Blessed Sydney Constructions Pty Ltd v Vasudevan

NCAT Appeal Panel|2018-03-19|Before: Wright J

Solicitor: Watson & Watson Solicitors (appellant) Mayweathers (respondent) File Number(s): AP18/01749 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 14 December 2017 Before: G K Burton SC, Senior Member File Number(s): HB17/13983 (renewal of HB16/08659 and HB15/31929; earlier renewal HB16/34108)

Introduction

This is an appeal from a decision made on 14 December 2017 in the Consumer and Commercial Division of the Tribunal on a renewal application (HB17/13983) under cl 8 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
The principal issue on appeal was whether the Tribunal could, on a renewal application, order the payment of money where there had been non-compliance with a previous order for specified home building work to be done "as per the written contract". For the reasons set out below we have decided that, on the proper construction of cl 8(4) of Sch 4 to the NCAT Act, an order for the payment of a sum of money can be made in those circumstances. Accordingly, the appeal should be dismissed.

Background

The appellant was a builder who contracted in 2013 with the respondent, a homeowner, to carry out residential building work on the homeowner's home in Bella Vista, New South Wales.
Disputes arose between the parties. This led the homeowner to commence proceedings HB15/31929 under the Home Building Act 1989 (NSW) (the HB Act) on 1 May 2015 seeking damages. On 20 February 2016, the builder also made an application seeking the payment of certain sums in proceedings HB16/08659. These two proceedings were listed for hearing together on 16 March 2016. On that day, the builder and the homeowner reached an agreement, which was recorded in writing and signed by the parties, to resolve their disputes. Under s 59 of the NCAT Act, on 16 March 2016, the Tribunal made orders in proceedings HB15/31929 to give effect to that agreement, and proceedings HB16/08659 were withdrawn.
The orders made in HB15/31929 on 16 March 2016 were as follows: "By consent, the Tribunal orders that the respondent(s): Blessed Sydney Constructions Pty Ltd [address] BAULKHAM HILLS NSW 2153 Australia is to carry out the following work on or before 18-Jul-2016 in a proper and workmanlike manner. Details of Work order: The builder to perform the work as per the written contract AND the variations as agreed between the parties and signed by the parties and their legal representatives and their experts and dated today and placed with the papers. the homeowner is granted leave to renew these proceedings within 12 months if the work order is not complied. [sic]"
The work to be carried out on or before 18 July 2016 was specified in: 1. a document headed "Conciliation Report to Tribunal", which was signed by the parties and their representatives and which formed part of the orders. It was in the following terms: "FOR THEIR OWN BUSINESS, PERSONAL AND PRIVATE REASONS THE PARTIES AGREE IN ORDER TO BRING TO AN END THESE PROCEEDINGS AND TO FINALISE THE MATTERS IN DISPUTE BETWEEN THEM: 1 The parties agree to a work order in terms of the Scott Schedule attached, noting that a) the applicant/owner is to obtain an approval from a suitably qualified person to provide an alternative solution for the staircase in compliance with NCC guidelines, and bearing the cost of such approval. 2 The parties agree to the following variations:

Additional en suites to [bedrooms] 2 and 3 $10,000
Façade brickwork $3,200
Ground floor kitchen works $775
Fix sagging in garage/bathroom $1,462
[Ground floor] windows no 1, 2, 3, 24 & 25 $4,531.25

Each item will be invoiced to the applicant after completion. 3 The builder agrees to a deduction of the Contract price by $10,000 for electrical work. Builder is not liable for electrical works or compliance"; and 1. a Scott Schedule containing 20 items and a number of hand written annotations that indicated whether the item would be completed "as per contract" or otherwise and whether there were any other conditions in respect of particular items.

The homeowner instituted renewal proceedings on 16 March 2017 alleging that the builder had "not completed the works listed in the Scott Schedule annexed to the work orders made by the Tribunal on 16 March 2016". As to the variations referred to in the Conciliation Report, and in the homeowner's points of claim and the builder's points of defence, it appears that the homeowner received invoices for the carrying out of variations 2) and 3) but the three remaining variations were not completed or invoiced.
The renewal application was heard on 30 October 2017 and the decision was given on 14 December 2017. The Tribunal below decided to "vary" the orders of the Tribunal made by consent on 16 March 2016 so as to be as follows: "1. Respondent builder to pay the applicant owner, on or before 11 February 2018, $83,243.05. 2. Respondent builder to pay applicant owner's costs of the current proceedings HB17/13983 as agreed or assessed on the ordinary basis up to and including 5 November 2017 and on the indemnity basis on and from 1 December 2017."
On 11 January 2018, the builder lodged a notice of appeal and an application for a stay of the decision.
The operation of order 1 made on 14 December 2017 was stayed until further order of the Appeal Panel but order 2 was not stayed.

The Appeal

Originally, there were 8 grounds of appeal. The builder's written submissions indicated, however, that 5 of those grounds were not separately pressed, including the ground relating to costs, which was only pressed if one or more of the other grounds were successful. It can be noted that none of the grounds of appeal challenged the total amount ordered to be paid by order 1, made on 14 December 2017, or any of the amounts which went to make up that total.
Consequently, we confirmed at the start of the appeal hearing on 20 March 2018 that the appeal could be decided, apart from the question of costs of the proceedings at first instance, by considering the following grounds of appeal: "1. The Tribunal erred in deciding that it could award the [homeowner] money and/or damages even though the contract had not been terminated. 2. The Tribunal erred in awarding the [homeowner] money and/or damages even though the [homeowner] did not assert that, and there was not in fact, a contractual basis for this claim. … 5. The Tribunal erred in making an Order that it could not have made in light of Section 8(4) [sic] of the Civil and Administrative Tribunal Act - Schedule 4."
It appears to us that the three remaining grounds can be appropriately addressed by: 1. first, identifying the relevant legislative provisions; 2. then, considering: 1. what the Tribunal was permitted to do on a renewal application, having regard to the proper construction of cl 8(4)(a) of Sch 4 to the NCAT Act - mainly ground 5; 2. whether the Tribunal erred in deciding it could and should make an order for the payment of money in the circumstances of the present case - mainly grounds 1 and 2.

The relevant legislative provisions

The provision of the NCAT Act which allows proceedings to be renewed is found in Sch 4, which is the Division Schedule that applies to proceedings in the Consumer and Commercial Division of the Tribunal - see ss 16 and 17 of the NCAT Act and Sch 4.
Clause 8 of Sch 4 provides: 8 Renewal of proceedings in respect of certain Division decisions (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. (4) When proceedings have been renewed in accordance with this clause, the Tribunal: (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order. (5) This clause does not apply if: (a) the operation of an order has been suspended, or (b) the order is or has been the subject of an internal appeal.
Clause 3(1) of Sch 4 to the NCAT Act allocates the functions of the Tribunal under the HB Act to the Consumer and Commercial Division. It was not in dispute that proceedings HB17/13983 involved a building claim within the meaning of s 48A of the HB Act and that the Tribunal had jurisdiction to determine the claim under s 48K. As the proceedings were in the Consumer and Commercial Division, they could be renewed under cl 8 of Sch 4 if the builder did not comply with the 16 March 2016 order within the period specified, namely by 18 July 2016.
In determining building claims, the orders which the Tribunal can make under the HB Act are set out in s 48O, which provides: 48O Powers of Tribunal (1) In determining a building claim, the Tribunal is empowered to make one or more of the following orders as it considers appropriate: (a) an order that one party to the proceedings pay money to another party or to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person, (b) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings, (c) an order that a party to the proceedings: (i) do any specified work or perform any specified service or any obligation arising under this Act or the terms of any agreement, or (ii) do or perform, or refrain from doing or performing, any specified act, matter or thing. (2) The Tribunal can make an order even if it is not the order that the applicant asked for. (3) Sections 79R and 79T-79V of the Fair Trading Act 1987 apply, with any necessary modifications, to and in respect of the determination of a building claim.
Section 48MA is also relevant when the Tribunal is deciding what order to make in respect of a building claim. That section provides: 48MA Rectification of defective work is preferred outcome in proceedings A court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the responsible party) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome.
Finally, we note that, although cl 8 of Sch 4 of the NCAT Act applies to claims under the HB Act, the operation of that clause is not limited to home building matters. It can apply to any proceedings in the Consumer and Commercial Division.

Proper Construction of Clause 8(4)(a)

Ground 5 was to the effect that the Tribunal erred in making the money order in the present case because it was an order that it could not have made in light of cl 8(4) of Sch 4. The Tribunal at first instance did not refuse to make an order, as was permitted under cl 8(4)(b). Determination of this ground, therefore, turns on the proper construction of cl 8(4)(a).

Construction of cl 8(4)(a) - builder's submissions

The builder submitted that the Tribunal below was in error when it held, on the renewal application under cl 8 of Sch 4 to the NCAT Act, that it was able to award substantial damages by making an order for the payment of money because: 1. on a renewal application the Tribunal may only make "any other … order … as it could have made when the matter was originally determined" under cl 8(4)(a); 2. when proceedings HB15/31929 were originally determined on 16 March 2016, the orders open to NCAT did not include an award of monies or damages for incomplete works, applying the principles established in Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248 (Brewarrina), especially at [68]; 3. thus, on renewal the Tribunal could not make an order for the payment of money by way of damages.
The builder contended that any other construction of cl 8(4)(a) was not open on the clear wording of that paragraph. In addition, if Parliament intended to revise or exclude general law rights or principles it would have to express that intention clearly and, the builder submitted, it had not done so in cl 8(4)(a).
In addition, it was said that the Appeal Panel decision in Akratos v Papadopoulos [2016] NSWCATAP 139 (Akratos) at [36] did not support the relief granted on the renewal application by the Tribunal at first instance.

Construction of cl 8(4)(a) - homeowner's submissions

The homeowner contended that the builder's submissions misunderstood the nature of the power in cl 8 of Sch 4 of the NCAT Act. It was argued that the Tribunal's power on renewal applications was designed to allow the Tribunal to ensure compliance with its orders and it was analogous to the power of a Court to make alternative orders in the event of non-compliance with an order for specific performance. Thus, it was argued that general law principles concerning damages or other relief did not apply in renewal proceedings and the orders that could be made were effectively at large.
Further, it was submitted that the principles applied in Brewarrina did not apply in renewal applications for the reasons given by the Appeal Panel in Integrity Homes Pty Ltd v Staniland [2015] NSWCATAP 284 (Integrity) at [44] - [46]. In addition, if principles such as that in Brewarrina were held to be applicable on renewal, this would inappropriately restrict the Tribunal's ability to enforce its work orders, by limiting the availability of money orders to circumstances where the matter went to a final hearing and a finding of termination was made, and would not account for proceedings resolved by consent.

Construction of cl 8(4)(a) - consideration

The Appeal Panel has held that cl 8 of Sch 4 is an additional, simple and practical method of enforcing, and promoting timely compliance with, Tribunal orders - Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 at [83].
The renewal procedure is often used where there has been non-compliance with an order requiring work to be done or repairs to be made. In the context of orders requiring work to be done in performance of a contract, cl 8 of Sch 4 can be seen as analogous to the power that a Court with equitable jurisdiction has to make alternative orders, including awarding damages, where there has been non-compliance with an order for specific performance of a contract. As to these powers see Spry ICF, The Principles of Equitable Remedies 9th Ed 2014 (Law Book Co, Sydney) (Spry) at pp 329-30 and 677-8. The High Court also touched upon these issues in Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245; [1988] HCA 11 (Sunbird) at 260-1 as did the Court of Appeal in Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 at [53]; [2007] NSWCA 104, quoting a passage from Riltang Pty Ltd v L Pty Ltd [2004] NSWSC 977 at [51].
By cl 8(2), cl 8 is engaged "[i]f an order has not been complied with within the period specified by the Tribunal". In those circumstances, "the person in whose favour the order was made may renew the proceedings".
"When proceedings have been renewed", the Tribunal has the powers set out in cl 8(4)(a) and (b). The Tribunal may: 1. "make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined" - par (a), or 2. refuse to make such an order - par (b).
The present appeal does not concern the Tribunal refusing to make any order, within par (b).
In the light of the terms in which cl 8(4)(a) is expressed, the Tribunal can make an order within par (a) if the following criteria are satisfied: 1. the order is "other" than the order originally made; 2. the order is "appropriate"; 3. the order is one that the Tribunal "may make … under [the NCAT] Act or enabling legislation"; 4. the order is one "as [the Tribunal] could have made when the matter was originally determined".

First criterion

The first criterion, that an order made on renewal be "other", presents little difficulty. All that is required is that the order made is different in some material respect from the order originally made that has not been complied with.

Second criterion

The second criterion is that the order be "appropriate". "Appropriate" is not a term of art and its ordinary English meaning is "suitable or fitting for a particular purpose, … occasion etc" (Macquarie Dictionary 3rd Ed Rev). Since the order is being made on a renewal application, it would be natural to construe "appropriate" as requiring the order to be fitting or suitable having regard to the purpose for which a renewal application is made, the circumstances giving rise to the renewal application and any other relevant circumstances whenever arising. In the context of cl 8(4)(a), however, an alternative construction must be considered. It can be argued that the clause "as it could have made when the matter was originally determined" qualifies the whole phrase "appropriate order", and not just the word "order". If this approach is adopted, an order would only be "appropriate" if it would have been suitable or fitting "when the matter was originally determined". This is, in effect, what the builder contends in the present case.
Thus, "appropriate" may be construed in at least two ways. It may refer to an order that is: 1. appropriate having regard only to the circumstances when the matter was originally determined, without regard to anything that occurred afterwards; or 2. appropriate having regard to the order originally made, the non-compliance with that order, the fact of the renewal application and all relevant circumstances whether they occurred before or after the time when the matter was originally determined.
In our view, to give the word "appropriate" a narrow construction, so that circumstances or events occurring after the matter was originally determined could not be taken into account, would be inconsistent with the purpose of a renewal application. If, on such an application, the Tribunal could not consider facts and circumstances occurring after the original determination, this might often lead to the conclusion that the Tribunal should refuse to make any other order than that originally made. A renewal application is, however, designed to deal with a situation where there has been non-compliance with the original order that the Tribunal thought was appropriate when the matter was first determined. The circumstances will inevitably have changed since that time, if for no other reasons than because there has been non-compliance with the order that had been made. What was appropriate originally may well not be appropriate at the time of the hearing of the renewal application. To limit the orders that could be made on renewal to those that would have been appropriate when the matter was originally determined would be likely to prevent the Tribunal from doing justice between the parties, having regard to the non-compliance with the original order and to any other circumstances that had changed materially since the proceedings were originally determined. This would render the right to renew proceedings ineffective in a significant number of cases.
A further matter that must be considered in relation to the second criterion is whether "appropriate" refers to any orders that could be seen as suitable or fitting in a general sense without regard to any principles of the general law concerning the types of remedies being considered. More specifically, the homeowner contended that in a case such as the present the Tribunal could make any appropriate order for the payment of money by way of damages, in the light of the non-compliance with the original order, without regard to general law principles concerning damages. By way of contrast, the builder's position was that if an order for the payment of money under s 48O(1)(a) is sought in a renewal of home building proceedings, the general law principles concerning the availability and measure of damages continue to apply notwithstanding that these are renewal proceedings.
The homeowner relied upon the comments by the Appeal Panel in Integrity at [44] - [46] as supporting her position. We do not think that those paragraphs should be seen as leading to the conclusion for which the homeowner contends. At [44] - [46] the Appeal Panel said: "44 In addition the there was an argument (also raised at the hearing) relying upon the decision of Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248. It was submitted that the orders of 19 July 2013 constituted a new building contract, the contract is still on foot and in reliance on the Brewarrina Shire decision, and the Tribunal cannot yet deal with a damages claim. 45 Section 48O of the Home Building Act 1989 gives the Tribunal power to make an order for a person to pay money by way of damages. Section 43 of the CTTT Act gives the Tribunal in a renewed proceeding power to make any order that it could have made when the matter was originally determined. The statutory provisions do not have any restriction such as that in the Brewarrina case. 46 This Brewarrina submission by the builder has no substance. The Brewarrina decision was an appeal from a decision which was not in relation home building. It was not about a home. It was not a claim to which the Home Building Act or section 43 of the CTTT Act could have applied. It was decided largely on interpretation of a sophisticated contract for a substantial commercial construction and the common law on building contracts and litigation about them. The submission ignored the special statutory provisions that apply to home building work dealt with previously by the CTTT, and now NCAT. Those submissions have no relevance to the decision of 3 August 2015."
In [46] the Appeal Panel drew attention to the differences between the circumstances in Brewarrina and those that applied in the case before the Appeal Panel. This was correct since the different contractual terms and applicable statutory provisions may lead to different results, depending on the circumstances. The comments in Brewarrina cannot be applied as if they were statutory provisions applicable in all cases. In each case, the general law principles concerning contractual damages must be considered in the light of the specific contract in question, the relevant statutory regime and the factual circumstances established on the evidence before the Tribunal.
In [45], the Appeal Panel referred to one type of order that might be made on a renewal of a home building claim, namely "an order for a person to pay money by way of damages", as permitted by s 48O(1)(a) of the HB Act. In our view, the Appeal Panel was not saying that a money order could be made in that case without regard to what could be awarded "by way of damages". The Appeal Panel should be understood as acknowledging that in such a case the quantification and availability of the remedy would be governed by the general law principles concerning damages, as modified by the HB Act and any specific contractual provisions that were applicable.
Finally, in Integrity, the situation the Tribunal was dealing with was quite unlike the circumstances in Brewarrina. Integrity involved a renewal application following non-compliance with a work order. When such an order is vacated on a renewal application, the builder is no longer required to comply with the contract and termination of the contract can then occur. By seeking to replace the work order with an order for payment of money by way of damages, the owner has in effect exercised the right to terminate the contract, subject to the Tribunal's deciding to relieve the builder from complying with the contract. In Brewarrina the builder was still required to comply with the contract.
Taking this approach in renewal proceedings does not, in our view, inappropriately restrict the Tribunal's ability to enforce its work orders. A similar approach applies where a Court with equitable jurisdiction has made an order for specific performance of a contract and there has been non-compliance with that order. The approach taken in such cases is explained in Spry (at 677-8) as follows: "… when, for example, an order for specific performance has been made but the defendant does not comply with it, it is unnecessary to commence new proceedings for damages and it is sufficient to apply to the court for dissolution of the order for specific performance and for permission to accept the defendant's repudiation and for an order declaring the contract to be terminated; and an award of damages may thereupon be made. … Where however the order for specific performance is dissolved, and damages are substituted, in the absence of special equitable considerations the measure of damages is determined by reference to the ordinary basis on which legal damages are calculated." (footnotes omitted)
In this context, it should be noted that, under s 48O(3) of the HB Act, s 79U of the Fair Trading Act 1987 (NSW) (the FT Act), among others, applies, with any necessary modifications, "to and in respect of the determination of a building claim". Section 79U requires that "the Tribunal must be satisfied that the orders will be fair and equitable to all the parties to the claim." By these provisions in s 48O of the HB Act and s 79U of the FT Act, the Tribunal is empowered and required, in effect, to give effect to both legal and equitable principles which are applicable to the type of relief sought in a home building matter. This continues, in our view, to be the case, when the Tribunal is determining which orders are "appropriate" on a renewal application under cl 8 of Sch 4 to the NCAT Act in respect of such a matter.
For these reasons, the text of cl 8(4)(a) and its context and purpose lead us to the view that "appropriate" in that clause should be construed as referring to an order that is suitable or fitting in light of: 1. the general law principles, whether legal or equitable, and statutory provisions applicable in respect of the type of relief claimed on the renewal application; 2. the fact that there has been non-compliance, within the time specified, with the order originally determined to be appropriate and a renewal application has been made; 3. all other relevant circumstances, whether occurring before or after the proceedings were originally determined.

Third criterion

The third criterion is that the order must be one that the Tribunal "may make … under [the NCAT] Act or enabling legislation". This criterion reflects the situation that the Tribunal is a statutory decision-making body whose only powers are those conferred by statute, expressly or impliedly. No party contended, in the present appeal, that the orders made by the Tribunal below were not made under the NCAT Act or relevant enabling legislation. Rather, the principal matter in dispute was whether the fourth criterion was satisfied in the present matter.

Fourth criterion

The fourth criterion is that the order must be one "as [the Tribunal] could have made when the matter was originally determined". The parties each contended for a different construction of these words. The builder submitted, in effect, that they should be construed so as to limit the orders that could be made on a renewal application to those that the Tribunal could make without falling into legal or other error in the light of the circumstances at the time the matter was originally determined. The homeowner effectively contended that those words should be given a construction so that they included any order that the Tribunal had power to make when the matter was originally determined, whether or not it was appropriate at that time.
We are of the view that the homeowner's approach is to be preferred. The auxiliary verb "could" is the past tense of "can", which means "to be able to; to have the … authority to" (Macquarie Dictionary 3rd Ed Rev). The use of "could" in par (a) naturally directs attention to the orders that the Tribunal had authority to make when the matter was originally determined. Clause 8(4)(a) does not, by its terms, limit the orders available on renewal to those which the Tribunal could have made without falling into legal or other error when the matter was originally determined. We do not think it is necessary to read such a limitation into the clause in order to give it an effective operation. Indeed, if such a limitation were read in, it could inhibit the Tribunal's ability to do justice in the circumstances before it on renewal. It would prevent the Tribunal from making orders that it otherwise has authority to make and that are appropriate at the time of determining the renewal application. Just because those orders were not justified in the circumstances when the matter was originally determined is not a reason for preventing the Tribunal from making such orders on a renewal application.
Accordingly, in our view, orders "as [the Tribunal] could have made when the matter was originally determined" should be construed as referring to orders that the Tribunal had authority to make when the matter was originally determined, whether those orders were appropriate or not in the circumstances at that time. In the case of an application under the HB Act, such orders include all those in s48O.
The orders that the Tribunal has authority to make in any particular case depend on the specific legislative provisions under which the application is brought. By way of illustration, in proceedings under the Residential Tenancies Act 2010 (NSW) (the RT Act), the orders that the Tribunal has authority to make depend on: 1. the specific section under which the application is made, for example: an order for the repayment of rent can be made when there is an application under s 47; an order for a landlord to carry out specified repairs can be made when there is an application under s 65; termination orders can be made in various circumstances when an application is made under one of the relevant sections of Pt 5 Divs 2 and 3 of the RT Act; and 2. the more general order making powers of the Tribunal under the RT Act, such as those found in ss 187 and 188 of the RT Act, which apply "in any proceedings under [the RT] Act".
In the case of proceedings in the Tribunal in respect of "building claims" under the HB Act, all applications are made under s 48I. The limits on the Tribunal's jurisdiction to hear and determine such applications are set out in s 48K. The principal types of orders which the Tribunal is empowered to make "[i]n determining a building claim" are those set out in s 48O. There are certain other types of orders which may also be made in determining building claims but these are not presently relevant - see for example s 48P of the HB Act.
The words "as [the Tribunal] could have made when the matter was originally determined" qualify the "order" that can be made on a renewal application. For the reasons given above, we are of the view that since the Tribunal at first instance was dealing with proceedings under the HB Act, on the renewal application it had authority to make, at least, all of the types of orders referred to in s 48O of that Act, provided the other criteria in cl 8(4)(a) were satisfied.

Conclusion on the proper construction of cl 8(4)(a)

The construction of cl 8(4) we have adopted does not involve the revision or exclusion of general law rights or principles. It is also, in our view, consistent with the statement in Akratos at [36] that: "the purpose of the renewal proceedings was to consider, in light of the fact that the original order was not complied with, what other appropriate orders it could have made when the matter was originally determined and not to reconsider the substantive merits of the respondent's building claim."
Our conclusions on the proper construction of cl 8(4)(a) of Sch 4 to the NCAT Act can be summarised as follows: 1. On a renewal application, the Tribunal can make an order that is materially different from the order made when the proceedings were originally determined. 2. Such an order must be suitable or fitting in light of the general law principles, whether legal or equitable, and statutory provisions applicable to the type of relief claimed on the renewal application as well as all other relevant circumstances, whether occurring before or after the proceedings were originally determined, including the fact that the order originally made has not been complied with within the time specified in the order and that a renewal application has been made. 3. Such an order must be one that the Tribunal has authority to make under the NCAT Act or the relevant enabling legislation. 4. Such an order must be one that the Tribunal had authority to make when the proceedings were originally determined, having regard to the specific legislative provisions under which the original application was made, but the order does not have to be an order that would have been appropriate in the circumstances when the proceedings were originally determined.
In the light of this construction, we do not accept that the Tribunal on the renewal application did not have authority to make an order for the payment of money by way of damages. The orders that the Tribunal can make on a renewal application are not limited only to those which would have been appropriate in the circumstances as they were when the proceedings were originally determined. Accordingly, we reject the appeal to the extent it is based on ground 5 and the relevant elements of ground 1.

Did the Tribunal err in deciding it could and should make an order for the payment of money in the circumstances of the present case?

Could and should the Tribunal have made the order - parties' submissions

The builder principally relied on relevant general law contractual principles, such as those referred to in Brewarrina, particularly at [68], to the effect that, subject to the terms of the particular building contract and the specific circumstances of the case, an owner is not entitled to a substantial order for damages for incomplete work under a building contract unless the building contract is lawfully terminated for breach or repudiation by the builder. It was argued that termination had not occurred when the proceedings were originally determined and the work order made on that occasion continued the contract on foot. Thus, an order for the payment of money by way of damages could not be made on the renewal application in this case.
The builder also argued that there was no contractual basis for the claim on the renewal application and for that reason the money order should not have been made.
The homeowner in effect submitted that on the renewal application the orders that the Tribunal could make were only limited to those appropriate to do justice in the light of non-compliance with the original work order.
The homeowner also submitted that the builder did not specifically challenge on the appeal either the total amount awarded by the Tribunal below or any of the sums that went to make up the total. We note that the builder accepted that there was no appeal as to "quantum".

Could and should the Tribunal have made the order - consideration

We accept that the general law applies to building claims within s 48A of the HB Act except to the extent it is modified by the HB Act or other applicable legislation. We also accept that the principles on which Ipp JA relied in Brewarrina, particularly at [68], can apply in home building matters, depending on the terms of the building contract and the other circumstances of the particular case. Where they do apply, the Tribunal may not award substantial damages, representing the cost of completing incomplete work under a building contract, while the building contract remains on foot, and the builder remains in possession of the site and is carrying out work as required by the contract.
We have concluded above that the orders that can be made on a renewal application are not limited to those that would have been appropriate in the circumstances at the time the proceedings were originally determined, without regard to anything that occurred after that time. If this is so, it is not relevant in the present case that the building contract had not been terminated at the time the proceedings were originally determined. To succeed in this appeal, the builder would have to establish that the building contract had not been terminated when the renewal application was determined and that it remained lawfully entitled to possession of the site to complete the work.
In our view, in the present case the building contract between the parties had been terminated when the Tribunal made the order for the payment of money on 30 October 2017 in consequence of the renewal application. Our reasons are as follows.
It was not in dispute that prior to the original hearing on 16 March 2016 the building contract between the homeowner and the builder was still on foot. The orders made on 16 March 2016, as a result of the agreement reached on that day, expressly stated that: "The builder [was] to perform the work as per the written contract AND the variations as agreed between the parties and signed by the parties and their legal representatives and their experts and dated today and placed with the papers".
As a result of those orders, there continued to be a contract between the parties after that time, but its terms were the terms of the original written building contract as amended or modified by the agreement reached on 16 March 2016.
It was not in dispute that the order of 16 March 2016 was not complied with within the time specified by the Tribunal in the order.
In cases where a Court has ordered specific performance of a contract, it has been accepted that the leave of the Court is required before a contract that is the subject of such an order can be rescinded and damages recovered. In Sunbird, Mason CJ said at 260: "In the light of the existing authorities,…, there being no argument challenging their correctness, we should continue to apply the proposition that rescission after an order for specific performance requires the leave of the court or, more appropriately, the vacation of the order. These authorities proceed on the footing that once a plaintiff has obtained an order for specific performance of a contract, he cannot be permitted to act inconsistently by rescinding it so long as the defendant is required by order of the court to complete the contract. … Loss of bargain damages are recoverable only if the contract is at an end. Once termination due to the defendant's wrongful conduct is established the plaintiff is entitled to damages for loss of bargain: Dominion Coal Co. Ltd v. Dominion Iron &Steel Co. Ltd (1909) AC 293, at p 311. …."
It appears to us that a similar position should apply in the Tribunal where an order has been made for specific work to be carried out in performance of a contract. In home building matters, such work orders can be made under s 48O(1)(c)(i) of the HB Act, which empowers the Tribunal to make "an order that a party to the proceedings … do any specified work or perform any specified service or any obligation arising under … the terms of any agreement". Such orders are, in fact, common in home building matters in the Tribunal, especially having regard to the terms of s 48MA of the HB Act. Applying the principles in Sunbird to work orders made by the Tribunal, we are of the view that once a party has obtained an order for work to be carried out in performance of a contract, that party cannot rescind the contract so long as the other party is required by the order to complete the contract.
Where, however, the party bound to carry out the specific work does not do so within the time specified in the order and the right to renew proceedings arises, the circumstances may change. In the present case, the homeowner lodged a notice to renew proceedings in which the orders sought included: 1. A renewal of the proceedings; 2. The payment of an amount representing the cost of completing the works listed in the original order; and 3. "Any other orders the Tribunal sees fit".
In accordance with the principles referred to in Brewarrina and Sunbird, an order for the payment of an amount representing the cost of completing the unfinished work should not be made while the contract that was the subject of the work order made on 16 March 2016 remained on foot. That does not mean, however, that a money order cannot be made on a renewal application such as the present.
It is inherent in the making of this renewal application, in which a money order is sought in lieu of the work order, that the homeowner was no longer holding the builder to performance of the contract that was the subject of that work order. By her renewal application, the homeowner was seeking, in effect, to terminate the contract because of the builder's breach of the contract, which was also a failure to comply with the work order. Looking at the substance of what was being sought by the renewal application, we are of the view that this application should properly be understood as involving, expressly by the orders sought (including "[a]ny other orders the Tribunal sees fit") and implicitly: 1. vacation of the original work order; 2. an election by the homeowner to terminate the contract the subject of the work order, if and when that order was vacated; and 3. in place of the work order, the making of an order "that one party to the proceedings pay money to another party by way of … damages", which the Tribunal is empowered to make in determining a building claim, under s 48O(1)(a).
If the renewal application is understood in this way, the orders that can be made include a money order for damages because the contract will no longer be on foot when the original work order is vacated, the homeowner's election to terminate the contract takes effect and the work order is replaced by a money order.
The money order made by the Tribunal on the renewal application met the criteria in cl 8(4)(a) (on the construction we have adopted above). It was materially different from the original work order. It was suitable or fitting in that it was in accordance with general law principles, including those upon which Ipp JA relied in Brewarrina, because the effective vacating of the original work order inherently involved the Tribunal accepting that the homeowner should be allowed to terminate, and had terminated, the contract the subject of that work order. It could also be seen as suitable or fitting in the light of the circumstances at the time of the renewal application, including the builder's failure to comply with the order and the application made by the homeowner. The Tribunal had authority to make such an order under the HB Act, which was the relevant enabling legislation. The Tribunal also had authority to make such an order when the proceedings were originally determined because those were proceedings under the HB Act and the Tribunal could make an order for the payment of money by way of damages under s 48O(1)(a) in such proceedings, even if such an order were not appropriate in the circumstances at that time.
It may have been preferable for the Tribunal below to have phrased its order as vacating the original work order rather than purporting to vary it. Nonetheless, that is a matter of form not substance as the work order was clearly no longer operative and the money order had been substituted for it.
In our view, this understanding and approach to the renewal application reflect the reality of what is actually being sought and done by this type of application in a case such as the present. It is also in accord with our obligation in the Tribunal to "to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms", as required by s 38(4) of the NCAT Act.
For these reasons, we conclude that the money order made by the Tribunal in the present case was one that the Tribunal could make. This disposes of the remaining substance of ground 1, as we understand it.
The second ground of appeal was to the effect that the Tribunal erred in making a money order in the homeowner's favour when there was no contractual basis for the claim. We note that during the hearing the builder's counsel expressly accepted that his client was raising only a question of statutory construction and not quantum.
In the light of the construction of cl 8(4)(a) set out above and our conclusion that the building contract the subject of the specific work order was effectively terminated when the Tribunal made the orders vacating or varying the original work order with which there had been non-compliance, we do not accept that there was no contractual basis for the claim for damages. There was no specific challenge on this appeal to any particular amount which went to make up the sum awarded by the Tribunal below and there was no appeal as to quantum more generally.
For these reasons, we reject the appeal to the extent that it is based on grounds 1 or 2.
In summary, in our view, the Tribunal did not err by holding that it could and should make the money order that it did on 14 December 2014.

Conclusion on the appeal and orders

Accordingly, as the builder has not been successful in respect of any of the grounds of appeal that were pressed, the appeal in relation to costs was also not pressed.
As to the costs of this appeal, we have not heard specific submissions concerning costs. Nonetheless, unless either party wishes to contend that a different order should be made, our preliminary view, subject to any submissions the parties may make if a different order is sought, is that the amount claimed or in dispute at first instance was in excess of $30,000. Thus, r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules) applied to those proceedings, and not s 60 of the NCAT Act. In such circumstances, r 38A of the NCAT Rules requires the Appeal Panel to apply r 38 to the costs of this appeal. Thus, in the absence of disentitling conduct by the parties, costs should follow the event. Accordingly, our preliminary view is that the appellant builder should be ordered to pay the respondent homeowner's costs.
In these circumstances, the Appeal Panel makes the following orders: 1. The appeal is dismissed. 2. Subject to order 3, the appellant is to pay the respondent's costs of and incidental to this appeal as agreed or assessed on the basis set out in the legal costs legislation (as defined in s 3A of the Legal Profession Uniform Law Application Act 2014 (NSW)). 3. Order 2 ceases to have effect if either party files and serves an application for a different costs order on or before 8 May 2018. 4. The stay of order 1, made on 14 December 2017 in proceedings HB17/13983, is lifted.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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

Amendments 30 April 2018 - Typographical error corrected in Cover sheet 30 April 2018 - Typographical errors corrected in Cover sheet and at paragraph 80 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 April 2018

Consumer, Trader and Tenancy Tribunal Act 2001(NSW)

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