Champion Home Sales Pty Ltd v Voulgaris

The Tribunal's Reason for the Substantive Decision

1. As indicated, the Substantive Decision was made on the papers. It appears that the parties agreed to the Tribunal dispensing with a hearing. A formal order to that effect (NCAT Act, s 50(2)) may have been made prior to 29 July 2024 but that is not apparent from the reasons in the Substantive Decision. In essence, there were agreed facts as per the statement dated 25 October 2023 of the Builder's managing director, Mr Steve Malesev.
2. In summary, the relevant agreed facts that emerge from Mr Malesev's statement, are:
3. On 4 May 2022, the Owner paid a non-refundable tender fee of $15,000, which amount was to be credited towards the Contract Price when the parties signed the Contract,
4. The price of the Contract signed on 23 June 2022 was $530,000 (the Contract Price),
5. The Contract Price and other moneys that become payable under the Contract were to be paid by the Owner in the manner and at the times stated in the Contract: cl 3.1,
6. The Owner was required to establish that she had sufficient funds to pay the Contract Price, including written advice to the Builder of the finance she had obtained from a lending body, when added to her own available funds: cl 4.1(d),
7. Further, the Owner was required when requested by the Builder at any time, to deposit that part of the Contract Price not being supplied by a lending body into an account of a bank, building society, or similarly recognised financial institution, and referred to as a security account in the parties' joint names: cl 7.1,
8. If the Builder ended the Contract under clauses 14, 26, 27, or 28, then at the election of the Builder, the Owner must pay under cl 29, as a debt due and payable:
9. The greater of the cost of or the market value of the building works to date including the cost of any materials on the Site or already ordered from suppliers and the cost of quitting the Site less the amount already paid by the Owner, or
10. Damages in the sum 'equivalent to 15%' of the Contract Price, which the parties acknowledged to be a genuine pre-estimate of the Builder's loss or damage,
11. If, prior to the physical commencement of works on the Site, the Owner wrongfully ends the Contract she must pay the Builder damages in the sum 'equivalent of 15%' of the Contract Price, which the parties acknowledged to be a genuine pre-estimate of the Builder's loss or damage: cl 44.15,
12. As the party acting as the Owner's agent for obtaining and paying for all planning and building approvals including engineering and survey fees (cl 10 of Schedule 1, cl 5 of the printed conditions of the Contract), the Builder commenced work shortly after 23 June 2022 on obtaining development approval by causing to be prepared a contour survey of the Site dated 31 August 2022, and had previously obtained a Site and Wind Classification report dated 23 May 2022,
13. On receipt of the contour survey, the Builder's architectural drafting team commenced working on the architectural plans,
14. On 7 September 2022, the Builder lodged the development application (the DA) with Bayside Council (the Council) through the NSW Planning Portal,
15. On 7 October 2022, the Builder received a letter from the Council requesting additional information and certain amendments to the plans,
16. On 27 October 2022, the Builder submitted to the Council amended plans and supporting documentation,
17. On 29 November 2022, the Council issued development consent to the Builder for the demolition of the existing structures on the Site and the construction of a two-storey dwelling,
18. A copy of the development consent for the DA and associated plans were then sent by the Builder to the Owner on or about 6 December 2022,
19. Thereafter, the Builder arranged for a permeability assessment (dated 24 February 2023) to be carried out on the Site, because a condition of the development consent required the applicant for the DA to engage a geotechnical engineer to determine the infiltration/absorption rate prior to the final design of the drainage system for the proposed development,
20. The Builder also arranged a pre-dilapidation report dated 9 March 2023 of the public domain around the Site, because of condition 29 of the development consent,
21. On 10 May 2023, the Builder issued a Notice of Breach to the Owner regarding her failure, despite the Builder's reminders, to provide evidence of her ability to pay for the cost of the building works as required by cl 4 of the Contract,
22. On 17 May 2023, the Owner sent by email a screen shot of a bank account showing an amount of $539,404.27 in funds said to be available for the construction of the dwelling on the Site,
23. On 19 May 2023, the Builder replied to the Owner and requested that a security account be established in the joint names of the parties in accordance with cl 7.1 of the Contract,
24. The parties exchanged emails, some marked 'Without Prejudice', culminating in the Builder issuing on 29 May 2023 a Notice of Breach and Notice to Perform Building Contract, forwarded by registered post to the Owner,
25. On 2 June 2023, the Owner's solicitors sent correspondence marked 'Without Prejudice' to the Builder with further correspondence on a 'Without Prejudice' basis in relation to various matters now in dispute between the parties,
26. On 25 July 2023, the Builder by letter of that date advised the Owner that she had failed to comply with the Notice of Breach dated 10 May 2023 and that the Builder was terminating the Contract pursuant to cl 27,
27. While the Builder by its employees and/or contractors were present on the Site for the work (such as the contour survey) for the DA, no actual physical building works were undertaken by it prior to the end of the Contract.
28. By the Application lodged with the Tribunal on 2 August 2024, the Builder brought its action as a "building claim" relating to "building goods and services" (as those terms are defined in s 48A(1) of the HB Act), and sought an order under the HB Act, in s 48O(1)(a), that the Owner pay it the amount of $74,374.63 for breach of the Contract. In that way, the Owner submitted the jurisdiction of the Tribunal for the Application is exercised pursuant to s 48K of the HB Act, which gives the Tribunal its authority to hear and determine any "building claim" where the amount claimed does not exceed $500,000.
29. The Owner denied that the Builder is entitled to the relief sought under the HB Act. She said that the Builder had undertaken building works including, but not limited to, obtaining a Geotechnical Report, liaising with the Council to obtain planning, and building approvals, obtaining a contour survey for the Site, engaging engineers, and undertaking a Sewer Peg Out of the Site (the Works), and that the Works were "residential building work" within the meaning of the HB Act. Because the Builder had not entered into a contract of home warranty insurance that complies with the HB Act while the Works were undertaken, and given the fact that at no time up to when the Builder terminated the Contract, was the Owner provided with a certificate of insurance by the Builder, the Owner relied upon the following provisions of the HB Act, as precluding the Builder from recovering the $74,374.63 it claimed, or any lesser amount: 10 Enforceability of contracts and other rights A person who contracts to do any residential building work, or any specialist work, and who so contracts - (a) (b) (c) in contravention of any other provision of this Act or the regulations that is prescribed for the purposes of this paragraph, is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, and the contract is unenforceable by the person who contracted to do the work. However, the person is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person. 92 Contract work must be insured (1) A person must not do residential building work under a contract unless-- (a) a contract of insurance that complies with this Act is in force in relation to that work in the name under which the person contracted to do the work, and (b) a certificate of insurance evidencing the contract of insurance, in a form approved by the Authority, has been provided to the other party (or one of the other parties) to the contract. (2) A person must not demand or receive a payment under a contract for residential building work (whether as a deposit or other payment and whether or not work under the contract has commenced) from any other party to the contract unless-- (a) a contract of insurance that complies with this Act is in force in relation to that work in the name under which the person contracted to do the work, and (b) a certificate of insurance evidencing the contract of insurance, in a form approved by the Authority, has been provided to the other party (or one of the other parties) to the contract. 94 Effect of failure to insure RESIDENTIAL BUILDING WORK (1) If a contract of insurance required by section 92 is not in force, in the name of the person who contracted to do the work, in relation to any residential building work done under a contract (the "uninsured work"), the contractor who did the work-- (a) is not entitled to damages, or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, in relation to that work, and (b) is not entitled to recover money in respect of that work under any other right of action (including a quantum meruit).
30. The Tribunal found, relevantly, in its Substantive Decision: 1. The Builder is seeking payment under a Contract for residential building work within the meaning of the HB Act and is thereby precluded from recovering the damages it seeks (i.e., the amount of $74,374.63) by reason of the effect and operation of s 10(1), s 92(2) and s 94(1)(a) of the HB Act: see the Substantive Decision at [86] - [96]. 2. The Builder's "own bespoke Contract" (Substantive Decision at [87]) stated in at least six (6) places that none of the Contract Price can be claimed or retained by the Builder without it having obtained home warranty insurance (which the Builder did not obtain) and without it having provided the certificate of insurance to the Owner (which the Builder did not do). 3. The $79,500 claimed by the Builder as "damages" formed part of the Contract Price and that it is the amount, which is: "defined as being 15% of the Contract Price and does not exist independently of the Contract Price" (Substantive Decision at [88]). 4. The Builder is bound by the terms of its own Contract which are clear, and if there is any ambiguity, by interpreting the Contract against the Builder per the contra preferentum rule, citing Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560 (Mann v Paterson) where it is said that the High Court construed a home building contract against a builder (Substantive Decision at [89]). 5. The issue of whether preparatory work is "residential building work" within the meaning of the HB Act, was considered in Syed Ahmad Shoaib Ali Pty Ltd v Jandson; Jandson v Syed Ahmad Shoaib Ali Pty Ltd [2018] NSWCATAP 228 (Syed v Jandson), where the Appeal Panel stated (at [280]) that: "The language and purposes of the provisions relating to insurance seem to us to favour an interpretation of residential building work as including the preparatory work which precedes construction", and then concluded (at [298]) that the preliminary work done in that case, which consisted of obtaining structural engineering drawings, a BASIX report, a BAL certificate, a s 149 certificate, a pre-assessment of the CDC application and landscape architectural services, was "residential building work" within the meaning of the HB Act. 6. The principles as stated in Syed v Jandson at [263] - 275], & [293], are correct, and should be followed in this case, as they adopt the reasoning of Basten JA in Grygiel v Bayne [2005] NSWCA 218 (Grygiel v Bayne) at [57] - [58], which was referred to by the Court of Appeal in in Lawrence v Ciantar [2020] NSWCA 89 (Lawrence v Ciantar) at [123] - [127],: see the Substantive Decision at [93] - [94]. 7. The Tribunal rejected the Builder's submission that Syed v Jandson is too wide as to the meaning of "residential building work" for the purposes of the HB Act, and should not be followed, considering the observations of Bathurst CJ in Lawrence v Ciantar at [123] - [130]: see the Substantive Decision at [94] & [96]. 8. Moreover, the Tribunal said the reasoning of another Tribunal in Champion Homes Sales Pty Ltd v Biggs [2023] NSWCATCD 117 (Biggs) at [10] - [12] further supported its findings: see the Substantive Decision at [72] & [95].
31. For those reasons, the Builder's Application for orders of the Tribunal under the HB Act, was dismissed.

Scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) of the NCAT Act.
2. As the Appeal Panel observed in Unique Commercial Group Pty Ltd v Cusamano [2024] NSWCATAP 204 (16 October 2024), referring to relevant authorities at [25] - [40], a question of law means a pure question of law. It is not a mixed question of fact and law, and it does not depend on facts not found.
3. Accordingly, appeal grounds based on a question of law, must be articulated with precision. The categories of questions of law are not closed but will include the application of the wrong principle of law, or a failure to accord natural justice (i.e., procedural unfairness) by not responding to substantial, clearly articulated arguments based on established facts, which alternatively, may also constitute a constructive failure to exercise jurisdiction.
4. A ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits, which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense, or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see also Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [28] - [32].

Grounds of Appeal

1. The Builder's Notice of Appeal in respect of the Substantive Decision, articulates 12 grounds of appeal, all of which are said to raise questions of law. The Notice of Appeal states that the Builder is not asking for leave to appeal.
2. The grounds of appeal as stated in the Builder's Notice of Appeal, are that the Tribunal erred in law: 1. In failing to provide proper reasons as to why the Builder's submissions were not accepted and should be rejected at [86] of the Substantive Decision (Ground 1), 2. In holding that the Builder's claim for damages was or formed part of the Contract Price (Ground 2), 3. In concluding that the claim for damages was a claim for payment under the Contract (Ground 3), 4. In holding that the Builder's claim that s 92 of the HB Act required a contract of insurance under s 92 to be in force before a claim can be made: at [93] & [94] of the Substantive Decision (Ground 4), 5. In failing to decide whether work undertaken by the Builder as at date of termination was "residential building work" for the purposes of s 92 of the HB Act (Ground 5), 6. In failing to articulate any reasons why the Owner's submissions on the decision in Syed v Jandson is binding on the Tribunal and should be accepted in preference to the Court of Appeal's decision (per Bathurst CJ at [123] - [131]) in Lawrence v Ciantar as submitted by the Builder (Ground 6), 7. In failing to provide any or any articulate reasoning in response to the Builder's submissions and analysis of the relevant caselaw: at [62] of the Substantive Decision (Ground 7), 8. In failing to consider or decide on the Builder's claim of $9,874.63 as claimed in paragraph [19] of the Builder's Points of Claim and make orders accordingly (Ground 8), 9. In failing to consider the Owner's admission that the Builder was entitled to recover the amount of the work undertaken in the sum of $9,874.63 in paragraph [19] of the Owner's Amended Points of Defence (Ground 9), 10. In holding that the Builder had suffered a "similar outcome" in the Tribunal's decision in Biggs where the obiter dicta in that case at [10] - [12] dealt with the Tribunal's jurisdiction and not the issue of insurance: at [72] of the Substantive Decision (Ground 10), 11. In its construction and operation of s 92 and s 94 of the HB Act (Ground 11), 12. In its interpretation of the Contract and its purported application of the contra preferentum rule: at [89] of the Substantive Decision (Ground 12).
3. In deciding the appeal, we have had regard to the parties' written submissions filed and served prior to the appeal hearing and the oral submissions made on behalf of the parties at the appeal hearing, as well as relevant documents in the Builder's bundle of documents (319 pages) received on 4 October 2024 and comprising a copy of Mr Steve Malesev's written statement of 25 October 2023 with Exhibit SM1 (including a copy of the Contract) and a copy of the Builder's written submissions at first instance.

Consideration of the Grounds of Appeal in respect of the Substantive Decision

Generally

1. In our view, there is an overlap of the issues requiring our determination for the various grounds of appeal, such that we will consider the 12 grounds put by the Builder in its Notice of Appeal, mostly, in groups, and individually, only where appropriate. For instance, Ground 4 raises issues in respect of damages, the interpretation and operation of s 92 of the HB Act, and the Builder's challenge to Syed v Jandson.
2. There are also some grounds of appeal which are not material to the outcome of the appeal and therefore we will consider them briefly only.

Ground 1 - Inadequacy of reasons

1. It is not in dispute that to fail to respond to a "substantial, clearly articulated argument relying upon established facts" may be a denial of procedural fairness: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, at [24]. A denial of procedural fairness gives rise to a question of law.
2. Relevantly, the Builder's submissions before the Tribunal were: 1. The decision of the Appeal Panel in Syed v Jandson is inconsistent with that of the Court of Appeal in Lawrence v Ciantar, as regards the issue of what work is preparatory to residential building work. The Builder submitted that Syed v Jandson had been overruled and should not be followed. 2. The meaning of the statements of Basten JA in Grygiel v Burns at [57] should be read in the context explained by Bathurst CJ in Lawrence v Ciantar and not as read by the Appeal Panel in Syed v Jandson. 3. The Appeal Panel in Syed v Jandson wrongly conflated authorities considering the meaning of the words "residential building work" in the context of the Tribunal's jurisdiction to hear and determine a "building claim" within the meaning of the HB Act, with those relating to insurance. 4. The Tribunal should not follow the decision of the Tribunal in Biggs because Biggs was inconsistent with, and decided without reference to, the Court of Appeal decision in Lawrence v Ciantar.
3. When considering the Builder's submissions, the Tribunal concluded, relevantly: 94. I reject Champion Homes's submission that Mrs Voulgaris's reliance on Syed… is misconceived. It is perfectly appropriate for the detailed assessment of this issue in that case to be relied on and to be followed by me. Regardless of whether I am bound to follow the decision, I find the reasoning of the appeal panel to be persuasive. Essentially, the Appeal Panel adopts follows the reasoning of Basten JA in Crygiel whose interpretation was specifically referred to by the Court of Appeal in Lawrence without criticism. 95. And I find the decision of … Biggs to be consistent with those views: see [10] and [11]. 96. I see no reason to exhaustively canvass all the other submissions and authorities relied on by Champion Homes. In my view, the issue is settled …
4. We are satisfied that the Tribunal's Substantive Decision at [94] - [96] does not grapple with, or expose reasoning with respect to, answering the Builder's submissions as we have summarised them in (i) - (iv) above. The Tribunal's reasons do not consider whether Lawrence v Ciantar is inconsistent with - and impliedly overruled - Syed v Jandson. The Tribunal's reasons simply rely on Syed v Jandson, but without addressing the inconsistency issue (c.f. Substantive Decision at [62]). In our view, the Tribunal thereby erred on a question of law by failing to respond to a substantial, clearly articulated argument in the Builder's case.
5. Nevertheless, for the reasons we give hereafter in response to the other grounds of appeal (which are reasons that may also be read as our redetermination of the merits of the Substantive Decision), our finding as to Ground 1 of the appeal, in and of itself, is a not proper basis for us to disturb the Tribunal's order in the Substantive Decision, which was to dismiss the Builder's Application for relief under the HB Act.

Grounds 2, 3, & 4 - Damages

1. These 3 grounds of the appeal refer to the Tribunal's finding at [88] of the Substantive Decision that the Builder's damages calculated as 15% of the Contract Price, were a payment of the Contract Price or a part thereof. The Builder contends that its damages' amount of $79,000 (i.e., before the addition of the $9,874.63 for reimbursement of fees and charges, and the subtraction of the credit of $15,000 for the tender fee, to calculate the claim of $74,374.63), is independent of the Contract and therefore, it is not related to the Contract Price, because contractually, clauses 29(1)(b) and 44.15 do not lend themselves to that construction. The language of those clauses "in the sum equivalent to" provides, in the Builder's submission, a formula to calculate the damages payable at the end of the Contract to the Builder, and in that way, cannot be phraseology which permits the interpretation that damages are a payment of part of the Contract Price.
2. In our view, the Builder's submission focuses upon the manner of calculation of the quantum of the damages under clauses 29(1)(b) and 44.15, which is not in dispute, but does not address, adequately, or at all, the legal basis of what the amount of $79,500 is compensating to it, if that amount is not an entitlement arising under the Contract. Materially, this question is not answered by the Builder's submission that agreed damages clauses such as clauses 29(1)(b) and 44.15, stand, unless shown to be a penalty.
3. Although the Owner contends that the Builder's claim for damages under those clauses operates as a penalty in the circumstances, it is unnecessary for us to decide that matter. This is because, in our determination, the Contract Price is the only benefit to which the Builder is entitled under the Contract. There is no relationship between the Builder and the Owner other than the Owner's engagement of the Builder to construct a two-storey dwelling on the Site for the Contract Price.
4. In the circumstances of this case, it was the Owner's failure to put funds commensurate with the Contract Price into a bank account as a security deposit, that gave rise to the Builder's right to terminate the Contract and thereafter, to make its claim for $74,374.63 under the agreed damages' clauses. Furthermore, the claim in the amount of $74,374.63 necessarily refers to the Contract Price, because of the credit ($15,000) allowed for the tender fee. As was stated in Mr Malesev's statement of 25 October 2023 at [16], and which was accepted as an agreed fact for the Tribunal's hearing on the papers on 29 July 2023, the amount of $15,000 "would be credited towards the contract price upon entering into a building contract".
5. Moreover, these grounds of the appeal must fail because of the terms of the Contract, which the Builder prepared, and which the Builder has not complied with. Pertinently, the Contract says in various places (i.e., Schedule 1 'Particulars of Contract', Schedule 6 'Warranty Insurance', immediately after the Builder's signature space, and General Conditions, clauses 1, 3, 38, and 39) that none of the Contract Price can be claimed or retained by the Builder without it having obtained home warranty insurance (which the Builder did not obtain) and without it having provided a certificate of insurance to the Owner (which the Builder did not do).
6. Fundamentally, the Builder's argument about the liquidated damages not being part of the Contract Price cannot advance its case for relief under the HB Act in any event considering s 92(2), because under that sub-section, requiring a payment under a contract to do residential building work without insurance is not allowed, whether (or not) work has commenced.

Grounds 4 & 11 - Interpretation of the HB Act

1. These grounds refer to the Tribunal having erred in its interpretation of s 92 and s 94 of the HB Act, by concluding that they preclude the Builder's claim for orders under the HB Act.
2. However, these grounds could only be challenging the issue under s 92 because, considering the rejection of Appeal Grounds 2 and 3 for the reasons set out above, in our determination, the issue under s 94 is clear and fatal to the Builder.
3. Insofar as Ground 11 refers to s 94 of the HB Act, the Builder relies on the same submission in respect of Grounds 2 and 3 (i.e., that its claim under clauses 29(1)(b) and 44.15 are not a payment of the Contract Price). However, those Grounds fail for the reasons already given.
4. The Builder further says that s 94 does not operate as the Owner advocates. Referring to the nature of the work that had been carried out to the date of termination of the Contract, the Builder argues such work does not require home warranty insurance. It is an argument that bears upon the proper interpretation and operation of s 92 in the circumstances of the case and is addressed below.
5. We are satisfied that the Tribunal's Reasons for the Substantive Decision, sufficiently address the proper interpretation of s 94 and why it operates for the Owner's benefit in the circumstances. We find that the language of s 94(1)(a) (i.e., "is not entitled to damages, or to enforce any other remedy") clearly encompasses the Builder's damages' claim. Moreover, the Builder, not having home warranty insurance and therefore being in breach of s 94, is disentitled by s 10 of the HB Act to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract.
6. Insofar as Grounds 4 and 11 rely upon s 92(1) of the HB Act, the Builder's submission is that no "residential building work under a contract" within the meaning of the HB Act, occurred. Essentially, this is a submission that the Builder did preparatory work required by the DA but not physical work on Site, so by reason of that circumstance, it cannot be "residential building work" for the purposes of the HB Act. Such work, it was argued, required actual physical work during construction.
7. We disagree with the Builder's submission. It is contrary to a line of authorities - discussed below - commencing with Grygiel v Bayne, where Basten JA (with whom Mason P agreed) said at [57]: On one view, the definition of "residential building work" is not limited to activities, such as laying of foundations and painting a building on site but extends to work of a preparatory nature.
8. Work of a preparatory nature references the definition of "residential building work" in clause 2(1)(a) of Schedule 1 of the HB Act, as follows: any work involved in, or involved in co-ordinating or supervising any work involved in-- (a) the construction of a dwelling …
9. We are satisfied that the preparatory work on Site required by the DA was work involved in co-ordinating or supervising work for the construction of the two-storey dwelling on Site which was the subject of the Contract, and that this constituted "residential building work" as that expression is defined in the HB Act.
10. Further, even if that were not the case, the prohibition against demanding or receiving a payment under a contract for residential building works without an insurance certificate in s 92(2) applies whether (or not) work under the contract has commenced. The Builder's claim for liquidated damages was a demand for payment under a contract to do residential building work.

Grounds 4, 5, 6, & 7 - Challenge to Syed v Jandson

1. These are the grounds of the appeal, which challenge the Appeal Panel's reasoning and conclusion about the meaning of "residential building work" in Syed v Jandson at [263] - [275], [295]. The Tribunal quoted those paragraphs, and then applied the Appeal Panel's reasoning for the Substantive Decision at [93] and [96].
2. Pertinently, the Builder's challenge refers to Lawrence v Ciantar, where Bathurst CJ (with whom Meagher & Gleeson JJA agreed) said: 123. In concluding that part of the preliminary work required by the November Agreement, namely, the establishment of "the requirements as to any variations in the manhole and the 150 mm drainpipe" fell within the definition of "residential building work", the primary judge placed reliance on what was said by Basten JA in Grygiel v Baine [2005] NSWCA 218 ("Grygiel") at [57]. As part of a discussion in that case of other definitions in the Home Building Act, Basten JA made the following remarks: "It is not necessary to determine whether, in relation to the first limb of the definition, services can be supplied 'for or in connection with' the carrying out of residential building work, for the purposes of the definition of 'building goods or services', where no residential building is in fact carried out. On one view, the definition of 'residential building work' is not limited to activities, such as laying foundations and painting a building, on site, but extends to work of a preparatory nature. Alternatively, preparatory work could be said to have a sufficient connection with the carrying out of building work because its purpose was to give rise to residential building work and it had a sufficient causal nexus with such work ... Accordingly, it is at least arguable that project management arrangements, of the kind addressed in both Collings Homes cases, would fall within the definition of 'building claim'. Were that not the case, distinctions would need to be drawn which might have an arbitrary result, at least from the perspective of the homeowner. Thus, where an architect or project manager provides plans and designs, locates a builder and coordinates and supervises the actual building work, any loss suffered as a result of inadequate coordination and supervision would fall within the building claim, but other conduct would not." 124. Senior counsel for the appellant submitted that the use of the words "involved in" in the definition of "residential building work" meant that the work was required to be part of the construction of the dwelling. He submitted that although the work the subject of the November Agreement might have a broad connection with the construction work undertaken, it did not form part of it. 125. Senior counsel for the respondents referred to the width of the definition of "dwelling" in cl 3 of Sch 1 of the Home Building Act. She submitted that establishing the requirements as to the variation of the manhole and the drainage pipe constituted preparatory work for the construction of a dwelling, having regard to the inclusions of things such as driveways and drainage in the definition of "dwelling" in cl 3(2). 126. In the passage from Grygiel cited by the primary judge, Basten JA was primarily dealing with the definition of "building goods or services" in s 48A of the Home Building Act These services were relevantly defined in s 48A as "goods or services supplied for or in connection with the carrying out of residential building work ..." Section 48A is contained in Pt 3A of the Home Building Act which deals with the resolution of building disputes. 127. The issue in Grygiel was whether an advice in relation to a building contract fell within the definition of "building goods or services" such as to give the (then) Consumer, Trader and Tenancy Tribunal jurisdiction to resolve a claim for negligence against the solicitor in respect of the advice. The Court was thus concerned with the question of whether the provision of the advice was a service supplied for or in connection with the carrying out of what was admitted to be residential building work. That is clear from the paragraph of the judgment in Grygiel at [58] which immediately follows the passage cited by the primary judge: "That is not to say that the jurisdiction of the Tribunal under the Home Building Act should be expanded beyond the proper construction of the terms used in Part 3A. The fact that the Tribunal has a jurisdiction under that Part up to $500,000, whereas its current jurisdiction under the Consumer Claims Act is limited to $25,000, demonstrates the need to maintain proper limits on the jurisdiction. Nevertheless, to the extent that the statutory terminology permits, those limits should not be arbitrary, nor should an unduly restrictive construction be given to the words of the statute, especially to the extent that they mirror the terminology of the Consumer Claims Act. Of particular concern would be a construction which meant that services of a project manager might fall within the definition of 'building claim' where residential building works actually eventuated, but not otherwise. Such a distinction can be avoided if the phrase 'the carrying out of residential building work' is treated as adjectival, in the sense that it is descriptive of the services with which a connection must be established, rather than being treated as a factual pre-condition to the necessary connection." 128. By contrast to the definition of "building goods or services", the definition of "residential building work" uses the expression "work involved in the construction of a dwelling". That may include preparatory work such as laying foundations or otherwise preparing the site for construction (noting that demolition work is expressly excluded), but it does seem to me to require a closer connection with the construction of a dwelling than that required for a claim to fall within the definition of "building goods or services". 129. Whilst the work in question in the present case - "[e]stablish the requirements as to any variations in the manhole and the 150 mm drainpipe" - may be said to be work in connection with the proposed subdivision, in my opinion, such an investigation is too remote to fall within the definition of "residential building work". 130. It follows this ground of appeal has been made out. 131. However, having regard to my conclusion on grounds 1 to 5 this conclusion does not affect the result.
3. The Builder submitted it could be inferred from this passage of the Court of Appeal that the Appeal Panel's view in Syed v Jandson that preparatory work can be "residential building work" for the purposes of the HB Act, is not maintainable and should not have been followed by the Tribunal in the Substantive Decision. The Builder further argued that the Court of Appeal had found the words of Basten JA in Grygiel v Bayne at [57] were limited to jurisdiction and not to preparatory work at large.
4. We do not read the Court of Appeal decision in Lawrence v Ciantar in the way contended by the Builder in this appeal. Put in its proper context, the Court of Appeal at [123] - [131] was addressing a ground of appeal arising from the primary decision of Henry J in Lawrence v Ciantar; Ciantar v Lawrence (2019) NSWSC 464. On appeal from the primary decision, the appellant argued that certain work of a preparatory nature that had been found to be residential building work, was too remote to fall within the definition of "residential building work" for the purposes of the HB Act.
5. The work in question before Henry J arose in the context of the preparation of a development application for a 3-lot subdivision of residential property. It was described by the parties' joint venture agreement in paragraph 6, item 4, as works by way of an investigation to 'establish the requirements as to any variations in the manhole, and the 150mm drainpipe'. In essence, these were works relating to possible changes to drainage works on the subdivision involving a manhole and drainpipe.
6. Her Honour (at [143]) had cited Grygiel v Bayne (per Basten JA at [57]) and Syed v Jandson (at [276]) as authorities for the proposition that "works of a preparatory nature may come within the definition of residential building work under the Home Building Act if they are in readiness or preliminary to residential building works". Henry J had then found (at [145]) that the description in paragraph 6, item 4, of the joint venture agreement, which related to possible drainage works "appear(ed) to be in readiness for, and causally connected to, the DA works", and that it fell within the definition of "residential building work" for the purposes of the HB Act.
7. In Lawrence v Ciantar the Court of Appeal found (at [129]) that the work in question may have had a connection with the proposed residential subdivision, but that the work contemplated in paragraph 6, item 4 of the joint venture agreement, was too remote to fall within the definition of "residential building work" (clause 2(1)(a) of Schedule 1 of the HB Act).
8. In our determination, there is nothing in Lawrence v Ciantar which helps the Builder in this appeal. That case was decided on its own facts, which are materially different to the facts of this case, where the preparatory work was required to be done as a condition of an approved DA for the construction of the residential dwelling. Pertinently, the Court of Appeal was looking at potential issues on a site which were ultimately found not to be work "involved in … the construction of a dwelling" within the definition of "residential building work" in clause 2(1)(a) of Schedule 1 of the HB Act. In this case, the evidence available to the Tribunal pointed to the contrary conclusion. The Court of Appeal did not overturn the line of authority commencing with Grygiel v Bayne, which is that preparatory work, provided it is work "involved in" the construction of a dwelling, can be "residential building work" for the purposes of the HB Act.
9. To the extent there is any challenge by the Court of Appeal to the reasoning of Syed v Jandson, it is that there must be a close connection between preparatory work and construction. Pertinently, investigative works were performed at the Site in compliance with the DA for the Owner's dwelling. That is a very different situation to what occurred in Lawrence v Ciantar, where the investigations into necessary specifications were not done on site and were in preparation for the submission of a development application for the residential subdivision, not the construction of a dwelling. By contrast, in the circumstances of this case, there is a more proximate and closer link between the work of a preparatory nature and the construction of the Owner's dwelling.
10. For those reasons, the grounds of appeal based upon a challenge to the reasoning and conclusions of Syed v Jandson about the meaning of "residential building work" for the purposes of the HB Act, must fail. We reject the Builder's contention there is binding authority which requires that work of a preparatory nature must involve physical work on site during construction of a residential dwelling.

Grounds 8 & 9 - Payment to Builder under clause 5

1. These grounds refer to the amounts totalling $9,874.63 which were claimed by the Builder under clause 5 of the Contract (see [19] of the points of claim) on account of its out-of-pocket expenses for geotechnical report, contour survey, council application fees, engineering detail, and sewer peg out.
2. We find it is of no moment to the Builder's appeal because the Owner had conceded in her points of defence that the Builder was entitled to recover the $9,874.63. In our determination, nothing turns on these grounds of appeal. In the events which have occurred, the Builder has retained the $9,874.63. It is part of the $15,000 tender fee, which the Builder received from the Owner on 4 May 2022.
3. The appeal in respect of Grounds 8 and 9 accordingly fails.

Ground 10 - Decision in Biggs

1. We are satisfied that [95] of the Substantive Decision is not part of the Tribunal's dispositive reasoning; rather, the paragraph notes that its analysis of binding authority is consistent with the comments made in Biggs at [10] - [11]. Further, for the reasons already given, but especially in the context of the line of authority commencing with Grygiel v Bayne, there was no error in any event.
2. This ground of the appeal has no merit, and therefore, it is dismissed.

Ground 12 - The contra preferentum rule and Mann v Paterson

1. The contra preferentum rule was not the subject of the High Court's decision in Mann v Paterson, which decided that the upper limit of a builder's claim under quantum meruit is commensurate with the contract sum.
2. However, notwithstanding the Tribunal's incorrect statement at [89] of the Substantive Decision as to what was decided in Mann v Paterson, this ground of appeal does not affect the outcome and [89] of the Substantive Decision was not part of the Tribunal's dispositive reasoning.
3. In fact, given that the Tribunal made no finding of ambiguity in the terms of Contract, the contra preferentum rule, which may otherwise have applied, does not arise.
4. The appeal in respect of this ground accordingly fails.

Conclusion as regards the Appeal of the Substantive Decision

1. For the above reasons, the appeal is dismissed.

Appeal of the Tribunal's Costs Decision

1. As noted above, the Builder also appealed the Tribunal's Costs Decision, which was published on 20 September 2024. Rule 38 of the NCAT Rules applied to costs of the Tribunal proceeding, because what was claimed in the Tribunal proceeding, exceeded $30,000. The Tribunal's orders of 20 September 2024, were: (1) The applicant is to pay the respondent's costs to 17 July 2024 on the ordinary basis. (2) The applicant is to pay the respondent's costs from 17 July 2024 on the indemnity basis.
2. In fact, the date, 17 July 2024, in the costs' orders will likely require amendment due to a clerical or typographical error that is obvious, because the Costs Decision clearly referred to a letter dated 17 July 2023 (see below), as the correspondence upon which the Tribunal Member based the costs' orders, especially the order for indemnity costs.
3. However, an amendment of the orders to reflect the date, 17 July 2023, is not a matter for the Appeal Panel, although our reasons proceed on the basis that it is the correct date. We will leave it to the Owner's solicitors to pursue any amendment required under the presiding Member's authority (NCAT Act, s 63) to correct an obvious error in the orders of 18 September 2024.
4. Given our conclusion that the Appeal of the Substantive Decision is dismissed, the Owner remains the successful party in the Tribunal proceeding. Therefore, applying well established principles in the exercise of the Tribunal's costs' discretion under r 38, that is, that costs 'followed the event', and there was no disentitling conduct by the successful party or other matters warranting a different order (and none were claimed), we do not propose to set aside the Tribunal's order in respect of the costs of the proceeding on the ordinary basis.
5. The real issue for the Builder's appeal of the Costs Decision is whether an indemnity costs order should have been made.
6. In its reasons for the Costs Decision, the Tribunal set out at [15] the text of a letter dated 17 July 2023 to the Builder from the Owner's solicitors, containing an offer of settlement of the proceeding (the Calderbank Offer) expressed to be made in accordance with the principles in Calderbank v Calderbank (1975) 2 All ER 333. In essence, the Calderbank Offer was that in consideration of the parties signing a Deed of Settlement and Release with mutual releases of their respective rights and obligations under the Contract, the Owner would pay the Builder an amount of $30,000, in addition to the Builder retaining the $15,000 (i.e., the tender fee) the Owner had already paid to the Builder on 4 May 2022.
7. At [17] - [27] of the Costs Decision, after referring to the principles as stated by Basten JA (with whom McColl and Campbell JJA agreed) in Miwa v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344 at [12], the Tribunal considered, firstly, whether the Calderbank Offer was a genuine offer of compromise, and secondly, whether it was unreasonable for the Builder not to accept the Owner's Calderbank Offer.
8. The Tribunal was satisfied that the Owner's Calderbank Offer was genuine and that there was a clear element of compromise within the Offer, in that the Owner, who did not want to pay the Builder anything, was offering it $30,000, being about 40% of the amount the Builder was claiming in the proceeding.
9. As to the second question (i.e., whether it was unreasonable for the Builder not to accept the Builder's Offer), the Tribunal considered these matters:
10. the stage of the proceeding at which the Offer was received, which was, in fact, prior to the commencement of the proceeding on 2 August 2023, and after a Round Table conference on 12 July 2023,
11. the time allowed to the Builder to consider the Offer, which was a period of 7 days (i.e., until 5 pm Monday 24 July 2023), and which was found to be "an appropriate period and was not claimed otherwise by (the Builder)" (Costs Decision at [22]),
12. the Builder's prospects of success as at the date of the Offer, where the Tribunal observed that there was no basis upon which the Builder could say it "was not fully apprised of the issues involved in the case" (Costs Decision at [25]),
13. the clarity with which the terms of the Offer were expressed, of which the Tribunal found there was no doubt, and
14. whether the Offer foreshadowed an application for indemnity costs in the event of the Builder not accepting the Offer, of which the Tribunal also found there was no doubt.
15. The Tribunal concluded "on the cumulative strength of all these factors considerations, in my view Mrs Voulgaris has established an entitlement to an order for indemnity costs from 17 July 2023" (Costs Decision, at [27]).
16. Further, the Tribunal acknowledged that the making of a Calderbank offer does not automatically result in a favourable costs order, even if the ultimate judgement of the Tribunal is more favourable to the party making the offer than the terms of the offer, i.e., the party making a Calderbank Offer still carries the onus of satisfying the Tribunal that it should exercise the costs' discretion in that party's favour: Jones v Bradley (No 2) [2003] NSWCA 258, [5]; Old v McInnes and Hodgkinson [2011] NSWCA 410, [22].
17. On the available evidence, the Tribunal determined (see Costs Decision at [30]) that it should exercise the costs' discretion in the Owner's favour: Nevertheless, given the early stage at which the Calderbank Offer was made, that is pre-litigation, and in an attempt to reduce or contain costs, given the generosity of the offer and particularly given the uncertainty as to outcome, and taking into consideration 'the fundamental rationale' for awarding costs is that such an award is compensatory (and not punitive): Latoudis v Casey [1990] HCA 59 at [13]; (1990) 170 CLR 534 at 543, in the exercise of my discretion I am satisfied that the appropriate costs order is as set out below.
18. The Builder's principal submission was that its failure to accept the Owner's Calderbank Offer in July 2023 was not unreasonable because the Offer could "in no way predict the strength or weakness of the case" (see Builder's Appeal Submissions dated 2 October 2024 at [69]).
19. In essence, the Builder's submission is that the Tribunal's discretion as to whether (or not) to make an indemnity costs' order, miscarried, because the discretion was exercised unreasonably and, in a manner, inconsistent with that of a reasonable decision-maker.
20. However, we are not persuaded that the Tribunal erred in exercising its discretion to make an indemnity costs order.
21. The Tribunal applied the correct legal principles. We observe also that the general function of a letter containing a Calderbank offer is to promote settlement of disputes, in addition to its more particular application in claims for indemnity costs: see, for example, Rickard Constructions v Rickard Hails Moretti [2005] NSWSC 481 at [12].
22. Further, in the context of proceedings in the Tribunal, as was said in Kursun v Gareffa (No 2) [2017] NSWCATCD 23 at [28]: The Tribunal encourages the settlement of matters for reasons both of public policy and private interest. The Tribunal's guiding principle is the just quick and cheap resolution of the real issues in the proceedings: see s 36 (1) of the NCAT Act.
23. There is no doubt that the settlement sum (in substance, $45,000) offered to the Builder in the letter of 17 July 2023, significantly bettered the ultimate outcome of the proceeding, which is now upheld on appeal. In fact, the settlement sum that was offered to the Builder, represented a significant compromise on the Owner's part. We agree with the Tribunal's assessment that the Builder was fully apprised of the issues involved in the case when it and its advisers were called upon to consider the Calderbank Offer and we note that it rejected the Offer without even making a counteroffer.
24. We accept that the Tribunal's findings regarding the exercise of the costs' discretion in the Owner's favour, as summarised at [30] of the Costs Decision, were reasonably open on the available evidence, and determine that they should not be disturbed.
25. For the foregoing reasons, the Builder's appeal from the Costs Decision must be dismissed.

Costs of the appeal proceeding

1. The Owner has been successful on appeal. By virtue of r 38A, of the NCAT Rules, r 38 applies to the Builder's appeal proceeding. This is because the amount in dispute in the appeal proceeding exceeded $30,000. Special circumstances do not need to be established to warrant an order for costs and the Appeal Panel may exercise the costs' discretion. Given the Owner's success in having the appeals from the Substantive Decision and the Costs Decision both dismissed, our view is that costs 'follow the event' and there being no disentitling conduct by the Owner, the Builder should be ordered to pay the Owner's costs of the Builder's appeal on the ordinary basis.
2. However, if a different costs order is contended for by a party in the appeal proceeding because there are circumstances of which we are unaware, or otherwise, we have made orders and directions for the filing and service of evidence and submissions as regards the issue of costs only.

Orders

1. We make the following orders:
2. The appeals of Champion Home Sales Pty Ltd from the orders of the Tribunal for case no HB 2023/00382187 in the Substantive Decision made on 29 July 2024 and the Costs Decision made on 18 September 2024, are dismissed.
3. Champion Home Sales Pty Ltd is to pay the respondent's costs of the appeals on the ordinary basis, as agreed or assessed.
4. The following orders apply if a party contends for a different costs order in relation to the appeal proceedings: 1. Order 2 above ceases to have effect if an application for a different costs order is made in the appeal proceedings. 2. The party contending for a different costs order (the costs applicant) is to file and serve the application for costs, supported by evidence and submissions, within 14 days of the date of these orders. 3. The other party (the costs respondent) is to file and serve any evidence and submissions in response to the costs' application within 28 days of the date of these orders. 4. The costs applicant is to file and serve any material in reply within 35 days of the date of these orders.
5. Subject to the parties' submissions on this point, the Appeal Panel proposes to determine any application for a different costs order in the appeal proceedings without a hearing based on the written submissions and evidence provided, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 NSW.

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: 29 November 2024