Bajic v Paraskevopoulos

NCAT Appeal Panel|2018-07-30

Solicitors: Lou Baker & Associates (Appellant) Mills Oakley Lawyers (Respondents) File Number(s): AP 18/26066 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 22 May 2018 Before: D Charles, Senior Member File Number(s): HB 17/13535, HB 17/21112 and HB 17/40804

Summary

The present respondents, Mr and Mrs Paraskevopoulos and Mrs Lazarevic, to whom we will refer as the Homeowners, own property at Rockdale. The appellant, Mr Bajic, to whom we will refer as the Builder, undertook certain building and construction works on the Homeowners' property pursuant to a contract with Mr Paraskevopoulos.
Various issues arose resulting in the Homeowners or Mr Paraskevopoulos terminating the contract. The Builder commenced proceedings 17/13535 (the Builder's Proceedings). He claimed $40,226.60 on a quantum meruit basis for work undertaken in respect of a suspended ground floor formwork deck.
The Homeowners in turn commenced proceedings HB 17/21112 and HB 17/40804 (the Homeowners' Proceedings). They sought payment of $94,736.52 in respect of defective works, completion costs, disputed payments and consequential losses.
After a two day hearing before a Senior Member of the Consumer and Commercial Division of the Tribunal (the Tribunal) on 1 and 2 February 2018, and the provision of the transcript and written submissions in March and April 2018, the Tribunal published its decision on 22 May 2018 (the Decision). In summary, the Tribunal: 1. dismissed the Builder's Proceedings; and 2. in the Homeowners' Proceedings, ordered the Builder to pay the Homeowners' $86,431.52.

The Decision

As the grounds of appeal relate to the adequacy of the reasons given by the Tribunal, it is appropriate to set out a summary of the reasons for decision.
The Tribunal's reasons for decision were 44 pages in length. At pars [1] to [18] a detailed background and overview of the dispute is set out. At pars [24] to [29] the Tribunal lists the important evidence filed, which included the transcript of the two days of hearing and post-hearing submissions. The Tribunal member states at [29] that he had read all of the material, but focused in the Decision on the material he considered was central to the consideration of the contested issue. He notes that while the reasons may not refer to a specific piece of evidence or singularly deal with a submission, it should not be assumed that he had ignored either.
At par [30] the Tribunal sets out the nine issues it considered it had to determine. Relevantly this included issue (1) "What works did Mr Bajic carry out and/or authorise at the property in the period from 29 September 2016 to 13 February 2017?"
Paragraphs [30] to [61] deal with the credibility of the witnesses and the parties, including the Builder (at pars [46] to [61]). In summary, the Tribunal concluded at [46] that it was not satisfied that the Builder was a reliable witness of fact. The Tribunal stated: 46. I am not satisfied that Mr Bajic was a reliable witness of fact as regards the material matters in dispute in the proceedings. 47. Mr Bajic did not answer questions put to him by the home owners' counsel in a direct and straightforward manner and at times his answers were argumentative or evasive. There were occasions when I had to intervene (e.g. Transcript Day 2 80.20-28) and remind him that he could not answer a question by asking the cross examiner a question. On some occasions, Mr Bajic did not answer the question that was asked and accused the cross-examiner of trying to 'paint him into a corner' (Transcript Day 2 123.28-31). 48. Mr Bajic's evidence was, at times, self-serving. . . .
The Tribunal concluded at [52]: For the reasons set out above, I find that Mr Bajic was not a reliable witness of fact. I prefer the evidence of Mr Paraskevopoulos to the extent there is any inconsistency between his evidence and Mr Bajic's evidence, unless the version provided by Mr Bajic is otherwise supported by objective evidence.
On the other hand, the Tribunal at [35] found Mr Paraskevopoulos to be a reliable witness of fact. Further, the Tribunal found that Mr Paraskevopoulos was not cross-examined on various material matters, including relevantly for the purposes of this appeal, whether Mr Paraskevopoulos in fact carried out works the Builder says were not carried out by him (see 32). Accordingly, the Tribunal was satisfied that Mr Paraskevopoulos's evidence on these material matters remained unchallenged and that his evidence should be accepted.
We note that at [192] the Tribunal stated: To the extent that I needed to make credit findings to determine factual matters in dispute, I preferred the evidence of Mr Paraskevopoulos over the evidence of [the Builder], unless the evidence of [the Builder] was supported by some form of objective evidence such as contemporaneous correspondence.
At pars [53] to [61] the Tribunal considered the allegation that Mr Paraskevopoulos was the head contractor. The Tribunal concluded at [61] that the Builder's central contention simply assumed that Mr Paraskevopoulos held some form of authority under the Home Building Act 1989 (NSW) and that there was no evidence that Mr Paraskevopoulos held himself out to be licensed under that Act at any time.
At pars [62] to [68] the Tribunal considered whether the Builder carried out the works the Homeowners alleged were defective. This part of the Decision is relevant to the appeal and we set out paragraphs [63]-[67] in full: 63. There is, however, a preliminary issue, namely, whether or not (as Mr Bajic asserts), Mr Bajic carried out the items of defective work. For the following reasons, I am satisfied that Mr Bajic did carry out the items of defective work in the home owners' case. 64. Mr Bajic's claims that he did not do the work go no higher than bare assertions. This is of no assistance to the Tribunal in circumstances where I have already found that Mr Bajic's evidence to the extent it is not otherwise supported by objective evidence was unreliable and any inconsistencies between his evidence and that of Mr Paraskevopoulos are to be resolved in favour of Mr Paraskevopoulos. 65. Mr Bajic's allegation that he did not do the work was not articulated properly, or at all. It was not pursued by Mr Bajic until after service of Mr Nisbett's first expert report. If Mr Bajic's assertion that he did not carry out the items of defective work was genuine, then I would have expected him to raise such allegation much earlier with third parties including the complaint made by Mr Paraskevopoulos to NSW Fair Trading (Court Book p 733-6). 66. Mr Bajic's failure to state that he did not carry out the works would be an obvious answer to any claim for defective works. This omission is compounded by the fact that the home owners' correspondence to NSW Fair Trading (Court Book pages 730 to 733) lists various complaints (numbered in paragraphs 1 - 33 of the correspondence) which overlap with the items of incomplete and defective work as put in Mr Nisbett's report: for example, the basement slab (items 1 & 2), the lift shaft (items 8 & 9), the pump well (items 12 & 13), the ground floor beams (items 18 & 19) and the dish drain (items 22 & 23). 67. Mr Bajic gave evidence that he took seriously the correspondence from NSW Fair Trading when he received it (Transcript Day 2 101.8-11) and that he made sure that the responses he provided were complete (Transcript Day 2 117.4-6). Yet, it is the fact that Mr Bajic failed to say he did not carry out the work, even though he provided a detailed reply of some 34 pages (Court Book pages 733-1 to 733-34).
At [68] the Tribunal concluded that the evidence that the Builder did not carry out the items of defective work was entirely self-serving and inherently improbable.
At pars [69] to [79] the Tribunal considered how the contract came to an end. At [78] the Tribunal concluded that the Homeowners were entitled to exercise their rights under the general law to terminate the contract with the Builder. Further and alternatively, the Tribunal found that the contract came to an end by the Homeowners' acceptance of the Builder's repudiation of the contract.
At pars [80] to [87] the Tribunal considered the evidence of the Homeowners' expert Mr Nisbett. The Tribunal noted that: 1. there was no expert called in the Builder's case to counter the matters put by Mr Nisbett in his reports (at [80]); 2. there was also no meaningful challenge to Mr Nisbett's evidence during his cross-examination (at [81]); 3. it appeared that the Builder did not adduce any expert evidence addressing the defects claim because he says that he did not carry out the defective works (at [82]).
At [86] the Tribunal stated that it accepted "Mr Nisbett's unchallenged evidence as to the quantum for each item of defective and incomplete work in his Scott Schedule" and that that was "the only evidence before the Tribunal as to the reasonable cost of particular items of defective and incomplete work and as to an appropriate builder's margin to carry out rectification and completion works".
At pars [86] to [93] the Tribunal considered the incomplete works the subject of the Homeowners' claims.
At pars [94] to [136] the Tribunal considered the defective works the subject of the Homeowners' claims.
Paragraphs [140 to [148] deal with disputed payments, and pars [149] to [157] with the formwork contract. Paragraphs [158] to [166] deal with the Homeowners' claim for consequential losses.
At pars [167] to [190], the Tribunal considered the Builder's claims, dismissing them entirely.
As Allsop P (with whose observation McColl JA agreed) stated in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2]: There are ample statements of this Court and of the High Court to express the duty upon judicial officers as to the giving of reasons. . . . In many cases, however, a judge may, in dealing with large bodies of evidence, be forced to economise in expression and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression. Judgment writing should not become a process that is oppressive and that produces unnecessary prolixity. Not every piece of evidence must be referred to. That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed and resolved.
In Mitchell, the Court found that critical factual enquiries were not embarked upon by the primary judge. This is not the case with the Decision. In our view, the reasons for decision are detailed, comprehensive and persuasive.

Grounds of Appeal

In his written submissions the Builder expressed four grounds of appeal, namely: 1. the Tribunal erred in law by failing to take into account or give proper weight to the first respondent's admission, against interest, that further works had been undertaken at the subject property prior the first inspection of the expert to Mr Nisbett on 19 July 2017; 2. the Tribunal erred in law by failing to take into account or give proper weight to the Builder's submission as to the First Respondent's admission, against interest, when he concluded at par [88] of the Decision that Mr Nisbett's evidence was unchallenged; 3. the Tribunal failed to give reasons why it rejected the admission against interest of Mr Paraskevopoulos' admission as being evidence of further works being completed at the premises or make any specific reference to it at all; 4. the expert report offends the basis rule.
At the hearing, there was some discussion about which, if any, of these grounds raised questions of law, and which raised other questions for which leave was required. The Homeowners submitted that only the third ground raised a question of law. The Builder submitted that all grounds were questions of law. In developing this point, Mr O'Connor, who appeared for the Builder, indicated that he was raising two fundamental points; both related to the adequacy of the Tribunal's reasons, and thus both were questions of law.
The first point was the Tribunal's disposition of what the Builder described as Mr Paraskevopoulos' "admission against interest". In short, the Builder submitted that the Tribunal gave no consideration to, or alternatively, insufficient consideration to, the evidence of a statement made by Mr Paraskevopoulos which the Builder submitted was an admission against interest.
The second point was that, given that evidence, the Tribunal erred in placing weight on the evidence of the expert Mr Nisbett in circumstances where his opinions and conclusions failed to take into account the evidence of Mr Paraskevopoulos' statement.

Admission against interest

As the oral argument unfolded during the appeal hearing, Mr O'Connor made it plain that the central question his client was agitating was the adequacy of the reasoning of the Tribunal in rejecting what he described as Mr Paraskevopoulos' "admission against interest".
Here it is necessary to set out what this "admission" (also described as a concession) actually was. The hearing before the Tribunal was held on 1 and 2 February 2018. At a directions hearing on 10 May 2017 in a matter described as A A Global Resources Pty Ltd v Paraskevopoulos, (which presumably was an earlier manifestation of the Builder's proceeding, the Builder being the director of A A Global Resources Pty Ltd, which apparently was an unlicensed builder) Mr Paraskevopoulos is recorded as saying: But there's a multitude of mistakes and its costing, I've just had a professional to come in and do the re-works, just to repair the ground floor slab, the basement slab, that which he doesn't want in this claim, which happened on the 14th leading up to the 14th of Dec[ember] 2016, you can't just say that he's picking a date, 22nd he started, no you were on site from the beginning of the works . . . I don't feel I should pay anything extra because if I walk away I've got the addition of the shop drawings, I've got the rectification work in that basement slab, we had to modify the lift shaft.
The Builder submits that Mr Paraskevopoulos' statement at the directions hearing on 10 May 2017 amounted to a concession or admission that Mr Paraskevopoulos had had another person complete some of the works for which the Builder was ultimately found liable. The Builder's principal argument is that this evidence was not considered by the Tribunal either sufficiently, or at all.
This transcript of the directions hearing was put to Mr Paraskevopoulos in cross examination at the hearing on 1 February 2018 as follows: Question: "Yeah, well, it's from page 98 to page 109, is the whole of a document that is a transcript of an appearance on the 10th of May. You were there - " Mr Paraskevopoulos: "Yes." Question: " - yourself." Mr Paraskevopoulos: "Yes, that's correct." Question: "And Mr Bajic was there in front of Member Simon." Mr Paraskevopoulos: "Yes." Question: "Okay. I'd like to take you to page 101 down the bottom if you look at the last five lines, the sentence starting, or the sentence that goes - starts with but there's a multitude of mistakes, and then I read, I've just had a professional to come in and go around and do the works just to repair the ground floor slab, the basement slab. Do you see that?" Mr Paraskevopoulos: "Yeah. But that was a quote. They didn't re-work anything, it was just a quote." Question: "All right" [emphasis added]
We now turn to what the Tribunal relevantly stated in relation to this evidence. The Tribunal found: 88. I accept Mr Nisbett's evidence as to the state of the Works as at 19 July 2017 when Mr Nisbett carried out his first inspection, and as to the quantum of completion costs. This evidence was unchallenged. 89. There was the allegation in Mr Bajic's case that additional (rectification) works were carried out for the home owners on the property during the period from 13 February 2017 to 19 July 2017. Mr Paraskevopoulos, whose evidence I accept, denies that any of the items of defective and incomplete works the subject of the home owners' claims (i.e. those items identified in Mr Nisbett's reports) have been rectified.
The Builder submits that this passage of the Tribunal's reasons fails to consider Mr Paraskevopoulos' "admission against interest". The Builder relies on Matterson v Sunrise Pools Australia Pty Ltd [2017] NSWCATAP 211 and the authorities referred to at [52] and [53], in particular the judgment of Samuels JA in Mifsud v Campbell (1991) 21 NSWCR 725. At p 728 of Mifsud v Campbell Samuels JA referred to a "sense of grievance" that can arise, and that a litigant may not just be disappointed but "disturbed" by a decision which fails to refer to evidence "critical" to an issue in the case and contrary to an assertion accepted by the trial judge.
For the following reasons, we reject the Builder's submission that the Tribunal failed to consider Mr Paraskevopoulos' "admission against interest".
The primary basis on which we do so is that we do not think it correct to describe Mr Paraskevopoulos' statements as an admission or concession at all. The statements were made during the course of a directions hearing where the Tribunal Member was exploring the issues and canvassing settlement options. Neither party was represented, and quite complex issues were being discussed. Mr Paraskevopoulos was responding to an inquiry from the Tribunal whether he conceded he owed anything to the Builder. The statements were not, in any event, an unequivocal concession that rectification works had been carried out.
Secondly, as the Homeowners submit, and we accept, there was no attempt whatsoever on the part of the Builder to ascertain the nature of any rectified works, when such works were carried out and by whom. Material produced under summons went no higher than showing that some materials were paid for or delivered to site.
Thirdly, it was never put to Mr Paraskevopoulos at the hearing that he was not telling the truth about this issue. As the Homeowners correctly submit, ultimately, who carried out the works and whether any rectification works were carried out during the period 13 February 2017 to 19 July 2017 were factual matters determined by the Tribunal, all of which turned on credit. As set out above, the Tribunal gave detailed reasons as to why it found Mr Paraskevopoulos to be a witness of credit, and why it found that the Builder was not. In this respect, we have set out above the Tribunal's detailed reasons why it found that the Builder's evidence that he did not carry out the items of defective work was entirely self-serving and inherently improbable.
Fourthly, and in any event, as the Tribunal found at [90], the issue was irrelevant to the Tribunal's task. We repeat par [90] of the Decision: I find that this allegation in Mr Bajic's case is not relevant to my determination on completion costs. I accept that if rectification works had been carried out, Mr Nisbett would not have observed and reported on the defects alleged in his report. There is simply no basis for the Tribunal to find, as Mr Bajic contended, that Mr Nisbett's report dated 19 July 2017 is not an assessment of Mr Bajic's work but rather the 'rectified' work carried out by others. There was no attempt whatsoever in the cross-examination to ascertain the nature of any 'rectified' works carried out, when such works were carried out and by whom.
As the Homeowners correctly submit, at the hearing before the Tribunal the Builder submitted that whatever works Mr Paraskevopoulos stated had taken place at the directions hearing on 10 May 2017 were entirely confined to rectification works. There was no suggestion at any time (either in cross-examination or in submissions) that any works that took place during the period 13 February 2017 to 10 May 2017 were anything other than rectification. We accept that this poses an insurmountable problem for the Builder in that even if Mr Paraskevopoulos' "admission against interest" were given weight, (which we consider it should not), this would only lead to a finding that some rectification works were carried out, which the Tribunal correctly identified as a matter of logic: 1. could only decrease the value of the Homeowners' claim for incomplete works; and 2. could not form part of the Homeowners' claim for defective works when no actual rectification costs were sought.

The expert report

The second point raised by the Builder was that, given Mr Paraskevopoulos' "admission against interest", the Tribunal erred in placing weight on evidence of the expert Mr Nisbett in circumstances where his opinions and conclusions failed to take into account the "admission" of Mr Paraskevopoulos.
The Builder submits that no weight should be given to the expert report because the instructions to Mr Nisbett were incomplete in that there was no instruction issued that Mr Paraskevopoulos had rectified the defects alleged against the Builder. Thus the Builder submits that the reports are based on incomplete instructions and a false assumption as to the works undertaken by the Builder, where works inspected by Mr Nisbett had in fact already been rectified by Mr Paraskevopoulos. The Builder relies on Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWSC 1302 at 12.
The Builder submits that it follows that, if the alleged defects were rectified by Mr Paraskevopoulos, and there were no instructions to Mr Nisbett as to what was rectified, then Mr Nisbett's reports do not review and assess defects alleged to be those of the Builder. Rather, the reports assess Mr Paraskevopoulos' rectifications.
For the reasons given above, we have rejected the proposition that Mr Paraskevopoulos' statements on 10 May 2017 constituted an admission against interest. It follows therefore that the Tribunal did not err by failing to consider this matter in considering the weight to be given to Mr Nisbett's reports.

Conclusion

Our conclusions on these matters are sufficient to dispose of the appeal, which we dismiss. However for completeness, we will also briefly consider the Builder's written submissions, which also raise matters requiring leave.

Leave to appeal

The principles in this regard are well established. Clause 12(1) of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) states that an Appeal Panel may grant leave only 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).
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: Collins v Urban [2014] NSWCATAP 17 at 84.
Even if an appellant establishes that they may have suffered a substantial miscarriage of justice, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act: Pholi v Wearne [2014] NSWCATAP 78 at [31].
Each of the first three grounds of appeal set out in the Builder's submissions relate to the claimed admission against interest of Mr Paraskevopoulos. In summary, the Builder submitted that the Tribunal should have found that as a result of Mr Paraskevopoulos' "admission" no weight could be placed on the expert report of Mr Nisbett and as a result there was no basis to make a finding of defective works or incomplete works. The Builder also submitted that the Tribunal should have found that a question as to whose works Mr Nisbett was inspecting had been clearly raised by the Builder's reliance on Mr Paraskevopoulos' "admission against interest".
For the reasons set out above, we do not consider that there was any such concession or admission, and the Tribunal was correct to make no finding that there was. In any event, none of the discretionary matters set out in Collins or Pholi were addressed by the Builder in either its written or oral submissions. It is not necessary to say anything further about these grounds of appeal.
We will however say a little more about the Builder's fourth ground of appeal, namely that the reports of Mr Nisbett offend "the basis rule". The Builder invokes the judgment of Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2201) 52 NSWLR 705. While no particular part of that judgment is identified in the Builder's submissions, presumably the Builder wishes to invoke the statement of his Honour at [68], in referring to an expert's opinion, that: Underlying these observations is an assumption that the trier of fact must arrive at an independent assessment of the opinions and their value, and that this cannot be done unless their basis is explained.
After a lengthy exegesis of various common law authorities, and a discussion of the applicable provisions of the Evidence Act 1985 (NSW), his Honour stated at [85]: In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.
The Builder also referred to Lukac v The Royal Australian and New Zealand College of Obstetricians and Gynaecologists [2018] NSWSC 436 at [70], where the Court stated: In my opinion, the Appeals Committee denied procedural fairness to the plaintiff because it failed to respond to a clearly articulated argument based on established fact. The plaintiff's argument was that exceptional circumstances existed. Two were relied upon, but the significant one was the diagnosis of terminal cancer in relation to her father some four days before she sat the oral examination. Her argument was that those circumstances hampered to a substantial degree her ability to perform optimally in the examination with the result that she failed to meet the requirements to complete her training within the eight year period. In that regard, the two failures are inextricably linked because it was only a successful completion of the exam which prevented her from completing that training.
We do not find that passage of assistance to the Builder. We note that it is not necessary for the Tribunal to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance, or are unsupported by any evidence: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443; Rajski v Bainton (Court of Appeal, unreported, 6 September 1991). A judge or Tribunal need only state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.
Mr Klooster for the Homeowners drew our attention to Supple v Building Appeals Board [2015] VSC 83, a decision of Kaye JA sitting at first instance in the Supreme Court of Victoria. Kaye JA held (at [75]) that, where a tribunal is obliged by law to provide reasons, that obligation does not require the tribunal to explain why it did not accept evidence or a contention contrary to the conclusion that it reached. Mr Klooster provided detailed submissions on the applicability of the basis rule in jurisdictions (such as this Tribunal) where the rules of evidence do not apply. He persuasively submitted that, even in jurisdictions where the rules of evidence apply, it is far from certain whether the basis rule exists at common law, whether it survived the uniform evidence law reforms and, if it did, whether non-compliance goes to admissibility or weight.
Be that as it may, as we understand it, this issue was not raised at the hearing below. We see no reason why it should be raised on appeal. Generally, a new point will not be allowed where the consequence would have to be a new trial because "evidence could have been given which by any possibility could have prevented the point from succeeding": Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7.
Thus there is no need for us to consider this matter any further.
It is sufficient to conclude that we would not grant leave to appeal on any of the four grounds. We are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.

Costs

The Builder has been unsuccessful. If the Homeowners seek an order as to costs, they should file and serve submissions on or before 15 August 2018. The Builder may respond by 22 August 2018. We note that at the hearing the parties agreed that the issue of costs should be determined "on the papers" and without a hearing.

Order

The Appeal Panel orders that: 1. The appeal is dismissed. 2. Leave to appeal on grounds other than a question of law is refused.

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: 08 August 2018

Evidence Act 1985(NSW)

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