Brucic Pty Ltd v Turton

Grounds of appeal

1. The appellant came to pursue three of five grounds of appeal set out in the Notice of Appeal as follows: 1. The Tribunal erred in finding that the construction work was on a driveway within the meaning of the HBA (Ground 1). 2. The Tribunal erred in its finding that the driveway was not fit for purpose because it had no evidentiary basis to make such finding (Ground 2). 3. The Tribunal erred in preferring the respondent's expert evidence over the appellant's expert evidence (Ground 3).
2. Under s 80 of the NCAT Act, a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, as this is, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis that: …..the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
3. Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion concerning the grant of leave which it will ordinarily only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84 (2)], namely. 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,
4. To the extent required, in the Notice of Appeal, the appellant sought leave to appeal on the basis that the decision was not fair and equitable and that it was against the weight of the evidence because of these alleged errors.
5. However, as the respondent submitted, the appellant's written submissions were not directed to demonstrating that the appeal was on a question of law or otherwise satisfied the requirements for the grant of leave to appeal. Indeed, a substantial part of the written submissions in chief replicated the appellant's written submissions at first instance.

No question of law involved

1. Ground 1 raised an issue as to whether the appellant's appeal on this ground was on a question of law or question of fact. The ground of appeal did not identify the question of law said to be involved, nor did the appellant's written submissions identify such a question. The appellant was legally represented and these documents were prepared by its lawyers.
2. The statutory warranties in the HBA were applicable to the construction work in issue because of the Tribunal's finding that the relevant construction work was done on a "driveway". This is because of the definition given to "residential building work" in the HBA. Under s 18B (1) the relevant statutory warranties are implied in every contract to do "residential building work".
3. The particular statutory warranty that the Tribunal found had been breached was the warranty in s 18B (1) (a), which included a warranty that the work would be done with due care and skill.
4. The definition provision in the HBA contained a definition of "residential building work", which was concerned with work done to a "dwelling", so as to include work involved in the construction of "driveways"- a word that was not itself the subject of any further definition.
5. The relevant provisions are as follows: 2 Definition of "residential building work" (1) In this Act, residential building work means any work involved in, or involved in co-ordinating or supervising any work involved in - (a) the construction of a dwelling, or (b) the making of alterations or additions to a dwelling, or (c) the repairing, renovation, decoration or protective treatment of a dwelling. (2) Each of the following is included in the definition of residential building work - (a) roof plumbing work done in connection with a dwelling, (b) specialist work done in connection with a dwelling, (c) work concerned in installing in a dwelling any fixture or fixed apparatus that is designed for the heating or cooling of water, food or the atmosphere or for air ventilation or the filtration of water in a swimming pool or spa (or in adding to, altering or repairing any such installation) 3 Definition of "dwelling" (1) In this Act, dwelling means a building or portion of a building that is designed, constructed or adapted for use as a residence (such as a detached or semi-detached house, transportable house, terrace or town house, duplex, villa-home, strata or company title home unit or residential flat). (2) Each of the following structures or improvements is included in the definition of dwelling if it is constructed for use in conjunction with a dwelling - (a) a swimming pool or spa, (b) parts of a building containing more than one dwelling (whether or not the building is also used for non-residential purposes), being stairways, passageways, rooms, and the like, that are used in common by the occupants of those dwellings, together with any pipes, wires, cables or ducts that are not for the exclusive enjoyment of any one dwelling, (c) parts of a building containing one dwelling only (where the building is also used for non-residential purposes), being stairways, passageways and the like which provide access to that dwelling, (d) if non-residential parts of a building containing one or more dwellings give support or access to the residential part - the major elements of the non-residential parts giving such support or access, (e) cupboards, vanity units and the like fixed to a dwelling, (f) detached garages and carports, (g) detached decks, porches, verandas, pergolas and the like, (h) cabanas and non-habitable shelters, (i) detached workshops, sheds and other outbuildings (but not jetties, slipways, pontoons or boat ramps and any structures ancillary to these exceptions), (j) concrete tennis courts and the like but only if the work involved is to be done under a contract to do other work that is residential building work, (k) driveways, paths and other paving, (l) retaining walls, (m) agricultural drainage designed or constructed to divert water away from the footings of a dwelling or a retaining wall, (n) fences and gates, (o) ornamental ponds and water features, and other structural ornamentation, the construction or installation of which requires development consent but only if the work involved is to be done under a contract to do other work that is residential building work, (p) any other structure or improvement prescribed by the regulations. [Our emphasis]
6. The Tribunal directed itself to the relevant provisions and, plainly enough, applied to the facts a definition of "driveway" in the Shorter Oxford English Dictionary, namely "…a private road leading to a house, a drive…" (see at [28] (1) (e), [36]-[41]).
7. This was a definition adopted by Commissioner Hogg and referred to by Heydon JA (as he then was) in Pickwell v Cotswold Australia Pty Ltd [2001] NSWCA 462 at [24].
8. Neither on appeal, or as we understand it, at first instance, did the appellant contend for any different interpretation of this word in s 3 of the HBA nor, for example, that the word bore some meaning other than its ordinary or natural meaning.
9. In applying this interpretation of "driveway", the Tribunal stated: 39 The evidence is that driveway has a single point of access to Bungendore Road, is located entirely within the applicant's land, the blue section referred to by the [appellant] as the Roadworks the subject of the Roadworks Contract leads to the rural shedding. The remainder of the road extends to the dwelling, is coloured yellow on the plan in evidence and was the subject of the subsequent Earthworks Contract. The owner submits that he does not deny dispute the Earthworks Contract, however, that contract is irrelevant to the owner's case and has no bearing on the resolution of the issues in dispute. The relevant issue is the blue shaded road the subject of the Driveway Contract. 40 The Tribunal finds that the road the subject of the Roadworks Contract, and this dispute, is a "driveway constructed for use in conjunction with a dwelling". It is part of a road servicing a small rural holding's shedding to allow the owner to service and maintain his approximately 8 ha property and providing access to the owner's dwelling. It is part of a roadway that gives the owner access to his dwelling from the sole entrance from and to the public road, Bungendore Road. Ancillary to that use is that it also provides access to the owner's sheds along the way, which are used to store equipment and materials necessary for the owner to keep and maintain the gardens surrounding the dwelling on the owner's land generally. 41 It is a private Road for use in conjunction with a dwelling and is therefore residential building works and the provisions of the HBA apply.
10. Earlier in the reasons for decision, the Tribunal had noted that the respondent categorised the Roadworks Contract as the construction of a driveway surface about 150 m long from the public road at the entrance to the property to the respondent's dwelling and improvements erected on the property (at [25]).
11. The Tribunal's reference to a blue and yellow section of the road was a reference to an image of part of the respondent's property showing the road in issue and the areas of the existing road that were the subject of two separate contracts.
12. The blue section had one end of an existing road that was very near the point of sole access for the property to Bungendore Road and the other end that finished just past some sheds and just past a right-hand curve in the road which continued towards the dwelling on the property by the section marked in yellow, which included a circular section in front of the dwelling. Just before the right-hand curve of the blue section, the image showed a small uncoloured section of the road that continued past the sheds.
13. As the Tribunal found, the blue section works were an element of a contract in writing made in August 2019 (made up of an exchange of emails) between the appellant and the respondent. The works the subject of this contract commenced on 9 October 2019 and were the subject of two invoices sent by the appellant to the respondent on 23 October 2019 for a total amount of $28,243.50.
14. The works the subject of this contract, which the Tribunal said it would refer to is the "Roadworks Contract" (at [13]), included obtaining fill from cleaning and enlarging a dam on the property, using that fill for roadworks and supplying and spreading an asphalt road base.
15. As set out by the Tribunal in its reasons, the appellant's quotes in respect of the "Roadworks Contract" referred to "Roadworks" and the respondent's email (sent on 7 August 2019) in respect of the appellant's first quote in respect of these works referred to the "driveway" works. We also note that in another part of the reasons for decision the Tribunal accepted the evidence of the respondent that the appellant had said to him before entering into the Roadworks Contract that he could dig out from the dam and transfer to "the driveway" the requisite fill material: see at [44] of the reasons.
16. The Tribunal found that on or about 14 October 2019 the parties entered into the Earthworks Contract in respect of the yellow section of the existing road (at [17]). It found that this was an oral contract for digging out under a carport and levelling off the yellow section of the road before applying an asphalt road base.
17. The application of the ordinary meaning of words in a statute to the facts as fully found does not involve any question of law unless the finding was not open to the Tribunal.
18. As was said by Bathurst CJ and Bell P (as he then was) in Orr v Cobar Management Pty Limited [2020] NSWCCA 220 (at [53] and [56] - [58]): 53 The distinction between a question of law and a question the answer to which may disclose an error of law may also be seen in the following passage from Australian Gas Light at 138, where Jordan CJ said: "Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law: Farmer v Cotton's Trustees; Mersey Docks and Harbour Board v West Derby Assessment Committee and Bottomley, etc. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law …" (footnotes omitted). ….. 56. The subtlety of the distinction between a question of law and a question of fact in a context where facts have been found is evident in Sir Anthony Mason's judgment in Hope v The Council of the City of Bathurst (1980) 144 CLR 1; [1980] HCA 16 (Hope), to which Glass JA referred in the passage from Azzopardi extracted at [54] above. In Hope, Mason J (as his Honour then was) said (at 7) that: "Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. … However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words." 57. At least where different conclusions are possible or "open" in respect of this last question, whether or not the conclusion which the primary judge came to was correct has been treated as involving a question of fact, not a question of law. The decision of Kitto J in NSW Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512; [1956] HCA 80 was cited in Hope as support for this proposition; see also Australian Gas Light at 138, extracted at [53] above. 58. It follows from these decisions that, whether or not the answer to a question framed along the lines of "whether or not it was 'open' to a judge to hold, on the facts as fully found, that a particular matter fell within the ordinary English meaning of a statutory expression reveals an error of fact or an error of law" depends upon the answer to the question. If it was open to so find, any error in the judge's conclusion would be one of fact, and not one with which a court authorised only to intervene on a question of law could disturb: see Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 33-34 (Edwards); if it was not open to so find, the error would be one of law. Edwards has been cited with approval in this context in Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 at [25] and [109]; and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 349; [1990] HCA 33.
19. Correctly, in our opinion, when properly understood, none of the appellant's submissions, as they came to be made at the hearing of the appeal, went so far as to contend that the Tribunal's finding that the road was a driveway was not open to it on the facts as found, save, possibly, for one matter concerning the scope of the Roadworks Contract, which we address later in these reasons.
20. On the other hand, the appellant made submissions that a different conclusion ought to have been reached in view of facts which departed from the facts as found by the Tribunal.
21. In this regard, the appellant submitted that it was open to the Tribunal to find that the road was not one that fell within the parameters of the HBA because it was open to the Tribunal to accept that a road that was constructed to access a shed, which then led to a dwelling, was not a driveway and that it would be a perverse interpretation that any road built on a rural property that led (somehow) to a dwelling would be automatically a driveway within the HBA. The appellant submitted that mere access to the dwelling was not an element of the meaning of "driveway' or it was insufficient to satisfy the test. It was also submitted that it could not be the case, for example, that a private road that went for many kilometres on a large country property was a driveway, simply because it was the or a means of access to the dwelling on the property.
22. However, these contentions do not accord with the Tribunal's finding that the access to the sheds was "ancillary" to the use of the road to access the respondent's dwelling (at [40]), nor with the nature and scale of the road in issue in these proceedings.
23. The Tribunal's conclusion was not drawn from the mere provision of access to the dwelling. It was an application of the ordinary meaning of "driveway", as described in the dictionary definition we referred to, which took account of the relevant physical setting and the inferred uses of the road, as well as the contracts that had a bearing on the question, including the manner in which the works were described in those contracts.
24. The appellant also submitted that the case involved a contract to build a road to a shed which happened to be linked to a dwelling and that this could not be a driveway.
25. However, as appears above, this was not the nature of the contract in respect of the blue section of the road, nor does this accord with the finding in [40], to which we have just referred.
26. When pressed at the hearing of the appeal to identify the question(s) of law involved, Mr Markham, solicitor, who appeared for the appellant, also contended the there was a question whether the finding that the Roadworks Contract did not include any work on the road which terminated at the dwelling was sufficient to avoid the finding that the contract was for residential building work on the basis it was work involved in the construction of a driveway.
27. However, we do not see how this finding was capable of leading to a conclusion that it was not open to the Tribunal to arrive at the driveway conclusion.
28. The contention appears to be connected with a submission made to the Tribunal that the roadworks did not satisfy the criteria referred to by Henry J in Lawrence v Ciantar; Ciantar v Lawrence [2019] NSWSC 464 because the roadwork the subject of the contract in issue, itself, did not terminate at the house (see at [32] and [29 (2)) of the Tribunal's reasons.
29. In that decision, Henry J said (at [131]-[137]): Did the DA works include residential building work within the meaning of the Home Building Act? 131 The DA works included, amongst other works, the construction of a driveway, the construction of a retaining wall (as part of a retention tank) and drainage works in accordance with approved plans. Those plans included the Indesco plans dated 11 February 2013 lodged with the DA (Indesco plans), and the MJM Consulting Engineers Driveway and Drainage Design plans provided to Council on 15 June 2015, which formed part of the Construction Certificate application (MJM Driveway & Drainage plans). 132 The work involved in co-ordinating and supervising the construction of the driveway, retaining wall and drainage works in accordance with those plans falls within the definition of residential building work under the Home Building Act as those types of works fall within the definition of dwelling: sch 1, cls 3(2)(k), (l) and (m); but only if the driveway, retaining wall and drainage works were to be constructed for use in conjunction with a dwelling: Home Building Act sch 1 cl 3(2). This is the case whether or not the dwelling was yet in existence: Home Building Act sch 1, cl 3(4). 133 Mr Lawrence's submission on this issue, that the DA works called for "extensive roadworks" or a private road within and between dwellings, the construction of which was not caught by the Home Building Act, is not supported by his evidence. He conceded in cross-examination that the documents relating to the DA works referred to a driveway as opposed to a private road. 134 The submission is also inconsistent with the Indesco plans and the MJM Driveway and Drainage plans, both of which refer to a "driveway". 135 A review of the Indesco plans and the MJM Driveway and Drainage plans indicates that the proposed driveway and drainage works were intended to be constructed for use in conjunction with the existing residence on the Property, as well as the proposed garage and proposed house on Lot 1. 136 The driveway is identified on those plans as being constructed on the northern side of the Property and is accessible by the proposed houses on proposed lots 1 and 3. The driveway terminates next to the garage alongside the existing residence on proposed lot 2. The drainage pipes are identified on the MJM Driveway and Drainage plans as running alongside and up to the existing residence and the proposed house on proposed lot 1. 137 I am, therefore, satisfied that the driveway and the drainage works were to be constructed for use in conjunction with a dwelling within the meaning of the Home Building Act.
30. Nothing in this analysis in the Lawrence decision provides any support for a contention that the facts as found by the Tribunal preclude the improvement works the subject of the Roadworks Contract from being work involved with the construction or renovation of a driveway used in conjunction with the dwelling on the property.
31. The Tribunal referred to this authority in its reasons and, plainly, took account of this consideration.
32. We do not consider that Ground 1 raised any question of law.
33. As to leave to appeal in respect of Ground 1, we do not consider that such leave should be granted. The Tribunal's conclusion resulted from an orthodox approach to fact finding, there was no suggestion that the Tribunal misunderstood the primary facts and the appellant provided no reasons why any of the discretionary factors concerning the grant of leave to appeal was satisfied.

Ground 2 (fit for purpose)

1. The short answer to Ground 2 of the appeal is that the Tribunal in concluding that there was a breach of statutory warranty under the HBA claim made no finding that the driveway resulting from the Roadworks Contract was not fit for purpose.
2. It was unnecessary for the Tribunal to make such a finding because it was not an element of this cause of action.

Ground 3 (preference for respondent's expert)

1. At the hearing of the appeal, Mr Markham informed us that it was accepted that leave to appeal was required in relation to Ground 3.
2. In oral submissions, for the purposes of leave to appeal, Mr Markham submitted that the decision was not fair and equitable because it was unfair for the Tribunal to have preferred the respondent's expert (Mr Boreland) to the appellant's expert (Mr Richardson) on the issue of liability but to have preferred the evidence of Mr Richardson to that of Mr Boreland on the question of quantum.
3. We do not agree. These were different issues and the reasons for the preference were explained without disclosing any factor that undermined the liability reasoning.
4. In brief, the Tribunal preferred the evidence of Mr Boreland on the question of liability because his conclusions were explained, they were based upon his expertise and also upon an expert's report from Aim Pavement Solutions, which the Tribunal found was admissible and of considerable weight, particularly, given that Mr Richardson had adopted the report and it had been, tacitly, accepted by the appellant during the hearing (at [58], [59] and [63]).
5. The report from Aim Pavement Solutions included opinions that the method of lime stabilisation used in the roadwork was incorrect, that the larger size aggregates were flat, not angular, as is normal base material, with a high percentage of larger aggregates which were difficult to compact, the finer particles in the material had a high clay content which would retain moisture and that it was recommended that all the existing unsuitable material be removed to sub - grade level and that a 250mm layer of suitable material be placed and compacted in 2 layers.
6. In these circumstances, it was hardly surprisingly that this expert evidence presented by the respondent was preferred to the evidence of Mr Richardson, which the Tribunal found did not meet the Makita criteria.
7. On the question of quantum, the Tribunal attributed particular weight to two factors favouring the evidence from Mr Richardson. First, that he was an experienced rural road builder and, secondly, that the replacement method suggested by Mr Boreland would result in a road that was superior to that which was intended under the Roadwork's Contract.
8. Accordingly, we do not consider that the decision was not fair and equitable because of this ground of appeal.
9. For the same reasons, the decision as to breach of the statutory warranty was not against the weight of the evidence-a matter that was referred to in the Notice of Appeal, but not in the appellant's written submissions.
10. Furthermore, we do not consider that any of the discretionary factors concerning the grant of leave to appeal (outlined above) exist in connection with this ground.

Costs of the appeal

1. It would seem that the appellant should pay the respondent's costs of the appeal on the basis that costs should follow the event- the amount in issue on the appeal would appear to exceed the required amount of $30,000 (see rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW)).
2. However, the parties have not made any submissions about the costs of the appeal and, accordingly, we will make orders for the provision of written submissions in respect of any such application.

ORDERS

1. For the above reasons, we make the following orders: 1. The appellant is granted an extension of time until 18 January 2023 in which to lodge the appeal. 2. To the extent that such leave is required, leave to appeal is refused. 3. The appeal is dismissed. 4. Within 14 days of the publication of these reasons, any party that wishes to apply for an order in relation to the costs of the appeal is to file and serve written submissions in support of the application, including submissions as to whether a hearing in respect of the application may be dispensed with, and within 14 days thereafter the parties are to file and serve any written submissions in reply.

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 19 June 2023 - Added Counsel Name J Mack as requested by the Legal Representative for the Respondent 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: 19 June 2023