Alta Vale Residential Pty Ltd v The Owners - Strata Plan No. 95693 - [2024] NSWCATAP 212 - NSWCATAP 2024 case summary

NCAT Appeal Panel|2024-09-02

NSWCATAP 127 Garofali v Moshkovich [2021] NSWCATAP 242 Hanson v Metricon Homes Pty Ltd [2019] NSWCATAP 133 House v R [1936] HCA 40; (1936) 55 CLR 499 Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23 Kudrynski v Orange City Council [2024] NSWCA 33 Kuru v State of New South Wales [2008] HCA 26 McEvoy & Anor v The Body Corporate for No 9 Port Douglas Road [2013] QCA 168 McInnes v Rheem Australia Pty Limited [2021] NSWCA 89 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Presentaciones Musicales SA v Secunda [1994] Ch 271; [1994] 2 All ER 737 SAB v SEM [2013] NSWSC 253 Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 Touma v Colantuono [2021] NSWCATAP 152 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Tyson v Brisbane Market Freight Brokers Pty Ltd [1994] HCA 67 Ugur v Bridge Housing Limited [2024] NSWCATAP 203 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Texts Cited: None Category: Principal judgment Parties: Alta Vale Residential Pty Ltd (Appellant) The Owners - Strata Plan No. 95693 (First Respondent) STM 123 No. 8 Pty Limited (Second Respondent) Representation: Counsel: Mr B Iliovski (Appellant) Mr T Davie (First Respondent) Ms L Moussa (Second Respondent)

Solicitors: Sheddid Storey, Solicitors (Appellant) Williamson Lawyers (First Respondent) Bradbury Legal (Second Respondent) File Number(s): 2024/00226352 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 22 May 2024 Before: G Burton SC, Senior Member File Number(s): 2023/00392110 2023/00378526

Introduction.

This is an appeal by Alta Vale Residential Pty Ltd (the builder) against a work order made under the Home Building Act 1989 (NSW) (the HBA) made in the Consumer and Commercial Division of the Tribunal on 22 May 2022 (the work order) which provided: "1. In 2023/00392110 and 2023/00378526, order that Alta Vale Residential PL perform the work order for the specified works in and on the terms set out in annexure A to these orders and reasons, noting that such order is made in favour of Owners SP 95693 in 2023/00392110 and STM 123 No 8 PL in 2023/00378526."
The appeal was lodged on 19 June 2024 within the time required by r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules). The first respondent to the appeal is The Owners - Strata Plan No. 95693 (the owners corporation), a body corporate constituted by lot owners of a strata scheme, which is a residential development, constituted under the Strata Schemes Management Act 2015 (NSW) (the SSMA); see s 8. The second respondent is STM 123 No. 8 Pty Limited, the developer of the residential development (the developer).
The Tribunal had heard three related claims together, having ordered that evidence in one case be evidence in the others. They were: 1. 2023/00382471, a claim by the owners corporation against the builder; relating to alleged major defects in residential building work; 2. 2023/00378526, a claim by the developer against the builder seeking redress for any orders made against the developer relating to the alleged major defects in residential building work; and 3. 2023/00382471, a claim by the owners corporation against the developer which settled on confidential terms before the Tribunal.
The claims of the owners corporation and the developer against the builder were the subject of the work order.
On 3 July 2024 the order numbered 1 in 2023/00378526 (the developer's application) was stayed pending the outcome of the appeal.
The appeal was listed for hearing before us on 2 September 2024 when each party was legally represented. The thrust of the appeal is against the Tribunal's conclusions of law and fact which led it to decide that the claims by the owner's corporation against the builder were made within the 6 year time limit provided in s 18E(1)(b) of the HBA, for bringing warranty claims with respect to major defects. The builder contended that the application by the owners corporation was made outside the time limit in s 18E.

Material before the Appeal Panel.

Disregarding material relating to the stay application, we had the following material before us when considering the appeal: 1. From the builder: 1. Notice of appeal filed 19 June 2024. 2. Builder's submissions on appeal filed 1 August 2024. 3. Builder's submission in reply filed 29 August 2024. 4. Builder's bundle of documents consisting of 1276 pages. 1. From the owners corporation: 1. Reply to appeal filed 12 July 2024. 2. Folder containing submissions and additional documents that were before the Tribunal. 1. From the developer: 1. Reply to the appeal filed on 15 July 2024. 2. Submissions filed on 2 September 2024. 1. The initiating application in the Tribunal made in the name of the Chairperson of the owners corporation on 31 May 2023. 2. The reasons for decision which are the subject of the appeal dated 22 May 2024. 3. Directions and orders made by the Appeal Panel on 20 June 2024 and 3 July 2024.

Scope and Nature of Appeals.

Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) 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."
Clause 12 of Schedule 4 to the NCAT Act states with respect to decisions made in the Consumer and Commercial Division that: "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)."
In the present appeal the builder relies on errors on questions of law.
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 having regard to a relevant consideration. This includes not making a finding on an element or central issue that is required to be made out in order to claim an 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.
An appellant to an internal appeal brought under s 80(2)(b) of the NCAT Act must identify with precision a question of law said to be raised by the appeal: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. Whether a question is one of law must be approached as a matter of substance: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at 62, [94], [203]; Kudrynski v Orange City Council [2024] NSWCA 33 at [50].
Each such question must be a pure question of law (adopting what was said in Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Cobar) at [44], [49]; and Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71], albeit in relation to different statutory provisions). In Cobar at [109] Bathurst CJ and Bell P (as the Chief Justice then was) said, with Garling, Johnson and Lonergan JJ agreeing: "Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law.' They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts."
Examples of pure questions of law include: 1. Denial of procedural fairness (Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 13); FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127 at [83]-[84]). 2. A constructive failure to exercise jurisdiction, which includes the failure to consider and address a material issue raised by a party in the proceedings that is within the jurisdiction of the Tribunal to determine (Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]-[12] and [413]). This category of error also includes a failure by the Tribunal to engage with a clearly articulated argument put to it. 3. Acting on the application of the wrong legal principle which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]-[53]). 4. No evidence to support a factual finding (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23 at [91])
The builder also requires leave to appeal under s 80(2)(a) of the NCAT Act with respect to whether it has suffered a substantial miscarriage of justice because the Tribunal's interlocutory decision to refuse it an adjournment was not fair and equitable. 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: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed; see BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 1. In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
There is also an issue as to whether the builder requires leave to appeal on the basis that it has suffered a substantial miscarriage of justice because the Tribunal's decision, with respect to the owners corporation being entitled to the extension of warranty provided in s 18E(e) of the HBA, was against the weight of the evidence.
The principles with respect to granting leave to appeal outlined above continue to apply. With respect to leave under clause 12 of Schedule 4 to the NCAT Act. 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 clause 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 paragraph (a) or (b) not occurred or if the fresh evidence under paragraph (c) had been before the Tribunal at first instance. 75 As to the particular grounds in clause 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 clause 12(1)(a), (b) or (c), it will 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].

Grounds of Appeal.

We propose to address the grounds of appeal in the same order as they appear in the builder's submissions.

Could the owners corporation authorise its Chairperson to commence proceeding on its behalf in his own name?

Background.

The proceedings were commenced in the name of the Chairperson of the owners corporation on 31 May 2023 by him making an on-line application to the Tribunal. Under "dispute details" he wrote: "There are multiple defects in the building including issues with waterproofing and external facades, The building is currently under warranty … "
Under "reasons for the order/s" the Chairperson wrote: "The owners have contacted the builder several times requesting the abovementioned issues to be resolved but have not had a satisfactory response. We have employed independent building inspectors to prepare a report regarding these defects and would like the builder to repair the building."
On 10 July 2023, on the first return date of the application, the Tribunal substituted the name of the applicant from the Chairperson's name to that of the owners corporation. No appeal was made against that order. That order said: "2. The applicant's name [CHAIRPERSON'S NAME] is amended to THE OWNERS - STRAT PLAN No 95692."
At the hearing of the application on 1 and 2 May 2024, the builder contended that the proceedings were out of time because the substitution of the owners corporation as applicant on 10 July 2023, took place more than 6 years after an interim occupation certificate (C150172-03) had been issued for the development on 7 July 2017. For the present purpose, it is sufficient to note that the builder contended that the warranty started to run on the date of the occupation certificate, when the works were completed. This, it argued, meant that the application in the owners corporation's name, following the amendment order on 10 July 2023, was commenced after the 6 year time limit time fixed for making such an application in s 18E(1)(b) of the HBA had expired.
The status of that occupation certificate is the subject of another ground of appeal.
Section 18E(1) of the HBA relevantly provides: "(1) Proceedings for a breach of a statutory warranty must be commenced in accordance with the following provisions - (a) proceedings must be commenced before the end of the warranty period for the breach, (b) the warranty period is 6 years for a breach that results in a major defect in residential building work or 2 years in any other case, (c) the warranty period starts on completion of the work to which it relates (but this does not prevent proceedings from being commenced before completion of the work), (d) … (e) if the breach of warranty becomes apparent within the last 6 months of the warranty period, proceedings may be commenced within a further 6 months after the end of the warranty period, (f) a breach of warranty becomes apparent when any person entitled to the benefit of the warranty first becomes aware (or ought reasonably to have become aware) of the breach."
Before the Tribunal, the parties joined issue about: 1. Whether the Chairperson had commenced the proceedings in his personal capacity? 2. Whether the order substituting the name of the Chairperson as applicant with that of the owners corporation did or did not operate "retroactively to the filing date" (nunc pro tunc), since it involved as substantive change of party (from a person who did not have a claim) rather than the correction of a mistake in naming a party who did have a claim? 3. The effect on the above the owners corporation's subsequent ratification of the proceedings being issues passed by a special resolution on 25 August 2023.
The Tribunal noted that, if the builder's contentions about the owners corporation's application being out of time were accepted, then the developer's claim for indemnity against the builder would also fail.

The Tribunal's decision

In its reasons for decision at paras [29] to [31] the Tribunal outlined the issues. It then continued, at [32]: "32 The builder accepted that, if I found as a matter of fact that the OC chair had intended to file the proceedings as agent for the OC (which action had been ratified by the OC), then the issue that the proceedings were filed out of time to attract the Tribunal's jurisdiction fell away because the chair had filed before the issue of the IOC. 33 The builder accepted during submissions, making it common ground, that if I found as a matter of fact that the OC chair had intended to file the proceedings as agent for the OC in the foregoing factual circumstances, the Tribunal had power under s 53 of the NCAT Act (to which could be added s 38) to manifest the factual intention by amending the name of the applicant to the OC as a procedural mechanism. I respectfully agree that is a correct characterisation. It is a consequential procedural amendment to reflect the factual position which existed from the inception of the proceedings. Although it could be expressed so to operate in the amendment order, there was no need to do so, and the amendment order made at the first directions hearing on 17 June 2023 did not do so, because that was the factual position from the start of the proceedings."
Then, later in the decision, at par [44] the Tribunal continued: "44 As said earlier, the builder accepted that, if I found as a matter of fact that the OC chair had intended to file the proceedings as agent for the OC (which action had been ratified by the OC as previously said), then the issue that the proceedings were filed out of time to attract the Tribunal's jurisdiction fell away because the chair had filed before the issue of the IOC. 45 I do so find. …"
The Tribunal then embarked on a detailed analysis of the evidence before it, including the "searching cross-examination" of the Chairperson, which led it to that conclude that the Chairperson had commenced the proceedings as agent for the owners corporation (which action had since been ratified) and that the amendment order had substituted the owners corporation as applicant from the time the application was commenced.

The challenge on appeal.

That finding of fact is not challenged on appeal. Rather, the builder challenges the ability of the owners corporation to lawfully authorise (or ratify) the Chairperson's conduct in commencing proceedings against the builder on the owners corporation's behalf. This, the builder argued, is so because "the Owners cannot ratify a function the SSMA does not allow them to delegate to [the Chairperson]".
Both the owners corporation and the developer took issue with this arguing that the Tribunal's conclusions were based on, "a concession as to the effect of certain factual findings", and, as to whether there had been a mistake in naming a party which resulted in the proper party not being named. Further, they contended that the builder had not argued before the Tribunal that the owners corporation could not lawfully authorise or ratify the Chairperson's conduct in commencing proceedings against the builder on the owners corporation's behalf. The argument, they submitted is a new one that should not be allowed on appeal.
The builder took issue with this stating that: "The concession of Alta Vale's counsel was merely that if an agency could be found and there was a mistake in naming [the Chair] as applicant, then the filing of the application on 10 July 2023 would have been in time. However, as the agency could not be found, the concession made by Alta Vale's counsel did not go anywhere."
Further, even if the point had not been raised below, the builder contended that it should be able to raise it as a new question of law on appeal, based on "facts beyond controversy" which raise a question concerning the legal capacity of a body corporate "to exercise functions particularly belonging to it under the SSMA."

Consideration

We have examined the transcript of the hearing below. At p 1260 of the bundle, counsel for the builder (then Mr Pearson), made submissions with respect to the owners corporation's claim being out of time due to the date of the occupation certificate. The following interaction occurred (line 6948 onwards): "SENIOR MEMBER. … Do you accept that if as a matter of fact I found that [the Chair] was suing on behalf of the Owners Corporation, that this argument doesn't matter? PEARSON: I would have to concede that, Senior Member. SENIOR MEMBER BURTON: Yes. Section 53, you may have an argument on that, don't know at the moment but you... PEARSON: Well that would bring me to the third issue, which is whether or not the Owners Corporation is the real applicant. SENIOR MEMBER BURTON: Yes. PEARSON: The fourth and final issue would be that if it was in fact that [the Chair] commenced the proceedings in his personal capacity, meaning that the s 53 order would not be made nunc pro tunc, did the applicants become aware of the defects in the last six months of the warranty period. SENIOR MEMBER BURTON: Yes. I think it follows from what you just said though that you would accept that if I accepted that the OC was always the real intended applicant - [the Chair] put his name there on behalf of the OC, as a matter of fact if I made [unintelligible 02:19:06], then s 53 would apply to allow me to change the name on the 6971 document to Owners Corporation [unintelligible 02:19:15] [the Chair]? PEARSON: I just missed the last part of what you said, Senior Member, I apologise. SENIOR MEMBER BURTON: Yes. That s 53 in those circumstances would allow me to make the change on the document, as a procedural matter, to reflect the reality of the Owners Corporation being - PEARSON: I see. Yes, I would accept that, yes."
The references to s 53 are to s 53 of the NCAT Act which is concerned with amendments and irregularities. Section 53 provides: (1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made - (a) at any stage of the proceedings, and (b) on such terms as the Tribunal thinks fit, but may only be made after giving notice to the party to whom the amendment relates. (3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise. (4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.
There was no qualification made by the builder's counsel with respect to his acceptance of the proposition put to him by the Tribunal, and no attempt to reserve a position with respect to whether or not the owners corporation could, as matter of law, authorise the Chairperson to commence proceedings on its behalf (or ratify him doing so). That argument is therefore a new one which the builder is seeking to introduce for this first time on appeal. Nor was there any suggestion that acceptance of the proposition should not result in the amendment having effect from the date the Chairperson filed the application.
In McInnes v Rheem Australia Pty Limited [2021] NSWCA 89 Gleeson JA, with whom Bell P and Payne JA agreed, observed: "[44] It is trite that a party is bound by the case he or she ran below. As the High Court said in University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 483, in the context of an application to reopen a case following judgment: 'It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had and (sic) opportunity to do so.' It would be inimical to the interests of justice to allow Ms McInnes to make an entirely new and different costs application on appeal, after having failed on a different basis before the primary judge: Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645-646; Water Board v Moustakas (1988) 180 CLR 491 at 487; [1988] HCA 12."
In Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 the majority the High Court noted: "13. … Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. See Suttor v. Gundowda Pty. Ltd. (1950) 81 CLR 418, at p 438; University of Wollongong v. Metwally (No.2) (1985) 59 ALJR 481, at p 483; 60 ALR 68, at p 71; Coulton v. Holcombe (1986) 162 CLR 1, at pp 7-8; O'Brien v. Komesaroff (1982) 150 CLR 310, at p 319."
In Dwyer v Volkswagen Group Australia Pty Ltd [2023] NSWCA 211 Gleeson JA explained: "287 … even if it be assumed that the new claims only involved a question of law, "[a] party does not have a right to insist that a new point be decided on appeal simply because all of the facts having been established beyond controversy or the point is one of construction or of law": Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645 (Mason P, Gleeson CJ and Priestley JA agreeing). It always remains a question of whether it is "expedient and in the interests of justice" to entertain the point: Multicon at 645 (Mason P), quoting Water Board v Moustakas (1988) 180 CLR 491 at 497; [1988] HCA 12. 288 When considering that question, it has been said that "the finality of litigation and the importance of parties being bound to the cases they make at trial should never be overlooked": Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [38] (Allsop J, Drummond and Mansfield JJ agreeing), referring among others to Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at 71. See also: TAL Life Ltd v Shuetrim; Metlife Insurance Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at [166] (Leeming JA, Beazley P and Emmett AJA agreeing)."
Here, there is no explanation as to why the point of law now sought to be agitated was not argued below; why a concession that points to a contrary conclusion was made; and, why the builder should now be allowed to retreat from it. In Tyson v Brisbane Market Freight Brokers Pty Ltd [1994] HCA 67 McHugh J, at [6], said: "Except in the case where the parties have mutually abandoned the pleadings at the trial, the public interest in the finality of litigation requires that, unless some exceptional circumstance exists, a party must be refused leave to make a case on appeal which is inconsistent with his or her pleadings ((11) Banque Commerciale S.A., en Liquidation v. Akhil Holdings Ltd. (1990) 169 CLR 279 at 284.). As the majority of this Court in Coulton v. Holcombe (12) (1986) 162 CLR 1 at 11.) pointed out, no court finds any satisfaction in refusing to allow a party to raise a point which might enable it to succeed in the litigation. But, as the Court went on to say, the principles which govern the raising of new points "have stood the test of time because they have been found to serve effectively the public interest in the fairness and expedition of the administration of justice". We live in an era where the cost of litigation is beyond the means of ordinary citizens and where awards of party and party - and even indemnity - costs cannot fully compensate a party for the cost and worry of litigation. Because that is so, it is as important as ever that the established principles concerning the raising of new points be strictly applied and that the parties be kept to the issues which, by their pleadings, they raised for determination at the trial."
In our view, the interests of justice and the inherent unfairness to the respondents of allowing the builder to now adopt a new position and argument that it did not pursue at trial, and one at odds with a concession it made at trial, points to the preferred course being for the builder to be restricted from raising the new ground on appeal. We think such a decision consistent with the guiding principle of NCAT, set out in s 36 of the NCAT Act, which is to facilitate the just, quick and cheap resolution of the issues in the proceedings. Accordingly, the builder may not raise the new point of law it seeks to rely on in ground 1.
While that is sufficient to dispose of the first ground of appeal, we will consider the substance of that ground in case we are later found to be wrong: see Kuru v State of New South Wales [2008] HCA 26 at [12] and Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158 at [47].
Section 9 of the SSMA is concerned with the management of a strata scheme. It relevantly provides: "(1) The owners corporation for a strata scheme has the principal responsibility for the management of the scheme. (2) The owners corporation has, for the benefit of the owners of lots in the strata scheme - (a) the management and control of the use of the common property of the strata scheme, and (b) the administration of the strata scheme. (3) …"
Section 10 then addresses the functions of the owners corporation generally and provides: "(1) An owners corporation has such other functions as may be conferred or imposed on it by or under this or any other Act. (2) An owners corporation must not delegate any of its functions to a person unless the delegation is specifically authorised by this Act."
The functions of a chairperson of an owners corporation is set out in s 42 of the SSMA: "The functions of the chairperson of an owners corporation include the following - (a) to preside at meetings of the owners corporation and the strata committee of the owners corporation, (b) to make determinations as to quorums and procedural matters at meetings of the owners corporation and the strata committee of the owners corporation."
It is to be noted that this is an inclusive provision, suggesting that the Chairperson has other functions not enumerated in the section.
The central thrust of the builder's submission is that the owners corporation could not lawfully have authorised the Chairperson to commence proceedings as its agent for relief under the HBA with respect to common property. Similarly, the owners corporation could not ratify the Chairperson's commencement of proceedings because it could not delegate that function to him.
The Tribunal found at par [15] of the decision that: "15 There were OC resolutions on 25 August 2023 ratifying its involvement as applicant in the proceedings against the builder and developer, authorising the SC to conduct the proceedings and to continue to engage the existing solicitors and engage experts."
The builder submitted: "In circumstances where the SSMA did not authorise [the Chairperson] to exercise the owners functions as to the management and control of the common property, there is no basis for a retroactive substitution of the Owners such that their substitution on 10 July 2023 took effect from 31 May 2023 when [the Chairperson] originally filed the application."
In McEvoy & Anor v The Body Corporate for No 9 Port Douglas Road [2013] QCA 168, the Queensland Court of Appeal considered an appeal against a decision of the Queensland Civil and Administrative Tribunal (QCAT) determining an appeal from an adjudicator under the Body Corporate and Community Management Act 1997 (Qld), which appeal was required to be authorised by a special resolution of the body corporate. Before QCAT, it was asserted that the committee of the body corporate had commenced proceedings without obtaining a special resolution, with the result that the body corporate had not decided to commence the appeal and that it, therefore, should not be entertained. The QCAT Member did not deal with that argument. The Court of Appeal considered whether QCAT had "erred in law in entertaining the appeal which was not authorised by the body corporate" : see [23]. Holmes JA, with whom McMurdo P and Douglas J agreed explained (footnotes omitted): "[30] It is well established that the commencement of proceedings without proper authority may be cured by subsequent ratification. In Danish Mercantile Co Ld v Beaumont, an action was commenced in the name of a company without necessary approval by a general meeting or by the board of directors, but the action was adopted some months later by the liquidator appointed on the company's winding up. Subsequently, the defendants applied by motion to strike out the name of the company as a plaintiff. Jenkins LJ observed that the practice of the court in cases where there was dispute as to the authority for use of a company's name as a plaintiff was to adjourn any motion to strike out the company's name with a view to the holding of a meeting to determine whether the company adopted the bringing of the action. It was, Jenkins LJ said: "...open at any time to the purported plaintiff to ratify the act of the solicitor who started the action to adopt the proceedings, to approve all that has been done in the past, and to instruct the solicitor to continue the action." Similarly, in Alexander Ward & Co Ltd v Samyang Navigation Co Ltd and Presentaciones Musicales SA v Secunda it was held that proceedings taken without authority could be subsequently ratified; in the latter case, ratification was effective notwithstanding the expiration of the limitation period. [31] In Ox Operations Pty Ltd v Land Mark Property Developments (Vic) Pty Ltd (in liq), Finkelstein J discussed and applied the English line of authority as to ratification of proceedings, as well as noting the practice, where an action had been brought without a company's authority, of permitting the company to convene a necessary meeting to consider whether it would adopt the action. In Victoria Teachers Credit Union Ltd v KPMG the Victorian Court of Appeal similarly recognised the principle that a client could, by subsequent ratification, validate the commencement of an action without authority, the ratification relating back "so as to be deemed equivalent to an antecedent authority." [32] The disinclination to characterize improperly constituted proceedings as a nullity is consistent with the approach of the High Court in Berowra Holdings Pty Ltd v Gordon. Of particular significance to the QCAT proceedings here is the distinction the court made between an order made by an inferior court without a power which was a nullity and "an order... made within power but improperly, in which case, until set aside by a superior court, the order had to be obeyed." The order here was of the latter kind."
In Presentaciones Musicales SA v Secunda [1994] Ch 271; [1994] 2 All ER 737 a solicitor commenced proceedings on behalf of a Panamanian company without proper authority. The commencement of the proceedings was subsequently ratified after the relevant limitation period for the commencement of the action had expired. The first defendant applied to have the proceedings struck out as an abuse of process. Dillon LJ, with whom Nolan LJ agreed, said: "Where a writ is issued without authority, the cases show that the writ is not a nullity. For the nominal plaintiff to adopt the writ, or ratify its issue, does not require any application to the court. Accordingly, on the same general principle that justifies Pontin v Wood, the plaintiff, in the simple example of an action raising a single cause of action which has been begun by solicitors without authority, must be entitled to adopt the action notwithstanding the expiration of the limitation period applicable to that cause of action." … As Holroyd Pearce LJ said in Pontin v Wood [1962] 1 All ER 294 at 299, [1962] 1 QB at 612: 'The defendant was at all times perfectly aware of the nature of the action which the writ was intended to initiate and the defect has caused him no difficulty whatever.'"
Roch LJ said: "In my view the correct statements of principle are contained in the judgment of Cotton LJ in Bolton Partners v Lambert (1889) 41 Ch D 295, first at 306: 'The rule as to ratification by a principal of acts done by an assumed agent is that the ratification is thrown back to the date of the act done, and that the agent is put in the same position as if he had had authority to do the act at the time the act was done by him', and then at 307: 'The rule as to ratification is of course subject to some exceptions. An estate once vested cannot be divested, nor can an act lawful at the time of its performance be rendered unlawful, by the application of the doctrine of ratification.'"
Roch LJ went on to consider those exceptions, which are not relevant here.
In 2 Elizabeth Bay Road Pty Ltd v The Owners Strata Plan No 73943 [2014] NSWCA 409, the NSW Court of Appeal was concerned with proceedings under the HBA, which had been commenced by an owners corporation before a resolution had been passed with respect to the commencement of proceedings under s 80D of the then Strata Scheme Management Act 1996 (NSW) (Repealed) (the 1996 Act). That section provided: "(1) An owners corporation or executive committee of an owners corporation must not seek legal advice or the provision of any other legal services, or initiate legal action, for which any payment may be required unless a resolution is passed at a general meeting of the owners corporation approving the seeking of the advice or services or the taking of that action. (2) The regulations may make provision for or with respect to exempting any type of legal service or legal action from the operation of this section."
The Court of Appeal held that "the initiation of the legal proceedings without the required authorisation did not render them null or void or otherwise requiring dismissal": per Basten JA at [6]; Barrett JA at [47] and Leeming JA at [89] - [105] and see Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364. This did not detract from the fact that commencement of the proceedings without a resolution was a breach of s 80D.
Leeming J, with whom Basten JA agreed, explained: '106 The key to the resolution of this appeal is that the prohibition in s 80D is directed to commencing proceedings in a court or tribunal where a body of procedural law applies, whose ordinary operation deals with non-compliances with mandatory requirements. In that context, non-compliance with a mandatory requirement is to be read as engaging familiar procedures relating to stays and summary dismissal within that body of procedural rules, rather than absolute notions of nullity, invalidity, incapacity or mandatory dismissal. Much clearer language than appears in s 80D would be required in order to sustain a construction whereby those procedural rules were displaced by a limitation on jurisdiction or capacity or a qualification on the right to sue. 107 In the exercise of the court's or tribunal's discretion under those procedural rules, the matters that will loom large are (a) whether the breach has been cured, (b) if it has not been cured, will it be cured reasonably promptly, and (c) was the breach inadvertent (because, say, of an irregularity in the approval process) or deliberate. For example, if approval was purportedly given before proceedings had been commenced, but a defect was noticed shortly afterwards, and rectified immediately by a further approving resolution shortly after proceedings had been commenced, then it is difficult to see how a court could properly form the view that the proceedings ought to be stayed or dismissed for a transient non-compliance on which nothing turned. Conversely, it is difficult to see how a court could do other than stay or dismiss proceedings commenced by an owners corporation which was fully aware of the provision, made no effort to comply with it, and had no intention to seek approval at a general meeting. As ever, the extreme cases are straightforward; the intermediate cases may be highly contestable."
While reaching the same outcome Barret JA considered the law of agency applicable and found that the commencement of the proceedings had been ratified by the owners corporation subsequent resolution doing so. Basten and Leeming JJA did not consider it necessary to consider ratification.
Relying on those authorities in our opinion it was open to the Tribunal in this case to find that the Chairperson commenced the proceedings in his own name against the builder with the intention of doing so on behalf of the owners corporation. The subsequent amendment from the name of the Chairperson to that of the owners corporation was done quickly and ratified by a special resolution of the owners corporation within a short time given the requirements for such a resolution. The Tribunal explained, at par [33] of its reasons that: "… the Tribunal had power under s 53 of the NCAT Act (to which could be added s 38) to manifest the factual intention by amending the name of the applicant to the OC as a procedural mechanism. I respectfully agree that is a correct characterisation. It is a consequential procedural amendment to reflect the factual position which existed from the inception of the proceedings. Although it could be expressed so to operate in the amendment order, there was no need to do so, and the amendment order made at the first directions hearing on 17 June 2023 did not do so, because that was the factual position from the start of the proceedings."
We can see no error in this conclusion. We also note that it was consistent with the concession made by the builder. The fact that the amendment was made after the limitation period under s 18E(1)(b) of the HBA had expired did not prevent the owners corporation from adopting the Chairperson's initiation of proceedings on its behalf. It was the initiation of proceedings that the owners corporation was adopting; not the Chairperson's unauthorized conduct in making the application.
Whether or not the Chairperson had or could lawfully have authority to commence proceedings on the owners corporation's behalf is beside the point. The owners corporation, following a special resolution, had authority to do so, which authority included the ability to adopt or ratify the previously unauthorised act of another on the owners corporation's behalf, such as that of the Chairperson.
The appeal, with respect to the substance of the ground, would therefore have failed.

Whether the Tribunal's conclusion that time did not begin to run under s 18E(1)(b) of the HBA, when the interim occupation certificate issued on 7 July 2017, was wrong?

Despite the fact that this ground of appeal falls away because of our conclusion that the proceedings were commenced by the owners corporation within time, we will nonetheless consider the builder's arguments relating to this ground, as did the Tribunal below.
Section 3C of the HBA contains provision relating to the date of completion of new buildings in strata schemes. It relevantly provides: "(1) This section applies to residential building work comprising the construction of a new building in a strata scheme (within the meaning of the Strata Schemes Management Act 2015) where the issue of an occupation certificate is required to authorise commencement of the use or occupation of the building. … (2) The completion of residential building work to which this section applies occurs on - (a) the date of issue of an occupation certificate that authorises the occupation and use of the whole of the building, unless paragraph (b) applies, or (b) the occurrence of some other event that is prescribed by the regulations as constituting completion of the work. (3) … (4) This section applies for the purpose of determining when completion of residential building work occurs for the purposes of any provision of this Act, the regulations or a contract of insurance under Part 6. (5) In this section - building means any structure that, as a new building, requires the issue of an occupation certificate to authorise its use and occupation. occupation certificate means an occupation certificate under the Environmental Planning and Assessment Act 1979. Note - A swimming pool, tennis court or detached garage can be a building for the purposes of this section if an occupation certificate is required to authorise its use and occupation. If a structure in a strata scheme does not require an occupation certificate, section 3B will apply to it instead of section 3C."
It will be recalled that s 18E(1)(c) provides that "the warranty period starts on completion of the work to which it relates". Before the Tribunal the builder contended that the warranty period started when the interim occupation certificate (IOC) issued under the Environmental Planning and Assessment Act 1979 (NSW) (as in force in 2015-2017) (the EPAA) on 7 July 2017, not when the final occupation certificate (FOC) issued under that Act on 30 August 2017.
The relevant provisions of the EPAA have been subsequently amended. There is agreement that those in force at the time apply.
Section 109H of the EPPA relevantly provided: "109H Restrictions on issue of occupation certificates 1. There are two kinds of occupation certificates, as follows: an interim occupation certificate that authorises a person to commence occupation or use of a partially completed new building, or to commence a new use of part of a building resulting from a change of building use for an existing building, a final occupation certificate that authorises a person to commence occupation or use of a new building, or to commence a new use of a building resulting from a change of building use for an existing building. It is not necessary for an interim occupation certificate to be issued before a final occupation certificate is issued with respect to the same building. 1. An occupation certificate must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent or complying development certificate, or any requirements of a planning agreement referred to in section 93F that, by its terms, are required to be complied with before such a certificate is issued, have been met. 2. An interim occupation certificate must not be issued to authorise a person to commence to occupy or use a partially completed new building unless: a development consent or complying development certificate is in force with respect to the building, and in the case of a building erected pursuant to a development consent but not a complying development certificate, a construction certificate has been issued with respect to the plans and specifications for the building, and the partially completed building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with. 1. … 2. A final occupation certificate must not be issued to authorise a person to commence occupation or use of a new building unless: a development consent or complying development certificate is in force with respect to the building, and in the case of a building erected pursuant to a development consent but not a complying development certificate, a construction certificate has been issued with respect to the plans and specifications for the building, and the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with. 1. … 2. In this section: new building includes an altered portion of, or an extension to, an existing building."
In its reasons for decision addressing this issue the Tribunal wrote: "58 First, under EPAA s 109C(1)(c)(i) and (2)(a), both an IOC and an FOC can authorise the occupation and use of a new building (as the development in question was). 59 Secondly, under EPAA s 109H(1) the distinction between an IOC and an FOC is that the former authorises occupation or use of a "partially completed" new building. 60 Thirdly, EPAA s 109H(2) applies to any form of OC because the provisions expressly refer to IOC and FOC where a distinction is intended. 61 Fourthly, EPAA s 109H(2) prevents any occupation certificate being issued unless (relevantly) any preconditions to the issue of the certificate that were specified in a development consent that, by its terms, are required to be complied with before such a certificate is issued, have been met. 62 Fifthly, the heading to the DC landscaping condition expressly required installation of the final landscaping before occupation or use of the building, which on the inclusive definition in EPAA s 4(1) applied to the erected structure in its ordinary meaning in context. The express words of the landscaping condition extended that restriction to completion of landscaping prior to any occupation or use of "the site". In its ordinary meaning in context "the site" means either the location of the building footprint itself or the entire location of the footprint and curtilage. Either is sufficient for present purposes. 63 Whether one focuses on the heading or either meaning of "the site" in the DC condition, under EPAA s 109H(2) no OC (either IOC or FOC) could validly issue until, in this development, the final landscaping was installed. There could be good safety reasons for that restriction on building occupation where, as here, the landscaping required was extensive, but it is not necessary to speculate where the legislative text is clear. 64 Accordingly, under EPAA s 109H(2) with s 109M(1) there was no valid occupation certificate and no valid occupation or use until the FOC issued. It may be that an occupant in reliance on the invalid IOC would have a protection against the penalty consequences under EPAA s 109M with ss 125 and 126 for which the occupant was not responsible, but that is not relevant to be determined for the purposes of the present proceedings. The effect of issue of an occupation certificate that was non-compliant with s 109H(2) was not decided by White JA in Dyldam Developments PL v Owners SP 85305 [2020] NSWCA 327 at [89], where his Honour described the contentions for and against that he had set out at [75]-88], including potential criminal liability, as "finely balanced". 65 However, for purposes of other legislative provisions such as HBA s 3C there was no valid OC before 30 August 2017. There is no apparent public policy reason to shorten the limitation period by reason of an invalid OC having been issued. The very reason that the certificate purportedly issued was expressed to be interim infers the required completion of further work which in this case was not contended to be other than the contractual responsibility of the builder. In any event, and irrespective of the facts of this case, in a particular project an IOC may issue but the remaining contract work may result in a substantial time period between the issue of the IOC and an FOC. On the builder's interpretation the limitation period for defects in that further work would be substantially shortened for no apparent reason in public policy if it was to be done by the builder. 66 I therefore consider correct the OC's contention that, even if the alteration of applicant was substantive and non-retroactive, it was within time."
The conditions of the development consent were set out at par [41] of the decision: "F. Conditions which must be satisfied prior to any occupation or use of the building (Part 4A of the Act and Part 8 Division 3 of the Regulation). F.1 Occupation Certificate (section 109M of the [EPAA]) A person must not commence occupation or use of the whole or any part of a new building (within the meaning of section 109H(4) of the [EPAA]) unless an occupation certificate has been issued in relation to the building or part. F.2 … F.3 Amenity Landscaping The owner or principal contractor must install all approved amenity landscaping (screen planting, soil stabilisation planting, etc) prior to any occupation or use of the site". Note: This condition has been imposed to ensure that the environmental impacts of the development are mitigated by approved landscaping prior to any occupation of the development."
The Tribunal found that as a result of the development consent conditions neither type of occupation certificate could issue until the "final landscaping was installed." There was therefore no valid occupation certificate (IOC or FOC) for the purposes of s 3C of the HBA.
The builder submits that this conclusion is wrong at law for a number of reasons. First, it contends that conditions F.1 and F.3, "distinguish between an occupation and use of the whole or any part of any "new building … in condition F.1 and occupation and use of the site in F.3". Therefore, under condition F.1 a new building may not be used or occupied unless an occupation certificate has been issued. This can be either an IOC or an FOC.
Next, the builder argued that the IOC had the practical effect of permitting the occupation of the building, except for landscaping, and that the IOC was "specifically directed to F.1 only." The landscaping was not a "building" for the purposes of s 3C of the HBA because it was not a structure. In contrast, the builder submitted that condition F.3 is directed to the "occupation and use of the site" until the amenity landscaping is installed. This was said to have occurred when the FOC issued. The builder then argued that: "(9) it is irrelevant for the purpose of s 3C(4) of the HBA whether the building can be occupied without the site or vice versa."
Because the issue of an occupation certificate meant that the whole of the building had been developed (meaning the structure) and thereby authorised use and occupation of the building, the builder said that the issue of the IOC authorised its use and occupation. The amenity landscaping requirement did not relate to a structure for the purposes of the definition of building in s 3C(5) and was, thus, excluded from the operation of s 3C(2).
The builder's submissions do not address the Tribunal's central reasons for finding that the occupation certificates did not comply with the conditions of the development consent.
First, that the heading of the conditions labelled F stated that they (F.1 to F.3) "must be satisfied prior to any occupation or use of the building." This is a clearly stated requirement that the landscaping condition in F.3 must be satisfied prior to any occupation of the building. It does not allow occupation of the building before the landscaping is completed. No amount of obfuscation regarding the distinctions between the use and occupation of a building versus that of a site, can deprive that requirement of its clarity. The landscaping condition had to be satisfied prior to "any occupation or use of the building." Secondly, the Tribunal found that the "site" to which the landscaping condition related, on the ordinary meaning of that word, "means either the location of the building footprint itself or the entire location of the footprint and curtilage." Thirdly, the Tribunal correctly observed that s 109H(2) says that an occupation certificate "must not be issued" unless any conditions in the development consent have been met. Here the amenity landscaping condition had not been met. The conditions required they be satisfied "prior to any occupation or use of the building."
We are not persuaded by the builder's arguments to the contrary. The IOC was issued contrary to the requirements of s 109H(2).
Next the builder submitted that, if that were the case, then the Tribunal had wrongly determined that the IOC was invalid, relying on the decision of the Court of Appeal in Dyldam Developments Pty Ltd v The Owners - Strata Plan 85305 [2020] NSWCA 327; 104 NSWLR 19 (Dyldam). While at one point in par 64 of its reasons the Tribunal did find that there was "no valid occupation certificate", it went on to refer to Dyldam and noted that White JA had not decided what the consequences of non-compliance with s 109H(2) of the EPPA were.
What the Tribunal did decide, as pointed out by the owners corporation, is that there was no valid occupation certificate for the purposes of s 3C of the HBA. Its reasons for so holding were based on the interim nature of an IOC, which indicates that there is further work to be done, regarding which, if the builder's argument were accepted, time under s 18E would begin to run before that further work had actually been done. That reasoning is persuasive.
In Dyldam White JA, with whom Emmett and Simpson AJJA relevantly agreed, found that the Tribunal had jurisdiction to decide the effect of occupation certificates for the purpose of the exercise of its jurisdiction under the HBA (at [57]). This was the case where a question of validity arouse on the face of the occupation certificates. At [89] White J said: "89. If the effect of the certificates … turned only on the question whether a certificate issued in breach of s 109H(2) rendered them invalid, I would regard the issue as being finely balanced. 90. But there is a more fundamental problem with the certificates. An occupation certificate could only authorise the occupation or use of the whole of the building within the meaning of s 3C(2) of the Home Building Act if it were either a final occupation certificate or an interim occupation certificate (Home Building Act s 3C(5) and the EPA Act ss 109C(1)(c) and 109H(1)). 91. The certificates relied upon by Dyldam were not final occupation certificates. That was made express on the face of the certificates. They purported to be interim occupation certificates. But an interim occupation certificate could only be issued in respect of a partially completed building, or for the commencement of a new use of part of a building resulting from the change of building use for an existing building (EPA Act s 109H(1)(a)). The building was completed, not partially completed. There was no change of building use. 92. Mr Dix, on behalf of DixGardner, was empowered to issue interim and final occupation certificates if he were of the view that the criteria provided for by the legislative scheme had been satisfied. However, he was not empowered to decide whether what he issued was in fact an interim or a final occupational certificate. That question was an objective one that depended upon whether the certificate satisfied the definition in s 109H(1)(a) or (b). The certificates were not interim occupation certificates, even though they so described themselves. 93. Irrespective of the effect of the breach of s 109H(2), the certificates did not authorise the use and occupation of the whole of the building."
Here, if the position advanced by the builder were adopted, and the new building viewed as completed, then the IOC would meet the same fate as that discussed by White J in Dyldam. This is so because IOCs are concerned the occupation or use of a partially completed new buildings, under s 109H(1)(a) of the EPPA. There can be no question that the IOC here was an interim certificate: it says so on its face. For an occupation certificate to be one for the purposes of s 3C(2) of the HBA, it must authorise the occupation and use of the whole of the building: something an IOC under s 109H(1)(a) of the EPAA cannot do. This, as the owners corporation submitted, is entirely consistent with the position reached by the Court of Appeal in Dyldam.
The Tribunal took the view that the building was incomplete because (1) the landscaping condition contained in the development consent was unfulfilled when the IOC issued; and (2) the FOC contained a fire safety schedule indicating other incomplete works at the time of the OIC. This meant that no occupation certificate could properly issue, whether interim or final on 7 July 2023. As a result, an occupation certificate that satisfied the requirements of s 3C(2)(a) could not issue on that date. The IOC was not one.
We can see no error in the Tribunal's conclusion that the IOC did not satisfy the requirements for an occupation certificate under s 3(2)(a) of the HBA. Whether the use of the word Tribunal's "valid" was necessary in the circumstances is doubtful given the caution sounded by White JA. The IOC was not, however, an occupation certificate for the purposes of s 3(2)(a) of the HBA.

Was Tribunal's conclusion with respect to the extended warranty under s 18E of the HBA open to it?

At par [72] to [73] of the decision the Tribunal wrote: "72 Finally, in my view the evidence, including after answers given in cross examination by the OC chair, sufficiently established that, until provision of the OC's expert report on 9 June 2023, the OC was not aware and ought not reasonably to have become aware of the relevant breaches of statutory warranty so as to attract the six months' extension in HBA s 18E(1)(e) and (f). The OC witnesses and documents showed no knowledge of an alternative explanation, until that point, from the builder's strongly-maintained position, since the matter was first raised with the builder in 2022, that the problems were caused by lack of OC maintenance. The OC by its chair commenced proceedings shortly before the provision of the expert report on the basis of Fair Trading advice that time to do so was running short. The expert report contradicted the builder's explanation that water entry (the defect) arose from lack of maintenance (an OC responsibility) and sheeted it home to the relevant criteria for s 18E(1)() and (f) which is actual awareness or a reasonable basis to raise awareness that the defect arose from a breach of statutory warranty (reflecting the express language of the statutory provisions). It can be readily inferred that the expert report was obtained (and was in train at the time proceedings were commenced) to test the builder's contention before money was expended on such maintenance. 73 Accordingly, even if the grant of leave to change the name of the applicant was to cure a substantive error that could not be cured retroactively (contrary to my view in the succeeding section of these reasons), the change was in time because it pre-dated the issue of the relevant occupation certificate on 30 August 2017."
The builder submits that the Tribunal found that the owners corporation was not aware of the breaches of statutory warranties under s 18B of the HBA until 9 June 2023, until it received the experts report. It submitted that this meant that the Chairperson "did not have a basis" for knowing why he was seeking relief when he made his application to the Tribunal on 31 May 2023. This it submitted: "… is against common experience, logic and the terms of the application …, which indicates awareness that that alleged defective works were being suffered at the building comprising the strata scheme. Section 18(1)(e) and (f) cannot be taken to have been enlivened therefore on 9 June 2023."
This submission challenges the factual findings made by Tribunal in par [72] and its conclusion that in those circumstances the owners corporation became aware that it had a claim for breach of statutory warranties relating to major defects - in accordance with s 18E(f) (see par 24 above) - on receipt of the expert report on 9 June 2003. As this was within the last 6 months of the warranty period, the owners corporation was held to be entitled to commence the proceedings "within a further 6 months after the end of the warranty period" in accordance with s 18E(e).
The parties are at odds concerning whether or not this raises a question of law or is a mixed question of law and fact requiring leave. On balance, we think it raises mixed questions of law and fact, going to whether the factual findings of the Tribunal justify its conclusion of law. Leave is therefore required.
In our opinion, the builder's submissions are predicated on a contradiction in the Tribunal's findings that does not exist. The owners corporation was aware of problems with the building well before the proceedings were commenced on its behalf by the Chairperson on 31 May 2023. Indeed, the evidence was that complaints about the problems were discussed with the builder and Fair Trading before then. An expert report was ordered to enable the owners corporation to decide whether it had a claim against the builder for breach of the statutory warranties in s 18B of the HBA, or whether the problems were maintenance issues. The owners corporation by its Chairperson commended the proceedings on 31 May 2023, before the expert report was received, in order to preserve its position because time to commence proceedings, if there were major defects, was running out. Commencing precautionary proceedings to preserve a cause of action is not an unusual course of action. The report subsequently advised that there were breaches of the statutory warranties with respect to major defects. If it had not, the owners corporation would have had to bear the consequences of issuing proceedings it could not sustain.
In our opinion, it was open to the Tribunal to conclude, as it did, that the owners corporation is entitled to the benefit of the extended warranty period under s 18E(1)(e) of the HBA. No error of law is apparent. This is so irrespective of the outcome of the builders submissions relating to the date of the commencement of the proceedings and the effect of the IOC.
Further, there is no evidence that the builder may have suffered a substantial injustice because of the tribunal's conclusion in par [72] of the decision. The findings of fact made by the Tribunal were not against the weight of the evidence. No injustice arises from that decision. There was nothing unorthodox about the Tribunal's fact finding process and the issue is not one of principle. Leave to appeal on this ground is refused.

Should the builder have to appeal an interlocutory decision of the Tribunal (the refusal of an adjournment application)?

At the commencement of the hearing on 1 May 2023 the Tribunal heard and refused an application by the builder for an adjournment on the ground that it had no expert report to rely on, and no expert witness to call. As this was an interlocutory decision, leave to appeal is required under s 80(2)(a) of the NCAT Act.
In its reasons for decision, the Tribunal provided the following relevant history of the proceedings: "18 In a directions hearing on 12 October 2023 it was noted that HBA s 48MA was not in contention as work orders were sought and consequently the scope of work the subject of the order sought needed sufficiently to be specified. It was also noted that the contract between builder and developer was oral. A timetable for final hearing preparation was ordered, including witnesses required for cross-examination to be notified by 7 March 2024. … 22 The Building Commission NSW gave notice on 11 December 2023 to the developer that it intended to issue a rectification order. I was told by the developer, without objection or correction by other parties, that such order as issued, which was handed up and marked for identification, required specified work to be completed by July 2024. 23 Notices of hearing for 1-3 May 2024 were issued to the parties dated January 2024. 24 On 5 March 2024 the OC's application to extend time for its submissions outline because the builder had filed no evidence to that point was granted, with the builder's time for filing and serving documents also extended to 27 March 2024 noting that there was no prejudice thereby to the hearing date. 25 On 18 April 2024 parties were notified that the builder's application of that date to vacate the hearing would be heard on 1 May 2024 at the outset of the hearing. The parties were referred to the principles informing adjournments in Garofali v Moskovich [2021] NSWCATAP 242 at [37]."
When explaining why it had rejected the adjournment application the Tribunal wrote: "27 The builder relied upon an affidavit of the employed solicitor who had the carriage of the matter under supervision of his principal for the purposes of the application filed on 18 April 2024 and made at the hearing to vacate the hearing set for three days by notice dated January 2024. The ground for that application was the builder's solicitors' inability to contact its nominated expert to progress his report after he inspected the site on 4 March 2024. I rejected that application for reasons given orally, recorded in the transcript and repeated in substance here. 28 In substance, I rejected the application for the following reasons: (1) there was clear and candid acceptance by the builder's legal advisers that there had been non-compliance with s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) in delay in making initial inquiries of an available expert and in lack of timely alternative action (including communication with the Tribunal and other parties) when indications that trouble was emerging with the chosen expert's ability to produce a timely report; (2) against the builder's sole point of prejudice from not having an expert report was the clear prejudice to other parties from not only preparation and wasted costs but also the ongoing effects, which appeared severe, of the alleged defects; (3) the developer's prejudice was heightened by its statutory responsibility to deal with the Building Commissioner's order; (4) there was a clear absence of evidence from the builder (even if it involved waiving privilege) as to why there was not more timely expert evidence when it must have been clear to a builder that such was required to meet expert evidence served in December 2023; (5) in a situation where other parties have resisted a vacation even with a partial offer of costs (which in itself I would have found not satisfactory) and were prepared to risk the prospects of an appeal on alleged procedural unfairness, the foregoing factors weighed strongly in favour of refusing the application."
In submission, the builder asserted that as a matter of general principle: "… the unavailability of a material witness, such as an expert witness, will usually be a sufficient ground for an adjournment, provided such unavailability is not the fault of the party whose interests will be prejudiced by the refusal of the adjournment or of his or her solicitor."
The builder did not suggest that any of the factors set out by the Tribunal in par 29 of its decision were somehow inapplicable.
In O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 (O'Neill) the Appeal Panel said: "20. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, a unanimous High Court said: "In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice." 21. That approach is applicable in this Tribunal. Section 36(1) of the Civil and Administrative Tribunal Act 2013 ('the Act') is in relevantly identical terms to s 56(1) of the Civil Procedure Act 2005, the provision considered in the Expense Reduction decision. 22. It follows that a number of principles apply to applications for an adjournment: 1. matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, 2. an application for an adjournment should be seen as the exceptional rather than the ordinary course; 3. where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment 23. Further, there is the effect on the opposing party to consider. In Sayhoun v Owners Corporation Strata Plan 75123 [2014] NSWCATAP 112, an Appeal Panel of this Tribunal said at [17], in terms we would adopt: "We are satisfied that the respondent would be prejudiced if an extension of time were granted. That prejudice may be addressed by an award of costs, although we note the remarks of the plurality in Aon Risk Services Aust Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [100] that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants; and their approval (also at [100]) of Bowen LJ's statement in Cropper v Smith [1884] 26 Ch D 700 that: Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary."
These principles have been followed by subsequent Appeal Panels in Armee v Brealey [2017] NSWCATAP 141at [121], [125]; Hanson v Metricon Homes Pty Ltd [2019] NSWCATAP 133 at [25], [28]; Touma v Colantuono [2021] NSWCATAP 152 at [58]-[59]; Garofali v Moshkovich [2021] NSWCATAP 242 at [37] and Ugur v Bridge Housing Limited [2024] NSWCATAP 203 at [15] among others.
It is clear that in refusing the adjournment the Tribunal had regard to all the factors enumerated in O'Neill and subsequent cases. It did not act on a wrong principle in a House v R sense: see [1936] HCA 40; (1936) 55 CLR 499 at [5] per Dixon, Evatt and McTiernan JJ. The Tribunal was not satisfied that the builder's solicitors had acted diligently, nor had regard to warning signs with respect to the nominated expert witnesses engagement, monitoring, report and availability for hearing. The explanation for the overall delay and lack of diligence was unsatisfactory. The prejudice to both the developer and the owners corporation was found to be significant and ongoing, and unable to remedied by costs alone.
In those circumstances, it cannot be said that the decision to refuse an adjournment at the opening of the hearing, was not fair and reasonable, or was somehow unfair and inequitable. The Tribunal's process was an orthodox one. There is no sign that it acted on an error of fact or that its conclusion was unreasonably reached: see BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20].
Leave to appeal against the interlocutory decision not to adjourn the proceedings is therefore refused.

Conclusion.

In the light of the above the appeal will be dismissed. We will make orders for the filing of an application for costs of the appeal if the parties consider it necessary. If such an application is made, we would propose determining it without a hearing in accordance with s 50 of the NCAT Act.
The Appeal Panel makes the following orders: 1. Leave to appeal refused. 2. Appeal dismissed. 3. Any costs application with submissions (not exceeding 5 pages in length) and documents relating to question of costs are to be filed and served within 21 days. 4. Any submissions (not exceeding 5 pages in length) and documents in response are to be filed and served within a further 14 days. 5. Those submissions are to address the issue of whether costs should be determined without a hearing

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: 30 October 2024

Environmental Planning and Assessment Act 1970(NSW)

Body Corporate and Community Management Act 1997(Qld)

force 2015-2017)(Repealed) Home Building Act 1989(NSW)

Strata Scheme Management Act 1996(NSW)

(2020) 103 NSWLR 479

Alta Vale Residential Pty Ltd v The Owners - Strata Plan No. 95693

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