[1996] HCA 36
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
[1993] FCA 456
Compare Modbury Triangle Shopping Centre Ltd v Anzil (2000) 205 CLR 254
[2000] HCA 61.
Crystele Designer Homes Pty Ltd v Wood [2023] NSWCATAP 242
House v The King (1936) 55 CLR 499
[1936] HCA 40
Kirk v Industrial Court of NSW (2010) 239 CLR 531
Source
Original judgment source is linked above.
Catchwords
[1996] HCA 36
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280[1993] FCA 456
Compare Modbury Triangle Shopping Centre Ltd v Anzil (2000) 205 CLR 254[2000] HCA 61.
Crystele Designer Homes Pty Ltd v Wood [2023] NSWCATAP 242
House v The King (1936) 55 CLR 499[1936] HCA 40
Kirk v Industrial Court of NSW (2010) 239 CLR 531[2010] HCA 1
McGee v Yeomans [1977] 1 NSWLR 273
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
[1998] HCA 28
Public Service Association (S.A.) v Federated Clerks Union (No 1) (1991) 173 CLR 132
[2017] HCA 34
R v Hickman
Ex parte Fox and Clinton (1945) 70 CLR 598
Judgment (11 paragraphs)
[1]
gory: Procedural rulings
Parties: Crystele Designer Homes Pty Ltd (Plaintiff)
David Alexander Boyne Wood (First Defendant)
NSW Civil and Administrative Tribunal (Second Defendant)
Representation: Counsel:
A Ahmad with J Simpson (Plaintiff)
G Carolan (First Defendant)
Submitting appearance (Second Defendant)
HIS HONOUR: By Summons filed 6 September 2023, the plaintiff, Crystele Designer Homes Pty Ltd (ABN 52123978674) (hereinafter "Crystele" or "the plaintiff"), seeks to appeal a decision of an Appeal Panel ("the Appeal Panel") of the NSW Civil and Administrative Tribunal (hereinafter "the Tribunal" or "NCAT") issued on 29 August 2023, pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (hereinafter the "NCAT Act").
The appeal relates in part to the determination by the Appeal Panel that the Tribunal had jurisdiction to adjudicate on a claim under the Home Building Act 1989 (NSW) in respect of defects that did not constitute a major defect for the purposes of the Home Building Act, purportedly made after the period stipulated by s 18E of the said Act.
Alternatively, relief is sought for judicial review of the aforesaid Decision, pursuant to the terms of s 69 of the Supreme Court Act 1970 (NSW).
The plaintiff submits that the Decision discloses jurisdictional error and error of law.
The Summons was amended by an Amended Summons dated 6 November 2023, which sought an order that the proceedings in the Court "be removed into the Court of Appeal". The foregoing aspect of the Summons has already been finalised and dismissed.
As may be obvious to anyone familiar with the provisions of the Home Building Act, one of the issues between the parties is the statutory warranty prescribed by the Home Building Act and the time limit imposed on a party seeking to take advantage of that statutory warranty. It is necessary to explain more fully the statutory regime and the right of appeal, of which the plaintiff seeks to take advantage.
[4]
Legislative Provisions
Without extracting or reciting same, it is necessary to explain the provisions of s 83 of the NCAT Act. The provision allows a party to an appeal, external or internal, to appeal on a question of law to the Court against any decision made by the Tribunal but, relevantly to the issues before the Court in these proceedings, only with the leave of the Court.
On hearing an appeal, assuming leave has been granted, the Court may affirm, vary, or set aside the Decision and remit the case to be heard and decided by the Tribunal in accordance with law or the directions of the Court.
It is necessary to have regard to the detailed provisions of the Home Building Act, and therefore, it is necessary to recite and/or summarise those provisions.
The provisions of s 18B of the Home Building Act set out the warranties relating to residential building work, which cover the work in question in these proceedings, while the provisions of s 18BA set out the duties imposed upon a person who has the benefit of the statutory warranty. Those duties include the duty to mitigate loss, although the onus of establishing a failure to mitigate loss is on the party alleging the failure.
The terms of s 18BA(3) require the beneficiary of the statutory warranty (hereinafter "the beneficiary") to make reasonable efforts to ensure that the person (hereinafter "the builder") against whom the warranty can be enforced is given notice in writing of the breach and to do so within six months after the breach becomes apparent. Once such breach has been brought to the notice of the builder, the terms of s 18BA(3) require the beneficiary to allow the builder access to the residential building work so as to rectify the breach.
In relation to the issues now before the Court, the provisions of s 18E of the Home Building Act are most relevant. Those provisions relate to the time before which proceedings must be commenced in relation to the breach of statutory warranty. The relevant provisions of s 18E of the Home Building Act are in the following terms:
"18E Proceedings for breach of warranty
(1) Proceedings for a breach of a statutory warranty must be commenced in accordance with the following provisions -
(a) proceedings must be commenced before the end of the warranty period for the breach,
(b) the warranty period is 6 years for a breach that results in a major defect in residential building work or 2 years in any other case,
(c) the warranty period starts on completion of the work to which it relates (but this does not prevent proceedings from being commenced before completion of the work),
(d) if the work is not completed, the warranty period starts on -
(i) the date the contract is terminated, or
(ii) if the contract is not terminated - the date on which work under the contract ceased, or
(iii) if the contract is not terminated and work under the contract was not commenced - the date of the contract,
(e) if the breach of warranty becomes apparent within the last 6 months of the warranty period, proceedings may be commenced within a further 6 months after the end of the warranty period,
(f) a breach of warranty becomes apparent when any person entitled to the benefit of the warranty first becomes aware (or ought reasonably to have become aware) of the breach.
…
(4) In this section -
major defect means -
(a) a defect in a major element of a building that is attributable to defective design, defective or faulty workmanship, defective materials, or a failure to comply with the structural performance requirements of the National Construction Code (or any combination of these), and that causes, or is likely to cause -
(i) the inability to inhabit or use the building (or part of the building) for its intended purpose, or
(ii) the destruction of the building or any part of the building, or
(iii) a threat of collapse of the building or any part of the building, or
(b) a defect of a kind that is prescribed by the regulations as a major defect, or
(c) the use of a building product (within the meaning of the Building Products (Safety) Act 2017) in contravention of that Act.
Note -
The definition of major defect also applies for the purposes of section 103B (Period of cover).
major element of a building means -
(a) an internal or external load-bearing component of a building that is essential to the stability of the building, or any part of it (including but not limited to foundations and footings, floors, walls, roofs, columns and beams), or
(b) a fire safety system, or
(c) waterproofing, or
(d) any other element that is prescribed by the regulations as a major element of a building."
[5]
Application before the Tribunal
The work under the contract began, as may be obvious, after consent to the development application and a construction certificate issued on 27 February 2018.
Practical completion occurred on 9 November 2018, and an occupation certificate issued on 6 November 2018. The final payment occurred on 5 November 2018.
The proceedings were commenced by a document dated 12 October 2020 and seemingly filed (stamped as filed) on 14 October 2020 in which application the defendant, in these proceedings, sought a work and money order for an amount to be advised. The application alleged defects constituting breaches of the statutory warranties provided by s 18B of the Home Building Act and, at commencement, the alleged defects were described as:
"Major ingress of water through walls and windows both on the ground and first floor. Painting defects. Expert report to be provided upon service of evidence. Other defects to be identified."
By Points of Claim filed 13 November 2020, the defendant claimed 22 defects identified in Annexure A as "preliminary defect list…preliminary only. Requires further inspection."
The proceedings were heard between 16 November 2021 and 25 May 2022, with written submissions extending from 12 August 2022 to 22 December 2022. The matter was heard by GK Burton SC, Senior Member, and the learned Senior Member issued his decision on 22 May 2023. [8]
The Points of Claim, filed on 13 November 2020 and claiming 22 defects, was four days outside the two-year time limit in relation to defects other than "major defects" prescribed by the Home Building Act.
The learned Senior Member made orders for the payment of money by the plaintiff herein to the defendant herein and gave directions for the question of costs to be determined on the papers.
The order for the payment of the money order ($194,909.34) was stayed on certain conditions, such stay being effective from 23 June 2023.
On 13 June 2023, Crystele Designer Homes Pty Ltd, the plaintiff herein, applied for an internal appeal, which was heard on 14 August 2023 and the Appeal Panel (A Suthers, Principal Member, and G Blake AM SC, Senior Member), refused leave to appeal and otherwise dismissed the appeal, ordering Crystele to pay Mr Wood's costs. [9]
[6]
Summons
Apart from the earlier-mentioned procedural relief relating to removal to the Court of Appeal, the substantive relief sought in the Summons was to allow the appeal and make an order dismissing the application to the Tribunal or, alternatively, remittal of the matter for re-hearing by a differently constituted Tribunal in accordance with the law. Further, the Summons seeks judicial review under s 69 of the Supreme Court Act 1970 (NSW) and the remittal of the matter to the Tribunal.
As already stated, an appeal under s 83 of the NCAT Act requires leave. Ordinarily, where an appeal lies under statute from an administrative decision, an application for judicial review on the same grounds and to achieve the same result may be an abuse of process. No issue has been raised in that regard, and I do not deal with the issue further. However, if leave were not to be granted on an issue, there may be good reason to exercise the discretion available to the Court not to grant judicial review on the same basis.
The grounds raised by the amended Summons alleged, as earlier stated that the Tribunal erred in determining it possessed jurisdiction to adjudicate a claim in respect of defects that do not constitute a major defect and that did not form part of the application lodged because they were outside the time period stipulated by s 18E of the Home Building Act (Ground 1).
Jurisdictional error occurred as a result of the Tribunal taking into account an irrelevant consideration, namely, the connection between the list of defects identified in the Points of Claim and the nature of the defects ultimately adjudicated on by the Tribunal, to conclude that the difference between additional defects and the defects identified in the application was not acute (Ground 2).
There was error on a question of law as a result of the Tribunal affirming the construction of the Building Contract determined by the Senior Member relating to the obligation to comply with the architectural plans for ceiling heights and, as a result, finding a breach of the Building Contract (Ground 3).
An error of law existed as a result of the Appeal Panel "not genuinely and realistically considering the statutory preference of a rectification order" as against a money order or in not exposing the reasoning process that illustrated such consideration (Ground 4).
[7]
Plaintiff's Submissions
The plaintiff's submissions recast (without amendment) the foregoing appeal grounds. Ground 2 is cast as an error of law arising from the conclusion of the Appeal Panel reached by "taking into account the nature of the asserted defects identified in the Points of Claim that were filed after the expiry of the limitation period".
Ground 3 has been recast as a question, being "whether the construction of the Building Contract was such that it obliged the plaintiff to deliver ceiling heights consistent with the building plans after linings had been applied to the surface flooring" and, for the first time, Ground 4 is cast in terms of a failure to consider a mandatory relevant consideration, as distinct from a failure genuinely and realistically to consider the statutory preference of a rectification order. Only the re-wording of Ground 4 might affect the issues before the Court.
The plaintiff's submissions summarise the Agreed Facts and, in so doing, detail the chronology of the completion of the work, the timing of the application by the defendant and the wording of that application, together with the timing of the Points of Claim filed in NCAT, to which the Court has referred above.
The submissions then refer to the litigation associated with what was described as the "Parkview Proceedings", being a reference to the judgments of the Court, at first instance and on appeal. [10] The timing of the judgment in the Parkview litigation is such that the first-instance decision maker in this controversy did not have the benefit of submissions on the Parkview Appeal, but the Appeal Panel did. The plaintiff submits that the Appeal Panel did not consider it necessary to apply the underlying doctrinal analysis in the Parkview Appeal.
Reference is then made by the plaintiff in its submissions to the date of completion of residential work by reference to s 3B of the Home Building Act. The date of completion is uncontroversial in these proceedings.
The plaintiff then excerpts the relevant provisions of Part 3A, Division 4 of the Home Building Act, together with the definitions in s 48A of the aforesaid Act.
The plaintiff's submissions then set out the warranties in ss 18B and 18C and the terms of s 18E, which deal with the commencement of proceedings for a breach of the said statutory warranties. The relevant terms of s 18E of the Home Building Act are extracted above.
[8]
Defendant's Submissions
First, the defendant submits that the plaintiff has not identified errors of law by the Appeal Panel and, secondly, the issues raised are not such that leave to appeal should be granted and, in the latter submission, reliance was placed upon the comments of Basten JA. [14]
In relation to Grounds 1 and 2, the defendant submits that the application before the Tribunal is not a "pleading", and the essential aspect of the plaintiff's claim is that the application should be elevated to the status of a pleading. There is a degree of informality in the Tribunal's practice, which is one of the purposes of the creation of NCAT. The directions for the filing of the Points of Claim were directions made by consent, and those Points of Claim identified 22 defects as particulars of the breach of statutory warranty identified in the Points of Claim, which was filed as a consequence of the commencement of proceedings by the application.
The Civil and Administrative Tribunal Rules 2014 require general applications but do not deal with amendments or the filing of Points of Claim. The effect of the direction for the filing of the Points of Claim amounted to an amendment to the application commencing the proceedings. It is sufficient for the application to allege the existence of non-major defects for the statutory limitation to be satisfied. Reliance was placed upon the judgment of Hammerschlag J (as the Chief Judge in Equity then was). [15]
The comments of Leeming JA on which the plaintiff relied, described as "obiter", relate to a difference in the nature of defects that is acute. In the current proceedings, the difference is not acute because the application was filed within the time for non-major defects, and the single cause of action for breach of the statutory warranties allows the particulars to be given in the manner in which they were.
As to Ground 3, the defendant submits that Ground 3 does not raise a question of law and that leave should be denied. Nor, it is submitted, does the question raise a matter of public importance concerning the contractual obligations of a builder. There was no issue that the construction of the contract, which required the building works to be performed in accordance with the contract document, included the plans and specifications. The kernel of Ground 3 is that there was a factual finding by the Senior Member that the building plans called for a ceiling height of 2.6 metres from the finished surface. The reasoning of the Senior Member was upheld by the Appeal Panel.
[9]
Consideration and Principles
In dealing with the submissions before the Court, it is necessary to have regard to several principles, including admonitions in the approach the Court should take to judicial review of an administrative decision. In an appeal of this kind under s 83 of the NCAT Act, a similar approach should be taken as the approach to judicial review. The High Court, in Attorney-General (NSW) v Quin [17] , said:
"The question can be put quite starkly: when an administrative power is conferred by the legislature on the executive and its lawful exercise is apt to disappoint the expectations of an individual, what is the jurisdiction of the Courts to protect the individual's legitimate expectations against adverse exercises of the power? I have no doubt that the answer is none. Judicial review provides no remedies to protect interests, falling short of enforceable rights, which are apt to be affected by the lawful exercise of executive or administrative power. If it were otherwise, the Courts would be asserting a jurisdiction, in protection of individual interests, to override the law by which a power to affect those interests is conferred on the repository.
…
The duty and jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the Court avoids administrative injustice or error, so be it; but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests, but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure a judicial scrutiny of the merits of a particular case.
There is one limitation, 'Wednesbury unreasonableness' (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power…acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined." [18]
[10]
Endnotes
Home Building Act 1989 (NSW), s 48L.
Ibid at s 48MA.
Home Building Act, s 36(1) and see Civil Procedure Act 2005 (NSW), s 56.
Civil and Administrative Tribunal Act 2013 (NSW), s 38.
Ibid at s 39.
Ibid at s 40.
Ibid at s 41.
Wood v Crystele Designer Homes Pty Ltd [2023] NSWCATCD; Affidavit of Anthony Romeo, 28 September 2023, p 1020 and following.
Crystele Designer Homes Pty Ltd v Wood [2023] NSWCATAP 242; Affidavit of Anthony Romeo 28 September 2023, p 1472.
Ibid at 35-36 (Brennan J, as his Honour the Chief Justice then was).
Minister for Immigration and Ethnic Affairs v Wu Shan Liang ("Wu Shan Liang") (1996) 185 CLR 259 at 272; [1996] HCA 6 (Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ).
Ibid.
Ibid at 291.
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34.
Ibid at [14] (Kiefel CJ, Nettle and Gordon JJ).
Ibid.
See also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.
Australian Gaslight Co v Valuer-General (1940) SR (NSW) 126.
Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 at [16]-[17] (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ), citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456.
[11]
Amendments
19 December 2024 - In paragraph [97] the second word 'legislative' has been amended to read 'legislature'
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 December 2024
It is unnecessary to recite or discuss ancillary provisions dealing with defences and the like.
Proceedings for the statutory warranty are commenced in the Tribunal, and, in the current justiciable controversy, the defendant commenced such proceedings under the provisions of s 48I of the Home Building Act. Pursuant to the terms of s 48K of the Home Building Act, the Tribunal has jurisdiction to hear and to determine such building claim, provided the amount claimed does not exceed $500,000 (as may be adjusted by regulation).
Further, the provisions of the Home Building Act [1] make clear that the Tribunal, if it were to have jurisdiction, is the primary adjudicator of any such claims. If a building claim for which the Tribunal has jurisdiction were commenced in another jurisdiction, the other court or tribunal must, if application were made, transfer the proceedings to NCAT.
The preferred outcome in proceedings, if there be a defect, is for the work to be rectified. [2] By operation of s 28 of the NCAT Act, the Tribunal is given such jurisdiction and functions as may be conferred by the NCAT Act and, relevantly, the Home Building Act.
Relevantly, pursuant to the terms of s 29 of the NCAT Act, the Tribunal has "general jurisdiction" over a claim of the kind envisaged under the Home Building Act. Further, there is a right of appeal from a single member of the Tribunal to an Appeal Panel.
In terms of the procedure and practice of the Tribunal, the legislature provides for a "guiding principle" being to facilitate "the just, quick and cheap resolution of the real issues in the proceedings", a familiar term to anyone who conducts civil litigation. [3]
While the Tribunal may use alternative dispute resolution or other resolution processes to resolve or narrow the issues between the parties, the Tribunal's procedure is to be determined by the Tribunal itself. Further, the Tribunal is not bound by the rules of evidence and may enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
Further again, the Tribunal is required to act "with as little formality as the circumstances of the case permit" and "according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms". [4]
An application to the Tribunal includes a complaint, referral or other mechanism by means of which enabling legislation provides for the matter to be commenced. [5] Such an application or appeal is to be made in the time and manner prescribed by the enabling legislation, in this case, the Home Building Act. [6]
Further, and most importantly, the Tribunal may, of its own motion, or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction, despite anything to the contrary under that legislation. [7] Further, the extension of time may be made nunc pro tunc (after the time for doing the act has expired).
Each of Grounds 1, 3, and 4 seeks to rely upon both s 83 of the NCAT Act and s 69 of the Supreme Court Act. Ground 2 relies only on judicial review.
The submission of the plaintiff then deals with a requirement of the Consumer and Commercial Division Guidelines published by NCAT and the requirement in those guidelines that an application for a building claim should be made only when an applicant is ready to proceed, having obtained all the necessary expert reports and other relevant documents. The application is to be on an approved form and should be lodged within the applicable time limit. [11] Clause 5 of the Guideline refers to ss 18E and 48K of the Home Building Act.
The submission then refers to the first instance judgment in Parkview and submits that it stands for the proposition that an application to amend a commercial list statement to introduce new defects forms part of a singular breach of a statutory warranty.
Further, the submission cites the judgment of the Court of Appeal in Parkview and submits that it should not be read as standing for the proposition that "in all circumstances, an amendment identifying an additional defect is a mere particular of a singular extant cause of action". Reference is made in the submission to the judgment of Leeming JA at paragraphs [87], [59] and [76], before extracting further comments of Leeming JA at paragraphs [77] - [104].
The plaintiff submits that the Parkview Appeal left "significant questions open whose determination bears upon the present appeal" and distinguishes the effect of the judgment in the Parkview Appeal from the current proceedings because of the operation of s 65 of the Civil Procedure Act 2005 (NSW), which applied in the Parkview Appeal, but did not apply to the proceedings before the Tribunal.
Further again, the plaintiff submits that the first instance decision in these proceedings likened the effect of the particulars of defects to that which was the circumstance in the Parkview Appeal and, in so doing, the Senior Member erred because the particulars and the nature of the defects were said not to be acute in circumstances where the reference was to the Points of Claim, rather than the Application.
The plaintiff submits that the statements of Ball J that, in circumstances where there are different limitation periods, it is "not easy to see how there could be a single cause of action for all breaches of the warranties or each of the warranties" is the correct approach and, therefore, the different cause of action associated with the non-major defects, which requires a two year period in which to make such claim, is a different cause of action to a claim for a major defect, requiring a six-year time limit. [12]
The plaintiff submits that the incorrect outcome was determined by the statutory construction of the Home Building Act and refers to the singular indefinite article in s 18E(1)(b) of the Act being proceedings for "a breach of a statutory warranty" which is to be commenced "before the end of the warranty period for the breach".
The plaintiff submits that s 18E(2) of the Home Building Act contemplates separate enforcement of each warranty for each breach and displaces the conventional concept of a singular breach.
The submission deals with the principles in Onerati. [13] The submission refers to a number of judgments, the details of which do not need reciting at this stage of these reasons, to submit that "it cannot be correct that there is but one breach of 'the statutory warranty' when a building is handed over that is not free from defects". The plaintiff submits that the disparate content of the warranties themselves undermines the proposition.
Further, the plaintiff submits that the text and structure of s 18E(1)(b) of the Home Building Act "makes (sic) it plain that Parliament did not intend to give a purported applicant the opportunity to bring to life an existing and identified defect (albeit late and for the purposes of a claim in the Tribunal) after the expiry of the limitation period."
The submission further asserts that preserving "the conventional doctrine regarding the singularness of a cause of action' to reconcile it with statutory intent is respectfully unsound in this context as it is apt to conflate and mislead the intent of the limitation period."
The submission further asserts that categorising major defects and non-major breaches into two separate causes of action is equally problematic.
The plaintiff submitted that the non-major defects particularised in the Points of Claim before the Tribunal were, almost by definition, not major defects, were not claimed in the application within the time permitted by the Home Building Act and that, therefore, the Tribunal had no jurisdiction in respect of the defects so particularised.
The plaintiff's submission on Ground 3 claims that the Appeal Panel, in the same way as the Senior Member, fell into error in finding that the plaintiff breached its obligation to comply with the architectural plans for ceiling heights because each of the decisions determined that the contract and requirements of the contract referred to ceiling heights from the finished level of those items. The submission is that no builder can be obliged "to deliver a fixed ceiling height in advance of the selected floor linings".
In relation to Ground 4, the plaintiff now submits that the Appeal Panel failed to consider a mandatory relevant consideration, being the statutory preference for a rectification order as distinct from a money order. The manner in which this submission is put treats the terms of Ground 4 in the manner utilised in the submissions. However, the Summons does not allege that the preference for rectification orders is a mandatory consideration, and the Summons has not been amended. The written submissions of the plaintiff contain the first occasion in which the plaintiff has alleged a mandatory consideration.
In circumstances where the Tribunal has not been requested to deal with the matter on the basis that it is a mandatory consideration nor received submission as to the mandatory nature of the consideration, it is difficult to suggest that a failure to consider it a mandatory consideration is an error of law or jurisdictional error. Nevertheless, if the consideration is mandatory and relevant, then failure to consider it would be jurisdictional. The alternative submission is that if consideration were to have been given to the preferred outcome, whether or not mandatory, the reasons for the decision are insufficient and wanting.
The plaintiff filed submissions in reply, which it is unnecessary to summarise at this point in the judgment.
The plaintiff submits that the issue of the preference for a work remedy rather than a monetary amount was considered, and the issue of whether a work order or monetary amount should be ordered was a discretionary evaluation that is susceptible to challenge only on one of the well-known bases outlined by the High Court in House. [16]
In dealing with judicial review of an administrative decision, it is appropriate for the Court to bear in mind the admonition of the High Court that a court should not be concerned with "looseness of language" nor "unhappy phrasing". [19] Nor, in the words of the High Court, should a court, in an exercise in judicial review, construe the judgment below "minutely and finely with an eye keenly attuned to the perception of error". [20]
In the separate reasons for judgment of Kirby J in Wu Shan Liang, his Honour emphasised that the reasons under challenge must be read as a whole and considered fairly. It would be an error for a court to adopt a narrow approach by combing through the words of a decision-maker with a fine appellate toothcomb against the prospect that a verbal slip will be found warranting the inference of an error of law. His Honour went on to say:
"This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, i.e. tribunals, administrators and others. This is not to condone double standards between the reasons and the decisions of legally qualified persons and others. It is simply to recognise the fact that where, by law, a decision is to be made by a person with a different, non-legal expertise, or no special expertise, a different mode of expression of the decision may follow. It must be taken to have been contemplated by the lawmaker." [21]
The foregoing approaches inform the manner in which the Court exercises its jurisdiction on judicial review. In this application for judicial review and/or appeal, the major point is raised by Grounds 1 and 2, which turns on the construction of the Home Building Act. It is necessary to deal briefly with the principles that need to be applied in construing the statute.
It is now trite that the proper construction of the statute is not obtained by adding together dictionary definitions of each of the words used in the statute. Rather, the words of the statute are used to assess the purpose of the legislature, and the construction of any part of a statute requires the statutory provision to be read in the context of the statute as a whole to achieve the purpose of the legislature and the operation of the provision, with the other provisions of the statute, in a manner that gives rise to the achievement of harmonious goals. These principles are now well-known.
The High Court in SZTAL v Minister for Immigration, [22] referred to the principles in the following passage:
"The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute. Whilst, at the same time regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." [23]
In SZTAL [24] , Gageler J (as his Honour, the Chief Justice then was) did not form part of the plurality judgment and issued a judgment in dissent. Nevertheless, his Honour expressed the same principles in relation to the construction of the statute when he said:
"[35] Mason J said in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd :
Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.
[36] Drawing on that statement, and its antecedents, Brennan CJ, Dawson, Toohey and Gummow JJ said in CIC Insurance Ltd v Bankstown Football Club Ltd:
The modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.
[37] Both of those passages have been "cited too often to be doubted". Their import has been reinforced, not superseded or contradicted, by more recent statements emphasising that statutory construction involves attribution of meaning to statutory text. The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility "if, and in so far as, it assists in fixing the meaning of the statutory text".
[38] The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from "a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural", in which case the choice "turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies".
[39] Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, "the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation" "is in that respect a particular statutory reflection of a general systemic principle"."
Thus, the Court, in construing the legislation, is required to examine the entirety of the statute and, from the words used in the statute, in the context of the whole of the statute, determine the construction of the statute by giving the words a meaning that both achieves the purposes of the statute and which results in the provisions of the statute achieving harmonious goals. [25]
At the heart of the issues raised by the plaintiff in these proceedings and contested by the defendant is the meaning of the term "question of law". Various terms have been used to confine the right of appeal to issues of law. In s 83 of the NCAT Act, the legislature has chosen a formulation that is significantly less confined than in other legislative provisions.
All that is required is that the appeal itself be "on a question of law". There are a number of taxonomies that have sought to define the distinction between a question of law and a question of fact. None of the taxonomies is exhaustive. Nor do they cover every possibility.
The classic definition in this State is that proposed by Sir Frederick Jordan CJ. [26] Sir Frederick Jordan differentiated fact and law in the following passage:
"In cases in which an appellate tribunal has jurisdiction to determine only questions of law, the following rules appear to be established by the authorities:
(1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact, not of law. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence; although evidence is receivable as to the meaning of technical terms; and the meaning of a technical legal term is a question of law: Commissioners for Special Purposes of Income Tax v Pemsel.
(2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact.
(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences.
(4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences. Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law." (Citations omitted.)
The High Court, citing with approval a Full Court of the Federal Court of Australia, used the same categories but expressed them differently. It said:
"[16] … In Collector of Customs v Pozzolanic, the Full Federal Court spoke of the distinction between law and fact in a statutory context as resting upon 'value judgement[s] about the range of [an] Act' which, the Court said, necessarily raised questions of law.
[17] Some recent Federal Court decisions have attempted to distil the numerous authorities on the problem into a number of general propositions. Thus in Pozzolanic, after referring to many cases, the Court identified five general propositions:
'1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.
2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact.
3. The meaning of a technical legal term is a question of law.
4. The effect or construction of a term whose meaning or interpretation is established is a question of law.
5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.'
In Pozzolanic, the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact." (Footnotes and citations omitted.) [27]
These taxonomies have been utilised many times since their expression, but more often, issues arise as to the application of the taxonomy rather than its expression. Further, when the courts are dealing with other documents or instruments, the same general criteria are utilised to delineate questions of fact from questions of law. Thus, relevant to the current proceedings, whether the question relating to ceiling heights is an issue or question of law or an issue or question of fact falls to be determined by the application of one or other of the above taxonomies.
It is convenient, then, to deal first with Ground 3. The plaintiff in this ground asserts that the first-instance decision and the Appeal Panel Decision are each wrong, each involving a question of law, by construing the Building Contract to require the builder to ensure ceiling heights after the floor covering has been affixed. The construction of the contract in this regard is either the construction of an ordinary English word or the application of the facts to an ordinary English word (or its equivalent) and, on either taxonomy recited above, would be a question of fact and not a question of law. If my analysis of the foregoing is incorrect, I would not consider that this question falls within the class of matters for which leave to appeal would be granted, and I would refuse leave. Further again, in relation to an order in the nature of certiorari, I would exercise discretion not to issue such an order.
The issue of the interpretation of this particular contract is neither of general importance nor raises issues of manifest injustice. As to the impossibility of a builder presciently allowing for a floor covering that had not yet been chosen, the impugned decisions make clear that there is a conventional allowance for the thickness that would have been sufficient if it were to have been allowed.
In my view, I do not consider that the plaintiff has shown, in relation to Ground 3, that the decisions below are arguably wrong. But even if the plaintiff had shown they were arguably wrong, in order to obtain leave, the plaintiff must demonstrate something more, and this Ground does not concern or involve issues of principle, questions of general public importance or an injustice that is manifest, reasonably clear or brings about an unfairness.
In order to deal adequately with Grounds 1, 2 and 4, it is necessary to deal with certain fundamentals relating to the distinction between jurisdictional and non-jurisdictional error and the need to understand the intention of the legislature in defining the jurisdiction of a particular tribunal. First, while not directly relevant, it is necessary to point out that most often, the terms "want" and "excess" of jurisdiction are used interchangeably. However, the terms are different.
A "want" of jurisdiction usually concerns the capacity of a court or tribunal to hear and determine an issue of that kind or relating to that subject matter. An "excess" of jurisdiction usually refers to jurisdictional error that occurs during the hearing and determination of proceedings that, otherwise, is of the kind that could be heard by the tribunal. [28] Under Australian common law, the distinction between jurisdictional and non-jurisdictional error is important, not least because, according to the High Court, the States may oust the latter from the supervisory jurisdiction of superior courts of record.
The Court as presently constituted is, of course, bound by the judgment of the High Court, including considered dicta. In Kirk, [29] , the High Court expressed the view that the State legislature was capable, by privative clause, of ousting the jurisdiction of this Court to supervise inferior tribunals and courts for non-jurisdictional error. It did so as a result of an analysis of the history of certiorari and the capacity of the Colonies immediately prior to Federation.
With great respect to the High Court, the States have such a capacity, but, in my respectful opinion, for another, different and presently more relevant reason. The different reason is important in understanding the nature of the alleged errors in these proceedings. The High Court has consistently held that tribunals and inferior courts are capable of being granted the jurisdiction to determine a question of law wrongly.
In Parisienne Baskets, [30] the High Court clarified that while the legislature could make the objective existence of a precondition the determinant of the jurisdiction of an inferior court, such a result should only be determined if the intention is clearly expressed by the legislature. The Court said:
"It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of the court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed in the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed." [31]
Further, in dealing previously with the effect of privative or ouster clauses, the High Court has clarified that the wording of the privative clause is to be factored into determining the legislature's intention as to the jurisdiction of the inferior court or tribunal. This is one application of the Hickman principles.
In Hickman, the High Court said:
"The particular regulation [the privative clause, reg. 17] is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of reg. 17 is well established. They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body." [32]
Applying the foregoing principles to the issue of error of law and the jurisdiction of a superior court as affected by the legislature's promulgation of provisions to oust its jurisdiction, one can easily see how one can arrive at the proposition that a state legislature can craft legislation in a way that deprives a superior court of its supervisory jurisdiction over lower courts or tribunals. In Kirk, supra, the High Court was concerned with jurisdictional error and the comment about the capacity of the States to oust the supervisory jurisdiction of a superior court, while considered and binding, was obiter. There may be real issues in such a course by a state legislature.
One example will suffice. Assume the legislature clearly empowered a tribunal to deal with justiciable controversies relating to personal injuries. Further, assume the legislature granted the tribunal jurisdiction to resolve such controversies under the common law as the tribunal considered in its absolute discretion the law should be or should become.
In those circumstances, were the tribunal, for example, to award damages against the owner of a shopping complex parking area because a person was injured by an attack that may have been prevented by better lighting, [33] the award may not be a jurisdictional error and may not be an error of law. Then expand that example so that each State legislated identically. In such circumstances, there may be issues associated with the position of the High Court at the apex of the resolution of justiciable controversies and an undermining of the one common law for Australia. It is unnecessary to discuss the possibility of such limitations further.
Any such limitation does not apply in the current circumstances. Nevertheless, the application of the principles expressed by the High Court in Kirk, Parisienne Baskets and Hickman leads to the undeniable conclusion that the State legislature may grant to a tribunal the jurisdiction to determine questions of law wrongly and to protect its decisions from review or invalidation on questions of law.
Further, the State legislature, subject to the Constitution, may grant to a tribunal the jurisdiction to determine for itself the facts that make up its jurisdiction. Ultimately, it is a question that is answered by the construction of the statute in accordance with the principles already espoused.
In the legislative scheme with which the Court is now dealing, there is a clear intention expressed by the legislature that NCAT has jurisdiction to determine all questions of fact on which there is at least some evidence. Further, the requirement to obtain leave on a question of law necessarily involves the consequence that the Tribunal has jurisdiction to decide a question of law wrongly and that some, at least, of such errors of law will remain extant and binding.
To deal appropriately with Grounds 1 and 2, it is necessary to examine the comments of the Court of Appeal and of other judgments relating to the effect of the different limitation periods for major defects and non-major defects. The principles to be applied in construing the legislation have been summarised above and are, otherwise, uncontroversial. Fundamentally, the Court is required to ascertain, from the words of the statute and its context, the intention of the legislature. All the construction tools are tools for the achievement of that aim.
There are several aspects of the legislation which point to clear and unambiguous purposes of the legislature and its context. First, in promulgating the NCAT Act, the uncontroversial purpose of the legislature was to provide a less formal and expert non-judicial process for the resolution of some disputes. Secondly, in promulgating the statutory warranties in the Home Building Act, the legislature was seeking to protect, within limits and in certain areas, consumers of residential building services. Thirdly, the legislature was concerned to ensure that a consumer of residential building services had a more generous time in which to raise major defects than would be the case in relation to other defects.
Fourthly, the legislature was mindful to ensure that those persons providing residential building services would know that, other than for major defects, after two years, non-major issues with the work that had been performed could not be raised. For obvious reasons, major defects were treated differently but were still subject to a time limit as to complaints. It is unnecessary to deal with the legislature's intention to provide rights to successors in title, but this also is a particular purpose of the provisions and qualifies to some major degree the protection to builders to which I refer above.
A few obvious tensions arise as a consequence of the construction being agitated by the plaintiff. The statutory warranties promulgated by the Home Building Act do not exhaust the warranties that are available to a consumer of residential building services.
Most, if not all, providers of residential building services are corporations. Such corporations are bound by the provisions of the Australian Consumer Law. [34]
As the statutory warranties arise in relation to the performance of residential building work under a contract of some kind, it necessarily follows that if there were defects, such defects would arise as a result of a lack of due care and skill or because that which was done was not fit for the particular purpose contracted, did not meet the description of the goods or services contracted, or because goods supplied by the builder were not of an acceptable quality. In such circumstances, the provisions of Chapter 3 of the Australian Consumer Law provide guarantees against such defects, at least to a contracting party or consumer (which is the defendant's status). [35] Moreover, such guarantees cannot be excluded by contract, and the consumer has six years to sue from the date on which the cause of action accrued. [36]
Of course, the Australian Consumer Law is enacted by a different legislature. But the Australian Consumer Law is also promulgated by the NSW legislature by reference. [37] Thus, the guarantees apply even if the builder were not a corporation and by virtue of provisions of the same legislature.
Nevertheless, it is the terms of the Home Building Act and the NCAT Act with which the Court is now concerned. The foregoing example is provided only to highlight that other avenues for remedy are available and does not seek to exhaust the remedies that may be available, depending on the contract in question, in tort, under contract, under other legislation, or, in some circumstances, in equity.
It is necessary to examine the comments of the Court, including the Court of Appeal, on the issue of the time limit and the principles relating to a single cause of action. In that respect, the Court must deal with the comments of the Court and the Court of Appeal. The plaintiff seeks to distinguish Parkview and relies on comments of Ball J. [38]
In Parkview, [39] at first instance, Stevenson J held that, under ordinary principles, there was one cause of action being the breach of contract. [40] Those principles were displaced by the provisions of the Home Building Act, at least for a successor in title. After referring to authority and the Second Reading Speech for the relevant amendments, his Honour concluded that the Onerati principle had been qualified to allow further proceedings on the same cause of action for a different defect.
On appeal, [41] the Court summarised the first instance judgment and described the major ground of appeal as whether the amendments permitted by the primary Judge introduced a "new" cause of action. The Court of Appeal held that the amendments did not amount to a new cause of action and were permitted under ordinary principles and without resort to s 65(2)(c) of the Civil Procedure Act .
The Court of Appeal held that Part 2C of the Home Building Act, properly construed, resulted in the claims under the statutory warranty being regarded as claims for breach of contract, in which there is a single cause of action regardless of the number of defects that resulted or were claimed. The changes effected by the Home Building Act modified the general law but did not alter the circumstance that the claim was for a breach of the Building Contract (as altered by the terms of the warranties inserted by statute), which remains a claim that the building services had not been provided in accordance with the terms of the contract.
The Court of Appeal held that an amendment to add further instances of breach of the warranty did not give rise to a new cause of action because the cause of action is for breach of the same contract. There are obvious questions that arise as a result of the foregoing statement of principle.
For example, if a major defect were to be the subject of proceedings commenced after two years from the completion of work, does the foregoing suggest that another defect, not being major, could be added to the claim? This issue was dealt with in comments, albeit obiter, of the Court of Appeal (Leeming JA, with whom Ward P and Simpson AJA agreed) in the Parkview Appeal judgment.
Before dealing with the obiter comments of Leeming JA, it is necessary to deal with the foregoing principles in more detail. The statement of principle derives from the propositions clarified in Onerati, which, in turn, distinguishes the long-standing statement of principle in Weldon v Neal, [42] which, prior to statutory provisions that now apply, held that courts would not allow an amendment to a statement of claim to raise a claim which was statute-barred at the time of the amendment application. The Court of Appeal [43] then took the view that provisions now embodied within s 65 of the Civil Procedure Act had displaced the rule, and there was a general discretion to allow amendments that are otherwise statute-barred whenever the justice of the situation requires it.
As the Court makes clear, [44] the provisions of s 65 of the Civil Procedure Act apply to the time limits in s 18E of the Home Building Act, which circumstance is confirmed by the provisions of s 18E(1B) of the Home Building Act. Further, the warranties promulgated under the Home Building Act presuppose a construction contract, which gives rise to rights and obligations as a matter of general law and modifies that law by deeming there to be warranties, permitting successors in title to sue on those warranties and, thirdly, by altering the time period during which proceedings may be brought alleging breach of those statutory warranties. [45]
The Court of Appeal distinguished between a statute that created a new cause of action and one that modified the general law. Statutes modify the general law often and may sometimes be very substantial. In the case of the statutory warranties under the Home Building Act, "it is tolerably clear that the statute starts with the notion of a contract between developer and builder, and then modifies the terms and the persons who can sue for breach, and in the case of s 18C, imputes to the developer work which has been done in accordance with those terms. Nevertheless, the result remains a claim in contract." [46]
The judgment of the Court of Appeal refers to the provisions of s 18BA of the Home Building Act, which explicitly state that a breach of statutory warranty is a breach of contract. However, Leeming JA, with the agreement of the remainder of the Court, made clear that the findings were based not on the general provisions in Onerati but rather on the peculiar legislative regime created by the Home Building Act, which departs from the position at general law.
The Parkview Appeal judgment made clear that there may be some circumstances "in which the claimed defects and their nature are better regarded as material allegations of fact, rather than merely particulars of breach and damage." [47] The judgment of Leeming JA then comments:
"The separate two and six year period within which proceedings for breaches of a statutory warranty must be commenced, depending on whether the breach has or has not resulted in a 'major defect', entails that the character of a defect is or may be material to the cause of action. An essential issue when an owners corporation sues more than two years after building work is complete is whether the breaches have resulted in 'major defect'. Moreover, where judgment has been obtained on the contractual cause of action, the ordinary rules of res judicata do not apply in respect of claims for breaches of the same contract for damages in respect of any 'other deficiency' which is different from the 'particular deficiency', in the circumstances stated in s 18E(2)."
The foregoing passages are relied upon by the plaintiff in these proceedings to submit that the defects particularised in the Points of Claim are not particulars of the non-major defects to which the Application refers, and the defendant is incapable of relying upon those particulars because they are, consequently, out of time. The plaintiff also relies upon the judgment of Ball J, to which earlier reference has been made (the Crown Judgment), and the circumstance that, unlike justiciable controversies that are proceeding in a court, NCAT is unable to utilise the provisions of s 65 of the Civil Procedure Act.
In the Crown Judgment, Ball J referred to the principle that there is one cause of action for breach of contract founded upon a breach of promise to carry out the work in a good and workmanlike manner and the result that a plaintiff must bring a claim for all defects in one proceeding (the Onerati principle). His Honour then commented:
"That principle [the Onerati principle] has been extended so that it applies for the purposes of determining whether a limitation period applies to a claim based on breaches of the warranties contained in s 18B of the [Home Building Act], although given that different limitation periods apply depending on whether the breach results in a major defect or a minor one (six years in the former case; two years in any other case)…it is not easy to see how there could be a single cause of action for all breaches of the warranties, or each of the warranties, implied by s 18B." [48]
There are minor tensions in the provisions of Part 2C and, particularly, in relation to time limits. The provisions of s 18BA of the Home Building Act require that the beneficiary of a statutory warranty make reasonable efforts to notify the builder of a breach within six months after the breach becomes apparent. [49] Further, the provision defines when a breach becomes apparent as the time that any person entitled to the benefit of the warranty first becomes aware or ought reasonably to have become aware of the breach.
Assuming the beneficiary of the warranty first becomes aware of the breach after the conclusion of work, notice is required to the builder by a time that is significantly earlier than (if the breach is not a major defect) that which is required for the application to NCAT or commencement of proceedings. Further, the provisions of s 18E of the Home Building Act, apart from prescribing the warranty period, also prescribe that the warranty period is extended by six months if the breach becomes apparent within the last six months of the warranty period.
The last-mentioned provision results in a beneficiary of a warranty who becomes aware of a non-major breach after the termination of the contract (the more usual situation); the warranty period is for 2 years and 6 months instead of 2 years. [50] Further still, the extension of the time limit is not expressly confined to the breach of which the beneficiary has become aware.
One of the difficulties associated with treating each breach as a separate cause of action is the effect of such treatment on the principles of res judicata. If each breach is a separate cause of action, then claiming a painting defect would not prevent a beneficiary from claiming, at a later time within two years but after the resolution of the painting defect claim, a plastering defect (assuming each of them is a non-major defect). Such a circumstance could lead to a multiplicity of proceedings for breach of the same contract.
The comments of Ball J and the comments of Leeming JA can be implemented by treating a breach of contract for major defects as a different cause of action from a breach of contract for non-major defects. While this may result in inconvenience, it results in significantly less inconvenience than treating each breach or each defect as a separate cause of action and would give effect to the purposes of the Home Building Act.
While the different time limits available for commencing proceedings relating to major and non-major defects give rise to difficulty in treating each class of claim as part of the same cause of action, there is nothing in the statute that would warrant a wholesale departure from the proposition that a claim is commenced for a breach of the contract and, subject to the possibility arising from the different time limit provisions, there is but one cause of action, at least in relation to major defects as a class and non-major defects as another class.
If, after the resolution of the initial claim, a new non-major defect becomes apparent, the Home Building Act provides the remedy may still be available, notwithstanding res judicata, and may be available to a successor in title. It is unnecessary to deal with this situation, and it is one that will arise (other than for a successor in title) rarely. The rarity is occasioned by the necessity under the NCAT Rules to adduce an expert's report on the defects and the likelihood that the expert report will identify all the defects. If it were not to do so, the expert may be liable, and res judicata ceases to be an issue. On the other hand, if the defect were latent, then the NCAT Act allows for the new claim to be agitated anyway.
The application before NCAT with which the Court is here concerned was an application that claimed both a major defect and a non-major defect. If a claim for a major defect were a different cause of action from a claim for a non-major defect, then this Application claimed each and each cause of action had been commenced by the Application, and each cause (if they were different causes) was commenced within the statutory time permitted.
As already stated, in such circumstances (or if each defect represented a separate cause of action), the plaintiff submitted that the rule in Weldon v Neal applies to prevent the defendant from raising defects that, under the Home Building Act, would be time-barred. In that respect, the plaintiff distinguishes the result in Parkview and the Crown Judgment because of the operation of s 65 of the Civil Procedure Act, which did not apply to these proceedings below and does not govern the proceedings in NCAT.
The foregoing submission is correct in so far as it goes but fails to consider the provisions of the NCAT Act. As earlier outlined, the Tribunal is, by operation of s 41 of the NCAT Act, of its own motion or on application, empowered to extend the period for doing anything under any legislation in respect of which it has jurisdiction, despite anything to the contrary under that legislation.
In the current circumstances, the provisions of s 41 grant to the Tribunal the same capacity, at least, as is granted to courts under s 65 of the Civil Procedure Act. At least after the Tribunal is seized with the jurisdiction to hear a building claim, which raises a relevant "cause of action" (if there are causes of action in NCAT), the Tribunal may extend the statutory time limit for the pleading or raising of any non-major defect arising under the same cause of action (or that which would be a cause of action if it were before a court) and may do so with or without an application to that effect.
There is no reason to limit the powers of the Tribunal under s 41 and every reason to give the words a broad and expansive meaning. If one were to restrict the capacity of the Tribunal under the provision, one would be working to thwart the obvious intention of the legislature in several ways. First, it would severely limit the preference expressed by the legislature for NCAT to be the primary forum for resolving building disputes. The effect would be quite dramatic, as the following example illustrates.
If the Tribunal were unable to hear claims arising from the same contract that were particularised after the time limit, but the Court could, the effect would be that an applicant would merely take proceedings in the Court under contract and, as it is the same cause of action, add to it any claim under the statutory warranty. Moreover, because a plaintiff may need to ensure that further claims are not thwarted or barred, there would be a significant incentive for plaintiffs to commence all proceedings within two years in a court governed by the terms of s 65 of the Civil Procedure Act.
Secondly, such an interpretation of the powers of NCAT would result in the antithesis of the legislature's intention to resolve the dispute in a less formal manner. Twenty-four months is not a lengthy period in which to commence proceedings. The effect of construing the legislation in the manner for which the plaintiff agitates would be that the Application commencing the proceedings would need to be significantly more detailed at the outset than if proceedings were to be commenced in a court governed by the Civil Procedure Act. Further, the application commencing the proceedings in NCAT would need to be a far more formal document.
Thirdly, such a construction would run contrary to the mandated duty imposed upon the Tribunal to facilitate justly, quickly, and cheaply the resolution of the real issues between the parties in the proceedings. If the Tribunal were confined to resolving the defects that were particularised in the initial application to it, a plaintiff would be required either to agitate the other defects in another court or tribunal or to forgo them. In either case, the real issues between the parties to the proceedings would not be resolved, and the Tribunal would be acting inconsistently with its "guiding principle".
Fourthly, consumers would not be protected fully from defects in the provision of building services. At the same time, because such a construction would encourage a multiplicity of proceedings in other jurisdictions, builders would have no certainty or finality in the resolution of the issues before the Tribunal.
The manifest purpose of the promulgation of s 41 of the NCAT Act is that the Tribunal's powers ought not to be constrained by the time limits expressed in legislation granting it jurisdiction. Necessarily, there are limits to the achievement of such a purpose. But in the current proceedings, where the builder has been put on notice that there are non-major defects alleged in relation to the provision of the building services, there is no good reason to restrict the power of the Tribunal to deal with all the issues between the parties and each of the defects that have been alleged. To allow the Tribunal to deal with all the non-major defects alleged against a builder, where proceedings alleging non-major defects have been commenced within time otherwise, is to facilitate the purposes of the legislation and to achieve both the legislative intention and the harmonious operation of the legislative scheme.
Further again, the clear legislative intention is that the Tribunal ought to be able to deal with matters of fact and questions of law that come before it. Only in relation to questions of law that give rise to issues of principle or some manifest injustice or otherwise warrant interference by leave, are decisions of the Tribunal to be the subject of interference. Any other attitude would undermine the express intention of the legislature.
In the current proceedings, the Tribunal was seized of a matter alleging both major and non-major defects in the provision of residential building services. In dealing with the issues between the parties in relation to the provision of those building services and the statutory warranties promulgated by the legislature, there was no want of jurisdiction in the Tribunal.
In permitting the plaintiff, four days after the statutory time limit is said to have expired to raise defects that were not particularised in the initial Application, the Tribunal did not exceed its jurisdiction or the exercise of its permissible discretion. The Tribunal was entitled so to do and, on a preferred reading of the legislative mandate, required so to do.
Further, in dealing with the defects raised in the Points of Claim, the Tribunal was dealing with defects raised by the Applicant below resulting from the directions of the Tribunal. No objection was taken at the time as to the filing of the Points of Claim, which required particularisation of the defects, nor to the capacity of the Applicant below to raise such defects. The Tribunal did not err on any question of law on this issue, and if it were to have erred, the issue is not one on which leave to appeal should be granted.
Apart from the effect of the direction of the Tribunal to file points of claim particularising all the defects by a date beyond the two-year period, there is no evidence of the date upon which the defendant became aware of the defects particularised or ought reasonably to have become aware. The Court is aware that there is an expert's report that outlines each of the defects on which the defendant relied before the Tribunal. Presumably some of the defects were known to the defendant before the date of the expert's report. However, there can be no assumption that all of them were known before the report was provided to the defendant and the report was provided well after 4 days after completion of the works. If the plaintiff relies on the time limit prescribed by s 18E of the Home Building Act, it has not proved a failure to comply with that time limit.
Apart from those two issues in the immediately preceding paragraph, the Tribunal was seized of the jurisdiction to deal with a claim for a non-major defect and was entitled to deal with all non-major defects raised in accordance with the Tribunal's directions. There is no want of jurisdiction and no excess of jurisdiction.
For all the above reasons, Grounds 1 and 2 should be dismissed. I have concluded that there was no jurisdictional error on the part of the Tribunal, either at the first instance or on appeal. Further, I have concluded that in dealing with the defects raised by the Points of Claim and not included in the initial Application, the Tribunal did not err, and no question of law raised in this Court should succeed. I have already dealt with Ground 3, the issue relating to an alleged mistake in the interpretation of the meaning of ceiling heights. Ground 3 is also dismissed.
Lastly, I turn to the issue raised by the plaintiff herein that the Tribunal did not give consideration to a clearly articulated argument raising a mandatory consideration, namely the preference of the legislature for rectification orders. To the extent that this ground of appeal is arguable, it is without merit.
Assuming, without deciding, that the legislative preference for a work order, as distinct from a money order, is a mandatory consideration, the Tribunal considered the issue at length and came to the view that it would exercise its discretion to issue the money order. At first instance, the Tribunal dealt with the issue from [114] to [117]. In the course of that first instance decision, the Tribunal said:
"[116] In my view the evidence establishes an objective breakdown of relationship between the parties from the loss of confidence and trust of the owner in the builder given what the owner said were systemic defects and poor communications in respect of the claimed defects. This is exacerbated in the present case by the owner's unfortunate personal health circumstances; while those cannot determine the form of relief, they do form part of the objective characterisation of the relationship and the likely outcome of making a work order which will involve significant time to implement. The loss of confidence was reinforced by the builder's resistance (in my view unsuccessfully) to what the owner maintained were defects. A work order would in all likelihood in the present circumstances, lead to a renewal application for a money order following disputes about its satisfactory fulfilment." [51]
The foregoing is a finding of fact. There is no ground based on an absence of evidence for the finding. The Tribunal has found, as a fact, that the owner lacked trust and confidence in the builder and that the making of a work order would, more probably than not, lead to further applications and constant supervision. This is an exercise of the discretion reposed in the Tribunal. It is not a failure to consider whether a work order should be made. It is the antithesis of a failure to consider such an issue.
On appeal, the Appeal Panel commented:
"[92] We are not satisfied that the Tribunal acted upon a wrong principle. We do not accept that to justify a departure from the preferred remedy the Tribunal must identify by reference to objective evidence that the owner's loss of confidence is reasonable given the builder's conduct. While… the Tribunal may consider whether there is a reasonable basis for any objection raised by the homeowner to the builder being permitted to rectify the defective work, there is no principle that requires the Tribunal to undertake any such assessment in the exercise of the discretion to grant relief under s 48O of the [Home Building Act]". [52]
The foregoing comments are a statement of principle in the exercise of the discretion conferred on the Tribunal, which the Appeal Panel is entitled to adumbrate. There is no error of law. Further, the Appeal Panel concluded that the Tribunal, at first instance, made no error of law and, rather, exercised discretion on this issue with which it would not interfere. There is no failure by the Appeal Panel, nor by the Tribunal at first instance, to deal with the discretionary issues and to give weight to the preference (assuming there is a preference) of the legislature. Ground 4, relied upon by the plaintiff in these proceedings before the Court, should not be the subject of a grant of leave and, if it were, the ground should be dismissed. The outcome in relation to judicial review for each ground should be the same and the Summons should be dismissed.
For the foregoing reasons, judgment should issue for the defendant in the proceedings, and the Summons should be dismissed. The Court makes the following orders:
1. Judgment for the defendant.
2. Leave to appeal on Grounds 1 and 2 granted and appeal dismissed;
3. Otherwise, leave to appeal on Grounds 3 and 4 refused;
4. Summons dismissed.
5. The plaintiff shall pay the defendant's costs of and incidental to these proceedings.
Public Service Association (S.A.) v Federated Clerks Union (No 1) (1991) 173 CLR 132 at 164; [1991] HCA 33 (McHugh J).
Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1 at [100].