Brown v Reed

1. In April 2025 it came to my attention, although not through the parties, that the Orders did not include a time by which the work in orders 1-6 was to be completed. Consequently, on 9 April 2025 the Tribunal sent the following communication to the parties and made directions accordingly:

Dear parties

The work orders in the Primary Decision dated 13 September 2024 did not include a time by which the work was to be undertaken by the respondent.

The parties are requested to provide to the Tribunal submissions and proposed orders in respect of that issue.

1. The parties are to lodge with the Tribunal and serve on the other party on or before 29 April 2025 any written submissions not exceeding 10 pages in respect of the following issues: (i) the requirement or appropriateness of specification of a time period by which orders 1 - 7 of the orders dated 13 September 2024 are to be completed; (ii) whether or not it is appropriate to make any such orders pursuant to section 63 of the Civil and Administrative Tribunal Act 2013 (NSW) or other power, including the power to determine the dispute; (iii) any ancillary or related issue.

2. The parties are to lodge with the Tribunal and serve on the other party on or before 13 May 2025 any written submissions not exceeding 5 pages in response to any submissions lodged and served pursuant to order 1.

1. The homeowner filed submissions on 29 April 2025 and the builder filed submissions on 13 May 2025. I am grateful for the parties' submissions.
2. These reasons deal with the issues raised in the Tribunal's communication to the parties dated 9 April 2025. These reasons assume knowledge of, and should be read in conjunction with, the Primary Decision. Defined terms in the Primary Decision have the same meaning in these reasons.

1. Section 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) provides as follows:

63 Power to correct errors in decisions of Tribunal

(1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member.

(2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct.

(3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where -

(a) there is an obvious clerical or typographical error in the text of the notice or statement, or

(b) there is an error arising from an accidental slip or omission, or

(c) there is a defect of form, or

(d) there is an inconsistency between the stated decision and the stated reasons.

1. The homeowner contended that, pursuant to s 63 of the CAT Act, the Tribunal had the power to make an order that the work the subject of Orders 1-6 be completed by a specified time.
2. The homeowner referred to Sanaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807 [2023] NSWCA 188 (Sunaust), including at [76] where Stern JA made the following observations concerning the operation of the slip rule:

As set out above, the Caretaker also relied in its submissions on the decision of Lockhart J in Elyard at 391A. In Elyard, the error enlivening jurisdiction under O 35, r 7(3) of the Federal Court Rules 1979 (Cth) (which relevantly provided that a clerical mistake in a judgment or order, or an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court) was a failure when adjourning the proceedings to a later date to make an order under s 459R of the Corporations Law (as set out in s 82 of the Corporations Act 1989 (Cth)) extending time for determining a winding up application. The Full Court upheld the primary judge's exercise of discretion under O 35, r 7(3) to vary the Court's order to include an order extending time. Lockhart J found that the slip rule applies "where the proposed amendment is one upon which no real difference of opinion can exist" but "does not apply where the amendment is a matter of controversy": at 390-391. At 391, his Honour held that:

"It is well settled that the application of the slip rule is not confined to giving effect to the intention of the judge at the time when the court's order was made, or judgment given. It extends to the intention which the court would have had, but for the failure that caused the accidental slip or omission."

1. The homeowner contended that the Tribunal would have specified a period for completion of the work the subject of the Order 1-6 had the Tribunal turned its attention to the matter.
2. The builder agreed that the homeowner's submissions identified the relevant principles in respect of the operation of the slip rule but that specifying a time period was not a matter of agreement and resolution required judgment and assessment by the Tribunal and was, as a consequence, beyond the proper scope of section 63 of the CAT Act.

1. The written submissions filed in 2024 prior to the Primary Decision did not address the question of the appropriate time period for the completion of any work orders that the Tribunal may make.
2. It is the usual practice the Tribunal in home building disputes to specify a period of time within which work orders are to be completed. It is also a matter which I ordinarily address. The failure to do so in the Primary Decision was inadvertent. Consequently, I accept the builder's submission that the Tribunal "would have implemented a time limit in respect of [Orders 1-6] had it either turned its attention to the requirement or had its attention been brought to the requirement by one of the parties".
3. However, the period of time by which work orders are to be completed are often not without controversy in the Tribunal. The length of time to be given to the builder in this case is itself the subject of controversy between the parties. Such controversies are resolved by an assessment of the work required to be undertaken and any relevant circumstances which may affect the performance of the work order such as the availability of materials, requirements for access, sequencing of work and a multitude of similar considerations, on the basis of the evidence before the Tribunal. In my view, the question of the appropriate length of time is not an issue in respect of which "no real difference of opinion can exist": see Saunaust at [76]. Consequently, I accept the builder's submission that I cannot make an order under section 63 of the CAT Act.
4. However, I consider that s 38 of the CAT Act provides an appropriate statutory basis for considering the omission of a time period for the completion of the work in Orders 1-6 and making a further order specifying the time for completion of that work. Section 38 provides as follows:

38 Procedure of Tribunal generally

(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

...

(4) The Tribunal is 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.

1. In Sunaust Basten JA, with whose reasons Meagher JA agreed, made the following observations in relation to the scope of s 38 of the CAT Act:

[160] In the absence of any indication in the Tribunal Act that the Appeal Panel is not able to reopen a decision once pronounced, there will be circumstances in which it may do so and, indeed, circumstances where it should do so. Such a power will fall within the breadth of the procedural powers conferred on it under s 38. Where the Tribunal is satisfied that it has failed to address one of the real issues in the proceedings before it, it may (and perhaps should) reopen the proceedings in order to give effect to the guiding principle set out in s 36 of the Tribunal Act.

[161] Failure to deal with issues raised by an appeal may be described, in terms relevant to the exercise of the supervisory jurisdiction of the Supreme Court, as a constructive failure to exercise the Tribunal's jurisdiction. The relevant principle was stated, at least in part, by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj, in the following terms:

"7. In Chandler v Alberta Association of Architects Sopinka J, speaking for the majority in the Supreme Court of Canada, pointed out that, as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision because it has changed its mind, or recognises that it has made an error within jurisdiction, or because there has been a change of circumstances. However, the Court held that the principle of functus officio should not be strictly applied if the tribunal has failed to discharge its statutory function and 'there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation.'

8. The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid [in Ridge v Baldwin [8] ], reconsider the whole matter afresh?"

[162] The conclusion that the power to reopen the earlier decision was not only available, but was also the appropriate course in the present case, flows from the obligation imposed by the guiding principle in s 36(1) to facilitate the just, quick and cheap resolution of the real issues in the proceedings, applied to the exercise of the power to reopen. It is true that in the present case the issue of jurisdiction was squarely raised by the applicant in its appeal to the Appeal Panel, and that it was the owners corporation which sought to have the question of jurisdiction resolved. However, as explained above, had the Appeal Panel failed to resolve that question, it would simply have delayed, at greater expense to the parties and the Tribunal, the final resolution of an issue which was undoubtedly central to the application before the Tribunal and was then unresolved.

(Citations omitted)

1. Turning to these proceedings, it is in the interests of the just, quick and cheap resolution of the real issues in dispute that the question of the time by which Orders 1-6 are to be completed is addressed. So as to achieve the guiding principle of the just, quick and cheap resolution of the real issues in dispute I consider it appropriate to reopen the Primary Decision, to the extent necessary, so as to specify a time by which Orders 1-6 are to be completed. Had the issue been raised in the parties' submissions prior to publication of the Primary Decision it would have been determined by the Tribunal on the basis of the available evidence.
2. The homeowner submitted that an appropriate timeframe was 4 weeks. The builder submitted that 3 months was appropriate. Having regard to the effluxion of time from the date of the Primary Decision, and the scope of the work that is required to be undertaken, I consider that 6 weeks is sufficient time for the builder to complete the work. I will make an order accordingly.

(1) Order that the work set out in orders 1 to 6 inclusive of the orders dated 13 September 2024 be completed within 6 weeks of the date of this order.

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.