Carolan v Haghparast

NCAT Appeal Panel|2023-04-17|Before: Blake AM

Introduction

This is the appeal of the appellants from a decision of the Consumer and Commercial Division of the Tribunal (Tribunal) of 2 December 2022 (Decision), a hearing having been held on 27 June 2022, and final submissions received on 9 August 2022.
The Decision considered two applications.
The first was application HB 21/48555 (Owners' Application). This was the application of the appellants (to whom we will refer, consistent with the Decision, as the owners) against the respondent (to whom we will refer as the builder). The owners had sought orders that they were not required to pay the builder $45,221.19 and that the builder pay them $60,232.73. The Tribunal dismissed this application.
The second application was HB 22/06888 (Builder's Application). The builder sought orders that: 1. the owners undertake and perform the requisite piling and/or shoring at the property and everything ancillary to the same, at their sole expense and liability, to satisfy their obligations under a Home Building Contract dated 23 April 2021 (Contract) and put the builder in a reasonable position to complete his obligations under the Contract; 2. he was not required to pay $25,000.00 to the owners; 3. the owners pay inflation on the costs of material resulting from the owners delay, frustration, and/or repudiation of the Contract; 4. the owners pay damages to the builder arising from the owners termination, repudiation and/or breach of the Contract.

Notice of Appeal

The Notice of Appeal was filed on 12 December 2022. The Notice of Appeal identified some 13 grounds of appeal. However, at the appeal hearing leave was sought to rely on the grounds of appeal set out in submissions filed on 15 February 2023 in substitution for the grounds of appeal set out in the Notice of Appeal.
The builder did not object to this application and we granted that leave.
There are 11 grounds of appeal. In summary, these grounds are: 1. the Tribunal's finding at [99] of the Decision was a finding for which there was no evidence; 2. the Tribunal's finding at [117] of the Decision was a finding for which there was no evidence; 3. the Tribunal's finding at [86] of the Decision was a finding which was "in direct contradiction with the express terms of the Contract"; 4. the Tribunal's finding at [87] of the Decision, being an "extraordinary conclusion", was "not supported" by the Contract; 5. the Tribunal's finding at [88] of the Decision, being another "extraordinary finding", was "not supported" by the Contract; 6. the Tribunal in accepting the builder's assertion that "the contract remained on foot at 9 December 2021" (Decision at [99]) has overlooked the evidence that the builder had repudiated the Contract; 7. the Tribunal's finding that the owner's expert report could not be relied on was not fair; 8. the Tribunal's finding at [112] is not fair or equitable. 9. the Tribunal, in arriving at its "final decision" at [118] and [119] was against the weight of the evidence. 10. the tenth ground of appeal was not pressed at the appeal hearing; 11. there is significant new evidence which was not available to the Tribunal.
It is convenient to deal with the eleventh ground of appeal first.

New Evidence

The appellant sought to rely on new evidence, that is, evidence that was not before the Tribunal. This evidence was: 1. invoice number 0010079 of Coastal Windows & Doors (NSW) Pty Ltd (CWD) dated 20 June 2022; 2. correspondence dated 6 December 2022 between Mrs Carolan and CWD relating to the payment of invoice number 0010079; 3. correspondence between Brent McIntosh of NEXTGEN Building and Design dated 9 December 2022; 4. a quotation of Harb Constructions Pty Ltd, undated, but valid to 7 February 2023; 5. an email from the Wollongong Registry of the Tribunal to the owners dated 2 February 2023 explaining that due to a malfunction in the digital recording system there was no recording of the Tribunal hearing; 6. an email chain between the builder and Construction Legacy dated 16 September 2021.
In support of its application to rely on this new evidence, the owners relevantly submit: The owner's complied with the Tribunal's order made on 7 February 2022 … that all evidence was to be filed and served before 28 March 2022. The new evidence listed below was generally not available in the first instance because it was received after 28 March 2022. The exception is the email from Coastal Windows to the Builder dated 16 September 2021.
The builder objected to the Tribunal receiving the new evidence.
The applicable rule for presenting new evidence on appeal is that the materials sought to be relied on were not reasonably available at the time of the Tribunal hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]. As the Appeal Panel stated in Chapman v McLaughin [2016] NSWCATAP 212 at [37]: … The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.
The evidence sought to be relied on falls into two categories, evidence available at the time of the hearing, and evidence which post-dated the hearing. The documents that fall into the first category are those summarised at [11(1)] and [11(6)]. The documents that fall into the second category are those summarised at [11(2)] to [11(5)].
The document summarised at [11(1)] was clearly available to the owners before the hearing. No persuasive reason has been advanced as to why the owners should be permitted to rely on it at the appeal.
The document summarised at [11(6)] was in existence before the hearing. No persuasive reason has been advanced as to why the owners did not have access to it, or could not have sought it under summons directed to the builder, and no persuasive reason is advanced now as to why the owners should be permitted to rely on it at the appeal.
As for the documents referred to at [11(2)], [11(3)] and [11(4)], as the Appeal Panel stated recently in Kora v Ian's Roofing Pty Ltd [2023] NSWCATAP 42 at [41]: As to the second category of … evidence, the rule in Al-Daouk does not apply, in that that evidence could never have been available as it relates to [matters] which post-date the hearing. It is axiomatic that a Tribunal or Court determines an application on the basis of the evidence before it at the hearing (save for evidence that was not reasonably available), not on new evidence relating to events that occurred after the hearing. In the circumstances, we will have no regard to that evidence.
No adequate reason has been advanced to warrant the documents referred to at [11(2)], [11(3)] and [11(4)] being admitted into evidence on the appeal.
As to the documents referred to at [11(5)], this is useful information for the Appeal Panel to know and it is appropriate that it be received on appeal.

The parties' contentions before the Tribunal

It is appropriate to set out the issues agitated by both parties before the Tribunal in their respective applications.

The Owners' Application

In summary, in the Owners' Application, the owners pleaded that: 1. the builder breached the Contract by not complying with: 1. the Building Code of Australia; 2. the Development Consent conditions; 3. Australian Standards; 4. s 18B of the Home Building Act 1989 (NSW); 1. the builder breached and/or repudiated the Contract by: 1. refusing to carry out the work required to provide adequate support for excavations as specified in the contract; 2. demanding payment for demolition costs; 3. demanding the owners pay for a price escalation which he was not entitled to under the Contract; 4. failing to complete the works within the time of the Contract; 5. demanding payment for surveying work he was not entitled to under the Contract; 6. demanding payment for his own labour which he was not entitled to under the Contract; 7. by failing to proceed diligently with the work; 8. by not complying with the plans contained in the Contract; 9. by not working with due care and skill and in accordance with the plans and specifications set out in the Contract; 10. because he was unable to complete the work and/or abandoned the work; 1. the builder repudiated the Contract by reason of events occurring on 25 October, 29 November, and 4, 7, 9, 11 and 17 December 2021; 2. the builder breached the Contract by overcharging for home building insurance.

The Builder's Application

In summary, the builder relevantly pleaded that the owners frustrated and/or repudiated the Contract in that: 1. at no material time did the owners provide the builder with reasonable instructions, specifications and plans that stipulate the necessity for shoring and/or piling at the; nor any reasonable instructions, plans or specifications that stipulate any building goods or services to support the foundations of any retaining walls at the property; the Contract expressly stated that any piling would be erected in accordance with an engineer's plans; 2. the owners breached an express term in the Contract by failing to provide reasonable specifications and plans that would have reasonably put the builder in a position to perform his obligations; 3. the owners failed and/or neglected to accept their own engineer's plans and designs in order to satisfy their obligations under the Contact; 4. the owners failed and/or neglected to accept the builder's variations and/or any quotes to undertake the shoring and/or piling at the property; as a result, the owners have frustrated and/or repudiated the Contract; 5. the owners failed and/or neglected to accept the August variation request but instructed the builder to carry the works out nevertheless. In part performance of the variation request the Owners paid $4,312.00 and neglected to pay the outstanding sum of $5,932.00; 6. on 26 November 2021, the owners lodged a Home Building Claim without first attempting the mandated mediation process with Fair Trading.
We pause to note that there is no allegation that the owners repudiated the Contract on 10 December 2021 by denying the builder access to the owners' property. That said, the builder pleaded that he had attempted to resolve and/or mitigate the issue of shoring and/or piling at the owners' property. One of the particulars of that allegation is sub-paragraph (f) which states: On or around 30 November 2021, the parties organised a meeting on site via email - on 3 December 2021 - to further mitigate the issues. It was later changed to 10 December 2021. On that date, the [builder] attended and saw that the site was fenced off and at the same time it came to his attention that the [owners] had filed the [Owners' Application]. As at 10 December 2021, the [owners] effectively barred the [builder] from attending the property. On 10 December 2021, the [builder] took a photo of the site and the photo is attached and marked Annexure F.
Annexure F photograph appearing at p 134 of the builder's appeal documents. It shows a wire fence around the site, and one individual standing inside the fence.

Hearing on 27 June 2022

Both the Owners' Application and the Builder's Application were listed for hearing on 27 June 2022.
It is common ground that at that hearing the parties agreed that the Contract had been terminated (Decision at [23]). According to the builder, that left for determination: 1. the owners' application that the builder pay them $85,232.73; 2. the builder's claim that the owners pay him damages arising from the owners' termination, repudiation and/or breach of the Contract.
On appeal, we have the points of claim and points of defence, and the written evidence of the parties. We do not have the sound recording of the proceedings, as one was not available. Nor do we have a transcript of the proceedings. This is perhaps understandable given there was no sound recording, but either party could have provided an affidavit setting out what happened at the Tribunal hearing if what occurred was sought to be relied on at the appeal.

The Decision

It is appropriate to summarise the Decision.
At [1] to [5], the Tribunal summarised the Owner's Application and the Builder's Application.
At [6] to 16] ("Jurisdiction and Legislation"), the Tribunal summarised the relevant legislation and jurisdictional matters.
At [17] to [20] ("Evidence"), the Tribunal summarised the evidence relied on by the parties. Relevantly this included "the cross-examined and sworn evidence" of the two owners and the builder.
At [21] to [23] ("The Contract"), the Tribunal records that: 1. the owners entered into the Contract to carry out residential building work at the owners' property for a contract price of $478,700.00 including GST (Decision at [21]); 2. at the end of the hearing both parties conceded that the Contract had been terminated and it was for the Tribunal to determine the quantum of damages, if any (Decision at [23]).
At [24] to [43] ("Background"), the Tribunal sets out the relevant background to both applications.
At [44] to [57] ("The Claims"), the Tribunal sets out its summary of the owners various claims under the headings "Incomplete Building Works Claim", "Amount of damages claimed by owners", "Builder's liability for defective and incomplete works", "Demolition of existing structures not part of scope of works", "Builder's delays and refusals to rectify the defective and incomplete work", "Breach of [section] 18B of the HBA".
At [58] to [76] ("Builder's claim submissions"), the Tribunal summarises the builder's response to the Owners' Application and his submissions in support of the Builder's Application. These paragraphs are divided into sections titled "Repudiation, termination and loss" and "Owners' claim".
We note that the builder submitted, in summary, that the owners had repudiated the Contract by not removing all the existing buildings on the owners' property (Decision, at [66]).
At [67] the Tribunal states: As at 10 December 2021 the Contract remained in foot. There was no basis for the owners to refuse the builder access to the Property to complete the works. By refusing the builder access to complete the works, the owners repudiated the Contract. At the hearing the builder accepted the repudiation and terminated the Contract.
This is a repetition of a submission, not a finding of fact. The builder had submitted in its submissions of 18 July 2022 that: 10. On about 10 December 2021, a meeting was scheduled between the parties to discuss the matter further, but what occurred on that date was [that] the [owners] refused access to the [builder] to the site. Under cross-examination, the [builder] stated that he was assaulted by one of the [owners] and his friend, causing him fear and the [builder] hasn't been back there. … 16. It was clear that, as at 10 December 2021, the Contract was still on foot. There was no basis for the [owners] to refuse the respondent access to the Property to complete the works and, accordingly, the [builder] is legally entitled to possession. Further, the [owners], by refusing to allow the [builder] site access to complete the works, have repudiated the Contract. 17. At the hearing, [the builder] accepted the repudiation and terminated the Contract.
We note that after the words "the [owners] refused access to the [builder] to access the site, appears footnote number 21. That is a reference to p 78, Annexure F, of the builder's application, which is the photograph referred to above.
Paragraphs [77] to [113] ("Consideration") then set out the Tribunal's determination of the issues raised on both the Owners' Application and the Builder's Application. This was dealt with under the headings of "What did the Contract provide" (Decision [77] to [88]), "Termination of the Contract" (Decision [89] to [101]), and "Respective claims for damages" (Decision [102] to [113]).
As to the termination of the Contract, the Tribunal relevantly stated: 89. The parties concede that the Contract is terminated, but do not agree on which party terminated it. 90. On 28 November 2021 after the builder was advised that the owners had applied to NSW Fair Trading, the builder offered "to terminate the project I need to cancel the contract with portable toilet company onsite". 91. In an email dated 4 December 2021 the owners say they accepted the builder's offer to terminate the Contract and asked him to remove his signage from the site fence. In response, the builder replied on 7 December 2021 that "our contract still on" and "please do not go onsite and do not ask anyone go onsite as signage on front fence emphasis until further notice, if you want to take or put something onsite please give me two days notice then I will be ther to help you". 92. The discussions between the parties about termination of the Contract include an email dated 9 December 2021 from the builder to the owner that says "…you need to pay me $45,221.19 if you want to terminate the contract at this stage". 93. The owners submit that such circumstances infer that the parties were in discussion about ending the Contract and that the builder had no reason to enter the site. 94. The parties had fallen into irreconcilable dispute by 10 December 2021. No works had been performed on site by the builder since July 2021. 95. The owners further submit that they had not repudiated the Contract at any time and that they agreed at the hearing that the Contract was mutually terminated and only the question of damages remained to be determined. 96. The builder contends that with the owners refusing the builder access to the site to complete the works on 10 December 2021 and by doing so repudiated the Contract. At the hearing the builder submits that it accepted the owners' repudiation and terminated the Contract during the hearing. 97. The Tribunal is not satisfied that there was termination of the Contract by agreement. 98. The builder contended that any termination by agreement was subject to payment to him by the owners' damages. No agreement was made about the payment of damages. There was no termination by agreement. 99. The owners sought to be released from the Contract. The builder asserted that the Contract remained on foot at 9 December 2021. It was the owners who sought to exclude the builder from the site on 10 December 2021. By doing so they satisfied the elements needed for repudiation of the Contract. The owners' failure to accept that the plans prepared by their architects and engineer were deficient in that they did not refer to the south and west walls removal and their responsibility for their removal with subsequent shoring caused the dispute with the builder. Culminating in the owners' decision to prevent the builder having access to the site on and from 10 December 2021. The owners repudiated the Contract on 10 December by preventing the builder from performing his obligations under the Contract. 100. The builder terminated the Contract at the hearing.
The Tribunal's conclusions are set out at [114] to [120], the Tribunal relevantly stating at [114] that: The Contract has been found to have been terminated by the builder. At the time of the owners [sic] repudiation of the Contract the parties were in discussions about the ending of the Contract on or about 10 December 2021 and the builder put to the owners that they owed him an amount of $45,221.19 if they wished to terminate the Contract. The owners did not agree.

Internal appeals

Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which internal appeals from decisions of the Tribunal may be brought.
Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: NCAT Act, s 80(2).

Questions of law

In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 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.

Leave to appeal

Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that 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).
The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65] to [79] and concluded at [84(2)] that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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.
Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

Consideration of grounds of appeal raising questions of law

The owners submitted that appeal grounds (1) to (5) each raises a question of law, and that grounds (6) to (11) require a grant of leave.

Ground (1): The Tribunal's finding at [99] of the Decision was a finding for which there was no evidence

Ground (1) relates to par [99] of the Decision which is set out above. Relevantly, the Tribunal found that "[i]t was the owners who sought to exclude the builder from the site on 10 December 2021", and that the elements needed for repudiation of the Contract were satisfied.
The owners submit that there was no evidence to support the statement that "[i]t was the owners who sought to exclude the builder from the site on 10 December 2021". We accept that this raises a question of law: see Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91] where Hayne, Heydon, Crennan and Kiefel JJ stated: A tribunal that decides a question of fact when there is "no evidence" in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law. And in this case, for the reasons given by the primary judge, there was no evidence before the Tribunal, when it decided the separate question identified by the parties, upon which the Tribunal could find that the disputed notices had been served. (citations omitted)
The owners point to the following matters in support of this ground of appeal. We shall consider each in turn.
First, the fact that it was the builder who installed the site fence, which the builder admitted at the Tribunal hearing.
Through no fault of the owners, no sound recording of the Tribunal hearing was available. But, regardless of that, we see no reason why it follows that just because the builder installed the site fence, the owners could not have denied the builder access to the site on 10 December 2021.
Secondly, the builder's affidavit of 16 March 2022 makes no mention of the builder being denied access.
The owners did not include the builder's affidavit in their materials. But the builder did. The owners are correct that the builder made no reference to the events occurring on 10 December 2021 at all in his affidavit. Events occurring on 10 December 2021 had been referred to in his points of claim, but, we repeat, there was no evidence from the builder about this issue. At least not in his affidavit. If he gave oral evidence about the events of 10 December 2021, there is no material before us as to what that evidence was. We note that in his submissions to the Tribunal, he submitted that in cross-examination he said that he was assaulted by one of the owners and his friend, causing him fear, and had not returned to the site.
These matters were not referred to by the Tribunal in the Decision.
On the other hand, Mr Carolan in his statement of 18 December 2021 did refer 10 December 2021, stating: 106. On 10 December I met Mr Brent McIntosh - Licensed builder (Lic 321659C) on site to discuss our requirements for completing our house build. He commented that there looked to be insufficient pegs in place to establish the correct levels and location for the foundations.
In other words, Mr Carolan made no reference to the builder's attendance at the property at all.
Thirdly, the owners rely on an email dated 10 December 2022 from the builder to the owners which states: I have been onsite at 9am today for the meeting to describe and answer your questions to solve the issues but Dominic which was onsite said he was here for cutting the grass not meeting with me. At the time he was onsite regardless I have asked you please don't go onsite unless letting me know as there is a chance of danger. Dominic asked another guy to come on-site although I have asked them to respect the rules, any damages or hurting will be totally on your responsibility. Please, please respect Australian rules and Regulations to avoid any things bad happening. I am available whenever you need to go onsite to help you. (grammatical errors as in original)
This piece of evidence, which was annexed to Mr Carolan's statement and therefore was before the Tribunal, was not referred to by the Tribunal. It suggests that the builder attended the property on 10 December 2021, and while the Mr Carolan did not want to talk to the builder, it could not be said, we would have thought, to support the proposition that the owners "sought to exclude the builder from the site on 10 December 2021" and otherwise repudiated the Contract. While we accept that the builder pleaded in his points of claim that this was the case, as we say, there was no evidence to support this allegation.
Fourthly, there were emails in November and December 2021 showing that the owners were seeking to come to a mutual agreement on contract termination and organising to meet on site to negotiate costs.
Even if this is the case, we see no reason why this would have precluded the owners from denying the builder access on 10 December 2021.
Fifthly, the builder had repudiated his obligations under the contract prior to 9 December 2021 when he sent his final claim for costs.
This submission is factually incorrect (in that the Tribunal made no such finding) and legally incorrect (as we fail to see how the sending of an invoice could constitute an act of repudiation). This submission does not assist in the owners in this ground of appeal.
Sixthly, the builder entered the site on 10 December 2021 and discussed his claim for costs with Mr Carolan before leaving the site of his own accord.
Here the owners rely of an email of Brent McIntosh who witnessed the meeting. In an email from Mr McIntosh to the owners dated 9 December 2022, Mr McIntosh states: On Friday december 10 2021 i arrived at the jones ave address for a site meeting at 915am with Mr and Mrs Carolan in which i was a few minutes early for which was planned for 930am The purpose of the site meeting was to inspect the site and discuss issues of their unfinished building project being the construction of a new dwelling on the site. When I arrived Mr Carolan was having a discussion with a gentleman who I now know was their builder, but at the time on friday december 10 I did not know this. A few minutes later, the discussion finished and the builder left the site of his own accord and left the site fence open as shown in the photo to the right hand side. it was not locked up or secured in any way. I entered through this point and waited for Mr Carolan in the existing driveway as shown by the photo that was taken of me. Mr Carolan asked me to come back outside the fence and wait for him on the council crossover for which i was happy to comply. The builder then walked back to his car and left Jones Ave in his vehicle with the site fence still LEFT OPEN AND NOT SECURED. as shown in the photo Mr Carolan said to me that the builder had said no one is allowed to enter his site without the builders permission however I made the point to Mr Carolan that he had no construction signage saying it was a building site and unauthorised entry was not permitted, the opening in the fence had no chain or padlock so it is not secure in any way/ was left open upon his departure and that the builder should of made it clear to myself that to the above point about entry with his client at the time Mr carolan present. After this time, My meeting with Mr and Mrs Carolan then proceeded. (typographical errors as in original)
This is an important email. However, it was not before the Tribunal at the hearing on 27 June 2022. This was for the obvious reason that it was created approximately five months later. But the Tribunal cannot be criticised and there was no error by the Tribunal in relation to this email, which we decline leave to the owners to rely on for the purposes of the appeal for the reasons set out above.

Conclusion

The owners' submissions, being their grounds of appeal, are summarised above.
The builder makes the following submissions: 27. The email dated 10 December 2021 stated that the [builder] attended the site to discuss the issues with the [owners], but was informed by one of the [owners] that he was there not to meet with the [builder]. The [builder] had requested [Mr Carolan] and his visitor not to enter the fenced off Property due to safety concerns, but was ignored. The [builder] reiterated in the email that he was available whenever the [owners] wish to go onto the Property. 28. At the hearing before Senior Member Boyce, the [owners were] entitled to put questions to the [builder] in cross-examination to test the veracity of the [builder]'s evidence, to elicit additional evidence that may be favourable or unfavourable to the [owners'] case, and to attack the credit of the witness: Libke v the Queen [2007] HCA 30 per Heydon J at [119] - [120]. 29. The [owners] cross-examined the [builder] extensively about the events of 10 December 2021. Under cross-examination, the [builder] gave evidence of the refusal by Mr Carolan to allow the [builder] onto the Property and the alleged assault of the [builder] by Mr Carolan when the [builder] requested that no-one enter the Property unless he was present. The [builder] sought refuge in his car before driving away. 30. [The builder]'s evidence of the alleged assault and the refusal by the [owners]to grant access to the Property was given under cross-examination by the [owners]. The [owners] could have sought leave to re-open their case and adduce additional evidence in relation to this issue. … 31. The [owners] made no application to re-open their case to adduce evidence in relation to the alleged assault and the refusal by the [owners]to grant access to the Builder to the Property. It was a decision that was made by them during the course of the hearing and they are bound by the evidence given in cross-examination. 32. The Tribunal correctly found that the Builder was excluded from the Property by the [owners] on 10 December 2021 due to the actions of Mr Carolan.
There is no evidence to support these submissions. We appreciate that there no sound recording was available, but the builder's solicitor could have prepared an affidavit relevantly setting out his version of what occurred at the Tribunal hearing. That has not been done.
However, the onus lies with the owners as appellants. In their reply submissions, they relevantly submitted that: g) The Builder suggests that the Owners had an opportunity to 're-open' the case on this issue. The owners deny this because they were given no opportunity to 're-open' the case during the hearing. Nor were they given an opportunity to question Brent McIntosh again or file a statement from him refuting the new allegations. Being self-represented, the Owners complied with the directions of the Senior Member to provide only written submissions after the hearing. h) The Owners reasonably assumed that the incredible new allegations would be given no weight in the Tribunal's decision, especially after the hearing established the Builder's lack of credibility as a witness to the events that occurred on 10 December 2021.
These submissions are misconceived. While the owners may think that the "hearing established the [builder's lack of credibility", this was not a finding made by the Tribunal.
We accept that issue of who repudiated the Contract was a fundamental issue in both the Owners' Application and the Builder's Application. But save for submitting that the builder's evidence was "incredible", they do not submit that the builder did not give that evidence at the Tribunal hearing. They have said nothing in response to the builder's submission that they cross-examined the builder extensively about the events of 10 December 2021, and that under cross-examination the builder gave evidence of the refusal by Mr Carolan to allow the builder onto the Property, that there was an alleged assault of the builder by Mr Carolan and that the builder sought refuge in his car before driving away.
This evidence, if given to the Tribunal, even in cross-examination, would provide a strong basis for the Tribunal's conclusions at [99].
In all the circumstances, and in particular in the absence of the evidence given in cross-examination by the builder at the Tribunal hearing, we are not satisfied that, as asserted by the owners, that there was no evidence before the Tribunal to support its finding at [99] that: … It was the owners who sought to exclude the builder from the site on 10 December 2021. By doing so they satisfied the elements needed for repudiation of the Contract. …

Ground (2): The Tribunal's finding at [117] of the Decision was a finding for which there was no evidence

As with Ground (1), Ground (2) raises a question of law. At [117] the Tribunal stated: The final amount claimed is for the balance of the cost of the windows. The builder ordered the windows when the Contract was on foot. The loss caused by the builder paying the balance of the cost of the windows is a loss the builder has suffered. The owners must pay the builder the amount of the cost of the windows being $7,592.00. Upon payment the title to the windows will be assigned to the owners for use in their building of the dwelling.
The owners say that on 9 December 2021 the builder requested them to transfer money to pay the invoice "or negotiate with them [the window supplier] to secure your deposit". The owners say that they did contact the supplier, and an invoice was transferred into their name. It appears that this was done after the Tribunal hearing, as the replacement invoice bears the date 20 June 2022.
These submissions rely on the owners having leave to rely the documents identified at [11(1)] and [11(2)]. As we have not granted that leave, those submissions must fail.

Ground (3): The Tribunal's finding at [86] of the Decision was a finding which was in direct contradiction with the express terms of the Contract

Ground (4): The Tribunal's finding at [87] of the Decision, was an "extraordinary conclusion", was "not supported" by the Contract

Ground (5): The Tribunal's finding at [88] of the Decision, being another "extraordinary finding", was "not supported" by the Contract

These grounds of appeal may be considered together.
The interpretation of contractual terms is primarily a matter of law: J Edelman, The Interpretation of Written Contracts. [1] [2] See too, by analogy, Life Insurance Co. of Australia Ltd v Phillip (1925) 36 CLR 60 at 79; [1925] HCA 18, referred to in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; [1993] FCA 456.
Accordingly, we accept that these grounds all raise questions of law, being the interpretation of the terms of a contract.
Grounds (3), (4) and (5) respectively relate to [86], [87] and [88] of the Decision where the Tribunal stated: 86. Nothing in the Contract or its attachments show that the retaining walls were to be removed by the builder. On the evidence before the Tribunal, the obligation to clear the site of existing buildings and structures remained with the owners as clause 1 of the Contract limited the works agreed to be undertaken by the builder to those works in the Scope of Works attached to the Contract. The owners conceded as much in their evidence. They had cleared the site except for the two remaining walls the subject of the issue now before the Tribunal. 87. The Tribunal finds that the responsibility for the clearance of the site including the two walls was for the owners. As such the obligation is on the owners to provide a safe working environment by supporting the land to avoid collapse after the walls were removed. 88. Until the walls are removed and the land safely supported by the owners the builder was not in a position to proceed with the obligations to perform its agreed works.
The grounds each relate to the same issue, that is that the Tribunal erred in finding that the owners were responsible for clear the site of existing buildings and structures.
The owners make various submissions including that the Contract lists no obligation for work to be done by the owners.
That is correct. The Contract documents are described in cl 1 of the Contract. They include specifications prepared by the owners (6 pages), plans prepared by MJD Drafting (13 pages), plans prepared by Westlake Punnett (8 pages), electrical plans (1 page) and a "Construction Legacy Scope of Work, which is two pages in length and appears at p 57 of the Contract (or p 232 of the joint tender bundle).
Suffice it to say, of the 24 items appearing in the Scope of Work, there is no obligation on the builder to clear the site. The Tribunal found that the obligation remained with the owners. That finding must be correct.
The owners also submit that the builder by email dated 22 April 2021 offered to undertake demolition work (there being no allowance for demolition work) which offer was accepted by the owners when they signed the Contract.
As this matter was not pleaded by the owners and it was not referred to by the Tribunal, we infer it was not raised at the Tribunal hearing. That being the case it cannot be raised now: Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99 at [21], citing Coulton v Holcombe (1986) 162 CLR 1 at 8; [1986] HCA 33.
For these reasons, these grounds of appeal fail.
We turn now to the grounds of appeal requiring a grant of leave.

Ground (6): The Tribunal in accepting the builder's assertion that "the [C]ontract remained on foot at 9 December 2021 (Decision at [99]) has overlooked the evidence that the builder had repudiated the Contract

This is not a proper ground of appeal. It proceeds on a misconception, the misconception being that the builder repudiated the Contract. The Tribunal made no such finding.

Ground (7): The Tribunal's finding that the owner's expert report could not be relied on was not fair

At [107] of the Decision the Tribunal stated: The report of Next Gen Building and Design Pty Ltd cannot be relied upon as an expert report. It is a two-page letter by a builder. The document does not adhere to the Tribunal's Expert Witness Code of Conduct. If it is the highest and best opinion available to support the owners' case, it is of little utility. Its conclusion "Overall, there would need to be some cost incurred twice by the client for rework to get the current works back to a soldi [sic] state for the project to be able to move forward" does not assist the Tribunal in determining the real issue with the works and whether or not they are defective.
The owners make two submissions. The first is that the report states that the expert has read the Experts' Code of Conduct and agrees to be bound by it. We accept that submission.
The second submission is that, while the document is a two page letter, it is nonetheless a report by an independent builder that meets all the criteria required by NCAT Procedural Direction 3, Expert Evidence.
The builder submits that: 73. The Tribunal found that the builder based his report on visual evidence seen on site during the site inspection and that the south and west walls were retaining walls, despite being provided with architectural plans. The builder did not carry out tests to determine whether the south and west walls were retaining walls. The Tribunal found that the plans and survey do not classify the south and west walls and there is no evidence that those walls were retaining walls. 74. In seeking to challenge a discretionary decision for an error of law, the Appellants are required to demonstrate one of the errors described in House v The King (1936) 55 CLR 499. The Appellants have not identified one of the five grounds that allows a discretionary decision to be overturned.
In conclusion, the builder submits that the Tribunal was correct in attributing little or no weight to the report.
We agree. We have reviewed the report. We see no error in the Tribunal's reasoning and consider its conclusion was one that was reasonably available to it.

Ground (8): The Tribunal's finding at [112] is not fair or equitable

Ground (9): The Tribunal, in arriving at its "final decision" at [118] and [119] was against the weight of the evidence

These grounds can be considered together.
The Tribunal stated in these paragraphs: 112. The owners rely on their own interpretation and assessment of the costs the losses they believe they have suffered as a result of the termination of the Contract. Their claim is unsupported by independent evidence of loss. They rely on the builder's claim in support of their claim for loss. … 118. In summary the owners must pay the builder $9,730.19. 119. In the owners claim, they repudiated the Contract and the builder accepted that repudiation and terminated the Contract. As the owners precipitated the termination of the Contract they are not entitled to any loss as a result.
These are not proper grounds of appeal. Paragraph [112] is simply a summary of owners' claim for damages. Paragraph [118] is a statement of the overall outcome in the Builder's Application, and par [119] is a statement of the overall outcome in the Owners' Application.

Conclusion

We dismiss the appeal in respect of grounds (1) to (5).
We refuse leave to appeal in relation to grounds (6), (7), (8) and (9). We consider that the owners are seeking to challenge findings of fact and reasoning that were clearly open to the Tribunal on the available evidence. Even if a ground for leave to appeal had been established, we would not have granted leave to appeal as we would not have been satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result application for leave to appeal has no merit.

Costs of the Tribunal proceedings

We understand that no party made an application to the Tribunal for costs and therefore that no costs order was made. Accordingly, there is no need to make an order in this regard.

Costs of the appeal

As to the costs of the appeal, the parties agreed at the appeal hearing that, should the owners be unsuccessful in the appeal, the builder was entitled to an order for costs.

Orders

The Appeal Panel orders: 1. In so far as the appeal raises a question of law, the appeal is dismissed. 2. In so far as the appeal raises some other error, leave to appeal is refused and the appeal otherwise dismissed. 3. The appellants are to pay the respondent's costs of the appeal as agreed or assessed under the applicable costs legislation.

Endnotes

This essay of Edelman J was first published in C Mitchell and S Watterson (eds), The World of Maritime and Commercial Law: Essays in Honour of Francis Rose (Oxford, Hart Publishing, 2020) 243. It is based on a speech delivered for the Mr Justice Russell Brown Law Lecture Series, University of Alberta, 9 January 2020.
The essay is accessible at https://www.hcourt.gov.au/assets/publications/speeches/current-justices/edelmanj/EdelmanJ09Jan20.pdf 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: 04 May 2023

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (27 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (17)

Cited By (4)