Demand Investment Nominees Pty Ltd v Lee

(1) in circumstances where the Decision was expressed as being made by consent although the parties did not consent to the Decision being made;

(2) because no reasons were given for the Decision, or inadequate reasons were given for the Decision;

(3) the Tribunal erred in making the Decision because the Decision was legally unreasonable and not supported by evidence;

(4) because the Builder was denied procedural fairness. The Builder also submits that it follows from this ground that the Decision was not fair and equitable;

(5) in circumstances where the Tribunal failed to take appropriate steps to fulfil ss 38(5) and 38(6) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), and the Builder was denied procedural fairness, the Member failed to make appropriate inquiries and failed to cross examine the applicant's witnesses (and the Tribunal would have made a different decision if the Tribunal had made appropriate inquiries during the final hearing). The Builder also submits that it follows from this ground that the Decision was against the weight of the evidence;

(6) in circumstances where inappropriate weight was given to evidence and the Tribunal would have made a different decision if that evidence was given less weight, and that evidence should have been given less weight.

1. We note that the Decision was made on 6 June 2024, and the Notice of Appeal filed on 28 August 2024. The relevant time period for filing the Notice of Appeal was 28 days from 6 June 2024, namely 4 July 2024: Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), r 25(4)(c).
2. The Notice of Appeal was filed on 28 August 2024, that is, some 24 days out of time.
3. The Builder states in the Notice of Appeal that he requires an extension of time in which to file the Notice of Appeal. However, in the section of the Notice of Appeal headed "Reasons to grant extension of time", the Builder states:

The Appellant shall submit that no extension of time is required, because the Tribunal has not provided reasons, and therefore this Appeal is brought within 28 days of the Appeal providing reasons.

In the alternative, the Appellant submits that an extension of time should be granted because the Appellant took appropriate steps to obtain copies of the Tribunal's written reasons and the Tribunal has not yet provided those reasons. There were also delays in the Tribunal responding to the Appellant's application for sound recordings for the purpose of obtaining a transcript of the final hearing.

1. The Homeowner filed his Reply to Appeal on 12 September 2024.
2. The Reply to Appeal relevantly states:

1. The Tribunal was correct In Its decision making In the circumstances where the member asked the Builder at 1 hour 24 minutes Into the recording, The Member asked "do you agree with this In terms of how it might be rectified?' The builder replied "yep" and "yep", Discussions ensued as to the timing of the order for rectification and the member determined that 1 September was a reasonable time frame to comply with the order [except] In exceptional circumstances In which the builder could seek to extend time. The builder also noted that they could get the expert out In two weeks, attend.

2. The Tribunal was correct in making Its decision. The Appellant/builder's expert did not attend the hearing despite a previous order to

3. The Tribunal was correct in making the decision as it was supported by an expert explaining the processes for rectification and requirements to rectify. Further, the builder agreed.

4. The Builder was not denied procedural fairness. The member attempted to contact the builder's expert who declined to come to the phone. In circumstances, it was reasonable for the member to decide based on the information before him.

5. There was no dispute from the experts that the pool was defective.

6. The Tribunal did not err in giving Inappropriate weight and provided the builder opportunity to comment. The builder agreed on the rectification order proposed.

Ground 4 The owners expert provided expert opinion as required by the Tribunal. The conduct was not Inappropriate, the member acted appropriately and asked appropriate questions throughout the hearing.\

Ground 5

7. There was no hearsay but rather references to photographs. The appellant/builder's expert did not attend the hearing and accordingly, the member found, based on the information before him and the consent of the parties.

8. [No] ground to appeal has been Identified as an error of law.

(typographical and grammatical errors as in original)

1. The Homeowner submits that the Notice of Appeal was not filed within the time required by the NCAT Rules, the Homeowner submits that an extension of time should not be granted because:

(1) 28 days has expired since the making of the consent orders;

(2) the Tribunal is not required to provide further reasons and it is inappropriate for the Builder to rely on reasons that were not required to be provided;

(3) the Tribunal did not provide details for reasons of his decision as the orders were made by consent. The appellant Builder did not have a right to request written reasons when orders were made by consent;

(4) the delay of the audio does not prevent the filing of an appeal and is not sufficient reason to seek further time.

1. Section 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right. These included:

(1) whether there has been a failure to provide proper reasons;

(2) whether the Tribunal identified the wrong issue or asked the wrong question;

(3) whether a wrong principle of law had been applied;

(4) whether there was a failure to afford procedural fairness;

(5) whether the Tribunal failed to take into account relevant (that is, mandatory) considerations;

(6) whether the Tribunal took into account an irrelevant consideration;

(7) whether there was no evidence to support a finding of fact;

(8) whether the decision was so unreasonable that no reasonable decision-maker would make it.

1. These matters were recently expanded by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 where the Appeal Panel stated (references omitted):

32 To the above list [referring to the list in Prendergast extracted above] might be added the following (some of which are nuanced aspects of the categories in Prendergast):

(1) Whether the Tribunal drew inferences that were not available from the facts as found (an extension of item 7 [of Prendergast]) ...

(2) Whether the construction of a statute or contract arrived at by the Tribunal at first instance was wrong in some identified way: ...

(3) Whether the Tribunal's decision was vitiated by bias, or a reasonable apprehension of bias, relates to and intersects with the fair hearing rule, and may encompass or be related to the procedural fairness question: ...

(4) Whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice, that is, procedural unfairness. Alternatively, it may also constitute a constructive failure to exercise jurisdiction: ...

(5) Whether the facts as found necessarily satisfied the statute or necessarily did not: ...

...

33 Plainly, the categories are not closed.

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(1) the decision of the Tribunal under appeal was not fair and equitable; or

(2) the decision of the Tribunal under appeal was against the weight of evidence; or

(3) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) that:

Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) Issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

Extension of time in which to file Notice of Appeal

1. The first preliminary issue is whether the Builder requires an extension of time in which to file its Notice of Appeal.
2. The Appeal Panel stated in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [21] (and confirmed in Di Salvo v Leung [2014] NSWCATAP 44) that time limits are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, "these time limits should generally be strictly enforced".
3. The Appeal Panel further stated that if a time limit is to be extended, the issues to be considered are:

(1) the length of the delay;

(2) the reason for the delay;

(3) whether the applicant has a fairly arguable case; and

(4) the extent of any prejudice suffered by the respondent.

1. The issue of whether or not the applicant (here the appellant Builder) has a fairly arguable case is an important consideration in the exercise of our discretion whether or not to extend the time for filing the Notice of Appeal. As we have decided to allow the appeal, it follows that the Builder should have an extension of time to file its Notice of Appeal.

1. The second preliminary issue is that, on the appeal, the Builder sought to rely on evidence that was not before the Tribunal.
2. This evidence was a report of Mr John Holford of Holford Consulting Engineering Pty Ltd dated 11 October 2024. Mr Holford had been asked to state his expert opinion as to the following matters:

(a) whether the evidence available to the Tribunal was capable of substantiating the Disputed Contentions outlined above;

(b) If your answer to (a) is "no" your reasons for holding that opinion, along with any comments you have regarding the deficiencies in expert evidence available to the Tribunal; and

(c) a description of the evidence that would be reasonable for the Respondent to obtain and file, or questions for the presiding Member to have asked a witness present at the First Instance Hearing, to interrogate or prove the Dispute Contentions (on the balance of probabilities) but which the respondent failed to file, or the Member did not ask.

1. Curiously, there were no "Disputed contentions outlined above" appearing above, although Mr Holford later refers to certain matters disputed by the Builder.
2. The Homeowner' opposed the tender of Mr Holford's report. He submitted that the contents of the report should not be submitted based on Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. The Homeowner submitted that Mr Holford has not identified specialised knowledge in Tribunal determinations or what is legally required to make a finding, and that it is the role of the Tribunal Member and/or the Appeal Panel to determine if the evidence can substantiate a determination, not an engineer.
3. The Homeowner further submitted that, if Mr Holford's report were admitted into evidence, he should be entitled to rely on a further expert report of Mr Glen Burke dated 28 October 2024, which report the Homeowner described as "new and significant in that it provides an update on the condition of the pool".
4. It is not necessary to reach any conclusions about whether this opinion evidence could possibly be admissible or assist the Appeal Panel in its task. That is because, as the Appeal Panel recently stated in Ultimo Developments Pty Ltd v Wilson [2025] NSWCATAP 40 at [32]:

We adopt the words of a recent decision of the Appeal Panel, Abdallah v Paco Nominees Pty Ltd [2024] NSWCATAP 259, where the Appeal Panel said at [25]:

We refuse the tender of these materials given the long-standing decision of the Appeal of Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 which has been followed and applied on many occasions. To paraphrase that decision, the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing (Al-Doauk at [27]), being documents that were before the experts briefed by the parties.

1. Clearly the Al-Daouk test is not satisfied in relation to the report of Mr Holford.
2. For these reasons, we rejected the Builder's application to rely on this report. It follows that Mr Burke's report will not be admitted either.
3. We turn now to the six grounds of appeal. Before doing so, it is appropriate to summarise the course of events at the hearing leading up to the Tribunal making the Decision.

1. The hearing was held over two days, namely 3 May and 6 June 2024. Both parties had filed evidence pursuant to the usual orders made by the Tribunal at earlier directions hearings.
2. The Homeowner had filed his application in the Consumer and Commercial Division of the Tribunal on 10 August 2023. He sought an order that the Builder pay him $32,824.00 for the following reasons (paragraph breaks added for ease of understanding):

B. REASONS FOR ASKING FOR ORDERS?

...

Describe the problem or defect with the goods or services:

The pool shell has been installed by poor installation/workmanship by the pool builder employed by Barrier Reef Pools.

This has been confirmed by an independent expert -Charles Rickard of Rickard Engineering (see his email report attached).

There are two abnormalities (large Bumps) in the pool shell. wall and floor which have caused a concern for structural issues and we believe that this is not the product described or shown at time of purchase.

In addition to this, we do not want these defects to cause further issues and repairs in the near future due to poor installation.

So far to date 8/8/2023 Barrier reef has refused to repair these issues and have come up with no possible solutions to try to repair this issue. We have waited long enough and are now seeking compensation in the form of a refund of the pool shell and installation costs. We believe that the shell is defective and not fit for Purpose, It is not the product that was purchased and does not match the product description or the brochure shown at time of sale. The pool steps cannot be used correctly without slipping over due to one of the large bumps at the base of the steps. The second bump forms a sharp ridge like shape on the side wall which may eventually protrude through the shell. I also would like to seek refund for any costs of Rickard engineering and NCAT fees as part of the total compensation for the defective work that has destroyed the product we purchased.

(typographical errors as in original)

1. The Transcript records that the Homeowner appeared in person, and Mr Dean Tierney appeared for the Builder. Mr Tierney is a director of the Builder. Also present was a Mr Nigel Rath, the Builder's Operations Manager.
2. In addition, the Homeowner's wife Mrs Lee was also present. She made comments on the Builder's evidence and conduct from time to time.
3. The hearing commenced on 3 June 2024 with the Tribunal inviting the Homeowner to explain his application ("tell me your story"). Over the next 26 pages of transcript, the Homeowner explained the background to the proceedings, the identification of defects, his communications with the Builder about those defects, the Builder sending a diver out the site to investigate the defects, and his retainer of Mr Charles Rickard of Rickard Engineering to prepare expert reports.
4. We note that the Homeowner was neither affirmed nor sworn.
5. Then, from pp 28 to 33 of the transcript, both Mr Tierney and Mr Rath (again neither of whom were affirmed or sworn) gave a brief response to the Homeowner's statements. In particular, they were critical of the opinions of the Homeowner's expert Mr Rickards' set out in his reports. The Senior Member commented,[1] "seems to me we're lacking evidence of Mr Rickard's opinion of any proposal to rectify".
6. Mr Tierney explained to the Tribunal that he believed that the pool had been installed to Australian Standards,[2] and that there was an allowance in within the Australian Standards for deflection in a wall.[3]
7. On p 35 of the transcript the Tribunal is recorded as stating its inclination to adjourn the hearing to after 27 May 2024, which was when Mr Rickards would have returned from overseas. After further discussion, the transcript for 3 May 2024 records:[4]

MEMBER BRIGGS: ... Look the situation is that I may have something that can be rectified for $1,000 or I might have something that needs to be removed for $94,000 and that's not an equation that should be satisfactory to anybody -

MR TEIRNEY: Yes.

MEMBER BRIGGS: - without the benefit of some expert evidence. I mean, I know we do have expert evidence in the form of reports, but it is not in the form of an expert report that you would anticipate for litigation, and that's why I think the most economical way to bring this to a conclusion is to have the benefit of Mr Rickard's current advice and give you the opportunity to cross-examine him. If you wish to have an engineer present as well, then I will make allowance for that and set the matter down for two hours or three hours to allow both engineers to detail, or deal with the matter in conclave and then give evidence and be cross-examined, if that would be your preferred option?

[HOMEOWNER]: (Indistinct).

MIR TEIRNEY: Aren't we able to dealt, with this today?

MEMBER BRIGGS: Well, yes, I know.

MR TEIRNEY: I agree.

MR RATH: We agree.

MEMBER BRIGGS: It would be good.

MR RATH: We do agree.

MR TEIRNEY: I go back to the same chain of thought that Charles Rickard, his first report mentions Martin Kennedy and the fact that it can be repaired.

MR RATH: That's the point.

MR TEIRNEY: I've known Charles Rickard and Martin Kennedy for over 15 years myself -

MEMBER BRIGGS: Yes.

MR TIERNEY: - in the pool industry, and I contacted Martin Kennedy to come and have a look and he stated that the pool doesn't need to be removed, can be repaired, if that is - needs to be the case, but, so yes, I agree.

MEMBER BRIGGS: So if it can be repaired, then it's obviously not a manufacturing fault. It's got to be an installation fault.

MR TEIRNEY: This is why we're here. We believe that it's within Australian Standards.

MEMBER BRIGGS: Yes. Nobody can tell that until they get underneath.

(emphasised added)

1. After further discussion relating to an adjournment of the proceedings, the transcript records:[5]

MEMBER BRIGGS: So is Mr Rickard. No, a month. Yes. Look, I think I'm going to adjourn it for evidence from engineers. I will allow two hours. So if you want to bring engineering evidence, would you please notify -

[HOMEOWNER]: Are we allowed to bring Mr Kennedy?

MEMBER BRIGGS: I'm sorry?

[HOMEOWNER]: Mr Kennedy, the man that's been obviously referred to as our reference.

MEMBER BRIGGS: Yes.

[HOMEOWNER]: He's the one that's been referred to in both engineering reports from Mr Rickard.

MEMBER BRIGGS; Yes. I think a short report from Mr Kennedy that can be provided to Mr Rickard beforehand.

MR TEIRNEY: He's -

MEMBER BRIGGS: And we should be able to bring this to a conclusion fairly quickly. The other way, as I say, we may have a repair of $1,000, or a complete removal and restoration over $94,000. It's not a risk that I think either party should be exposed to. So in that case, gentlemen, I will adjourn the matter to be listed as early - at the earliest possible date after the 27th. I will expect a short report from Mr Kennedy. That report to be circulated to Mr Rickard, and both Mr Rickard and Mr Kennedy to appear for cross-examination on the day of the next appointed hearing. I'm sorry I can't bring it to a conclusion today but I think -

[HOMEOWNER]: Okay.

MEMBER BRIGGS: - that it's essential that we get to the right answer here.

MRS LEE: Yes. Thank you.

MR TEIRNEY: All right. Appreciate your time.

(emphasis added)

1. The hearing resumed on 6 June 2024. At the outset of the hearing, the Tribunal explained:[6]

The matter came before me on the 3rd of the 4th and I issued directions in relation to the need for some expert evidence and for the capacity to cross-examine the three experts. Mr Rickard, who we note is here, Mr Martin Kennedy, who is apparently not. And I think that was all. I asked also prior to the hearing that the engineers should have the benefit of addressing the following questions. And they were the issues for cross-examination, the two defects identified in the pool caused by a defective - or are they caused by defective manufacture or defective installation, and during the period since Mr Rickard's first report, the current hearing date - and the current hearing date - have either of defects identified as the wall lump in the ridge at the shallow end of the pool or steps become measurably worse and are the defects identified as minor gel coat cracks, superficial repairable surface blemishes or cracks in the fibreglass pool shed. And assuming the issues are defects, are they sufficient to warrant removal and reconstruction of the pool. Demand Investments was to obtain and provide to Mr Lee a copy of the warranty certificate for Barrier Reef Pools manufacturing showing the pool shell is currently warranted and compliant.

MEMBER BRIGGS: Has that been done?

MR TEIRNEY: Yes.

MEMBER BRIGGS: And, Mr Lee, do you have that warranty?

[HOMEOWNER]: I have that.

MEMBER BRIGGS: Thank you. In respect of Mr Kennedy's appearance, do you have anything to say about that?

MR RATH: He was just unavailable.

MEMBER BRIGGS: Right. Okay. Has he had the opportunity to discuss matters with Mr Rickard in the interim period?

MR RATH: I don't know, you might have to ask Charlie.

MR RICKARD: Yes, I had an hour-long discussion with him this morning.

MEMBER BRIGGS: Very good. Thank you, Mr Rickard. I will just enter the appearances on the record. Okay. Now, Mr Rickard, I think what I will ask you to do is come to the witness box and take an oath which will give Mr Rath and Mr Tierney the opportunity to cross-examine you if you wish.

1. The transcript then relevantly records the Homeowner's expert Mr Rickard being sworn and, over the next 5 pages, the Tribunal asking Mr Rickards questions. At pp 7-8, the transcript records:[8]

MEMBER BRIGGS: Thank you. So in relation to the final question, the issues could be clarified as defects. Do they warrant - are they sufficient defects to warrant removal and reconstruction? I know you have emphasised that nobody wants to pull the pool out. I'm sure that's fairly common - presumably that's common, that you don't wish to remove the pool to rectify.

MR RATH: Correct.

MEMBER BRIGGS: The question is then, I guess, if that's not the case and if the two initial problems can be rectified by the cutting out of the concrete above and removing the obstruction below that's causing the wall to bulge, then by adjusting this section of the pool internally with the newly developed problem internally with the whacker packer, that then leaves the initial problem to be effectively camouflaged by an adjustment to the step.

MR RICKARD: Yes, that remains. Effectively there are three issues. You've just summarised it perfectly. The one that's the problem really is the - number two, the one that's just developed could get worse.

MEMBER BRIGGS: Yes.

MR RICKARD: That we think we can fix. The major one is this slippery dip that we have got with at the steps.

MEMBER BRIGGS: Yes. Right. And, as you said, nobody wants to remove the pool but what is your recommendation and is that commonly - a commonly held recommendation with Mr Kennedy?

MR RICKARD: Martin always reckons he can fix anything. So, I mean, my honest opinion is that he should be allowed to go to site, drain the pool, examine the structure when it's drained and we - together we make a decision, the two of us then and there, whether we can fix the pool and, if we can't, then it will have to come out.

MEMBER BRIGGS: Right. Thank you for that. Sorry, Mr Rath or Mr Teirney, would you like to ask questions of Mr Rickard?

1. Mr Rath and Mr Tierney, but mainly Mr Rath, then ask Mr Rickard questions initially over some 5 pages of transcript.[9] At T 13.28-46, the Transcript then records:

MEMBER BRIGGS: Yes. So the decision has to be mine, but I have to rely on the expert evidence that's before me. In the event that some progressive process was invoked, Mr Teirney, what would your position be if we gave an initial order to drain the pool and make a determination on whether it could be rectified in situ or needed to be replaced. Would that - would you rather have a decision ultimately made today on the evidence?

MR TEIRNEY: Well, just looking at the evidence, the problem that I see, Mr Briggs, is we haven't seen any true evidence to any kind of measurements or any kind of fact that this is done. Like, my understanding and knowing the expert code of conduct is that we need to - obviously for us to turn and look at evidence property, everything should have been done to measurements or - or shown us. All I see at this stage is that Charles is turning - and his opinions on what he has seen and what he has spoken about hasn't given us any kind of measurements to prove or to give us evidence that this is, A, deteriorating in one step from when you first looked at it. All we see at this present stage is hearsay of what Graeme has turned and told him. So this is my concern, is going ahead and sort of saying yes, let's drain a pool, where we haven't had any true evidence of him to say that this has got these serious problems that has been spoken about.

(emphasis added)

1. The questioning of Mr Rickard then continues for another 6 pages. When concluded, the Transcript records:[10]

MEMBER BRIGGS: I think, in the circumstances, it seems to me that the order that I should make would be for the removal of the pool on the evidence that's before me. I understand your criticism of the lack of measurements in the evidence. But it seems to me that the issues that are now before me - and I don't - I discount at the moment the fact that there's another bulge at the base of the pool - it seems to me that rectification - well, first of all, I'm going to find that there are defects with the pool. I think we almost started with that proposition. You acknowledge that the bumps - that the bump from either a hard surface - a brick or a fatty backfill - was a probable cause of one of the bulges. I think you also acknowledge that there was some deviation at the bottom of the pool. So in the absence of any proposal that you might put forward as to how we can avoid the need to remove the pool, it seems to me that I can find that there was - there is an ongoing issue, that there is now evidence that a further problem has arisen, and, in the circumstances, in the absence of any proposal to rectify the defects, I would think that I'm going to have to make an order that the pool be removed.

1. Mr Teirney then interjects and the dialogue continues:[11]

MR TEIRNEY: Can I, in that case, when we're talking about it, can we refer to the 48MA of the Building Act. Obviously, you know, we're putting a case that we don't think that there's enough evidence in it, but obviously, you know, we want -

MEMBER BRIGGS: Well, section 48MA says that I should consider the possibility that - well, it seems to be the builder should be given the opportunity to rectify.

MR TEIRNEY: Like - it's like last time we spoke, it was monitoring. I was very happy - and, again, very happy to monitor the pool to the state that if this did get worse, then we could turn around and rectify and know what we're dealing with. Now, we're just getting evidence brought to us, again, about the third lump, which is new to us as well.

MEMBER BRIGGS: Well, it's new to everybody.

MR TEIRNEY: So it's not that we don't want to rectify, Mr Briggs; it's the fact that we just need to know, obviously, that we're going down, and we're it true of the right evidence to say that this as bad as it is.

MEMBER BRIGGS: All right. Well, given that you have that mindset that you're prepared to rectify it, what you're now saying is that you want a more specific analysis than -

MR TEIRNEY: We just - we need to know properly where we're targeting and where we're at to - the lump on the side, yes, I - you know, we know that is a pretty easy fix, and we've gone through that with Mr Kennedy. For one other than what we saw in what we've seen here and in the previous ones, we haven't enough seen - I haven't seen enough nor measurements to turn around and know whether we're going from a minor shallow two things. There's been nothing large to us to turn around and say otherwise.

(emphasis added)

1. Discussions continued about the scope of the rectification over the next 4 pages of transcript.
2. At Transcript p 25.24ff, the Senior Member then referred to Bellgrove v Eldridge [1954] HCA 36 stating:

MEMBER BRIGGS: There is High Court authority that says in the matter of Bellgrove v Eldridge that the owner has a right to have rectification carried out to bring the product that he purchased to the standard that he contracted for. But he does put a qualification on it, says:

There is an English case that went to the House of Lords where there was a swimming pool that was constructed, and the required depth, I think, was seven feet, and there was an issue about a couple of inches as to whether that was the product that the owner purchased. It's not a very popular case at the moment, but I think the answer was that there were damages for a halfpenny or something of that sort. So the thing that perturbs me about this is the actual cost, apart from money, there's also the cost of restoring your back area and so on and so forth. So if it can be - if rectification can be achieved without the need to remove the pool, I think it's everybody's interests, but, as you say, you've contracted for a certain thing, and if it's rectified in the way that's being proposed, that's not what you contracted for.

[HOMEOWNER]: Correct.

MEMBER BRIGGS: And I guess the issue there for you is whether you're prepared to access the consequences of that decision. Would you like to give that a bit of thought for a while and come back to me? Just this afternoon. I'm not -

[HOMEOWNER]: I think the issue that we've sort of discussed is that we don't know what that rectification is.

MEMBER BRIGGS: No.

[HOMEOWNER]: This is a last-minute decision.

MEMBER BRIGGS: Well, the rectification involves draining the pool, which has a risk in itself; it involves cutting the pool, which has a similar risk because there's a possibility that something is going to happen to the alignment and so on.

[HOMEOWNER]: Correct. And that's something I don't believe we should have to [crosstalk]

MEMBER BRIGGS: And your main consideration is the loss of the warranty, as I understand it.

[HOMEOWNER]: So it's - I don't think we should have to take that risk after, you know, two years of, you know, coming backwards and forwards to hear that it be this. We shouldn't have to take the risk of cutting the fibreglass pool up and accepting -

MRS LEE: That.

[HOMEOWNER]: - a 900 step and everything in it. It's not what we wanted.

1. Further discussion ensured about the scope of rectification. At Transcript p 27.37ff, the following exchange takes place:

[HOMEOWNER]: I just don't see why we have to go through all of that, and why do we have to present these solutions?

MRS LEE: Yes.

[HOMEOWNER]: They've presented no solutions today. They've made no effort to repair it.

MEMBER BRIGGS: Well, it's your case to bring. It's your burden of proof.

[HOMEOWNER]: Yes. And I've asked for it to be -

MEMBER BRIGGS: Well, let's just wait a minute. Your Mr Martin was not available. Is he available on the phone?

MR RICKARD: He would be in a hole somewhere.

...

MEMBER BRIGGS: No, I can't have this go on for another day. I think we've got to reach a conclusion day today. So is there - in conclusion, Mr Lee, what would you say?

[HOMEOWNER]: It should be removed and installed correctly by another builder.

MEMBER BRIGGS: Mr Rath, your view is that the case - Mr Lee hasn't proved his case; is that-

MR TEIRNEY: No. Well, other than that we have in evidence - all I'm saying is that the evidence that has been provided, we haven't seen, but in the case of finishing it, if we have to rectify it, well, that's what I would rather do than pulling a pool out. Same thing about that case about - the Bellgrove v Idridge case.

MEMBER BRIGGS: Bellgrove v Eldridge

MR TEIRNEY: Eldridge, which I read that on (indistinct) the other day. I'm in agreeance that the pool can be repaired. Obviously, my question, which was to Charlie, whether or not we can do it without doing a step to bring it back to what the factory line is, which, again, until the pool is in deep and more investigation into it, it's pretty hard to really tell.

MEMBER BRIGGS: Well, if I heard the evidence correctly, Mr Rickard said that there would have to be a saw cut, and in the event that there is a saw cut, it may be possible to bring it to a level without the need for extending the step.

MR RICKARD: That's correct.

MEMBER BRIGGS: Right.

MR RICKARD: Just means it's a more extensive repair, and then that brings us to the finish that we get on the fibreglass, so then you would have to put that condition that it is his as per mould finish.

MRS LEE: What happens if it's not?

[HOMEOWNER]: Yes, what happens if it's not? What happens if Martin gets out there, and we drain the pool, and we go, "This can't be done; it's too much"? Where do we stand as owners then?

MEMBER BRIGGS: That may well be the case.

[HOMEOWNER]: But where does that leave us as owners, though?

MEMBER BRIGGS: It means that you come back, and you get an order to have it pulled out. It seems to me that in view of Mr Rath's and Mr Teirney's position as to section 48, then it seems to me that I should give Messrs Rath and Teirney the opportunity to rectify. In the event that it fails - in the event that the rectification is uncertified, or is unable to be certified, by Mr Rickard, then the pool has to be replaced.

[HOMEOWNER]: And that rectification is to the shape and style that's on the drawings of the product that we purchase, not an extra step - not a 900-mill step - per the drawings.

MEMBER BRIGGS: That's something that can't be answered at the moment. Until the pool is actually drained and cut, that's not something that's going to be known.

[HOMEOWNER]: Yes. So that's what I'm asking: if the pool gets drained, and it can't be repaired to exactly the product that I purchase, which is this drawing - flat, level base, one step - then the order is black and white. No ongoing for another two years [crosstalk]

MEMBER BRIGGS: No, it's not black and white because we still come back to the proposition that it has to be reasonable to do so, and it comes down to - I don't know, what do pools cost - $50,000 or $5000 for a repair. Is it reasonable in the circumstances, then, that the pool should be removed? There's a contractual argument that says, yes, it should be removed

[HOMEOWNER]: Correct.

MEMBER BRIGGS: There's the argument that says you haven't got what you contracted for, but what you have got is not far from it, and its not reasonable in the circumstances that we should order the whole pool to be removed and reconstructed.

(emphasis added)

1. At this point, the discussion turned to the costs the Homeowner had expended.[12] The Transcript then records the Senior Member stating:[13]

All right. Look. I think I've heard all the evidence. I think I understand the issues and the considerations. As I say, I've now come to the view that I should give the builder the opportunity to rectify and, before I let you get away, Mr Rickard, I'm going to ask you to help me formulate a proposal for the rectification so there can't be any ... misunderstandings.

(emphasis added)

1. After a further discussion on the scope of rectification, and the timing of the rectification in particular, the Transcript records (and we note that this is a discussion between the Senior Member and the Homeowner's expert): [14]

MEMBER BRIGGS: Well no, I don't think there can be any six months. I think that the one thing that would have to be included in the orders is that the swimming pool be ready for the next summer season, which doesn't seem an unreasonable period of time.

MR RICKARD: Well, it's been an open-ended (indistinct).

MEMBER BRIGGS: Yes. It can't be open-ended. There's got to be a conclusion to this. So at a point, it will either be decided that the pool has to be removed or that the repair - the order will be for the repair to be made.

MR RICKARD: By a certain date.

MEMBER BRIGGS: By a certain date and if that can't be done, then the pool can come out. All right. So Mr Rickard, how do we go about framing the work order? First, we've got to drain the pool, I guess.

MR RICKARD: I think okay, so at the risk of boring everyone for a minute, okay, item 1 is Martin Kennedy and Charles Rickard visit site and agree the scope of work.

MEMBER BRIGGS: No, I don't want that.

MR RICKARD: Don't want that, okay.

MEMBER BRIGGS: I want -

MR RICKARD: Okay. Drain the pool and Martin Kennedy and Charles Rickard inspect how we're going to fix the pool.

MEMBER BRIGGS: There's a danger in that.

MR RICKARD: All right. Okay. So the extent of how much floor is going to be cut

MEMBER BRIGGS: That's better.

MR RICKARD: - in order to achieve a completed pool which matches that which was purchased by Mr and Mrs Lee.

MEMBER BRIGGS: Right. So drain the pool. Kennedy and Rickard to define the area to be cut out. And this is only in relation to that section which is immediately below the step in.

MR RICKARD: No, it's got to be - we can't ignore the problem that's developed alongside it.

MEMBER BRIGGS: Yes. I thought you said that the other one could be -

MR RICKARD: Well, it's "could", it's a big word, isn't it? So the area of fibreglass floor that has to be cut out, it may well be that the area of floor that has to be cutout -

MEMBER BRIGGS: It might extend - it might extend -

MR RICKARD: Correct.

MEMBER BRIGGS: - across the whole -

MR RICKARD: Yes.

1. It is at this point, the Senior Member asks Mr Teirney directly, and Mr Teirney replies, as follows:[15]

MEMBER BRIGGS: Okay. You agree with this?

MR TIERNEY: Yes.

(emphasis added)

1. The remainder of the Transcript deals with the time for completion of the rectification works.
2. Shortly before the conclusion of the hearing, the following is recorded on the Transcript:

[HOMEOWNER]: ... This is just dragging out more and more.

MR RATH: I'm going to give you an end date.

[HOMEOWNER]: (Indistinct) excuse. It's -

MRS LEE: We can't get - yes.

[HOMEOWNER]: We requested them to be here today. You had a month to get Martin here already.

MEMBER BRIGGS: You will obviously make every effort to get this off your books as soon as possible.

MR RATH: If I could get it - if we could get it done next week, we will.

MR RICKARD: Well, why don't we leave it at 1 September and if Martin's extreme condition -

MEMBER BRIGGS: Then you will have to apply for an extension after 1 September unless there are -

MR RICKARD: The simple reason we have terrible weather, so what's the difference?

MEMBER BRIGGS: - exceptional circumstances. All right. Look, I think I'm going to make - that's the order that I will make for the reasons I've already canvassed, I think. I am concerned about the cost of complete removal and rectification, Mr Lee, but I think in the event that the rectification can't be completed in a way that, first of all, the pool continues to be guaranteed or warranted and that the final result is equivalent to a new finished pool, a newly finished pool, then the next step would be for an order for removal and reconstruction. That's something that I'm not very keen to make, I can assure you.

(emphasis added)

1. The day after the hearing concluded, namely 7 June 2024, the Tribunal published what it described as orders being made "[b]y consent". See Attachment A.
2. On 21 June 2024, Mr Teirney wrote to the Tribunal, requesting written reasons for the orders pursuant to s 62 of the NCAT Act.
3. Later that day the Registry informed the parties that the written reasons would be provided to all parties within 28 days of the request unless the request is refused by the Senior Member.
4. On 12 December 2024, the Registry wrote to the parties stating that, as the orders of 6 June 2024 (sic, 7 June 2024) were by consent, no reasons were required to be given: NCAT Act, s 62 (2A)(e).

1. Prior to the appeal hearing, on 14 October 2024, the Builder filed 33 pages of submissions which appear at pp 232 to 265 of the Homeowner's bundle of materials filed 31 October 2024.
2. The Homeowner's bundle of materials also included the Homeowner's pre-appeal hearing submissions dated 30 October 2024 (Homeowner's bundle of materials, pp 411 to 420).
3. We will refer to the content of these submissions where relevant in our consideration of the Builder's grounds of appeal.

Ground 1, the parties did not consent to the Decision being made

1. There is no issue the Tribunal, including the Appeal Panel, has the power to set aside orders made by consent: see for example Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99; McDonald v McDonald [2016] NSWCATAP 252; Jones v Dempsey [2015] NSWCATAP 28.
2. In McDonald v McDonald at [59], the Appeal Panel noted that a review of the authorities dealing with when a consent order can be set aside can be found in Prenc v Stojcevski [2016] NSWCATAP 244 at [43]- [45], [53]-[57] and Yuen v Thom [2016] NSWCATAP 243 at [36]- [54].
3. The Appeal Panel stated, that from those cases, the following principles can be discerned (and here we paraphrase an extended passage of the decision):

(1) at common law, a consent order may be set aside on the same basis as the underlying agreement may be set aside;

(2) whether the agreement constituting the compromise can be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence and the like;

1. All that said, generally, the cases where the Appeal Panel was asked to set aside consent orders arose in the context of written and agreed consent orders or terms of settlement signed by the parties.
2. The situation before us is not one of those matters.
3. In our view, Ground 1 is the principal ground of the Builder's appeal. That is because, if orders were made by consent, no orders are required to be given: see s 62(2A)(e) of the NCAT Act which provides:

62 Tribunal to give notice of decision and provide written reasons on request

(1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings.

(2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.

(2A) Subsection (2) does not apply to the following decisions of the Tribunal -

... a decision of the Consumer and Commercial Division of the Tribunal,

...

(e) if the parties have consented to the making of an order - a decision to make the order,

... .

(emphasis added)

1. We note immediately that the proposition that the parties did not consent to the Decision being made, is not literally correct. The Builder's fundamental proposition on appeal was that it did not consent to the work order made by the Tribunal.
2. The Builder submits that this is the case for the following reasons:

(1) the terms of the orders were not published until after the Second Hearing;

(2) the Builder was not asked if it consented to the orders;

(3) the terms of rectification/required work that were proposed by the Senior member at the second day of the hearing were not identical to the final terms of the orders and differed substantially from the terms of the orders;

(4) any words of affirmation spoken by the Builder's representative Mr Teirney at the second day of the hearing were not capable of communicating consent for the orders, and at most can be taken as communicating agreement in reply to specific questions asked by the Member.

1. At the appeal hearing, it was also submitted that Tierney had been "bullied" into accepting the work order.

1. The Homeowner submits that the work order was made by consent, as:

58 The hearing on 6 June 2024 was conducted before Member Briggs in which he raised comments for consideration of the parties.

59 At line 46 page 19 to 20 Member Briggs states "it seems to me that the order that I should make would be for the removal of the pool on the evidence that's before me. I understand your criticism for the lack of measurements in the evidence... well first of all, I'm going to find that there are defects with the pool... You acknowledge that the bumps ..."

60 After hearing Member Briggs' comments, Dean Tierney ("Mr Tierney") requested 48MA to be observed as per line 12-15 of page 20 (p 293 RTB).[16]

61 At line 20 of the same page, Mr Tierney states "we want to rectify it... I've never said we're not going to rectify it". (p 293 RTB).

62 Mr Tierney adds "what we want to try and do is make sure we're in the right way" as at (transcript line 21-22 of page 20) (p 293 RTB).

63 At transcript line 35-37 of page 20 (p 293 RTB)., Member Briggs says "Well given that you have that mindset that you're prepared to rectify it, what you're now saying is that you want a more specific analysis than-".

64 At this point it is apparent that orders to rectify the pool were agreed by the Appellant.

65 At transcript lines 33-37 of Page 26 (p 298 RTB), Mr Tierney says "If Charles (Mr Rickard) is certifying it, the warranty is still going to stand. It's not going to be altered because it has been repaired under the certification of Charles and lan Kennedy- or Martin Kennedy".

66 At transcript line 1 of Page 27(p 299 RTB), Mr Tierney says "the whole floor which can be done".

67 At transcript lines 27 p 27 (p 299 RTB), Nigel Rath ("Mr Rath") says, "I have no doubt that he would make it look like it came off the mould".

68 At line 36 of page 27 Mr Rath says, "yes I agree" (p 299 RTB).

69 At line 39-42 of page 28 (p 300 RTB), Mr Tierney; "I'm in agreeance that the pool can be repaired. Obviously, my question to Charlie, whether we can do it without doing a step to bring it back to what the factory line is".

70 After discussions with the expert on methods of rectification Member Briggs asks "okay. You agree with this? And Mr Tierney responds "yes" at lines 45 & 47 on Page 33 (p 305 RTB).

71 Member Briggs clarified what Mr Tierney was agreeing to "in terms of how it would be rectified?" and Mr Tierney replied "yep" at line 4 on Page 34 (p 306 RTB), •

72 By this point the expert, Mr Rickard had discussed the rectification and Mr Tierney had been asked by Member Briggs if he agreed. Mr Tierney replied "yes" and "yep".

I73 It is appropriate and usual practice that the assigned Member would formulate the wording of the order to reflect and give effect to what was agreed. Member Briggs did this.

74 Questions proceeded as to the timing of the rectification.

75 Member Briggs says, "Then you will have to apply for an extension after 1 September unless there are... - exceptional circumstances. All right. Look, I think I'm going to make - that's the order that I will make for the reasons I've already canvassed..." as per Lines 28-29 & 34-35 of Page 36 (p 308 RTB), •

76 Line 29 at Page 37 (p 309 RTB), Mr Rath says, "at two weeks we can get into site".

77 On that basis it is evident that these orders were consented to.

1. At the appeal hearing, it was also submitted that after two days of hearing, after all the issues had been canvassed, "afterwards reality set in" for the Builder.

1. We have set out above tranches of the Transcript of the two day hearing at some length. It is clear to us that:
   • the Senior Member initially indicates that he is going to make an order for removal of the pool;
   • the Builder then raises the application of s 48MA of the Home Building Act 1989 (NSW) (HB Act) (Rectification of defective work is preferred outcome in proceedings), which provides that a court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the "responsible party" ) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome;
   • the Builder wished the Tribunal to order rectification rather than wholesale removal and reconstruction of the pool;
   • the Builder was uncertain as to the scope of rectification;
   • there was an extensive discussion as to the scope of rectification works;
   • there was an extensive discussion as to the timing of the rectification works; and that,
   • following these discussions, the Senior Member directly asked Mr Tierney whether he agreed "with this", to which Mr Tierney stated "yes".
2. The Builder submits that, in this exchange, the only thing that Mr Tierney can be said to have been agreeing to is the fact that the pool should be drained in order to properly inspect the defect and that any inspection should best be carried out by Mr Martin Kennedy and Mr Charles Rickard jointly.
3. We reject that characterisation of the exchange. We consider it clear that the Builder was consenting to rectify the defects to the Homeowner's pool. The Builder was, in our view, was quite willing to do so. Nevertheless, the Transcript demonstrates that Mr Teirney was uncertain about what the scope of rectification should be.
4. The Builder further submits that, not only was the Senior Member's proposed work order not consented to by the Builder, the orders made were different to the "Senior Member's proposal" as articulated on the second day of the hearing. The Builder submits that there were various components of the work order made which "were never proposed by the [Senior] Member [on the second day of the hearing], and were therefore not capable of being consented to" by the Builder.
5. There is substance in this submission. The effect was that the Builder was to attend to the following matters.
6. First, the Builder was to prepare a dilapidations survey showing the condition of the existing pool and surrounds and signed-off as an accurate record by Mr Lee and an authorised person with authority to sign on behalf of Demand Investment Nominees Pty Limited.
7. This issue does not appear to have been directly discussed at the hearing.
8. Secondly, the Builder was to drain the pool at a suitable time to ensure minimal tidal effect on the shell and make provision to maintain the pool shell in its vertical and horizontal position with respect to the surrounding finishes as illustrated by the dilapidations survey.
9. This issue of draining the pool was discussed at the hearing: see Transcript, 6 June 2024, pp 32.44; 33.24. However, the balance of this order does not appear to have been directly discussed at the hearing.
10. Thirdly, the Builder was to cut a strip approximately 600mm wide depending on the extent of the bumps at the step base and the adjacent recently identified bump.
11. While there was a generalised discussion at the hearing between the experts about the steps and measurements (see Transcript 6 June 2024, pp 23.20-24.25), we see nothing approximating any agreement from the Builder to the effect of the third order.
12. Fourthly, the cutting process and extent was be agreed between Mr Rickard and Mr Kennedy. At this point, if the experts are unable to certify compliance with the Standards and execution of the works to closely match the existing shell finish, the applicants have leave to apply for further orders for demolition and re-construction.
13. The Senior Member did give an indication to that effect at the hearing: see Transcript, 6 June 2024, p 29.20-25.
14. Fifthly, the Builder was to prepare the base and replace the cut section to produce an even blemish free pool floor indistinguishable from the body of the pool and able to be certified by Mr Rickard to meet the requirements of AS 1838 & 1839.
15. This issue does not appear to have been directly discussed at the hearing, at least not in those terms.
16. Sixthly, the Builder was to cut the concrete surround adjacent to the Eastern pool wall blemish to give sufficient access to remove the protuberance causing the blemish to the pool wall. Upon completion back fill with suitable material to ensure adequate support, free from voids at the rear of the pool wall.
17. This issue does not appear to have been directly discussed at the hearing, at least not in those terms.
18. Seventhly, on completion restore the concrete surface of the pool surround to match existing.
19. This issue does not appear to have been directly discussed at the hearing.
20. Eighthly, the Builder was to remove all debris and clean the pool and surround to match the agreed finish as identified in the dilapidations survey, confirm compliance with the relevant standards and provide a copy of the Rickard certification to Mr Lee.
21. This issue does not appear to have been directly discussed at the hearing.
22. Ninthly, the Builder was to remove all debris and clean the pool and surround to match the agreed finish as identified in the dilapidations survey, confirm compliance with the relevant standards and provide a copy of the Rickard certification to Mr Lee.
23. This issue does not appear to have been directly discussed at the hearing.
24. At the very conclusion of the hearing the Senior Member states "Look, I think I'm going to make - that's the order that I will make for the reasons I've already canvassed, I think".
25. We consider what that order was or orders were is quite unclear. The better course would have been for the Senior Member to ask the parties to reduce any agreement to writing, and/or the Senior Member to read onto the record the orders he was proposing to make and for the parties' representatives to have orally indicated their agreement to those proposed orders.
26. As it transpires, the Senior Member published orders the following day which, while they may have reflected the "sprit" of the discussions before him, are not, in our view, an accurate record of any proposed orders discussed at the hearing or any agreement of the parties.

1. In those circumstances, and for the above reasons, we uphold the first ground of appeal.
2. It is not necessary to consider any of the other grounds of appeal.
3. The appropriate course is to set aside the Tribunal's orders of 7 June 2024, remit the matter to the Consumer and Commercial Division of the Tribunal (differently constituted).
4. The Tribunal may make directions with respect to reliance on additional evidence and/or submissions at the hearing.

1. The Builder has indicated that it seeks its costs of the appeal. Our preliminary view is that the Builder should have its costs. The relevant costs rule are those found in rr 38 and 38A of the NCAT Rules.
2. If the Homeowner thinks otherwise, he is to file submissions on costs within 14 days of the publication of these reasons. The Builder may reply within a further 14 days.
3. If necessary, we propose to deal with costs "on the papers" and without a hearing. Either party opposing that course should address that issue in their submissions.
4. Submissions are to be limited to five pages.

(1) The time for the filing of the appellant's notice of appeal is extended to 28 August 2024.

(2) The appeal is dismissed.

(3) Application 2023/00380854 (formerly GEN 23/36769) is remitted to the Consumer and Commercial Division of the Tribunal to be determined on its merits subject to any further directions the Tribunal may make with respect to reliance on additional evidence and/or submissions.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

On 6 June 2024 the following orders (and/or directions) were made:

1 The parties agreed to rectification of 3 defects identified in the fibreglass shell of the swimming pool at Sans Souci, provided the Demand Warranty is preserved after the repair, and repair produces a finish compatible with the existing pool shell, completed in accordance with the requirements of AS1838 & 1839 and certified by Mr Charles Rickard, Rickard Engineering.

1. Bulge in the eastern pool wall possibly caused by a brick or "fatty sand" fill pushing the against the pool wall and presenting as a "sharp ridge-like bump" on the inner face of the pool.

2. A bulge at the base of the entry steps to the pool initially identified when the pool was first cleaned but showing development in size now between 75mm and 150mm above the pool floor.

3. Reported at the hearing (6/6/24) a new bulge or contortion of the floor likely to be the result of tidal movement of the pool bedding.

4. Issues 2 and 3 are to be treated together following the scope of works set out below.

a) The contractor is to prepare a dilapidations survey showing the condition of the existing pool and surrounds and signed-off as an accurate record by Mr Lee and an authorised person with authority to sign on behalf of Demand Investment Nominees Pty Limited.

b) Drain the pool at a suitable time to ensure minimal tidal effect on the shell and make provision to maintain the pool shell in its vertical and horizontal position with respect to the surrounding finishes as illustrated by the dilapidations survey.

c) Cut a strip approximately 600mm wide depending on the extent of the bumps at the step base and the adjacent recently identified bump.

d) The cutting process and extent to be agreed between Mr Rickard and Mr Kennedy (M K Pool Renovations). At this point if the experts are unable to certify compliance with the Standards and execution of the works to closely match the existing shell finish, the Applicants have leave to apply for further orders for demolition and re-construction.

e) Prepare the base and replace the cut section to produce an even blemish free pool floor indistinguishable from the body of the pool and able to be certified by Mr Rickard to meet the requirements of AS 1838 & 1839.

f) Cut concrete surround adjacent to the Eastern pool wall blemish to give sufficient access to remove the protuberance causing the blemish to the pool wall. Upon completion back fill with suitable material to ensure adequate support, free from voids at the rear of the pool wall.

g) On completion restore the concrete surface of the pool surround to match existing.

h) Remove all debris and clean the pool and surround to match the agreed finish as identified in the dilapidations survey, confirm compliance with the relevant standards and provide a copy of the Rickard certification to Mr Lee.

All work is to be completed not later than 1 September 2024. No extension of time will be permitted unless there are exceptional circumstances which warrant an extension.

Once any work on site is commenced it is to progress base and the adjacent recently identified bump.

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.

[4] Transcript, 3 May 2024, pp 36.44 - T37.46.

[7] Transcript, 6 May 2024, pp 3.27 to T4.02

[8] Transcript, 6 May 2024, pp 7.36-8.24

[10] Transcript, 6 May 2024, p 19.44-20.45

[12] Transcript, 6 May 2024, pp 30.39-32.11

[13] Transcript, 6 May 2024, p 33.13-17

[14] Transcript, 6 May 2024, pp 32.29-33.42

[15] Transcript, 6 May 2024, p 33.45-46