3D Design & Build Pty Ltd v Lynch

The Decision under Appeal

1. By his written reasons delivered on 16 June 2016, the Tribunal Member recorded that the home-owners submitted that the builder had not completed the repairs required in accordance with the consent orders or with due care and skill as required by the Home Building Act 1989 (NSW).
2. The Member set out details of the four items in respect of which the home-owners sought compensation and recorded the builder's response in respect of each item.
3. The Member noted that the home-owners had submitted a quote in respect of each of the four items and recorded that the builder had not submitted quotes but relied upon his own estimates as to the cost of repairs.
4. The Member recorded, in respect of two items (the largest), that the builder's submission was that no compensation should be awarded as "he would do the work himself".
5. The Member noted that the builder allowed no amount in respect of the largest item, the rectification of brickwork and render around the garage door, on the basis of a contention "that he could not be made to offer a monetary response to the [home owner's] claim".
6. The Member noted that the builder had agreed to complete the rectification work by 9 November 2015, that no repair work was done until the builder's engineer attended the site on 12 January 2016 in accordance with the agreement of 11 January 2016 noted by the Tribunal on that date, and that the builder attended the site for the first time (since the consent orders were made on 12 October 2015) on 15 February 2016.
7. The Member recorded the builder's submission that it had difficulty obtaining access to complete the rectification work on time.
8. The Member found that he was not persuaded that access was not available and noted that, in any event, the builder did not seek an extension of time or an order requiring that he be given access.
9. The Tribunal Member noted that the parties had not filed expert evidence and referred to the direction made on 14 April for the exchange of quotations. The Member recorded that the home-owners had filed and served quotes as directed but that the builder did not file or serve quotes in response.
10. The Tribunal Member held: 47 I am satisfied that the respondent has been afforded a reasonable opportunity to carry out repairs of the defective work. He has failed to comply with the consent orders made by the Tribunal on 12 October 2015. 48 I am satisfied on the evidence contained in the applicants' quotes and photographs, the respondent did not carry out repair work with due care skill as required under the HB Act. Hence, I am compelled to make money orders against the respondent as mandated under Schedule 4, Clause 8 of the NCAT Act. and then assessed each of the items claimed by the home-owners, allowing a total of $6,489.80 in respect of the four items claimed.

The Grounds of Appeal:

1. The builder's Notice of Appeal stated, under the heading "Grounds of Appeal", "See attached document, GROUNDS OF APPEAL, on pages 1 to 21".
2. The attached document, which was 21 pages in length, set out, under the heading "Grounds of Appeal", 35 numbered "items" and a four and a half page "Summary of Events" which generally restates the matters raised in the 35 numbered "items".
3. We note that none of the numbered items identifies any alleged error of law in the Tribunal Member's decision. The builder's Grounds of Appeal do state in four places (in items 1, 2 and 3 and in paragraph 8 of the section headed "Summary of Events") that "There was no procedural fairness". Denial of procedural fairness would constitute an error of law (Prendergast v Western Murray Irrigation [2014] NSWCATAP 69), however nothing identified by the builder in relation to the assertions that "there was no procedural fairness" could in our view constitute a denial of procedural fairness.
4. Two of the statements that "there was no procedural fairness" relate to the home-owners' alleged failure to comply with the direction of 14 April 2016 that the parties provide quotes, and one relates to the fact that the recording of the hearing failed. There is nothing in either of those matters capable of rendering procedurally unfair the manner in which the Tribunal Member conducted the hearing.
5. The other statement that "there was no procedural fairness" refers to the circumstances in which the builder withdrew its application to set aside the decision, made in its absence on 10 March 2016, to grant the home-owners leave to renew the proceedings. The builder asserted that it did so on the basis of an indication by the Tribunal's registry staff that it would have the opportunity at the hearing of the renewed application to raise the issue raised by the application to set aside. The builder asserts that it was not permitted to raise the issue at the hearing.
6. The application to set aside the decision of 10 March 2016 was included with the papers filed by the builder in relation to the appeal. That application identifies, as the case the builder would have put to the Tribunal had it been present, its argument that the home-owners denied the builder access to the premises to carry out the repairs the subject of the consent order of 12 October 2015. The builder clearly raised that argument at the hearing on 28 April 2016. The Tribunal Member rejected the argument, but it cannot be suggested that the builder was denied the opportunity to raise it. There is no basis for the assertion that the builder was denied procedural fairness.
7. We have, however, identified a potential error of law in the Tribunal Member's decision. Although the potential error is not raised as a ground of appeal in the builder's Notice of Appeal, we consider, having regard to the "guiding principle laid down in s36(1) of the Act "to facilitate the just, quick and cheap resolution of the real issues in the proceedings", and in light of the fact that the builder is not legally represented, that it is appropriate to resolve the issue. As an Appeal Panel of this Tribunal held in Cominos v Di Rico [2016] NSWCATAP 5 at [13]: "It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."
8. As we have set out above, the Member stated in paragraph [48] of his reasons: "I am satisfied on the evidence contained in the applicants' quotes and photographs, the respondent did not carry out repair work with due care skill as required under the HB Act. Hence, I am compelled to make money orders against the respondent as mandated under Schedule 4, Clause 8 of the NCAT Act."
9. In paragraph [52] of his reasons the Member stated: "I am not able to give the respondent another opportunity to attempt repair to render and brickwork at no cost to himself because Renewal is an enforcement proceeding designed to convert work orders into money orders."
10. In Akratos v Papadopoulos [2016] NSWCATAP 139 at [36] an Appeal Panel noted that the purpose of renewed proceedings is: "… to consider, in light of the fact that the original order was not complied with, what other appropriate orders [the Tribunal] could have made when the matter was originally determined and not to reconsider the substantive merits of the respondent's building claim."
11. The terms of Clause 8 of Schedule 4 to the Act provide that the Tribunal, when determining a matter on a renewed application, has the power to make any orders that could have been made in the initial application. There is no rule preventing the making of work orders on a renewed application. The Tribunal Member's conclusions that he was "compelled to make money orders" and that he was "not able to give the respondent another opportunity to attempt repair" [our emphasis] were not correct.
12. It would be an unusual case in which work orders would be made on a renewed application, as the circumstances in which a renewed application is made are likely to involve a failure by the builder to comply with a timetable for the rectification of works. In such circumstances it is unlikely to be an appropriate exercise of discretion to grant further time for the builder to carry out the work the builder has previously failed to carry out.
13. However in circumstances where the delays were adequately explained and the circumstances are not such that the trust between the parties has diminished to the extent that a work order would be inappropriate, it may be quite appropriate that a work order be made on a renewed application. We note that in Maiolo v Chiarelli [2016] NSWCATAP 81, an appeal from a decision made in renewed proceedings, where the delays in the performance of a rectification order had been adequately explained, the Appeal Panel made orders requiring the appellant builder to perform work.
14. To the extent the Tribunal Member's decision was founded upon an erroneous conclusion as to the extent of his discretion to make orders on a renewed application, the Tribunal Member's decision is vitiated. However that conclusion does not require that the appeal should succeed.
15. Section 81 of the Act provides: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal.
16. This appeal is an internal appeal, that is an appeal against a decision of the Tribunal determining a matter within its general jurisdiction (see ss29 and 32 of the Act). Therefore, we are able, if we consider it appropriate to do so, to determine ourselves whether it was appropriate to make money orders and not orders requiring the builder to complete the rectification work, rather than remitting that question to the Tribunal. Before considering whether we should do so, we will consider the balance of the matters raised by the builder in its Notice of Appeal.
17. The builder indicated in the Notice of Appeal that it also sought leave to appeal on each of the grounds (a) that the decision was not fair and equitable; (b) that the decision was against the weight of evidence; and (c) that significant evidence was now available that was not reasonably available at the time of the hearing.
18. In respect of the assertion that the decision was not fair and equitable, the builder also referred to "the attached document, pages, 1-21".
19. In respect of the assertion that the decision was against the weight of evidence the builder stated: As the respondent in HB 15/50500, I rely on that evidence tendered in addition to the attached evidence. As the respondent in HB 15/65258, I rely on that evidence tendered in addition to the attached evidence.
20. In relation to the assertion that significant new evidence was now available, the builder attached four affidavits sworn on various dates in July 2016. In response to the question: Why was this evidence (including documents) not available at the time of the hearing? the builder stated: I did not expect nor anticipate the manner in which the Hearing was conducted and was certainly not prepared for the misleading oral evidence presented by the Applicants during the Hearing.
21. The 35 "items" set out in the document attached to the Notice of Appeal were repetitive and discursive. We have identified from the document and from Mr Pohl's oral submissions eight separate grounds of appeal which we shall address in turn. The fact that we do not separately address each of the 35 grounds listed in the document should not be taken to indicate that we have not considered each of those grounds. We have considered each of the 35 grounds. We have also considered the "Summary of Events" on pages 17 - 21 of the document and the "Orders sought" on page 21 of the document. We consider that all matters raised by the builder are encompassed within the eight grounds which we have identified.
22. The builder's rights of appeal are limited by s80(2)(b) of the Act which provides that an appeal against a decision other than an interlocutory decision of the Tribunal may be made: "As of right on any question of law, or with the leave of the Appeal Panel, on any other ground".
23. As the remaining grounds of appeal do not identify any question of law, the builder requires the leave of the Appeal Panel to appeal against the decision on the basis of any of those grounds.
24. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of clause 12(1) of Schedule 4 to the Act, leave may only be granted under s80(2)(b): if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
25. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized at [71] and [79] as follows: "[71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [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 . . . 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, 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."
26. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are set out in the decision of the Appeal Panel in Collins v Urban, following a review of the relevant cases at [65]-[79], at [84]: "The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (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."
27. Notwithstanding directions that they do so, neither party had filed in the appeal the evidence that was before the Member below on which they sought to rely. To enable the Appeal Panel to understand the issues in the appeal, the Appeal Panel received from the home-owners a copy of the bundle of documents they had relied upon at the hearing.
28. At Mr Pohl's request the Appeal Panel subsequently gained access to the original file and these Reasons for Decision have been prepared by reference to the documents retained on the file as the evidence submitted at the original hearing. At Mr Pohl's request the Appeal Panel has had regard not only to the evidence tendered by the home-owners (which was marked Exhibit A at the original hearing) but also to the evidence tendered by the builder (which was marked Exhibit B at the original hearing).
29. As the Member noted, the recording of the initial hearing failed for technical reasons and neither transcript nor tape of the original hearing was available. This was itself the subject of a ground of appeal which is addressed below.
30. We will set out the eight grounds of appeal which we have identified before turning to address them in turn: 1. The builder submitted that the Tribunal Member had erred in finding in favour of the home-owners when the home-owners had not, in the builder's submission, complied with the directions made on 14 April 2016 that both parties were to provide to the Tribunal and to each other at least one quote for each item claimed by the home-owners even if that item was disputed, on or before 26 April 2016. 2. The builder sought to suggest it was in some way not fair and equitable that the tape recording of the hearing failed. As we understood the builder's submissions which raised this ground, the builder sought to suggest the failure of the recording was not simply an unfortunate accident and had disadvantaged the builder unfairly and inappropriately. 3. The builder maintained that the Tribunal Member had erred in failing to find that the reason it had failed to complete the rectification works the subject of the consent orders was that the home-owners had not provided access. 4. The builder submitted that the Tribunal Member erred in determining, on the basis of photographs and in the absence of evidence from any independent expert, that the repairs to the brickwork and render around the garage had not been carried out with due care and skill. 5. The builder maintained that the quotations provided by the home-owners were excessive. 6. The builder maintained that it should not be ordered to pay the cost of replacing the trim around the door handle when, it asserted, the trim was no longer available. 7. The builder submitted that the further affidavits obtained by the builder in July 2016 established that the rectification work carried out by the builder was not defective and could be completed at a cost well below the amount awarded by the Tribunal Member. 8. The builder submitted that the Member had failed to make a decision in relation to the cost of painting, as the Member did not state in his decision that he allowed any amount in respect of that part of the home-owner's claim.

Ground 1

1. The builder submitted that the home-owners had failed to produce quotations notwithstanding the Tribunal's directions made on 14 April 2016 - that both parties were to provide to the Tribunal and to each other at least one quote for each item claimed by the home-owners even if that item is disputed, on or before 26 April 2016.
2. Mr Pohl argued that this direction required that the home-owners provide updated quotations and that no such quotations had been provided.
3. The bundle of documents tendered by the home-owners at the original hearing (Exhibit A) included the quotes which were relied upon by the Tribunal Member. Those quotes did pre-date the direction made on 14 April 2016 but Mr Pohl put forward no legitimate reason why the Tribunal Member should not have acted upon the basis of those quotations. As the Tribunal Member noted, the parties had understood the Tribunal order of 14 April 2016 as providing that the parties did not need to tender expert evidence to justify the quantum of the rectification costs. In our view the Tribunal was justified in accepting the quotes which pre-dated the direction as evidence of rectification costs. In our view the directions given on 14 April 2016 did not require that the quotations post-date 14 April 2016.
4. Mr Pohl was unable to explain why the quotes were not relevant. He sought to suggest the quotations did not take account of work that the builder had completed. However, each of the quotes was dated after the date on which the home-owners had told the builder not to return. Therefore the proposition that the quotations did not take account of the work the builder had completed cannot be sustained.
5. We note the builder did not itself produce quotations for any work. Rather, as the Tribunal Member noted, Mr Pohl produced a document (part of Exhibit B tendered at the original hearing) which set out what he suggested it would cost the builder to complete the work. This was not relevant to the determination of the sum payable to the home-owners, once the Tribunal had determined not to make further work orders.
6. We do not consider there is any substance in Ground 1.

Ground 2

1. Insofar as the builder's Notice of Appeal suggested that there was something inappropriate in the fact that a recording or transcript of the hearing was not available, there was no evidence before the Appeal Panel to support such a submission and we do not need to consider it further.
2. The fact that a tape of the hearing was not available does not render the Tribunal Member's decision not fair and equitable or against the weight of evidence.

Ground 3

1. The builder's third submission was that the Member had failed to take account of the fact that the builder alleged it had not been given access to complete the work pursuant to the orders made on 11 January 2016 until 19 working days after Mr Pohl alleged the builder should have been given access.
2. Mr Pohl acknowledged before the Appeal Panel that he had not put before the Member on 28 April 2016 evidence relating to the delays which he alleged had been caused to the bricklayer and other trades. However there was some evidence before the Member, constituted by emails between the home-owners and Mr Pohl, which indicated that the home-owners were awaiting confirmation of the manner in which the builder intended to perform work before they were prepared to permit the builder access to complete the work. The Tribunal Member stated in his decision: 36 The respondent agreed on 12 October 2015 to complete the rectification work on or before 9 November 2015. 37 The applicant provided a schedule to show that no repair work was done until the respondent's Engineer attended the site on 12 January 2016. He prepared a report as to the method of rectification of work in the garage. 38 The respondent attended the site for the first time on 15 February 2016. The brickwork was removed in the garage but not completed. The garage brickwork and render were completed at irregular intervals on or before 9 March 2016. 39 The applicant's argument is that the brickwork, render and painting are not completed with due diligence and with due care and skill. There are 3 smaller items of repair still incomplete such as the front door trim and the internal door handle. 40 The respondent argued that he had difficulty obtaining access to complete the rectification work in time. 41 I am not persuaded access was not available to the respondent to carry out repairs. In any event, the respondent did not seek an extension of time to comply with the order nor did he apply to the Tribunal for access order if there was a problem in gaining access to the site. 42 The applicant stated on 9 February 2016 in an e-mail that there is someone available to speak with him every day from 3:30 pm. Otherwise, the applicants stated that they will be available whenever the respondent wished to attend.
3. In circumstances where the builder had initially consented to orders requiring the work to be completed by 9 November 2015 and did not attend the site to commence the work until 15 February 2016, we do not find that the Member's decision was against the weight of evidence or not fair and equitable.

Ground 4

1. Mr Pohl identified that the crux of the builder's case was that, by reason of the way his interaction with the home-owners had proceeded, the builder had been denied a period of 19 days to complete the work which would otherwise have been completed within that time. Mr Pohl repeatedly stated that the matters complained of by the home-owners were just a matter of finishing the job. Mr Pohl asserted that the repair of brickwork and rendering had been completed to the stage where all that was required was the final touch up by a painter who had not been permitted access to the premises to complete that work. The home-owners submitted that the evidence did not support that proposition. The home-owners pointed to the photographs which they had tendered at the initial hearing and which, the Tribunal Member had accepted, indicated that the render was cracking and coming away from the wall and was not in a fit state to be painted.
2. Mr Pohl submitted that the Member should not have drawn that conclusion as he was not qualified to so conclude.
3. The builder had tendered no independent evidence to corroborate the proposition that the work was adequate. The photographs, to which Mr Lynch drew the Appeal Panel's attention, did appear to disclose cracking, crumbling render, and generally incomplete work. The Member was satisfied that the builder had been afforded a reasonable opportunity to carry out the repair of the defective work and that it had failed to comply with the consent orders made by the Tribunal on 12 October 2015.
4. We consider that the Member was entitled to draw conclusions from the photographs. We do not consider that the Member erred in doing so or in the conclusions that he drew. Even if there were some weakness in the evidence that the render was defective and not ready for painting, we are not persuaded that that was sufficient to make the Member's decision against the weight of evidence or not fair and equitable. We are therefore not satisfied that the builder 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 evidence.

Ground 5

1. In relation to the Member's acceptance of the quotations submitted by the home-owners, Mr Pohl's submission was that the Tribunal Member should not have accepted the evidence of quotes against Mr Pohl's own assertion as to what the work would cost.
2. However Mr Pohl's submission was founded largely on the proposition that the builder should have been permitted to perform the work. Once that possibility was put to one side, there was no evidence before the Tribunal upon which the Tribunal Member could have quantified the cost of rectification, other than the quotes submitted by the home-owners.
3. We do not find that the Tribunal Member's acceptance of that evidence was wrong, or that it rendered the decision not fair and equitable. It cannot be said the decision to accept that evidence was against the weight of evidence, as there was no countervailing evidence beyond Mr Pohl's generalised assertion that the quotes were too high.

Ground 6

1. The Member allowed the sum of $55.80 for the replacement of the trim around a door handle. Mr Pohl asserted that this was inappropriate because the matching trim was not available and the home-owners would not be replacing the trim.
2. The evidence before the Tribunal did not unequivocally establish that the matching trim was no longer available. The home-owners tendered evidence which suggested it was available. Nor did the evidence establish that it was not reasonable to replace the trim. The Member recorded that the builder had acknowledged that the trim needed replacement.
3. The Member allowed $5.80 for the trim and $50 for labour to replace the trim.
4. It cannot be said that the Member's assessment of the cost of replacing the trim was against the weight of evidence, or not fair and equitable, or that the builder may have suffered any substantial miscarriage of justice in being ordered to pay $55.80 for the replacement of the trim.

Ground 7

1. Mr Pohl's only explanation why the fresh evidence he sought to tender was not reasonably available at the time of the hearing was that he did not realise he would need the evidence. That explanation does not meet the requirements of clause 12(1)(c) of Schedule 4 to the Act. In Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 an Appeal Panel of the Tribunal held in relation to clause 12(1)(c): 23. 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). 25. Further, to grant leave simply on the basis of whether a party had been unsuccessful in their attempt to obtain evidence would allow any party who has a personal excuse for not providing evidence otherwise reasonably available an opportunity to seek leave to appeal any decision of the Tribunal. Such an outcome would not promote finalisation of the real issues in dispute in a just, quick and cheap manner, as an opposing party would be liable to face a successful appeal and a rehearing merely because of the personal circumstances of the person who failed to procure necessary evidence. 26. In our opinion the intent of cl 12 of Sch 4 of the NCAT Act is to impose additional limitations on a party's entitlement to seek leave to appeal under s 80(2) of the NCAT Act from a decision of the Consumer and Commercial Division.
2. The fact that a party did not realise that particular evidence might be helpful or even necessary does not mean that that evidence was not reasonably available at the time of the hearing. In the words of the Appeal Panel in Al Daouk at [28] "there is no feature of the evidence or the witness[es] who provided the evidence to suggest it could not have been obtained at an earlier time" [our emphasis].
3. To the extent the Notice of Appeal suggests there was evidence given by the home-owners at the hearing for which the builder was not prepared and to which he was unable to respond, we have not been able to identify either in the Member's decision or in the documents attached to the Notice of Appeal any reference to evidence from the home-owners which the builder could not reasonably have anticipated. Mr Pohl did not direct the Appeal Panel's attention to any such evidence.
4. This ground of appeal must fail.

Ground 8

1. Paragraphs 53-55 of the Member's decision, under the heading "(2) Painting $2,134", address the home owner's claim in that amount in respect of the cost of painting. The Member referred to the home owner's quote "which describes in detail the painting work to be carried out" and to photographs which, he recorded, "show the cracks in the render to be re-rendered" and "also show areas of render with very poor finishes".
2. The Member noted that the builder had prepared his own estimate for painting in the sum of $941.76 and concluded in paragraph 55: I am satisfied on the evidence contained in the photographs that the applicants' quote for painting is to be preferred to the respondents estimate. There are several areas of cracking render which will have to be re-rendered, prepared for painting and then painted.
3. Mr Pohl submitted that the Member made no decision in relation to the cost of painting because it is not specifically stated that he allowed any amount.
4. Although it is not clear to us that this "ground" was included within the builder's "Grounds of Appeal", the submission was raised by Mr Pohl in his oral address and, as we have determined that the ground has no substance, we do not need to consider whether the builder would need leave to amend its Notice of Appeal in order to raise this point, or whether, if such leave were necessary, we would grant it.
5. It is quite clear that the Member decided to allow the home-owners' claim in respect of painting "in full". This is apparent from the brief statement of reasons given on 28 April 2016 which specifically identified the amount allowed in respect of painting as the amount of $2,134 claimed by the home-owners. This also appears clearly from the Member's reasoning and from the fact that the total amount ordered to be paid differs from the other amounts specifically allowed by the amount of the quote for painting.
6. We have concluded that there is no substance in any of the Grounds for Appeal raised by the builder. We have, however, determined that the Tribunal Member did make an error of law insofar as he considered that, on a renewed application, he was constrained to make a money order and could not make further work orders.
7. Having considered the documentary evidence before the Tribunal Member and the builder's submissions on the appeal concerning the delay in the carrying out of the work required by the consent orders, we are of the view that further work orders would have been inappropriate.
8. We have set out at [67] above the Tribunal Member's findings in paragraphs [36] - [42] of his reasons concerning the delays in commencement of the rectification work and the builder's explanation for those delays. Those findings are not affected by the Tribunal Member's error concerning his powers on a renewed application.
9. Section 48MA of the Home Building Act provides: 48MA Rectification of defective work is preferred outcome in proceedings A court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the responsible party) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome.
10. We have had regard to the principle set out in s48MA and the preferred outcome, but consider the Tribunal Member's findings in paragraphs [36] - [42] of his reasons are sufficient to warrant the further conclusion that it would have been inappropriate to make further work orders. The consent orders were made on 12 October 2015 and required the rectification work to be completed by 9 November 2015. The renewal application was filed on 5 December 2015. It is apparent that no rectification work had been carried out by that date. No explanation was provided for that delay. That alone would have been sufficient to render a further work order inappropriate. The parties did agree in January 2016 to negotiate a further timetable for the carrying out of rectification work after the builder's engineer had provided a report. However the builder had failed to complete the work by 10 March 2016 when the renewal application came before the Tribunal.
11. We also note that the Tribunal Member determined, in the first sentence of paragraph [48] and in paragraph [50] of his reasons for decision that the builder had not carried out with due care and skill the rectification work which had been performed. Those findings are not affected by the Tribunal Member's conclusions concerning his powers on a renewed application.
12. In light of the builder's repeated failure to complete the rectification work and the finding that the rectification work carried out had not been performed with due care and skill, it cannot be said that a further work order could conceivably be (or have been on 28 April 2016) an appropriate order on the renewed application. We therefore conclude that, notwithstanding the Tribunal Member's error in determining the extent of his powers on the renewed application, the Tribunal Member's decision, to make orders requiring the builder to pay the home-owners the cost of rectification rather than making further orders requiring the builder to rectify the defects, was correct.
13. The appeal and application for leave to appeal must therefore be dismissed. 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: 19 October 2016