Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Baserite Constructions Pty Ltd v Tanios [2020] NSWCATAP 77 Hearing dates: 13 February 2020 Date of orders: 06 May 2020 Decision date: 06 May 2020 Jurisdiction: Appeal Panel Before: G K Burton SC, Senior Member M R Gracie, Senior Member Decision: (1) Leave to Appeal is granted to the extent that leave is required. (2) The Appeal is allowed. (3) Remit the matter to the Consumer and Commercial Division for hearing, with directions to be made by the Division to permit the lodgement and service of further evidence. (4) Costs of the appeal, as to who is to pay the costs of the appeal, to abide the outcome on the further primary hearing but to be on the ordinary basis as agreed or assessed. Catchwords: HOME BUILDING - limitation period - major defects - separate agreement as basis of work order - procedural fairness - material not before Tribunal on no appearance Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Act (NSW) Home Building Act 1989 (NSW) Cases Cited: AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348, [2016] NSWCA 229 at [81] Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175, [2009] HCA 27 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Atkinson v Crowley [2011] NSWCA194 CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 Collins v Urban [2014] NSWCATAP 17 Craig v South Australia (1995) 184 CLR 163 Eadie v Harvey [2017] NSWCATAP 201 Flat Glass Industries Ltd v MCS Builders PL [2015] NSWCATAP 148 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 House v The King (1936) 55 CLR 499 Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263, [2001] FCA 865 Ku-ring-gai Council v Chan [2017] NSWCA 226 OC SP 68751 v CA DP 270281 [2015] NSWCATCD 99 Lee v Commissioner of Police, NSW Police Force [2017] NSWSC 1849 Legal Profession Complaints Committee v Rayney [2017] WASCA 78 Mifsud v Campbell (1991) 21 NSWLR 725 at 728 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Owen v Kim [2017] NSWCATAP 26 Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86] Rozenblit v Vainer [2018] HCA 23 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Stevenson v Ashton [2019] NSWSC 1689 Symes and Filmer v Mick Fabar Constructions PL [2015] NSWCATCD 77 UBS AG v Tyne [2018] HCA 45 Vella v Mir [2019] NSWCATAP 28 Wehi v Minister for Immigration and Border Protection [2018] FCA 1176 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: None cited Category: Principal judgment Parties: Baserite Constructions Pty Ltd (Appellant) John Tanios (Respondents) Representation: Counsel: M McMahon (Appellant) Solicitors: White Knight Lawyers (Respondent) File Number(s): AP 19/49553 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 29 October 2019 Before: D Goldstein, Senior Member File Number(s): HB 19/23891 Reasons for DecIsion Background to appeal 1. On 23 April 2012 the predecessors in title to the respondent home owner contracted with the appellant builder to carry out building works at their then home in Concord, NSW. Practical completion was achieved about 13 November 2013. 2. The relevant limitation period for statutory warranty claims under s 18E(1) of the Home Building Act 1989 (NSW) (HBA) at the relevant time, being the date of practical completion under the statutory presumption in HBA s 3B(2) and (3)(a), was two years for other than major defects and six years for major defects, as defined in the HBA: s 18E(1)(a)-(c). 3. The current owner (the owner) lodged claim HB 18/53832 on 19 December 2018 (the original proceedings). He relied upon an expert report dated 30 December 2018. 4. The builder submitted that the owner's expert report disclosed that none of the alleged defects was for major defects as defined and that, accordingly, the Tribunal had no jurisdiction other than to dismiss the primary claim. 5. The builder's case as presented on appeal was that, when told by the builder's principal in private negotiations at the first directions hearing for the primary hearing on 8 February 2019 that the claim was out of time, the owner became upset and distraught as he was separating from his partner and required his home to be fixed up and sold as part of the separation. He asked that the builder assist him to fix up his home. The builder agreed to carry out some works. Consent work orders were entered into for those works, in resolution of the proceedings. Those works were, the builder said, carried out. The owner wrote a letter dated 16 September 2019 expressing his satisfaction with the works (the satisfaction letter). 6. The work orders of 8 February 2019 were expressed to be made by consent. They relevantly said that by 17 May 2019 the builder was to "perform the work set out in the agreed scope of work as set out by [the owner's expert] dated 5 February 2019 signed and dated by both parties and placed with the papers". The owner was granted leave to renew the proceedings under Civil and Administrative Tribunal Act 2013 (NSW) (CATA) Sch 4 cl 8 within 12 months of 8 February 2019. 7. The scope of work referred to in and attached to the consent work orders identified in detail the issues and method of remediation of which the following is a summary: 1. Lack of weep holes at ground and first floor levels: remove bricks at 1.2m intervals, provide weep holes and reinstate render to match existing render including any repainting required and seal any cut or puncture to damp course. 2. External and internal cracking to rendered masonry: expose, seal and refinish vertical joints; if cracking floor to ceiling insert by saw cut an articulation joint with ties; reinstate render affected by drummy sheer cracking. 3. Alfresco area and pool pump room Colourbond roofs: carpenter to inspect and remediate (from later material it appears the fall needed to be corrected). 4. Driveway drummy tiles and efflorescence: remove and relay with inhibitor - owner to supply new tiles. 1. The satisfaction letter relevantly said: "To Whom It May Concern, Please accept this letter as confirmation that the work required to be carried out at [the relevant property] by [the builder] has now been completed. The following submissions have now been removed Fair Trading file No HB 18/53832 NCAT HB 19/23891". 2. It will be noted that the Fair Trading file number in the satisfaction letter was the number of the original proceedings and the other number was the number of the primary proceedings from which this appeal was brought (the renewal proceedings), which was lodged by the owner on 22 May 2019, 5 days after the compliance date in the consent work orders (the compliance date was inserted into the renewal application as the dismissal date). 3. The renewal application on its face did not expressly seek a money order in substitution for the work order. The owner said that the builder had not attended the home since the work order and had been a "no show" for the builder and one of the relevant workmen (the renderer) at an appointment for 3 May 2019 arranged on 1 May which was the first contact with the builder since the consent work orders. 4. The owner had asked for the renewal application to be dealt with on the papers. The renewal application progressed to a directions hearing and a notice of hearing. 5. The builder's principal said he did not receive that notice of hearing, which apparently went to the builder's accountant at the registered office of the builder. The builder was not expecting any application or hearing as he thought the work order had finished proceedings. 6. The builder's case on appeal was that at the primary hearing of the renewal application from which this appeal is brought, the owner only appeared, the owner did not show the primary member the satisfaction letter and did not raise the time issue with the original proceedings. 7. At the hearing on 29 October 2019, the primary member referred to the Tribunal Registry practices and said: "Having perused the Tribunal file, I am satisfied that in accordance with the Registrar's usual practices the notice [dated 29 July 2019] of hearing of today's proceedings was posted to the respondent [builder], that it has been given notice of the hearing today and that the hearing notice has not been returned to the Tribunal unopened". The primary member considered it just to proceed with the hearing. 8. The primary member put into evidence the Scott schedule filed 12 August 2019 under directions made 1 July 2019, which he was told was prepared by the owner's expert and which set out the work which the owner said had not been completed properly or at all from the consent work orders. Three photographs from the owner were also placed into evidence. 9. The primary member referred to the detailed description and pricing in the Scott schedule of the work and found 15% allowed for preliminaries to be reasonable "and in line with allowances for preliminaries frequently contained in expert reports for building work tendered in Tribunal proceedings". The primary member pointed to the absence of contradiction by the builder of the costings plus GST totalling $175,750.25, when directions had been made on 1 July 2019 that required the builder's evidence by 23 September 2019. 10. The primary member found the owner's case proved and made a money order for $175,750.25 payable immediately. 11. The Appeal Panel on 14 November 2019 by consent granted a stay until further order of the money order and granted leave for legal representation. Both parties were represented on the appeal. Grounds of appeal and in reply to appeal 1. The Notice of Appeal, originally lodged in time on 5 November 2019 and lodged in an amended form on 28 November 2019, challenged the money order made on 29 October 2019. The primary decision was said to have been received on 30 October 2019. 2. The grounds for that challenge were, in summary and re-ordered by us, as follows: 1. The Tribunal lacked jurisdiction to make the original work order and hence any order (such as the money order) made on a renewal for alleged non-compliance with the work order. This ground was the amendment to the notice of appeal and was raised within the time permitted for lodging of an appeal. 2. The builder "had no knowledge of the hearing date". The builder said that his accountant said he did not receive the notice of hearing, the last he knew about the matter was the satisfaction letter (so he made the assumption we have previously set out) and he would, if he had known, have attended the hearing and produced the satisfaction letter. We have taken this to be a complaint that the primary hearing was procedurally unfair. 3. The owner "acted in bad faith as it appears he has not provided the above letter to the Tribunal nor has he withdrawn the proceedings as set out in his letter dated 16 September 2019" being the satisfaction letter. We have again taken this as a complaint, at the least, of procedural unfairness and at its highest that the Tribunal was misled by the conduct of the owner - the builder's appeal submission said that the conduct of the owner in "[n]ot advising the Tribunal of the letter and [n]ot advising or bringing to the attention of the Tribunal the fact that he was out of time in commencing proceedings was in bad faith as it sought to mislead the Tribunal and did in fact mislead the Tribunal". 4. The decision was not fair and equitable as the builder "had carried out all rectification works" and had the owner's satisfaction letter. We have taken this to be put forward as an allegation that the primary member, because of the alleged conduct of the owner, did not take into account relevant considerations and also that the decision on the facts was not fair and equitable without consideration of that letter. 1. The builder sought leave to appeal, upholding of the appeal, setting aside of the primary decision and payment of its costs of the appeal on an indemnity basis. 2. The builder also sought leave to adduce the evidence that it said it would, if it had known about the renewal hearing, have produced for that hearing. That evidence was the original 2012 building contract, the date of practical completion, and "That [the owner] could only make claim for items which were structural defects … [and] That none of the items claimed by [the owner] were structural defects" which we have taken to mean reliance and possibly evidence that the alleged defects in the original claim and the renewal claim were not major defects. No expert report however was put forward as having been prepared. 3. Given the serious nature of the allegations, we set out in detail the owner's reply to the appeal, lodged 13 November 2019. 4. The owner, having said the builder well knew the compliance date for the consent work order, stated: "[The builder] and his team were working well at my home and I was getting along with him and his team." 5. The owner then said that the builder ought to have known that the rendering product could not be patched as the builder said and attached photos of the work. The owner then said: "[The builder's principal] then asked me to provide him with a letter to say I'm happy with the works and if he paid me for the painter, then we could finalise this hold on his home warranty insurance as he couldn't get work. Once the painter's money cleared into my account, I provided [the principal] with the letter. This was the 16th September 2019." 6. The owner said he contacted the principal on 24 October 2019 saying the render did not look right. The renderer came out and said the builder would be in touch but nothing happened: "I contacted [the principal] again on the 24th, 27th and on the 30th and advised him that we need to finish and that the hearing was in October. Then contacted for the last time on the 14th Oct of which I received no response". We infer that the dates 24, 27 and 30 must be in September 2019 because the hearing was 29 October 2019. 7. In evidence that seemed to go beyond what was before the primary member on 29 October 2019, the owner said that he spoke with the original owner who had been told by the builder's principal that the render could not be patched. 8. The owner also said that he had been misled by the builder who said he had increased the fall in the roof when a roofer on inspection had said the fall was still unsatisfactory. Applicable legal principles 1. Section 80(2)(b) of CATA states: "Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds." 1. Clause 12 of Schedule 4 to CATA states: An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision. 2. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179. 3. These categories are not exhaustive of the errors of law that give rise to an appeal as of right. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as specifically included: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable. 1. The "no evidence" ground must identify that there is no, or substantially inadequate, evidence to support a "critical" or an "ultimate" fact in order to constitute a jurisdictional error (a form of error of law): AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348, [2016] NSWCA 229 at [81]; Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263, [2001] FCA 865 at [52]-[56]. However, at least a jurisdictional error must be material (in the sense of possibly changing the outcome of the consideration by the decision-maker and the making of a different decision) to deprive the decision of legal effect, or to have any residual discretion exercised in favour of setting aside the decision: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [23]-[31], [40], [42]-[44], [62]-[80]. 2. A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). 3. However, by s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62]. 4. Legal unreasonableness can be concluded if the Panel comes to the view that no reasonable tribunal could have reached the primary decision on the material before it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 364 [68]). A failure properly to exercise a statutory discretion may be legally unreasonable if, upon the facts, the result is unreasonable or plainly unjust: Li (2013) 249 CLR 332 at 367 [76]). There is an analogy with the principle in House v The King (1936) 55 CLR 499 at 505 that an appellate court may infer that there has been a failure properly to exercise a discretion "if upon the facts [the result] is unreasonable or plainly unjust" and legal unreasonableness as a ground of judicial review: Li at 367 [76]. Further, there is some authority to the effect that unreasonableness as a ground of review may apply to factual findings, although this has not been finally resolved: see Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 at [153]; Wehi v Minister for Immigration and Border Protection [2018] FCA 1176 at [29]; Legal Profession Complaints Committee v Rayney [2017] WASCA 78 at [193]. 5. The Appeal Panel has stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to look at the grounds of appeal generally, and to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations in favour of the respondent: Prendergast at [12]. 6. Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]–[79] and [84(2)] as follows: [74] Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. [75] As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … [78] If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. [84] The general principles derived from these cases can be summarised as follows: … (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37] –[39]: [37] In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.' [38] In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]: 'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] – [24] the Appeal Panel said: '[23] Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. [24] Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' [39] As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.' 1. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal. 1. Even if the appellant establishes that he or she may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the NCAT Act, the Appeal Panel has a discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). The matters summarised in Collins v Urban, above at [84(2)], will come into play in the Panel's consideration of whether or not to exercise that discretion. 2. In dealing with errors of law and errors of fact, the Panel must be cognisant that the two can intermingle. The Panel must also be alert that, under Australian law, there is a different approach to matters between two situations. The first of these is where the particular decision has involved evaluation from findings of primary facts and the drawing of inferences therefrom on which reasonable minds may differ but which must be accepted as legally correct unless overturned or varied on appeal. The second situation arises where there has been an exercise by the primary decision-maker of a discretion or choice embodied in the statute or law being applied, including as to whether relief is to be granted or refused and the form of relief: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [18], [20], [26], [30]-[32], [43]-[45], [48]-[49], [55]-[56], [85]-[87], [127]-[128], [153]-[155]. Error of law 1. We consider all four grounds of appeal summarised and characterised above allege errors of law. The last ground also alleges an error of fact. Some of the grounds depend upon the introduction of the satisfaction letter. We now deal with each ground as an alleged error of law. Alleged absence of jurisdiction 1. There was no need for the primary member, or for us, to consider the question of jurisdiction for the primary work order. 2. Although characterised as a consent work order, and the primary proceedings as renewal proceedings, and even if the Tribunal lacked jurisdiction to make a consent work order, and to grant leave for a renewal application, on the basis that the works in that consent order did not constitute major defects (which we address below), the important fact is that the scope of work to be addressed by the builder resolved a dispute between the parties on an agreed basis and itself formed a contract for building work as set out in the scope of works, irrespective of whether or not it also was the subject of a consent order and irrespective of the context (in the Tribunal precincts where parties were present for a hearing with likely contests including on jurisdiction): cp Yuen v Thom [2016] NSWCATAP 243 at [45]. 3. The claim for a money order for alleged non-performance of the agreed scope of remedial work on the contract formed on 8 February 2019 was clearly in itself a "building claim" as it is broadly defined in HBA s 48A to include general law claims: Atkinson v Crowley [2011] NSWCA 194 at [16], [22]-[24]. The relief sought was of the type provided for in HBA s 48O. The claim for that relief was clearly in time under HBA s 18E as a claim for defective work under the statutory warranties attaching to the 8 February 2019 contract and also within s 48K. CATA s 59 is not applicable in that characterisation because there is no reliance upon the original consent work order. The money order reflected the expert evidence of the amount to compensate for the non-performance of the works agreed on 8 February 2019 to be carried out by the builder. 4. The primary member did not mention the renewal context. He appeared simply to treat the claim in the substantive manner in which it has just been characterised. He had evidence before him of breach of the relevant agreement in the owner's expert's Scott schedule setting out what had been agreed on 8 February 2019 to have been done and what was either not done or defectively done. He made the money order on the basis of that expert assessment of monetary relief. There is no allegation by the builder that he ought to have granted the opportunity for work to be done as the appropriate relief, under HBA s 48MA or otherwise under s 48O. Even if the primary decision had referred to the form of the proceedings as a renewal of proceedings respect of a consent work order, the substance of what was sought did not change and should be what governs: CATA ss 3(d), 36(1), 38(4). 5. The builder in submissions sought to challenge, by way of setting aside the agreement reflected in the consent work orders, for mistake. This was not part of the grounds of appeal. The form of mistake was not fully articulated. It seems to us that there is no basis for the mistake to be established. It would contradict the other grounds of appeal where the builder set out the basis for agreeing to the scope of works reflected in the consent work orders of 8 February 2019, in which the builder indicated no indication of mistake and raised the absence of jurisdiction. 6. If we were wrong on the foregoing substantive characterisation of the primary proceedings, then we consider that the builder would be entitled to raise the challenge to jurisdiction at this point even though the builder did not appeal the consent work order at all, was out of any potentially applicable time period to challenge the consent work order and put forward nothing to justify the favourable exercise of an applicable (if any) power to extend time. The requirement for the only available time period of six years was that the alleged defects were major. That is a jurisdictional fact which can be raised at any time since it renders the applicable decision void if it is material in the sense identified in Hossain, discussed earlier, which it clearly is since it possibly would lead to a different outcome if we were wrong on our characterisation of the primary proceedings that we have already given. The builder's challenge to the money order was the relevant challenge, founded on that jurisdictional fact, and was within time. 7. Further, we consider that there is no agreement in the consent work orders that would fall within the category of a fact, or facts, able to be agreed between the parties as facts which would then form the basis for a finding that the relevant jurisdictional fact (major defects) was present. The parties cannot effectively confer jurisdiction on the Tribunal by in effect agreeing that the alleged defect was major. Even if experts agreed that a particular defect is major or the expert evidence on that topic is all one way, the Tribunal must weigh that evidence against any other available evidence to make a finding on the character of the alleged defect: Vella v Mir [2019] NSWCATAP 28at [47]-[49], [58]-[63]; Stevenson v Ashton [2019] NSWSC 1689 at [74], [87], [92]. 8. We turn then to the characterisation of the alleged defects in the original consent work orders that were the subject of the original application. 9. In our view none of those alleged defects was in respect of a "major element of a building" or a "major defect" as defined in HBA s 18E(4). There is no applicable regulation varying the definition. This is whether or not the defective weep holes or defective roof slope come within the meaning of "waterproofing", which we doubt at least for the roof slope but which could be the case for the waterproofing. 10. In particular, each of lack of weep holes, defective rendering, defective roof slope and drummy driveway tiles with efflorescence does not cause and is not likely to cause any of: the inability to inhabit or use the building for its intended purpose, the destruction of the building or a threat of collapse of the building. The evidence on the potential effect of water ingress in producing the conducive environment for mould and the potential health effects of mould is too generalised and speculative to establish (by lay or expert evidence as appropriate) the significant actual or potential impact on habitability and amenity in this dwelling that is required to satisfy the statutory test: Stevenson v Ashton at [67], [73]-[76], [87], [92]. It may have been that with appropriate evidence the roof slope and water drainage defects could have come within those requirements but the evidence does not extend so far. 11. Even if, for instance, the absence of weep holes qualified as a defined major defect, it would not confer jurisdiction in respect of the other alleged defects. 12. Accordingly, the jurisdictional challenge fails but only on the first basis that we have identified. Alleged lack of knowledge of the hearing date 1. The builder precluded itself from seeking to set aside the primary decision under reg 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW) by lodging this appeal: see para (5) of reg 9. 2. Even if one accepted the statements in the builder's notice of appeal as evidence, there is no corroborating statement from the builder's accountant about non-receipt of the notice of appeal. If the builder's statements were accepted as evidence, then one would need to accept as evidence the conflicting statements of the owner that he informed the builder of the appeal on several occasions in the course of a text dialogue about doing the consent order works, as most strongly exemplified by a text message on 30 September 2019 at 8.44am referring to the upcoming hearing and giving three weeks to finalise the works. 3. Further, there is no material at all about the communication of the orders made at the directions hearing for preparation of the matter for final hearing, which would have alerted the builder at least to the fact that a further hearing was proceeding and to take action. 4. None of that contested evidence in our view is sufficient to establish procedural unfairness as a matter of law. The primary member's reasons indicate that he carefully considered the Tribunal procedures concerning notices of hearing and checked the file to satisfy himself of compliance with those procedures. 5. If this was treated as an error of fact, there is insufficient to suggest that the weight of evidence favoured the builder's contention, let alone the other steps required to establish a grant of leave to appeal. 6. Accordingly, this ground of appeal fails on all counts. Non-provision to the Tribunal of the satisfaction letter 1. On the owner's case, who was at this point acting for himself before the Tribunal, this letter was not relevant to his application being heard, because he considered it was for a collateral purpose which at best might assist completion of the work before the hearing. 2. Accordingly, there is insufficient in our view to establish, by the non-provision in itself of the satisfaction letter to the primary member, bad faith or an intention to mislead the Tribunal. 3. However, in our view there was procedural unfairness to the builder by the non-provision of the satisfaction letter. The satisfaction letter was not an ingredient required by the owner to establish the owner's claim, and any illegal purpose if established (such as participation by both parties in fraud on the regulator) was thereby collateral to his contractual claim so far as the owner was concerned. However, unlike other evidence that the builder could have put forward if (on its case) it had known about the hearing, this letter had an independent objective impact on the determination of the owner's claim. It either removed the basis for that claim or required an explanation by the owner or a characterisation of its legal impact which the primary member could assess. 4. In our view, this ground succeeds in establishing procedural unfairness. 5. For the same reason, the primary member was unable to take into account a relevant consideration, not because he missed it but, rather, because it was not drawn to his attention and its characterisation was a relevant consideration for the owner's contract claim, namely, were the required contractual works complete to the owner's expressed satisfaction. 6. The builder is not required to establish a ground for leave to rely upon further evidence to bring the satisfaction letter before the Tribunal. As analysed in Yuen v Thom, already referred to, at [21]-[22], logically the letter must be before us in order to test whether the absence of the letter, given its content, meant the Tribunal erred in law by not having before it a relevant consideration, or that the decision was not fair and equitable and caused a miscarriage of justice because if the letter was assessed with the other facts there was a significant possibility that the decision could have gone the other way and it would be plainly unjust to allow the decision to stand. Conclusion on error of law 1. We accordingly find an error of law but not one that precludes the Tribunal from considering the owner's claim. Grant of leave to appeal on questions of fact 1. We have rejected one aspect of alleged errors of fact when dealing with errors of law. 2. In our view, the non-provision of the satisfaction letter to the Tribunal meant that, through no responsibility of the primary member, the primary decision was not fair and equitable: cp Flat Glass Industries Ltd v MCS Builders PL [2015] NSWCATAP 148 at [18]. If the letter was characterised as a true statement by the owner then the owner's claim would fail because the works had been completed to the owner's satisfaction. If the owner's explanation for writing the letter was accepted then the owner, while having some explaining to do, would have cleared the decks for objective consideration on the basis of other evidence put forward as to whether or not the scope of works was satisfactorily completed and, if not, whether the breaches sounded in damages and for how much. 3. For the same reasons we consider that the other requirements for a grant of leave, set out above, are satisfied. There is a significant possibility that a different outcome might emerge in favour of the builder from consideration of the satisfaction letter, including the circumstances in which it was provided and the legal impact of any found illegality of conduct. The matter of potential injustice is reasonably clear and absence of its consideration concerns a matter central to the primary decision: cp Flat Glass Industries at [36]. Accordingly, the requirements of justice are served by a grant of leave. 4. We therefore consider there is a basis for a grant of leave to appeal on the ground of non-provision of the satisfaction letter and the primary member's consequential inability to consider its impact on his decision. 5. For the same reasons as given when dealing with error of law, the fact of the absence of the satisfaction letter being made available to the primary member is sufficient basis to consider this ground and there is no requirement to consider the further evidence ground for this purpose. 6. We consider however that the "further evidence" ground does not operate as a separate basis for a grant of leave where we have found no error of law or error of fact sufficient to overturn the findings on notice of the hearing date. The documents sought to be put forward by the builder, including the satisfaction letter for the purpose of this ground, were reasonably available to the builder at the time of primary hearing. 7. At that point the builder could also have put forward any document, including an expert report, which sought to challenge the contentions of the owner whether or not the matters in the consent work order had been done, were still necessary to be done, had become impractical or impossible to be done, or had been prevented by the owner from being done, or could now be done when previously they could not be done, or otherwise justified a second chance at a work order rather than a money order, or challenged the amount of the money order: Symes and Filmer v Mick Fabar Constructions PL [2015] NSWCATCD 77 at [44] et seq. That may have prompted a reply from the owner or his expert such as the supplementary expert report dated 31 December 2019 obtained by the owner to illustrate the point. Appropriate relief on appeal 1. CATA s 81 provides that, in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal. The section sets out a list of available orders which is not exhaustive. That list includes: allowing the appeal, setting aside the primary decision and remitting the whole or any part of the case to the primary level of the Tribunal for reconsideration, either with or without further evidence and in accord with the Appeal Panel's directions or under CATA s 81(1)(d) setting aside the decision under appeal and substituting another decision for it. 2. The errors of law and fact that we have identified necessitate reconsideration of the matter on the substantive merits. It is not appropriate that the Appeal Panel itself engage in the primary fact-finding in relation to those components of the case. The Panel is not satisfied that we have before us the complete material to deal with the effect of the satisfaction letter and the Panel is a inappropriate forum to determine serious issues of probability and credit that may involve allegations that would attract privilege against self-incrimination and the exceptions to that privilege that are available, even if the rules of evidence do not otherwise apply in the Tribunal. Once the case is opened up in that way, there is no reason to prevent the builder from seeking to rely upon whatever other lay evidence, and expert evidence, that it wishes. The owner should be afforded an opportunity to respond. 3. We therefore conclude that the appeal should be allowed, and the entire case remitted to be reconsidered by a member of the Tribunal with the parties having the opportunity, before that further primary hearing, to lodge any further evidence in chief and reply that they may wish to rely upon. The proceedings should be listed for directions in the Consumer and Commercial Division to enable the parties to address the scope and timing of any further evidence. 4. The primary member who heard the matter would not, on what we have seen, be precluded from hearing such a full contest, but the parties are at liberty to make such application and adduce any material as they are advised. 5. Given the serious risks and potential consequences to the parties of the matter proceeding further, it is consistent with our duty to urge the parties to consider a negotiated resolution. Costs of appeal 1. Rule 38A of the Rules applies the same costs rules as applied in the Division when there is a departure under the Division rules (such as under Rule 38) from CATA s 60. 2. CATA s 60, together with rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules), provide that the ordinary costs rules apply, even in the absence of special circumstances required by s 63, where "the amount claimed or in dispute in the proceedings is more than $30,000". 3. That amount was exceeded in the owner's claim from the outset in the primary proceedings. Accordingly, the ordinary costs rules apply to the costs of this appeal. 4. The starting point for exercise of costs discretion on the usual principles is that costs follow the event. "The event" is usually the overall outcome of the proceedings – did the successful party have to go to the Tribunal (in this case) to get what it achieved, rather than being offered at least that relief. If there are distinct issues on which the party seeking relief did not succeed, that may be taken into account in the exercise of costs discretion. Appeal Panel decisions have made no order as to costs (to the intent that each party paid its or their own costs) where there has been a measure of success on both sides: Johnson t/as One Tree Constructions v Lukeman [2017] NSWCATAP 45 at [25]-[29]; applied in Oppidan Homes PL v Yang [2017] NSWCATAP 67. 5. Our view is that, although the builder has succeeded on appeal in having the matter re-heard with the builder's participation, that has been on a basis that is intrinsically linked to the findings on the substantive merits of the case after the re-hearing. Accordingly, who pays the costs of the appeal should abide the outcome in the further primary hearing, to the intent that the costs of the appeal will be paid by the person or persons who pays the costs of the further primary hearing. 6. For an award of costs on other than the ordinary basis, a party's conduct of the proceedings themselves, or the nature of the proceedings themselves (for instance, misconceived), or an outcome less favourable than an offer, are considered. The principles are explored in Latoudis v Casey (1990) 170 CLR 534, Oshlack v Richmond River Council (1998) 193 CLR 72 and in this Tribunal in Thompson v Chapman [2016] NSWCATAP 6 and Bonita v Shen [2016] NSWCATAP 159, citing earlier consistent authority. The principles have resonance with at least some of the "special circumstances" in CATA s 63 that are required to justify a costs order when rule 38A does not apply. 7. Nothing has been sought to be put forward by the parties as justifying costs of conducting the appeal on any basis other than the ordinary basis. Orders 1. The orders we accordingly make are as follows: 1. Leave to Appeal is granted to the extent that leave is required. 2. The Appeal is allowed. 3. Remit the matter to the Consumer and Commercial Division for hearing, with directions to be made by the Division to permit the lodgement and service of further evidence. 4. Costs of the appeal, as to who is to pay the costs of the appeal, to abide the outcome on the further primary hearing but to be on the ordinary basis 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: 06 May 2020