Brennan Constructions Pty Ltd v Davison

Notice of Appeal

1. There were five grounds of appeal which were pressed at the hearing. These were as follows: 1. the Tribunal not making a work order pursuant to s 48MA of the Home Building Act; 2. the Tribunal allowing the evidence of the Respondents filed on 8 January 2018, over the objection of the Appellant; 3. the Tribunal failing to consider defences of the Appellant; 4. the Tribunal not giving appropriate weight to the Appellant's affidavit evidence; 5. the Tribunal preferring the expert's report relied on by the Respondents over the Appellant's expert report.
2. We shall refer to these grounds as grounds (1) to (5) respectively.
3. The grounds of appeal also included the ground that the Appellant was denied legal representation at the hearing. This ground was not pressed at the appeal.
4. The Appellant also sought an order that the Respondents to pay the Appellant's costs of the proceedings before the Tribunal pursuant to s 60(3)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). As we explained at the appeal hearing, we understood that there had been no costs order made by the Tribunal. If there had been a costs order made by the Tribunal, and if the appeal were allowed, there may be scope for the Appeal Panel varying the order made by the Tribunal. But in circumstances where no order has been made by the Tribunal, there was no work for the Appeal Panel to do in relation to the costs of the hearing before the Tribunal.

Nature of the appeal

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel considered the requirements for establishing an "error of law" giving rise to an appeal as of right. At [13] the Appeal Panel set out an non-exhaustive list of errors of law being: 1. whether there has been a failure to provide proper reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there was a failure to afford procedural fairness: 5. whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. whether the Tribunal took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; 8. whether the decision is so unreasonable that no reasonable decision-maker would make it.
2. In our view: 1. ground (1) raises a question of law, namely applying a wrong principle of law; 2. grounds (2) and (3) also raise a question of law, being a denial of procedural fairness, and leave is not required in respect of these grounds: s 80(2) of the NCAT Act.
3. However, the other grounds require leave: s 80(2). In this respect, ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, see Collins v Urban [2014] NSWCATAP 17 at [84].

Ground (1): s 48MA of the Home Building Act

1. The Appellant makes three submissions in relation to this ground. The first is that the order that the Appellant compensate the Respondents was made "in violation" of the Home Building Act. The second is that, in making its decision, the Tribunal referred to s 96 of the Environmental Planning and Assessment Act 1979 (NSW), and did not base its decision in accordance with the jurisdiction conferred by the Home Building Act and the NCAT Act. The third is that the Tribunal was incorrect in saying that s 96 certificate was required, "as the posts if moved as requested by the Respondent would have been located in accordance with the Council approved plans, and therefore no s 96 certificate would be required".

Violation of Home Building Act

1. Section 48MA 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.
2. The effect and meaning of the section has been considered in many cases. Some of these authorities are examined in Kumar v Sabharwal [2017] NSWCATAP 200 at [27] to [31] and include Galdona v Peacock [2017] NSWCATAP 64. In Galdona the Appeal Panel found that the Tribunal erred at law in not having regard to s 48MA. Nevertheless, Appeal Panel decided, having regard to the findings of fact made by the Tribunal and the other material available, to confirm the Tribunal's decision: NCAT Act, s 81(b). The Appeal Panel observed at [65] that:

• s 48MA only required the Tribunal Member to have regard to the principle that that rectification of the defective work by the Appellants was the preferred outcome; and
• s 48MA did not make the preferred outcome the mandatory outcome.

1. A similar conclusion was reached in Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23, where the Appeal Panel set out the relevant principles relating to s 48MA, which we relevantly paraphrase as follows.
2. First, s 48MA is directed towards the remedy or "outcome" to be provided by the court or tribunal where a claimant establishes the responsible party has carried out defective residential building work or specialist work. In this sense, it is not properly described as a "presumption". Rather, it is a remedy to be "preferred" to other forms of order which the court or tribunal might make.
3. Secondly, while s 48MA provides that the court or tribunal "is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome", the section does not mandate that a work order must be made in all cases.
4. Thirdly, s 48MA does not confine the form of orders that may be made under s 48O, including an order that defective work be rectified by the responsible party engaging another person to carry out that work on behalf of the responsible party.
5. Fourthly, the term "preferred" is not defined. The Home Building Act and relevant Regulations do not specify circumstances in which the preferred outcome is not to be adopted.
6. Fifthly, in deciding what order should be made, a court or tribunal may consider whether there is a reasonable basis for any objection raised by the homeowner to the builder being permitted to rectify the defective work, the terms of any order, whether the builder is willing to return and whether such an order would support a timely and cost effective resolution of the dispute.
7. In the Decision, the Tribunal stated at [28]: The applicant had claimed for a money order. The builder stated that if defects were found he preferred a money order. The applicant did not object to a work order made. However, the Tribunal in its discretion does not make a work order for the preferred outcome. This is because the most substantial defect, the rectification of the alfresco area, is conditional on the obtaining of a s96 certificate. The Tribunal cannot be satisfied that such a certificate will be obtained. Given the total amount of the defects overall in this case and the condition that would need to be met, the Tribunal finds that a money order should be made and the preferred outcome not awarded. In that regard the Tribunal makes a money order for the total amount of $15,544.00
8. The policy of the Home Building Act as to s 48MA is directed towards a preferred remedy or "outcome". The section requires the Tribunal to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome. Plainly the Tribunal did have regard to the principle. This ground of appeal is rejected.

Environmental Planning and Assessment Act 1979

1. The second and third matters, each of which relates to the Environmental Planning and Assessment Act 1979, can be considered together.
2. The Appellant submits that: in making the decision the member has referred to section 96 of the Environmental Planning and Assessment Act 1979 outside the Tribunal jurisdiction and the function of the Tribunal. The member should have based a decision in accordance with the jurisdiction conferred by the [Home Building Act] and the [NCAT Act].
3. This submission is misconceived. The Tribunal's reference to s 96 is set out above (par [28] of the Decision). The reference is part of the Tribunal's reasoning process to its overall determination that a money order should be the preferred outcome.
4. The submission based on the premise that the Tribunal erred on the basis that that there had been an oral variation of the contract is also misconceived. As we discuss below, the Tribunal was justified in finding that there was no oral (or other) variation of the contract.
5. We do not accept that the Tribunal erred in the manner submitted by the Appellant. But there are two other reasons why we consider that the appeal should not be allowed on this ground.
6. The first is that the Decision records (at [28]) that the Appellant stated that if defects were found he preferred that the Tribunal make a money order.
7. The second is that, at the appeal hearing, the Appellant stated through its solicitor that the work could now not be undertaken. Accordingly, even if we found this ground established, which we do not, we would not now, nor could the Tribunal if the appeal was remitted, make an order for remediation of the works.
8. For all these reasons, this ground of appeal is dismissed.

Ground (2): allowance of late evidence

1. On 11 July 2018, the Tribunal made directions for the filing of evidence. Relevantly those directions included the following: 1. the Respondents were to give to the respondent and the Tribunal, in person or by post, a copy of all documents on which the applicants intend to rely at the hearing by 08 August 2017. 2. the Appellant was to give to the applicant and the Tribunal, in person or by post, a copy of all documents on which the respondent intends to rely at the hearing by 05 September 2017.
2. On 8 August 2017, the time for the Respondents to file their evidence was extended to 15 August 2017, and the time for the Appellant's documents to be filed was extended to 12 September 2017.
3. On 19 September 2017, these directions were further respectively extended to 26 September 2017 and 9 October 2017.
4. It may be that these directions were further extended, as the Appellant states in its submissions that the Respondents were ordered to file their evidence by 23 October 2017. Be that as it may, the Decision records at [3] that the Respondents filed documents on 15 August 2017, 26 September 2017 and then on 9 January 2018. That paragraph also states that the Appellant provided its documents on 30 January 2018.
5. The Appellant submits, and we accept, that it objected to the evidence filed on 8 January (the Late Evidence). The Appellant submits the Late Evidence should not have been allowed, that it assumed that the evidence would not be allowed and was not prepared to defend the allegations made in the additional evidence. The Appellant submits it was severely prejudiced by the Late Evidence.
6. We reject this submission for the following reasons.
7. First, pursuant to the directions of the Appeal Panel of 17 July 2018, both parties were required to file a sound recording of the hearing at first instance, if what happened at the hearing was being relied on, together with a typed copy of the relevant parts. True it is the Appellant filed the sound recording but, at least in relation to this aspect of the appeal, did not provide a typed copy of the relevant parts. The Appellant's solicitor at the appeal hearing volunteered to obtain a transcript but this was too late. He made the somewhat surprising suggestion at the appeal hearing that, as we understood his submission, that the Tribunal had somewhat peremptorily dismissed Mr Brennan's objection to the Tribunal receiving the Late Evidence.
8. We have described that submission as a surprising one as the Respondents provided the relevant parts of the transcript to refute the submissions made by Appellant. We have reviewed that transcript, which is lengthy amounting to some 8 pages and established that there were many minutes of discussion between the Tribunal Member and parties about this matter.
9. Having reviewed the transcript, we accept that Mr Brennan filed a statement dated 27 January 20188 objecting to the late Evidence.
10. We pause here to observe that that statement was not placed before the Appeal Panel by the Appellant. It was actually placed into evidence by the Respondents. While the statement is not explicitly referred to in the Decision, it is clear that from the transcript that the Tribunal took it into account as the bulk of the statement deals with "response to additional evidence, a reference to the Late Evidence in the transcript provided by the Respondents. In giving its ruling the Tribunal stated: "now you are objecting to the them raising evidence and reply which have had since 9 January. Now I know there weren't directions major evidence in reply but ordinarily an applicant would have an opportunity for evidence reply, something's been raised as part of a defence for the first time. So you also have the opportunity to answer it anyway, not that you would actually get the opportunity usually, but the very fact that you answered it, suggest to me that you have read it and dealt with it right question?
11. To this question Mr Brennan stated "correct".
12. In other words, the evidence before the Tribunal was that Mr Brennan had in fact responded to the Late Evidence. In the circumstances, we do not accept that the Appellant was severely prejudiced or prejudiced at all by the late receipt and admission of the Late Evidence.
13. Secondly, we asked the Appellant's solicitor what the Appellant would have done differently had it realised there was a possibility that the Late Evidence would have been allowed. There was no persuasive response to this, save that the Appellant assumed that the Late Evidence would not be allowed.
14. Thirdly, as the Tribunal makes clear in par [11] of the Decision, the Appellant itself relied on one of those documents included in the Late Evidence, namely the email of 11 July 2016, to make good its point that the contract had been validly varied and its s 18F defence established. In other words, the Appellant itself relied on some of the Late Evidence.
15. The Tribunal's ruling was a matter of practice and procedure. As the Appeal Panel noted in Clements v Murphy [2018] NSWCATAP 152, such discretionary decisions can be challenged on appeal only on the bases outlined in House v R (1936) 55 CLR 499, namely (at 504-505): The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
16. We do not consider any of those bases have been established in this case.

Ground 3: failure to consider the Appellant's defences

1. When the Tribunal made the directions referred to above on 11 July 2018, it also directed the Respondents to file points of claim, and the Appellant to file points of defence. It is regrettable that neither party (particularly the Appellant who bears the onus) provided these documents to the Appeal Panel. These documents may have assisted us in understanding the Appellant's submission, which we set out in full below: 19 The Appellant sought defences [sic] under the HBA and provided substantial evidence to support such defences [sic]. The evidence provided by the Appellant was ignored by the Tribunal (referred to above). 20 The Appellant provided clear written evidence, including: C. emails from the Respondent's confirming instructions; D. emails to the engineer's structural specification; and E. subsequent certification from engineer as to the works, to show that he was able to rely on defences under the HBA, however such evidence has been ignored by the Tribunal. 21. It must be noted that the Tribunal member made a perplexing comment that the decision that she would make "could be appealed". Such statement was made with respect to the defences available to the Appellant under the HBA, such statement makes perfect sense to the Appellant now. 22. The Tribunal has not made the decision based on any relevant case law. The Appellant shall produce evidence and case law to support the defences sought at the pending hearing for the appeal
2. The point sought to be made by the Appellant is as follows. There was a written contract dated 13 February 2016. (Again, as with the points of claim and points of defence, the contract was not provided to the Appeal Panel.) If the contract was in the standard form (as found by the Tribunal at [5]), it will provide that variations to the contract must be in writing. The point made by the Respondents before the Tribunal was that the posts in the alfresco area were defective because they had not been built to comply with the drawings and specifications forming the part of the contract.
3. In the Decision, the Tribunal records at [10] that the Appellant claimed that Mr Brennan had a telephone conversation on 23 March 2016 with the Respondents' engineer Mr Jonathan Lowe. Mr Brennan said that he spoke to Mr Lowe in relation to first floor framing supports and explained the faults in the architectural designs and the required changes. He claims that further to the telephone call, he sent an email on 24 March 2016 with a structural mark-up with 220mm off set inwards. The email was attached included in the Appellant's documents and states: As discussed please find attached the construction detail required to suit architectural drawings should you have any questions please give me a call thanks.
4. The Tribunal then records at [11] that Mr Brennan claimed the change was confirmed in a further telephone discussion on 24 March 2016, during site inspection on 16 June 2016, and referred to an email, included in the Late Evidence, dated 11 July 2016.
5. The Tribunal then records at [12] that "the applicant" (this is clearly a mistake and should have been the Builder, that is, the present Appellant) also relied on s 18F as a defence because he relied on instructions given by the engineer, who was a relevant professional acting for the Respondents.
6. At [13] the Tribunal then refers to an expert report relied on by the Appellant and prepared by Diagnostec. The Tribunal notes that the author of the report (who was not identified), did not inspect the works and simply relied on Mr Brennan's instructions that there must have been an agreement with the Respondents to move the position of the posts. The Tribunal expressly held that it preferred the evidence of the Respondent's expert because the Appellant's expert was not identified in the report, and was only identified as such in Mr Brennan's evidence. More importantly, the Tribunal found that the expert never inspected the works and much of the Appellant's expert evidence was based on legal conclusions based on instructions from Mr Brennan.
7. The Tribunal then reaches its conclusion about these matter s at [14]: Having considered the evidence the Tribunal is not satisfied that the respondent was ever instructed by the engineer to move the posts in the alfresco area. There is no express instruction from the engineer in writing and at best the respondent claims it is by implication because the works were finally certified and he sent the plans to the engineer. The engineer by email himself denies having done so. The respondent alleges the engineer is lying. The Tribunal is not satisfied that the respondent was instructed to move the piers. The memo referred to by the respondent does not expressly instruct the builder to change the plans. The Tribunal is satisfied that the builder has not built according to the plans and that there is no defence which would meet the requirements of s18F. The Tribunal also accepts the method of rectification proposed by the applicant's expert. There is no other method of rectification proposed by the applicant's expert.
8. It is against that background we must consider whether or not the Tribunal failed to consider the Appellant's s 18F defence. Quite clearly the Tribunal did not ignore the defence. The Tribunal expressly considered it and rejected it. As stated in [14], for abundant reason, the Tribunal was satisfied that the Appellant had not built according to the plans and that there was no defence that would meet the requirements of s 18F.

Grounds (4) and (5): failure to give weight to the Appellant's affidavit evidence; the Tribunal preferring the respondent's expert's report over the Appellant's expert report

1. What the Appellant is truly complaining about is the Tribunal's conclusion to reject the s 18F defence (which it clearly considered). The Appellant in substance is submitting that the Tribunal erred in reaching this conclusion by: 1. relying on Late Evidence that it should not have admitted; and 2. failed to consider evidence that was otherwise before it.
2. As to (1), for the reasons given above, we do not think that the Tribunal erred in admitting the Late Evidence. But, in any event, as noted above, as the Tribunal makes clear in par [11], the Appellant itself relied on one of those documents included in the Late Evidence, namely the email of 11 July 2016, to make good its point that the contract had been validly varied and its s 18F defence established. Accordingly this point must be rejected.
3. As to (2), the Appellant submitted that the Tribunal overlooked evidence appearing behind tabs 5, 6, 8, 9 and 10 of its appeal bundle.
4. Behind Tab 5 appears the report of Diagnostech. This was expressly referred to by the Tribunal at par [13] of the Decision and, for the reasons given by the member, rejected. Accordingly we reject the submission that the Tribunal failed to consider this evidence.
5. Behind Tab 6 is an email from Mr Brennan to Mr Low dated 24 March 2016. This was expressly referred to by the Tribunal in par [10] of the Decision and, for the reasons given by the member, rejected. Accordingly we reject the submission that the Tribunal failed to consider this evidence.
6. Behind Tab 8 is an email from Mr Brennan to the Respondents dated 21 April 2016. The email relevantly states: . . . As to the design post supports which support the first floor joist for the master suite need to be moved in towards the house approx. 200-220mm as a result these changes we need to move the beam position in creating either of the following details: A) Bulkhead to the surrounds of the beam which will be approx. 1400 - 1`500 wide from the fascia back to inside of beam then creating the insert ceiling up 160 from the beam to the rear of the house? B) Create level ceiling from the eave back to the house this removes the bulkhead/step and this will give you a finished ceiling height 160mm lower through the alfresco area? The options a) & b) can be explained onsite for further clarification in the meantime get back to me on the other order questions.
7. This email was not referred to expressly by the Tribunal in the Decision.
8. Behind Tab 9 is an email from the Respondents to Mr Brennan dated 22 April 2018. It is a response to an email from Mr Brennan the previous day (but not the email referred to in [60].
9. Behind Tab 10 is an email from Mr Brennan to the Respondents dated 27 June 2016. The relevant part of this email is a reference to a "Brick Pier deduction" of $488 from the contract price. Mr Bannerman submitted from the Bar Table that this deduction arose because of the moving of the posts. This was not referred to expressly by the Tribunal in the Decision.
10. In our view, the Tribunal expressly failed to consider the evidence behind Tabs 8, 9 and 10.
11. We have considered whether it is implicit in the Decision that the Tribunal in fact considered this evidence. The language in par [14] is broad, "Having considered the evidence . . .", and the Tribunal identifies particular, and salient, reasons why it rejected the submission that there had been an oral variation of the written contract. In this respect, as the Appeal Panel stated in Bajic v Paraskevopoulos [2018] NSWCATAP 192 at [55]: …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.
12. However, as it is not clear, and minds may differ on this, we will consider whether leave to appeal should be granted because of the failure to consider the evidence as claimed by the Appellant.
13. Clause 12 of Sch 4 of the NCAT Act says 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).
14. Mr Brennan did not address why leave should be granted in his Notice of Appeal, although it was apparent at the appeal hearing that his solicitor was submitting on his behalf that the Decision was not fair and equitable and against the weight of the evidence.
15. We accept that the material behind Tab 8 was a proposal by the Appellant to move the al fresco posts. However, of itself, this evidence does not lead anywhere, as there is no evidence of the Respondent's accepting the proposal.
16. The evidence behind Tab 9, which the Appellant submits was the Respondent's acceptance, is no such thing. It is a response to the Appellant's proposal about other matters, namely bi-fold doors and a sliding stacker. In our view, this email is not relevant to this part of the appeal.
17. Finally, as to the evidence behind Tab 10, while we have noted what was submitted from the Bar Table in respect of the email behind Tab 10, this was not supported by other probative evidence, at least not by any evidence that we were taken to.
18. Given the Tribunal's conclusions that:

• there is no express instruction from the engineer in writing;
• at best the Appellant claims any variation is by implication because the works were finally certified and he sent the plans to the engineer;
• the engineer himself denies having done so;
• the Tribunal was not satisfied that the Appellant was instructed to move the piers;
• the memo referred to by the Respondents did not expressly instruct the builder to change the plans, we find the Tribunal's conclusions that the Appellant had not built according to the plans and that there is no defence which would meet the requirements of s18F to be justified.

1. For the above reasons, we refuse to grant leave to appeal on grounds other than a question of law. In the circumstances, it is not necessary to consider the Appellant's submissions based on Wright v Foresight Constructions Pty Ltd [2011] NSWCA 327, as there was no oral variation of the contract.
2. Finally, we note that, as was explained in Pholi v Wearne [2014] NSWCATAP 78 at [32]: Even if the Appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The Appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.

Other matters

1. There were a number of other matters which were not formal grounds of appeal but which did appear in the Appellant's submissions or referred to at the appeal hearing.
2. The first is that the "during the hearing the Appellant tried to plead his case but was told by the Member 'you do not need to say anything to me that is in your evidence as I will read it myself" despite repeated requests to speak to this evidence".
3. We do not consider that there is any substance in this submission. We were told from the Bar Table that the hearing lasted some four hours, and we were provided parts of the transcript. This clearly demonstrates that the Appellant's director Mr Brennan was given more than a reasonable opportunity to be heard, and that he presented he case to the Tribunal fulsomely.
4. Secondly, the Appellant made brief submissions about the rectification of steel column and floor joists in the garage (being $1,505.00 of the awarded compensation) and rectification of downpipe not connecting to the stormwater (being $878.00 of the awarded compensation). In relation to the both matters the Appellant submits that these works were not part of the contract, that this was confirmed by the Appellant, and that therefore the Appellant should not be liable for not doing such works.
5. These submissions were not amplified in any way and we were taken to any evidence said to be before the Tribunal on this point.
6. Thirdly, as to the Tribunal's failure to give appropriate weight to the Appellant's affidavit evidence, we reject this as an additional ground of appeal, and would not grant leave in respect of it. Save for the evidence referred to above, we were not taken to any other evidence, except in the most generalised way, that suggested to us that the findings of the Tribunal were against the weight of the evidence.
7. Fourthly, as to the Tribunal preferring the Respondent's expert's report over the Appellant's expert report, we have dealt with this above. For the reasons explained by the Tribunal in the Decision, the Tribunal was justified in preferring the Respondents' expert.

Orders

1. For the above reasons, we order that: 1. Appeal dismissed. 2. Leave to appeal refused. 3. The stay of order (2) of the Tribunal's orders of 12 June 2018 in matter HB 17/22725 is lifted.

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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: 13 September 2018