Civil and Administrative Tribunal New South Wales Medium Neutral Citation: B & M Mitchell Pty Ltd v Mikell Investments Pty Ltd & Divlist Pty Ltd t/as Contemporary Homes [2018] NSWCATAP 35 Hearing dates: 5 December 2017 Date of orders: 01 February 2018 Decision date: 01 February 2018 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President R Hamilton SC, Senior Member Decision: 1. The time for the filing of the Notice of Appeal is extended to 4 October 2017; 2. The appeal is dismissed; 3. The order staying the operation of order 1 made on 1 September 2017 in HB 16/33023 is lifted; 4. The respondents are to file and serve submissions concerning costs of the appeal within 21 days; 5. The appellant is to file and serve submissions in response to the respondents' submissions within 21 days thereafter; and 6. The respondents are to file and serve submissions on costs in reply within 7 days thereafter Catchwords: Building contract – fixed price – cost plus Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales 149 CLR 337 Reardon Smith Line Ltd V Hansen-Tangen [1976] 1 WLR 989 Category: Principal judgment Parties: B & M Mitchell Pty Ltd (Appellant) Mikell Investments Pty Ltd & Divlist Pty Ltd t/as Contemporary Homes (Respondents) Representation: Counsel: J Nathan(Appellant) J Young (Respondents) Solicitors: Campbell Paton & Taylor Legal (Appellant) Blackwell Short (Respondents) File Number(s): AP 17/42412 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 01 September 2017 Before: K Rickards, General Member File Number(s): HB 16/32023 reasons for decision Introduction 1. This is an appeal from a decision made in the Consumer and Commercial Division of the Tribunal published on 1 September 2017 (the Decision). The Decision records that the applicants are builders that brought proceedings for payment by the respondent (the homeowner) of an amount said to be owing under a home building contract. The respondents appeals the Decision. We will refer to the appellant as the homeowner and to the respondents to the appeal as the builders. 2. In the Decision, the Tribunal made orders to the following effect: 1. The homeowner is to pay the sum of $35,989.11 to the builders; and 2. The homeowner is to pay the costs of the proceedings of the applicants as are agreed or assessed. 1. As mentioned above, the proceedings involved a claim made by the builders for the amount of $39,304.44 said to be owing by the appellant under the terms of a home building contract entered into between the parties on 27 July 2016 in respect of a property at Orange in New South Wales. In essence, the dispute involved a contention put by the builders that the contract was a "cost plus" contract by which the builders were to be paid by the homeowner for the actual costs of materials involved in construction of the building plus a 15% margin which was capped at $33,000.00 inclusive of GST. That contention was disputed by the homeowner which argued that the contract was void for uncertainty or, alternatively was a "fixed price" contract by which the homeowner was to pay the builders the sum of $278,000.00. 2. It is common ground between the parties that the contract is constituted by the building contract found in the folder marked "Agreed Appeal Panel Bundle of Documents" which counsel for both parties referred to during the course of the appeal hearing. 3. It is of assistance in understanding the dispute between the parties and our decision if we summarise the salient points contained in the Decision, which we do as follows: 1. The Tribunal found that the contract was "sufficiently clear" in its terms to be enforceable and that the contract price is clearly expressed to be: Invoice costs + 15%.....15% is GST incl. capped @ 15% capped at $33,000 incl GST (par 12) 1. In paragraph 13, the Tribunal stated that a potential source of ambiguity is created by insertion of the figure of $278,000.00 into the box next to the words quoted above; 2. The homeowner had submitted that the contract was void for uncertainty but the Tribunal held that that was not the case (see par 15); 3. Alternatively, the homeowner submitted that the contract was a fixed price contract requiring payment of $278,000.00. The Tribunal held that this contention was contradicted by evidence given by the homeowner's director. Such evidence included an alleged statement made by the homeowner's director in the course of cross examination when he allegedly conceded that he had expressly agreed to the "cost plus" method as set out within the contract (see par 17); 4. In paragraph 18, the Tribunal found that the amount actually paid by the homeowner to the builders in respect of the subject works exceeded the amount of $278,000.00. The claim by the homeowner that there was a fixed contract price of $278,000.00 is contradicted by the concession made by the homeowner that this amount was exceeded due to "certain variations which the [homeowner] requested during the course of the works and for which the costs of these particular variations are conceded"; 5. The Tribunal found that the evidence established that there was a contract between the parties which effectively provided for payment by the homeowner to the builders of invoice costs plus 15% (see par 19); 6. The Tribunal recorded that in the event of the Tribunal making the above finding, the homeowner submitted that the amount claimed by the builders had not been properly proved because the builders' invoices had not been placed into evidence before the Tribunal (par 19); 7. The Tribunal found that there was no challenge made by the homeowner either during the course of the work being undertaken or during evidence given before the Tribunal that the items and amounts which were claimed as paid or payable by the builders to other suppliers or service providers and which comprise the basis of the builders' present claim are either not genuine or incorrectly calculated (par 20); and 8. The Tribunal held that the builders were not required to strictly prove that each item that they claimed is genuine and accurately calculated. The amount of $35,989.11 claimed by the builders has not been disputed by the homeowner or placed in issue during the course of the hearing. Notice of Appeal and Amended Notice of Appeal 1. A Notice of Appeal was filed by the homeowner on or about 4 October 2017. An amended Notice of Appeal was filed on or about 31 October 2017. In the amended Notice of Appeal the homeowner stated that the Decision had been received on 1 September 2017. Accordingly, the Notice of Appeal should have been filed on or before Friday 29 September 2017 (see r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules)). By s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the Tribunal has power to extend time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction. The homeowner has applied to the Tribunal for an order extending time for the filing of the Notice of Appeal. 2. In the amended Notice of Appeal, the homeowner provided the following explanation for the delay in filing the Notice of Appeal: 1. The Notice of Appeal was executed on 27 September 2017 and a copy of the Notice of Appeal was served upon the solicitors for the builders via email on the same date; and 2. The Notice of Appeal and other documents were sent to city agents for the homeowner's solicitor on 27 September 2017 but the city agent did not attend the Registry until 29 September 2017. They were advised by the Registry that additional copies of the Notice of Appeal were required and they did not return to file the Notice of Appeal with the extra copies until 3 October 2017. 1. The homeowner submitted that the delay has not caused prejudice to the builders. We note, incidentally, that although the homeowner says that the Notice of Appeal was filed on 3 October 2017, the copy we have indicates it was filed on 4 October 2017. The discrepancy is of no consequence. 2. At the hearing of the appeal the counsel for the builders indicated that the builders did not consent to time being extended. In addition, counsel submitted that the appeal was hopeless but conceded that the builders had not been prejudiced by the delay. Grounds of Appeal in Amended Notice of Appeal 1. The grounds of appeal may be summarised as follows: 1. The homeowner was denied procedural fairness and natural justice as the Tribunal erred in stating in paragraph 17 of the Decision that "the contention is contradicted by the evidence given by the homeowner's director in the course of cross examination when he conceded that he had expressly agreed to the "cost plus" method as set out within the contract", in circumstances where the director of the homeowner did not make such a concession; 2. In the alternative there is no evidence to support the finding of fact that the director of the homeowner conceded that the contract was a cost plus contract; 3. The homeowner was denied procedural fairness in circumstances where the Tribunal stated in paragraph 21 of the Decision that "The amount of $35,989.11 claimed by the [builders] within its Tax Invoice dated 23 March 2016 has not been disputed by the [homeowner] itself or placed in issue during the course of the hearing of these proceedings", despite the homeowner putting the validity, accuracy and legitimacy of the tax invoice in issue; 4. The Tribunal erred in accepting at paragraph 21 of the Decision that the amount claimed by the builders in their tax invoice dated 23 March 2016 was inherently accurate and genuine in circumstances where the homeowner put the validity of that tax invoice in issue and the builders have not provided supporting material and submissions to show on what basis the invoice was calculated; 5. The Tribunal erred in stating at paragraph 18 of the Decision that: The claim that there was a fixed contract price of $278,000 is also contradicted by the concession made by the [homeowner] that this cost amount was exceeded due to certain variations which the [homeowner] requested during the course of the works and for which the costs of these particular variations are conceded, 1. given that variations can be made to a contract for building and construction works which is for a fixed contract price and is not necessarily inconsistent with there being a fixed price contract. 1. The amended Notice of Appeal states that the above grounds raise questions of law. However, in the event that the Appeal Panel finds that the appeal also involves issues that are not questions of law, the homeowner seeks leave to appeal on the grounds referred to below. Ground 1 – Decision not fair and equitable 1. The statement made in paragraph 17 of the Decision that the homeowner's director in the course of cross examination conceded that he had expressly agreed to the "cost plus" method is against the weight of evidence as the director of the homeowner did not make any such concession. The grounds refer to the witness statement of Robert Mitchell dated 27 September 2017 accompanying the Notice of Appeal in which Mr Mitchell confirms he did not make that concession. Grounds 2 and 3 1. The amended Notice of Appeal also relied upon the following grounds: 1. In paragraph 21 of the Decision the Tribunal stated that the claim for $35,989.11 has not been disputed or placed in issue during the course of the proceedings. The homeowner submitted that it did put the validity, accuracy and legitimacy of the tax invoice in issue by oral and written submissions made by the homeowner. The homeowner referred to paragraph 2.13.11 and 2.13.12 of its written submissions which state: 2.13.11. The applicant did not annex to the affidavit or put into evidence any of the invoices from subcontractors or the suppliers of goods and services (third-party invoices). Nor did the applicant put into evidence any of its own invoices other than the final invoice). 2.13.12. Thus, neither the Respondent nor the Tribunal can make any independent assessment of the applicant's position with respect to 'invoice cost plus 15%'. That is, there is no way of assessing that the third-party invoices and the applicants own invoices (save for the final invoice), were accurate, related to this project, are relevant to the proceedings or otherwise an accurate indication of the work done and/or goods and services supplied 1. In the above circumstances, the homeowner submitted that there was a denial of natural justice and procedural fairness and the decision was against the weight of evidence; and 2. In the circumstances where the homeowner put the amount claimed by the builders in issue, the Tribunal was required to assess the validity of the amount claimed against the terms of the contract and erred in law in finding that the Tribunal was not required to do so. 1. Based upon the above, the homeowner submitted that the finding of the Tribunal at paragraph 17 was against the weight of evidence. Reply to Appeal 1. The builders filed a Reply to Appeal disputing each of the contentions made in the amended Notice of Appeal. It is not necessary to refer to the elements of the reply as we will do so in the context of considering the builders' submissions. Homeowner's Written and Oral Submissions 1. In the following paragraphs we summarise the submissions made by the homeowner (including those made orally at the hearing of the appeal). 2. The homeowner challenges findings made in the Decision that the contract was a cost plus contract and not a fixed priced contract and that the builders did not have to prove the amounts claimed in their invoices. In particular, the homeowner challenges a number of findings (being those already referred to in the amended Notice of Appeal) and submitted that if the homeowner is found to be correct on some or all of the grounds of appeal, a question arises as to whether the finding that the contract was a cost plus contract can stand and also whether the finding that the homeowner is indebted to the builders can stand. The homeowner submitted that the finding that the contract is a cost plus contract cannot stand in circumstances where: 1. It is not clear from the Decision what weight the Member attributed to each of his findings in relation to the contract in coming to the conclusion that the contract was a cost plus contract. Therefore, in circumstances where some findings are taken away, it is not clear if the Member would still have found that the contract was a cost plus contract; 2. When the contract is examined on its terms it is evident on a proper construction of the contract that it is not a cost plus contract; 1. In support of the above contention that the proper construction of the contract is that it is not a cost plus contract, the homeowner submitted: 1. The document headed "BOQ By Cost Centre Detailed" is not a method by which the price of a cost plus contract can be calculated, but is a quote estimating the price of the works. Such estimate is not inconsistent with a fixed price contract; 2. The sum of $278,000.00 written in the contract price next to the words "invoice costs + 15% 15% GST incl capped @ $33,000.00" (see page 5 of the contract) suggests that it was the parties intention that the formula prescribed would amount to a fixed price of $278,000.00; 3. There is no mechanism in the contract for calculating the monies owed to the builders on a cost plus basis other than the formula referred to above which, the homeowner contends, the parties already agreed would amount to $278,000.00. The contract does not contain a schedule of rates or other mechanisms for assessing costs ordinarily found in cost plus contracts; 4. Clause 12 of the contract contains a list of progress payments, which states that some progress payments are estimates and some are not; 5. The handwritten amendment to the contract fixes the price at "around $278,000.00 inclusive of GST" and states that "this price for construction is what I will call turn key". This is more consistent with a fixed price contract than a cost plus contract; and 6. Annexure A to the contract states that the price of the "build" is "around $278,000.00 inc GST". It then states that this "price for construction is what I call "turn key" Meaning everything is complete". The homeowner contended that this confirms that the contract was for the fixed price of $278,000.00. 1. The homeowner submitted that the Tribunal was in error in finding that the director of the homeowner had made the concession described in paragraph 17 of the Decision. Counsel for the homeowner acknowledged that the basis for the concession appears to be the following evidence given by the director of the homeowner in response to a question as to whether he had previously built houses with fixed priced contracts: Question: you had built a number [of homes] previously. Have they been fixed price ones? Directors: Some of the houses I built would have been fixed price contract although that wasn't always. Yes I think they would have been fixed price contracts. Question: Sometimes? Director: Well I don't recall. I never do a contract unless it was fixed price. 1. With respect to the alleged concession referred to in paragraph 18 of the Decision, the homeowner submitted that there were in fact variations bringing the price above $278,00.00 but that such variations are not inconsistent with the fact that the contract was a fixed price contract. Variations in the scope of works under a fixed price contract can occur, resulting in an increase or decrease in the contract price. 2. With respect to paragraph 20 of the Decision (to the effect that there no been no challenge by the homeowner to the genuineness or accuracy of the invoice), the homeowner referred to its outline of written submissions in the proceedings at first instance (a copy of which was tendered at the appeal hearing and marked Exhibit 1) and in particular to paragraph 2.13.11 and 2.13.12 of those submissions in which the following is stated: 2.13.11 The applicant did not annex to the affidavit or put into evidence any of the invoices from subcontractors or the suppliers of goods and services (third party invoices). Nor did the applicant put into evidence any of its own invoices other than the final invoice 2.13.12 Thus, neither the Respondent nor the Tribunal can make any independent assessment of the applicant's position with respect to "invoice costs plus 15%. That is, there is no way of assessing that the third party invoices and the applicants own invoices (save for the final invoice), were accurate, related to this project, are relevant to the proceedings or otherwise an accurate indication of the work done and/or goods and services supplied. 1. This, the homeowner contended demonstrated that the genuineness and validity of the invoice upon which the builders brought their claim had been in dispute. 2. Assuming that the concessions found by the Tribunal are found to have been in error and are therefore removed, one is left to consider the terms of the contract itself, and in particular the following provisions of the contract: 1. On the page headed "This contract starts here" it is stated that the price is $278,000.00; 2. Annexure A to the contract states: This price for construction is what I call "turn key" Meaning everything is complete. 1. The homeowner contended that this means that this price (which was stated above to be "around $278,000.00 inc GST") is a fixed price; 2. The contract provides no mechanism for costing variations and therefore if the builders agreed to do work not in the contractual scope, the builders would only be entitled to what it cost the builder; and 3. Clause 12 of the contract refers to a price of $278,000.00 made up of six items specified above the total price of $278,000.00. Some of those items are identified as an estimate and others are not. The total ($278,000.00) is not identified as an estimate. 1. The above factors should all be taken into account leading to the conclusion that the contract is a fixed price contract. Builders' Submissions 1. The builders submitted that the homeowner is seeking to collaterally attack findings of fact made in the Decision in support of the argument that the contract is a fixed price contract. Even if there are errors in the Decision, the Appeal Panel should consider and construe the contract as a cost plus contract. 2. The builders contend that the Tribunal did not find that the director of the homeowner conceded under cross examination that the contract between the parties was a cost plus contract. Rather, the Tribunal at paragraph 17 found that the director conceded under cross examination that he had expressly agreed to the "cost plus method" as set out within the contract. 3. The finding in the Decision at paragraph 17 was correct. The transcript extract at page 15 records that the homeowner's director conceded that it was made quite clear to him at the time of signing the contract that there was a 15% builders margin to be applied and that some of the other houses he built were under fixed price contracts. 4. The builders submitted, in the alternative to the above, that even if the finding in paragraph 17 is inaccurate as contended for by the homeowner, or even if it is held to be erroneous, the finding is essentially one of fact that is open to the Tribunal to make. 5. In any event, the builders contend that in the light of overwhelming evidence otherwise of the existence of a "cost plus contract" the finding is nothing more than an isolated secondary finding having no material bearing on the outcome of the proceedings below. It is not an error justifying allowing an appeal. 6. With respect to the challenge to paragraph 18 of the Decision, the builders submitted that the Tribunal did not find that the variations were inconsistent with a fixed price contract. Rather, the Tribunal found that the claim of a fixed price contract was contradicted by the concession by the director of the homeowner that the so called fixed price was exceeded because of variations requested by the director during the works, the liability for costs of which were conceded by the director of the homeowner. 7. The transcript extract at page 6 records that the homeowner's director understood that there could be variations and that he just paid in accordance with the invoices that were supplied. In circumstances where there was no suggestion that the variation mechanism under the contract was utilised, this concession by the director does indeed support a finding that the treatment of variations in those circumstances was contrary to there being a fixed priced contract. 8. Again, the finding in paragraph 18 is nothing more than an isolated secondary finding having no material bearing on the outcome of the proceedings. It is not an error justifying allowing an appeal. 9. With respect to the homeowner's challenge to the findings at paragraph 21 of the Decision, the builders contend that the finding that the invoices of the builders are inherently accurate and genuine are essentially factual findings that the Tribunal was entitled to make. The builders had put into evidence the actual invoices and Mr Paddison for the builders was cross examined but not about the invoices or the lack of supporting material. As no written submissions were made by the homeowner as to the individual amounts the subject of the invoices, the Tribunal could be, and was, comfortably satisfied that the amounts the subject of the invoices were validly claimed. The evidence before the Tribunal was that the builders provided all the invoices to the homeowner throughout the course of the work and the homeowner had an opportunity to review them and did so and paid all the invoices (save for parts of the last invoice). 10. When one considers the contract, it is clear that it is a cost plus contract. The homeowner made reference to instances in the contract where the sum of $278,000.00 is referred to. The reference to $278,000.00 on page 5 of the contract has behind it the word "estimate". Further, it is clear from Annexure A that the figure of $278,000.00 is an estimate. All indications in the contract point to the contract being a cost plus contract other than the use of the expression "turn key". That only refers to the scope of works, namely that the building will be so complete that the owner merely has to unlock the door to have complete possession. 11. One of the builders' witnesses, a Mr Baker swore an affidavit which was tendered. That affidavit attached invoices but he was not cross examined. There was no challenge to the invoices. Submissions in Reply 1. Mr Nathan submitted that the statement made in paragraph 18 of the Decision concerning variations is incorrect because there can be variations to a fixed price contract. 2. Mr Nathan submitted that page two of the contract makes it clear that the contract is for the fixed price of $278,000.00. The reference to 15% and $33,000.00 and Annexure A may all be described as verbiage. The word estimate is not there. Decision 1. In our view, the appeal should be dismissed for the reasons which follow. 2. With respect to the homeowner's submission that the time for filing the appeal should be extended, we are of the view that we should grant the extension. The length of the delay is short (approximately 4 days), the reason for the delay (the need for city agents to return to the Tribunal's registry with additional copies of the Notice of Appeal) and the fact that the builders have not suffered any prejudice are the relevant factors we take into account in deciding that the justice of the case requires time to be extended. An order to that effect will be made: see s 41 of the NCAT Act. 3. We will now turn to the question of whether the contract is, in our view, a fixed price contract or a cost plus contract. 4. The contract contains a number of references to price. Those references may be summarised as follows: 1. On page 2 beside the space for the "Contract price" there is provision to insert "Amount in words". The insertion is "Invoice costs plus 15%". Below that, there is the statement "15% GST incl capped at $33,000.00". To the right is the sum of $278,000.00. Hand written underneath are the words "see Annexure A"; 2. On page 5 there is further provision for insertion of the contract price. What has been inserted is this: Invoice costs plus 15% 15% is GST inc, capped at $33,000.00 $278,000.00 Estim See annexure A 1. Clause 12 of the contract (p 14) deals with progress payments and provides for a schedule of progress payments. The schedule lists a number of items, some of which are described as "estimate" and others do not contain that qualification. The total is $278,000.00; and 2. Annexed to the contract is Annexure A being a letter from the builders to the homeowner, which relevantly states the following: It gives me great pleasure to provide you both with this estimate. I have estimated that the total construction price for the proposed new home will be $245,000.00 inc GST give or take a couple of grand. Now I originally worked out with Bob that we would work on 15% builder's margin. I would like to stick to that, But we will cap the builders fee at $33,000.00 inc GST. So that brings the price of the build to around $278,000.00 inc GST. This price for construction is what I call "turn key" Meaning everything is complete. There will be nothing left to do for sale. 1. We are of the opinion that the effect of the above provisions of the contract is that the price agreed between the parties will be the amount calculated by aggregating the builders' invoices and adding 15% to that figure, provided that the amount constituted by the addition of 15% will not exceed $33,000.00. The reference to $278,000.00 is an estimate of what the builders thought at the time the contract was entered into would be the total price. This is clear from annexure A which states that the builders estimate the total construction price to be $245,000.00. Adding 15% of that (i.e. $36,750.00) to the estimate produces the sum of $281,750.00 but adding the "capped" figure of $33,000.00 produces the estimate of $278,000.00. 2. In our view, the inclusion of the word "estimate" or "estim" on pages 5 and 12 of the contract and in annexure A support the conclusion that the parties did not agree that the price would be fixed at $278,000.00. 3. Accordingly, in our view, the contract may be described as a cost plus contract and in our view, it is not a fixed price contract. 4. The Decision came to the same conclusion (see pars 11, 12, 14, 16 and 19) and we respectfully agree with it. 5. It is an uncontroversial principle of law that when one construes the meaning of a contract the task is to ascertain the intention of the parties looked at objectively (see Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales 149 CLR 337 at 351) where Mason J quotes Lord Wilberforce in Reardon Smith Line Ltd V Hansen-Tangen [1976] 1 WLR 989). 6. In the Codelfa case, Mason J referred to the parol evidence rule the purpose of which, his Honour said, is to "exclude extrinsic evidence (except as to surrounding circumstances), including direct statements of intention (except in cases of latent ambiguity) and antecedent negotiations, to subtract from, add to, vary or contradict the language of a written instrument" (par 347). His Honour went on to say at par 352: The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed. 1. Here, the Decision referred to evidence from the homeowner's director which the Member said contradicted the homeowner's contention that the contract was a fixed price contract because the homeowner's director conceded that he had expressly agreed to the cost plus method as set out within the contract. In our view, whether or not the director conceded that he had agreed to the cost plus method is not relevant to the task of properly construing the meaning of this contract. This is so because in our view, the contract is clear in its terms and there is no need to resort to extrinsic evidence. 2. In par 15 of the Decision, the Tribunal stated that "Consideration of the evidence also establishes other reasons as to why the contract was not fatally ambiguous as submitted on behalf of the respondent [now the appellant/ homeowner] and also as to why it did not set a fixed price as is also submitted on behalf of the respondent [the homeowner]. The evidence then considered included the alleged concession made by the director referred to above. This part of the Decision was additional to and subsidiary to the finding as to how the price was to be calculated: see par 12 of the Decision. 3. We agree with the builders' contention that the finding under attack in the Decision concerning the director's alleged concession is a secondary finding which does not bear upon the Member's construction of the terms of the contract (with which we agree). 4. The homeowner's attack on par 18 of the Decision (where the Tribunal said that the claim that there was a fixed price contract is also contradicted by the concession that the amount of $278,000.00 was exceeded due to variations) is rejected. Paragraph 18 is also in our view a secondary finding made in addition to the primary finding in par 12. Even if it can be said that the Tribunal was in error in stating that a fixed price contract is inconsistent with a contract where there were variations, such error does not detract from the primary finding that the contract is clearly not one by which a fixed price was agreed. 5. We refer to the homeowner's submission that the Tribunal erred in stating that the homeowner had not put the validity of the tax invoice dated 23 March 2016 in issue and had not required the builders to provide supporting material to show how that invoice was calculated. The builders submitted that they had put into evidence the actual supporting evidence through Mr Paddison and that he was not cross examined about the invoices. The only material the homeowner was able to point to demonstrating that the homeowner had put the invoices in issue were the submissions referred to earlier in these reasons (and identified as Exhibit 1). These submissions are dated 14 July 2017. The hearing concluded on 30 July 2017. It is reasonable to conclude that the homeowner did not put the issue of the justification of the invoice in issue at the hearing by cross examining the builders' witnesses but rather sought after the hearing to make a submission that the invoice should not be accepted as sufficient proof because invoices from the subcontractors or suppliers of goods and services (which the homeowner call "third-party invoices") were not put into evidence. In these circumstances, it was open, in our view for the Tribunal to conclude that the builders were not required to prove how the invoice was made up and that the builders had discharged the onus of proof in satisfying the Tribunal as to the accuracy of the invoice. No error of law has been identified and nor are we satisfied that a substantial miscarriage of justice has occurred in the sense required by cl 12 of Sch 4 of the NCAT Act. 6. Accordingly, the appeal is dismissed. 7. At the appeal hearing, the builders foreshadowed that in the event they were successful they would seek to make submissions on costs. We will make orders for the parties to make submissions on costs. 8. The Tribunal has made an order staying the operation of order 1 made on 1 September 2017. It is appropriate to now order that the stay be lifted. Orders 1. The Appeal Panel makes the following orders: 1. The time for the filing of the Notice of Appeal is extended to 4 October 2017; 2. The appeal is dismissed; 3. The order staying the operation of order 1 made on 1 September 2017 in HB 16/33023 is lifted; 4. The respondents are to file and serve submissions concerning costs of the appeal within 21 days; 5. The appellant is to file and serve submissions in response to the respondents' submissions within 21 days thereafter; and 6. The respondents are to file and serve submissions on costs in reply within 7 days thereafter. ********** 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: 23 May 2018