BARTON v CALLIDEN INSURANCE LIMITED

Subject proceedings

1. Arising out of directions hearings in the CTTT, the parties exchanged Points of Claim and Points of Defence, which went through two amendment processes. They, by consent, submitted the following preliminary issues to be determined by the CTTT: 1. What is the constitution of the contract or contracts that is the subject of the applicant's claim that is the subject of these proceedings? 2. If the contract/contracts involve implied terms what are those implied terms? 3. Did each or any of the said contract or contracts involve the provision of residential building work for the purpose of the Home Building Act (1989) ("the Act") and if so, what was that work? 4. Who are the parties to the said contract or contracts and which of the parties undertook to do such residential building work (if any)? The statement of those preliminary issues was prefaced by a heading: "On the basis that the insurance the subject of these proceedings insured residential building work as understood by reference to the Home Building Act 1989 (the HBA) undertaken by Anthony Carl Matern on his account".
2. A decision, dated 13 September 2012, on the determination of the preliminary issues was published by the CTTT. It is a little difficult to discern within the reasons for that decision explicit answers to all the issues posed but one prominent finding was in paragraph 50 of the reasons: "On the evidence before it the Tribunal finds that the owners contracted with the Company to design and transport the home and the Company performed the work until the contract was terminated. The Tribunal finds that although he was a director and had frequent dealings with the owners, he did not enter into the contracts in his own personal capacity." In that quoted passage "the owners" referred to the present appellants, "the Company" referred to the builder, "he" referred to Mr Matern and "the contracts" referred to the New Homes Contract and the Preliminary Contract. That preliminary decision was further explained thus in the appealed decision: "21. It is not controversial that the applicants entered into two contracts with Aussie Transportable & Kit Homes Pty Ltd, (the company). The first, entitled the Preliminary Agreement, was to prepare drawings, soil tests, visit the site and consult with local council (the first contract). The second is the New Homes Contract (the second contract). 22. During the preliminary hearing the Tribunal found that the parties did not enter into a third contract. The parties had intended for Mr Matern to connect the house to essential services such as electricity, water and gas (the connection work). However, before the connection work was performed the contract was terminated. 23. Mr Matern as a director of the company did not enter into either the first or second contract in his own personal capacity. 24. It is no longer in issue that the company (Aussie Transportables) was at all relevant times "the builder" for the purpose of the first and second contract."
3. The decision on the preliminary issues was followed by an application by the (present) respondent for summary dismissal of the subject proceedings on account of the determination of the preliminary issues. That application was dismissed by a decision on 25 June 2013. In that decision, it was said at one point with reference to the earlier decision "…only one preliminary question set by the parties (was) determined conclusively".
4. The ultimate hearing in the subject proceedings, giving rise to the appealed decision, was only on the issue of liability, as the parties had agreed on quantum issues in short minutes of order as follows: "1. The parties agree that, in the event that the Tribunal finds that the Respondent is, pursuant to the Policy of Insurance dated 24 September 2009, liable to the Applicants in respect of the whole of the work (the "Work") done by Aussie Transportables & Kit Homes Pty Ltd pursuant to the New Homes Contract dated 13 July 2009 then: (a) the Applicants' entitlement to indemnity for loss or damage resulting from non-completion of the Work, as provided for in the Policy and as particularised in the insurance claim and the Application, is $43,534; (b) the Applicants' entitlement to indemnity for loss or damage resulting from breaches of the statutory warranties in the Work, as provided for in the Policy and as particularised in the insurance claim and the Application, is $19,000; (c) the Applicants' entitlement to indemnity for alternative accommodation costs, as provided for in the Policy and particularised in the insurance claim and the Application, is $29,800; and (d) the Applicants have no further entitlement to indemnity or damages for loss or damage resulting from non-completion of the Work under the Policy or otherwise, other than the amount in 1(a), which amount represents the limit of cover available under the policy for such loss or damage. 2. In respect of the Applicants' claim for indemnity for the costs incurred by them to dismantle and transport the dwelling the parties agree that: (a) the dismantling and transportation of the dwelling was required to be carried out by Aussie Transportables & Kit Homes Pty Ltd, as part of its obligations under the New Homes Contract dated 13 July 2009; (b) Aussie Transportables & Kit Homes Pty Ltd did not dismantle or transport the dwelling prior to the contract being terminated; and (c) the Applicants thereafter incurred $25,300 to transport the dwelling and incurred $2475 dismantling it in preparation for transportation."
5. We note some other parts of the appealed decision: "[7] The applicant advanced two primary arguments: Firstly, Mr Matern, as agent of the company, is entitled to the indemnified. Secondly, the policy identifying a building contract must respond to claims made in respect of the residential building work performed under the contract, whether performed by the company or Mr Matern." "[18]…In the present case the builder did not enter into a contract with the insurer." "[38] I am satisfied that Mr Matern applied for the policy of insurance in his own personal capacity. I am further satisfied that there was no communication to the insurer that would have alerted the reasonable insurer to the fact that Mr Matern may have been acting in his capacity as agent for Aussie Transportable Kit Home Pty Ltd. The finding that must follow is that the policy does not respond. To give effect to my findings I dismiss the applicants' claim."

Appeal

1. The Notice of Appeal did not seek leave to appeal, and the appeal is accordingly confined to questions of law (s80(2)(b) Civil and Administrative Tribunal Act 2013). As grounds of appeal, there were set out in an annexure to the Notice of Appeal under a heading "The Tribunal based its findings on the following assumptions that the Applicants submit are incorrect:", fourteen passages from the appealed decision and with critical comments on each. As was made clear in Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22] it was necessary for the Notice of Appeal "to identify precisely the particular question or questions of law" and those questions form the subject matter of the appeal to the Appeal Panel. The respondent, correctly in our opinion, criticised this attempted statement of the grounds in the Notice of Appeal as not complying with that requirement. In the appellants' written submissions there was, however, an apparent restatement of "significant errors of law", said to be as outlined in the Notice of Appeal, to the following effect: 1. the terms of the building contract and the certificate of insurance were misconstrued; 2. correct concepts of agency were misconstrued or were not applied at all; 3. the conclusion that there was "another legal agreement occurred between parties, namely 'the third contract' which was based (on) the oral testimony of Anthony Matern at a much later stage in the proceeding supported by no contemporaneous evidence at the relevant time the events the subject of these proceedings occurred…"; and 4. alternatively, the conclusion that the certificate of insurance related to connection work in New South Wales was not the subject of any contract or agreement before the tribunal.
2. Consistently with the Ferella decision, the respondent contended that on account of the failure of the Notice of Appeal to identify precisely a question or questions of law, the appeal was not competent. Nevertheless, and in our opinion properly, the respondent did also respond to the appellants' submissions. We think that it is appropriate to deal with the appellants' case in this appeal within the framework of the reformulated questions of law suggested in the appellants' submissions and the development of those questions in the submissions and in oral address ("the reformulated questions") together with reference, where it might be appropriate, to comments made in the Notice of Appeal.

First reformulated question

1. The first of the reformulated questions of law is to the effect that the terms of the building contract and the certificate of insurance were misconstrued. Accepting, without deciding, that the proper construction of such documentation would be a question of law, it is necessary to identify the misconstruction alleged. Such details should have been clearly stated in the formulation of the suggested error or errors. While those details have not been clearly stated we will deal with this question.
2. We will consider the building contract first. What is put on behalf of the appellants, seem to be (or to include principally) the following points: 1. the building agreement was between the appellants with the builder "and/or Anthony Matern (director of Aussie)"; 2. it was a misconstruction of the building contract to state in paragraph 1 of the reasons in the appealed decision "involved a dispute arising out of (the building agreement)" in that: "The terms of the Building Contract were not disputed by the Appellants or the Respondent in the lower tribunal. It was never contested by the Respondent insurer that the Building Contract was breached by Aussie in not completing the works Aussie and/or Anthony Matern agreed to complete under the Building Contract"; and 1. the appealed decision involved another misconstruction of the building contract where it was also stated in paragraph 1 of the reasons that the issue was whether the respondent had insured the builder and that the issue required a finding of fact as to who were the parties to the building contract when the "issue…should have been whether or not the relevant building works under the building contract were insured by the respondent".
3. Associated with those points are suggestions on behalf of the appellants to the effect that the appellants did not dispute that the builder was a party to the building contract and that the preliminary hearing had been unnecessary, had been suggested by the respondent and had not been agreed to by the appellants. We will return to those matters after dealing with the construction issue.
4. It seems that so far as construction of the building contract is concerned these submissions have in substance two aspects: first, that the crucial document which required consideration was the certificate of insurance that was issued on behalf of the respondent rather than the building contract; and secondly, that in some way Mr Matern was a party to the building contract, in addition to or instead of, the builder. The first aspect of that submission, while the point may have some validity, has nothing to do with the construction of the building contract.
5. There are, in our opinion, three reasons why the second aspect of the submission is not sustainable: first, the submission does not really identify the basis it is put that on the proper construction of the building contract Mr Matern could be a party to the contract; secondly, the submission is contrary to the finding concerning the parties made in paragraph 50 of the decision on the preliminary issue, set out in paragraph 11 above; and thirdly, the finding concerning the parties to the building contract was matter of fact rather than one of law involving the construction of the contract (Castano v Ashglow Pty Ltd [2000] NSWSC 919 at [12]). Only the first of those three reasons requires explanation. As to that, an argument associated with the construction of the building contract appears in particular in paragraph 13 of the annexure to the Notice of Appeal where issue was taken with a finding in the appealed decision (in [36] and [37]) that "In the present case the builder did not enter into a contract with the insurer" and "Mr Matern entered into a contract for insurance, the company entered into a building contract": "These findings were made as a result of an alleged argument that the relevant contracts were ambiguous, and it was an argument never advanced by the Applicants. The findings were made with disregard to all the arguments actually advanced by the Applicants; primarily the argument of agency between Mr Matern and the relevant company; as well as facts established from the evidence, before the tribunal, showing the purpose of both the relevant Insurance Policy and the Building Contract."
6. Particularly so far as the reference to the purpose of the building contract is concerned, we emphasise that objective theory is to be applied in the determination of rights and liabilities in contract. As Gleeson CJ said in Australian Broadcasting Commission v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 549 "…the general test of objectivity…is of pervasive influence in the law of contract." In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 the High Court confirmed the principle of objectivity by which the rights and liabilities to a contract are determined: "It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration known to the parties, and the purpose and object of the transaction." Principles of construction of contracts were recapitulated in the majority judgment of the High Court in Electricity Generation Corporation v Woodside Energy (2014) 251 CLR 640 at [35]: "Both [parties] recognised that this Court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable business person would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding 'of the genesis of the transaction, the background, the context [and] the market in which the parties are operating'. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption 'that the parties…intended to produce a commercial result'. A commercial contract is to be construed so as to avoid it 'making commercial nonsense or working commercial inconvenience;."
7. There is nothing that we can see in such objective facts within the subject proceedings as have been placed before us that points to there having been a common intention of the parties that Mr Matern be a party to the building contract. We can see no way how, as a matter of construction of the building contract, it should be held that Mr Matern was a party to it. The relevance of agency to this issue will otherwise be be dealt with in relation to the second reformulated question.
8. So far as construction of the certificate of insurance is concerned, the appellants' submissions deal particularly with ss92 and 96 of the Home Building Act 1989, the certificate of insurance, the policy of insurance and the involvement of Mr Matern in relevant matters. Sections 92 and 96 of the Home Building Act were relevantly in this form at the relevant times (particularly before the Home Building Amendment Act 2014): "92 Contract work must be insured A person must not do residential building work under a contract unless: a contract of insurance that complies with this Act is in force in relation to that work in the name of the person who contracted to do the work, and a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, has been provided to the other party (or one of the other parties) to the contract. Maximum penalty: 200 penalty units. Except as provided by section 94 (1A), a person must not demand or receive a payment under a contract for residential building work (whether as a deposit or other payment and whether or not work under the contract has commenced) from any other party to the contract unless: a contract of insurance that complies with this Act is in force in relation to that work in the name of the person who contracted to do the work, and a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, has been provided to the other party (or one of the other parties) to the contract. Maximum penalty: 200 penalty units … 96 Insurance in relation to residential building work not carried out under contract (1) A person must not do residential building work otherwise than under a contract unless a contract of insurance that complies with this Act is in force in relation to that work. Maximum penalty: 100 penalty units. A person who does residential building work otherwise than under a contract must not enter into a contract for the sale of land on which the residential building work has been done, or is to be done, unless a certificate of insurance evidencing the contract of insurance required under this Part for that work, in a form prescribed by the regulations, is attached to the contract of sale. Maximum penalty: 200 penalty units." We also note a part of s99 which may be relevant: "99 Requirements for insurance for residential building work A contract of insurance in relation to residential building work required by section 92 must insure: a person on whose behalf the work is being done against the risk of loss resulting from non-completion of the work because of the insolvency or death of the contractor or because of the fact that, after due search and inquiry, the contractor cannot be found, and a person on whose behalf the work is being done and the person's successors in title against the risk of loss arising from a breach of a statutory warranty in respect of the work. …"
9. We have set out in paragraph 4 above details of the Certificate of Insurance. Some relevant provisions in the policy of insurance were definitions of "Contract", "Contractor" and "Work": "Contract means the contract for Work between the Contractor and the person on whose behalf the Work is done or is to be done." "Contractor means an individual, partnership or a corporation who has been issued a contractor licence authorising its holder to do Work." "Work means the Residential Building Work which is done or is to be done by the Contractor to the Dwelling under the Contract." The cover provided for under the policy was expressed in these terms (with "we" being the respondent and "you" being "the person whose behalf the work is done or is to be done, and a successor in title to that person", that is, relevantly, the appellants): "We will provide insurance cover to you, subject to the terms, conditions and exclusions set out in this Policy, and in accordance with the Act and Regulation for: a) Loss or damage resulting from non-completion of the Work because of the Insolvency, death or Disappearance of the Contractor; or b) Loss or damage arising from a breach of Statutory Warranty, being loss or damage in respect of which you cannot recover compensation from the Contractor, or have the Contractor rectify, because of the Insolvency, death or Disappearance of the Contractor; c) Without limiting paragraphs a) or b) above, loss or damage, being loss or damage in respect of which you cannot recover compensation from the Contractor, or have the Contractor rectify, because of the Insolvency, death or Disappearance of the Contractor: i. loss or damage resulting from faulty design, where the design was provided by the Contractor, or ii. loss or damage resulting from non-completion of the Work because of early termination of the Contract because of the Contractor's wrongful failure or refusal to complete the Work, or iii. the cost of alternative accommodation, removal and storage costs reasonably and necessarily incurred as a result of an event referred to in paragraphs a) or b) above, or iv. loss of deposit or progress payment due to an event referred to in paragraphs a) or b) above, v. any legal or other reasonable costs incurred by you in seeking to recover compensation from the Contractor for the loss or damage or in taking action to rectify the loss or damage. The risks indemnified include the acts and omissions of all persons contracted by the Contractor or other person to perform the Work resulting in loss or damage of a kind referred to in this clause."
10. Essentially, it seems to us, the appellants' submissions concerning the certificate of insurance, complain first, that in the appealed decision insufficient attention was paid to points of correspondence between items in the description of the insurance in the certificate, and the building contract; secondly, (paragraph 14 of the submissions) that "…Anthony Matern as director and possible employee of Aussie may have had an employee/employer agreement or sub-contract with Aussie to complete the work under the building contract on its behalf. This would satisfy the definition of 'Contract' in the Insurance Policy… Alternatively where it is established Anthony Matern was an agent for Aussie, 'Contract' under the Insurance Policy would be satisfied by the relationship of agency between Anthony Matern and Aussie"; and thirdly, that the reasons incorrectly held that the insurance related to a "third contract" concerning connection work that was required to be completed in New South Wales.
11. Relevant parts of the reasons in the appealed decision include: "22. During the preliminary hearing the Tribunal found that the parties did not enter into a third contract. The parties had intended for Mr Matern to connect the house to essential services such as electricity, water and gas (the connection work). However, before the connection work was performed the contract was terminated." "33. It is not controversial that Mr Matern signed the application form in his own personal capacity, using his own personal ABN and Licence Number. I am not satisfied that the policy application form could reasonably alert the insurer to the existence of an undisclosed principal, in this case Aussie Transportables, as the true intended assured. The respondent relied on a lengthy affidavit from its claims assessor who was not cross-examined on this issue. There is simply no evidence before the Tribunal that Mr Matern, acting as agent of the company, sought to bind the company to the insurance contract. I am satisfied on the balance of probabilities that Mr Matern took great care to apply for the policy of insurance in his own personal capacity and not in his capacity as the company's director. He purposefully deleted the words 'us' and 'director'. Aussie Transportable's Licence and ACN numbers are not displayed anywhere on the policy. His own personal identifiers, licence number and ABN number identify Mr Matern as the only contracting party. 34. It is not in dispute that the application form correctly identifies the building Contract as entered into between the Bartons and Aussie Transportable Kit Homes Pty Ltd. However, the risk which Mr Matern insured himself was the connection work to be undertaken in his personal capacity in New South Wales. He was aware that he was required to obtain a NSW Licence to perform work in NSW. He applied for and was issued a licence to fulfil the requirements of the Act. In further compliance with section 92 of the Act he applied for HOW insurance. The home was transported to NSW, but before any connection work was undertaken the parties terminated the contract. 35. I am further persuaded by the Development application, as applied for my Mr Matern. The DA application made to (Boorowa) Council is signed by Mr Matern in his own personal capacity. He sought to perform connection work in New South Wales and applied for insurance in his own personal capacity and as a NSW builders licence holder. 36… In light of my earlier finding that the company entered into the contract, and Aussie Transportable was correctly identified as 'the builder', there is no further enquiry to be conducted that could assist the applicants' case. In the present case the builder did not enter into a contract with the insurer. 37…Mr Matern entered into a contract for insurance, the company entered into a building contract. I am satisfied on the evidence before me that the residential building work subject of the insurance contract was separate and distinct to the residential building work performed under the contract….I am not satisfied that Mr Matern, by signing the application form in his own capacity, evinced an intention to bind the company."
12. Rightly, in our opinion, the appellants' submissions refer to correspondence between items specified in the certificate of insurance and aspects of the building contract: the description of the work being a new single dwelling, the address of the work being the address of the appellants' property near Boorawa, and the contract price being $217,670.00. Those items suggest that what was insured was the whole of the work under the building contract, nevertheless to be carried out by Mr Matern, and not, as suggested by Mr Matern when he was called by the respondent as a witness in the subject proceedings, simply the connection work on site to be carried out by himself. On application of the objective theory of contractual interpretation, as discussed above, that evidence from Mr Mattern concerning his own intention or understanding, should have been of no significant moment. If, as did not occur, following termination of the building contract, Mr Matern had in his own right taken the job over as the Contractor and licence holder when the transportable dwelling was brought into New South Wales and installed on the appellants' property, this insurance might well have come into operation in respect of the whole of the work under the building contract. There were clear findings in paragraphs 33, 36 and 37 of the appealed decision which we have quoted above that Mr Matern, and not the builder, entered into the contract of insurance and subject to any point that might arise otherwise in context of agency, those findings are not appropriate to be contested in this appeal.
13. The findings in paragraph 34 of the appealed decision that "the risk for which Mr Matern insured himself was the connection work to be undertaken in his personal capacity in New South Wales" and in paragraph 37 that "… the residential work subject of the insurance contract was separate and distinct to the residential work performed under the contract …", were, in our opinion, not fully consistent with proper construction of the insurance certificate. In our opinion the certificate of insurance should be read as having covered the whole of the work under the building contract and not just the connection work. Nevertheless, it covered the whole of the work under the building contract only to the extent that it was done, or responsibility for it was taken over, by Mr Matern. It is not presently contestable that all the building work until termination under the building contract had been done by the the builder and not Mr Matern. As we have said, had, as did not occur, Mr Matern in his own right taken this job over when the dwelling was transported to the appellants' property and installed there, the outcome in the subject proceedings might have been different . While, as have also said, the finding in the appealed decision that the insurance cover was in respect only of the connection work, was incorrect, that incorrect finding cannot affect the result in the subject proceedings because the insurance did not come in to effect in respect of the work under the building contract as Mr Matern did not carry out, or take over responsibility for, any of the building work in his own right. Nor, in our opinion, did that incorrect finding amount to a suggestion that there had been a "third contract" (as the appellants complain) and we note that in paragraph 22 of the reasons in the appealed decision which we have quoted above, it was said that: "during the preliminary hearing the Tribunal found the parties did not enter into a third contract." This issue will be relevant also to the third and fourth reformulated questions.
14. We conclude, therefore, that the first reformulated question does not involve any error which assists the appellants in this appeal.
15. Before leaving the first reformulated question, we will address suggestions on behalf of the appellants which we have noted above, to the effect that the appellants had not disputed that the builder was a party to the building contract and that the preliminary hearing had been unnecessary, had been suggested by the respondent and had not been agreed to by the appellants. That appears to be an incorrect, and also a pointless, submission because however the preliminary hearing came about, it did take place and the appellants participated in it. Unfortunately, as the second decision and this appeal demonstrate, the preliminary decision was not decisive of the subject proceedings and did not achieve any expedition in their disposal. Separation of issues and a preliminary hearing of them should be confined to situations where determination of such issues will be decisive of the proceedings or a significant part thereof, as discussed in the notes to r28.4 of the Uniform Civil Procedure Rules 2005 in Ritchie's Uniform Civil Procedure NSW. Similarly to the provision in s56 of the Civil Procedure Act 2005 of the overriding purpose of that Act and those rules being the facilitation of the just, quick and cheap resolution of the real issues in proceedings, paragraph (d) of s3 of the Civil and Administrative Tribunal Act speaks of an object of the Act being the enabling of the resolution of "the real issues in proceedings justly, quickly, cheaply and with as little formality as possible." That object should be a principal consideration, along with the ordinary position of all issues being dealt with together, in dealing with any suggested separate hearing of a particular issue or particular issues in Tribunal proceedings.

Second reformulated question

1. The second reformulated question is to the effect that correct concepts of agency were misconstrued or were not applied at all. In relation to the building contract we can identify no submission based on agency seeking to justify the contention (to the extent that it may have been pressed) that in some way Mr Matern was a party to the building contract, in addition to, or instead of, the builder and we can see no way in which any principle of agency assists that contention. In relation to the insurance, it is submitted on behalf of the appellants "that the agency principles extend to make the company a party to the insurance contract."
2. In seeking to sustain the last-mentioned submission, the appellants rely on s126(1) of the Corporations Act, and assertions that Mr Matern had express actual, implied or apparent authority of the builder to take out the insurance on its behalf. Section 126(1) of the Corporations Act provides: "A company's power to make, vary, ratify or discharge a contract may be exercised by an individual acting with the company's express or implied authority and on behalf of the company …" As the respondent submits, that provision is facilitative and allows a company to make a contract through an individual acting with the company's authority and on its behalf but whether that individual had that authority and was acting on its behalf are matters which have to be established. The appellants' submissions detail at length many matters concerning the dwelling with which Mr Matern was involved in 2009 and 2010. It is clear, as we have noted above in the Background section of this decision, that Mr Matern was a director and apparently an employee of the builder and the person with whom the appellants principally dealt. In the appealed decision, as we have quoted above the Subject Proceedings section of this decision, there were findings on this issue which included "the builder did not enter into a contract with the insurer", "Mr Matern applied for the policy of insurance in his own personal capacity" and "there was no communication to the insurer that would have alerted the reasonable insurer to the fact that Mr Matern may have been acting in his capacity as agent for (the builder)." We discern nothing in what has been put in this appeal on behalf of the appellants that properly suggests that such findings were in error, whether involving a question of law or otherwise. No error has been established in respect of the second reformulation question.

The third and fourth reformulation questions

1. The third and fourth reformulation questions both relate to the so-called "third contract". We have quoted above in respect of the first reformulated question in relation to the insurance situation, various paragraphs (or parts thereof) from the appealed decision. The appellants' submissions contend that there and elsewhere in the appealed decision, there are findings and reasons which are inconsistent with the finding in the decision on the preliminary issues that there was no "separate and distinct third contract for connection works." We do not see any such inconsistency. What we do see in the appealed decision is not a finding that there was such a contract but a finding that the insurance was in respect only of the connection work, whereas we are of the view that properly construed in accordance with the objective theory, the insurance covered (potentially, but not actually in the factual situation which transpired) the whole of the building work. There is nothing, in our opinion, arising from the third and fourth reformulated questions, which assists the appellants in achieving success in this appeal.

Costs

1. In the event that, as will be the case, this appeal is dismissed the respondent seeks costs. Under s60 of the Civil and Administrative Tribunal Act each party is to pay the party's own costs. That provision applies to appeals. Under it, there may be an order for costs only in that if the Tribunal is satisfied that there are special circumstances warranting an award of costs. Here, the respondent insurer issued an insurance policy and received a premium for it. In the events which transpired the insurance cover did not come into operation and the appellants' claim under the policy has failed, after unfortunately drawn-out proceedings in this Tribunal and its predecessor. Those circumstances dictate to our minds, that there are no special circumstances warranting an award of costs in the respondent's favour.

Conclusion

1. In the result, the Appeal Panel's order is that the appeal is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2015