasons of the Appeal Panel do not cite any legislative or other power to grant such leave." 1. The respondent submitted that the Tribunal has no jurisdiction to hear this application or to make the orders sought by the applicants. The respondent's written submissions were: "8. To the extent the applicant asserts jurisdiction under s 48K, the subject matter of the building claim was determined by the orders of the Tribunal on 21 June 2022 and the Appeal Panel on 16 January 2023. In the absence of any statutory exception, the claim is clearly res judicata. There is no statutory jurisdiction for the Tribunal to re-open the claim to receive fresh evidence." 1. Clause 8 of schedule 4 to the NCAT Act provides: 8 Renewal of proceedings in respect of certain Division decisions (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. (4) When proceedings have been renewed in accordance with this clause, the Tribunal— (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order. (5) This clause does not apply if— (a) the operation of an order has been suspended, or (b) the order is or has been the subject of an internal appeal. 1. The respondent submitted that the occasion had not arisen for renewal of proceedings pursuant to clause 8 of schedule 4 of the NCAT Act as the time for compliance with the work order (as extended by the Appeal Panel) had yet to expire. Consideration 1. In Jayasooriah v Wisdom Properties Group Pty Ltd [2020] NSWCATAP 81 at [37] – [38], the Appeal Panel, after citing the judgment of Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [7]-[8], held that, in making work orders pursuant to s 48O of the Home Building Act: "37 … the Tribunal had discharged the functions imposed upon it by the [Home Building] Act to provide for the determination of a building claim as referred to in s48I, and to make orders in determining a building claim as referred to in s48O(1) of the Act. The Act does not allow the Tribunal to revisit a determination once made. Nor does the NCAT Act except in the circumstances that we refer to below. 38 It is our view that after the orders of 12 July 2019 had been made, the Tribunal was functus officio as regards the subject matter of orders 1 – 3 [ie the work orders], subject to the exception in s63 of the NCAT Act which allows for the correction of errors in decisions." [The Appeal Panel also acknowledged the provisions of clause 8 of schedule 4 to the NCAT Act]. 1. Section 63 of the NCAT Act provides: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where— (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons. 1. It is clear in my view that I do not have any jurisdiction to make the orders sought by the applicants. The application filed by the applicants was determined by my decision of 21 June 2022. The Tribunal is functus officio, that is, it has exhausted its jurisdiction with respect to the application. It cannot be suggested that s 63 of the NCAT Act would be relevant to this application, and the applicants' submissions did not so suggest. 2. As noted, clause 8 of schedule 4 to the NCAT Act makes provision for the renewal of proceedings where "an order has not been complied with within the period specified by the Tribunal". That provision does not come into operation unless and until a work order is not complied with within the time allowed. 3. The matters raised by the applicants are matters that could have been raised, if at all, only through an appeal, lodged within the time laid down by rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (unless that time was extended by an Appeal Panel pursuant to s 41 of the NCAT Act). 4. The application is dismissed with costs. Orders 1. My orders are: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing in respect of the application for miscellaneous matters filed by the applicants on 9 February 2023 is dispensed with. 2. The applicants' application for a money order in place of order 1 made on 21 June 2022 is dismissed. 3. The applicants are to pay the respondent's costs of the application as agreed or assessed. ********** 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: 17 July 2023