Dixonbuild Pty Ltd v Adams [2020] NSWCATAP 190 | Case summary

NCAT Appeal Panel|2020-03-10|Before: The J

Yang v Oppidan Homes Pty Ltd [2016] NSWCATAP 146 Category: Principal judgment Parties: Dixonbuild Pty Limited (Appellant) Timothy John Adams (First Respondent) Jaimee Alexandra Noble (Second Respondent) Representation: Counsel: M Williams (Appellant) K Graham (Solicitor) (Respondent)

Solicitors: CDI Lawyers (Appellant) Grahams Solicitors (Respondents) File Number(s): AP 20/00730 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 25 November 2019 Before: P Briggs File Number(s): HB 19/26493

Introduction

This appeal relates to home building application HB 19/26493 (application).
The proceedings were commenced by the respondents in this appeal, Mr Adams and Ms Noble (homeowners), who own a property at Swan Bay (property). The application was dated 7 June 2019
The application related to residential building works carried out at the property. The application recorded that works were done pursuant to a contract, signed by the homeowners and the "building contractor" dated 17 May 2018 (contract). The application also recorded insurance details of a policy of insurance that had been issued in respect of the works. The contract value was recorded as $234,088. The application said the works were commenced on 23 August 2018 and were completed on 22 February 2019. The application variously sought an order to do work and/or an order for the payment of money arising from the installation of a septic system at their property.
The respondent in the application was named as "Dixon Homes Pty Ltd". An Australian Business Number (ABN) and contractor's licence number were provided as part of the details of the application. The ABN and contractor's licence number are the same as those on the signed contract between the parties, a copy of which forms part of TB-1 to the statutory declaration of Timothy Mark Bartholomaeus made 18 February 2020 (First Bartholomaeus statement) which has been provided as part of this appeal: see TB-1 p 3.
In the ordinary course, the application was listed before the Tribunal and directions were made for the purpose of the parties filing and serving evidence. The directions hearing occurred on 18 July 2019. The proceedings were then listed for hearing on 17 September 2019 (September hearing).
After receiving evidence and submissions, on 17 September 2019 the Tribunal made an order that "Dixon Homes Pty Ltd" pays to the homeowners the sum of $99,350.00 on or before 1 October 2019 (money order). In doing so, having considered the provisions of s 48MA of the Home Building Act, 1989 (HB Act), which requires the Tribunal to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome, the Tribunal declined to make a work order. The Tribunal provided written reasons for decision (Principal Reasons).
Subsequent to the September hearing, it came to light that the company named Dixon Homes Pty Ltd had been deregistered in 1992. This fact was apparently drawn to the attention of the Tribunal by the appellant's then solicitor Mr Snelgrove. Mr Snelgrove had appeared at the September hearing on behalf of the builder. Mr Snelgrove said that the builder who contracted with the homeowners was Dixonbuild Pty Ltd (Dixonbuild/appellant) the appellant in this appeal. However we note at this stage that the order made by the Tribunal on 25 November 2019 referred to "Dixon Build Pty Ltd", a matter to which we will return to below.
In light of this development, the homeowners applied to the Tribunal to amend the name of the respondent on the money order from Dixon Homes Pty Ltd to "Dixon Build Pty Ltd". The application was made under s 53 of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act) which relates to "Amendments and irregularities" and s 63 of the NCAT Act which relates to the "Power to correct errors in decisions of Tribunal".
The Tribunal determined this application on the papers, the parties having made written submissions about whether the Tribunal had power to correct the name and whether such an order should be made in the circumstances. The Tribunal determined it had power to amend the name pursuant to s 63 of the NCAT Act so as to rectify an obvious error. Consequently, the Tribunal directed the Registrar to amend the name Dixon Homes Pty Ltd to Dixon Build Pty Ltd (amendment order). The Tribunal provided written reasons for its decision (Amendment Reasons). This decision was made on 25 November 2019.
The amount of $99,350 was apparently paid to the homeowners by the appellant on about 27 November 2019.
Throughout this period, including at the September hearing and in respect of the application to amend the money order, both parties were represented. In this period, at all times Mr Snelgrove acted for Dixonbuild.
Subsequently, Dixonbuild changed lawyers and are now represented by CDI Lawyers.
On 2 January 2020, CDI Lawyers filed a Notice of Appeal on behalf of Dixonbuild. That appeal referred to the decision made 25 November 2019, a matter to which we will return below. The appeal was filed out of time. However, leave was sought to extend time pursuant to s 41 of the NCAT Act.

Notice of Appeal

The Notice of Appeal challenges both the money order and the amendment order. The Notice of Appeal raises the following matters.

Grounds of appeal

The grounds of appeal were as follows: 1. failing to properly consider that the homeowners denied access to Dixonbuild to carry out rectification work at the property; 2. failure to properly consider s 48MA of the HB Act in so far that the preferred outcome of proceedings before the Tribunal is for Dixonbuild to carry out rectification work; 3. failing to consider that, had the homeowners allowed the Dixonbuild access to the property to carry out rectification works or, alternatively if the Tribunal had made orders that Dixonbuild attend the property to carry out rectification works, the cost of those rectification works would have been $20,771; and 4. in the alternative, if it was proper for the Tribunal to make the money order, the Tribunal erred in determining that the amended quotation from Alstonville, quotation number 417A, was the relevant quotation to rely on in making the money order in circumstances where the homeowners' application sought to rely on the original quotation number 471.

Orders sought

Inter alia, the Notice of Appeal seeks orders that the homeowners repay $39,080 to Dixonbuild by way of "restitution for monies had and received", being the difference between quotations 471A and 471 and that the homeowners pay the appellant's costs of the appeal. Alternatively, the appellant seeks orders that the money order and amendment order be set aside and the proceedings be remitted for rehearing.

Leave to appeal

The Notice of Appeal also seeks leave to appeal. While not dealt with in the section headed Grounds of Appeal, the appellant says that by reason of s 48MA of the HB Act, the appellant's attempt to rectify the defects and the homeowners' failure or refusal to grant access to the appellant to carry out rectification work and because there was no explanation as to the "substantive increase of $30,000 in the Alstonville quotations" the decision was not fair and equitable and should be set aside. In this regard the appellant referred to the following: 1. correspondence prior to and after commencement of the proceedings relating to the works, offers to carry out rectification work by the appellant and its willingness to engage a company called JAC Plumbing to carry out rectification works at no cost to the homeowners; 2. the Tribunal's reasons for "not acting in accordance with section 48MA" and failing to properly consider offers made by the appellant; and 3. the Tribunal making a money order based upon quotations and not the actual cost incurred by the homeowners in carrying out the rectification works. In this regard the appellant says the difference between quotations 417 and 417A "were substantive, excessive and largely unsubstantiated" and that the Tribunal "should have ordered that the parties provide some evidence as to what the reasonable cost of carrying out the work would be or at the very least, the [homeowners] should have provided more than one quotation from one installer".

Extension of time

On this aspect, the appellant says it was not "notified" of the decision in connection with the money order until it was provided with the amendment order. Consequently, the appellant says that the 28 day period commenced when it "became aware of the [money order]" following its name being substituted in consequence of the amendment order. That is, time to appeal the money order was 28 days from the date of the amendment order that, namely 28 days from 25 November 2019.
Having referred to the decision of Jackson v NSW Land and Housing Corporation (2014] NSWCATAP 22 (Jackson) as setting out relevant principles to be applied in considering an extension of time application under s 41 of the NCAT Act, the appellant says that the failure to grant an extension of time will have the consequence that it is "bound by the [money order] in circumstances where it was unable to properly respond to the [homeowners'] allegations and therefore would be denied natural justice".
In this regard, the appellant says there is little prejudice to the homeowners in circumstances where: 1. the homeowners' ability to enforce the judgement was not enabled until the amendment order; and 2. the time to appeal the amendment order is still within the specified timeframe.

Reply to Appeal

The homeowners filed a Reply to Appeal.
The homeowners say that both the appeal in respect of the money order and the appeal in respect of the amendment order are out of time. As to the first, they say time expired on 1 October 2019. As to the second, they say time expired on 9 December 2019. They also say the appellant paid the money order on 28 November 2019 and that they have arranged for the rectification work to be undertaken.
We note that the calculations of the homeowners as to time to appeal in respect of the money order and the amendment order are based on a 14 day time limit. This period is incorrect. In fact, the time to appeal in respect of home building proceedings is 28 days after the date of the respective decisions: r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW). Otherwise, we will return below to the issue of what is the correct date to appeal each decision. In this regard, an issue arises as to whether the date to appeal the money order is affected by the date on which the amendment order was made. In any event, both appeals are out of time because the amendment order and Amended Reasons were provided on 25 November 2019 and no appeal was filed until January 2020.
Otherwise, the homeowners say: 1. the appellant filed no evidence for the September hearing; 2. the only evidence of rectification costs was from Mr Rizzo from Alstonville Plumbing and Gasfitting (Alstonville), who attended the hearing and was cross-examined, and the quotations from that company. In this regard Mr Rizzo gave evidence that there had been a significant increase in the area of land contaminated by sewerage from when the first quotation was provided which had increased the rectification costs. 3. the Tribunal considered s 48MA and there was no evidence that the homeowners had denied access. The homeowners had provided evidence of complaints made to the appellant concerning the defects and that the appellant had failed to respond or act in consequence of "orders made by Richmond Valley Council" against the homeowners due to "defects with the on-site sewerage management system"

Evidence

For the purpose of the appeal, the parties provided various documents to the Appeal Panel in support of their respective positions.
This material included a bundle provided by the homeowners which contained a statement provided by the first respondent, Mr Adams, a letter from Mr Rizzo and quotations 471 and 471A which was evidence in the proceedings at first instance (Respondents' Bundle/RB).
A transcript of the proceedings at first instance was also provided by each party.
In addition, each of the parties provided evidence to the Appeal Panel in the form of statutory declarations from various witnesses which were not provided to the Tribunal in the proceedings at first instance. This evidence included statutory declarations of Timothy Mark Bartholomaeus, a director of the appellant. These were the First Bartholomaeus statement and a statement dated 6 March 2020 (Second Bartholomaeus statement). The Second Bartholomaeus statement had exhibit TB-2.
The evidence from Mr Bartholomaeus included evidence concerning the building contract, the carrying out of that work by the appellant and the rectification of defects arising from that work (which related to the substantive dispute). It also included evidence concerning the conduct of the proceedings at first instance, instructions given to his former lawyer Mr Snelgrove and evidence in support of the appellant's application to extend time to appeal. The exhibits to his statements included the building contract signed by the parties and correspondence from the solicitors involved in the dispute for the various parties.
This correspondence included a settlement offer to the homeowners' lawyer, Mr Graham contained in an email dated 12 September 2019 from Snelgrove. Mr Snelgrove's email, which had in the subject line "Dixonbuild Pty Ltd ats Adams & Noble", attached a proposed work order to be made by the Tribunal under s 48O of the HB Act. That work order recorded the appellant (there named as the respondent) as "Dixonbuild Pty Ltd ABN 80 112 083 842": TB-1 pp 188-189. We note the name "DIXONBUILD PTY LTD - ABN 80 112 083 842 is the information recorded on the Australian Securities & Investments Commission search dated 6 June 2019: TB-1 p216.
Also included in that bundle is an email from Mr Snelgrove to the Tribunal dated 23 September 2019 advising the Tribunal that the proceedings, originally commenced by the respondents without lawyers, "have been brought against an incorrect entity, namely Dixon Homes Pty Ltd": TB-1 p 206. The email appears incomplete. However, that part of the email that has been reproduced in the exhibit, that was addressed to the Member presiding in the proceedings at first instance, says: I refer to the Hearing of this matter before you by telephone on 17 September 2019 and to the orders made by you on 17 September 2019. It has come to my attention, following a review of the Orders and consideration in light of preparing an Appeal, that the proceedings brought by the [homeowners], before their solicitor Mr Graham was engaged and before the writer took carriage of the matter, have been brought against an incorrect entity, namely Dixon Homes Pty Ltd
Although this email is incomplete, it is apparent from the information provided in this appeal, including the content of the letter forwarded by the homeowners' solicitors to the Tribunal dated 26 September 2019 (TB-1 p 208), that it was a request to set aside the money order made by the Tribunal on 17 September 2019. It is also clear from the homeowners solicitor's letter that they opposed that application and subsequently sought to have the name of the builder on the money order corrected under s 63 of the NCAT Act.
We will return to the questions of leave to adduce fresh evidence, admissibility and/or relevance of this evidence below.

Submissions

The parties provided written submissions and made oral submissions at the hearing of the appeal.

Appellant's submissions

First, the appellant said that time to file the Notice of Appeal in respect of the money order should be extended. Otherwise, the appellant said it would be "unable to properly respond to the respondents' allegations and therefore, it would be denied natural justice". In part, this injustice was said to arise if it was unsuccessful in its appeal concerning the amendment order.
The appellant says that its former solicitor, Snelgroves, notified the Tribunal and the respondents of the prospective appeal by email dated 23 September 2019, being the time the error in the name of the builder was noticed. Thereafter, the homeowners' application to amend the name of the builder under the slip rule was set down for determination and directions were made on 11 October 2019, the application being determined on 25 November 2019.
Consequently, the appellant contends the date by which the appeal from the money order was to be lodged is 28 days from 25 November 2019. This is 23 December 2019.
The appellant then says that its new lawyers, CDI Lawyers, did not receive the appellant's files until 20 December 2019. Thereafter, the appellant says that the Notice of Appeal was "sent to the Registry for filing on 23 December 2019".
On the question of leave to appeal, the appellant refers to the Primary Reasons and the statement of the Tribunal concerning "the builder's disinclination to take action before the application came before the Tribunal" as the basis for declining to make a work order notwithstanding s 48MA of the HB Act. The appellant says the money order was not fair and equitable and the decision was unjust because: 1. the homeowners had given evidence that they had failed, refused or otherwise neglected to grant the appellant access to the property to carry out rectification work; 2. the appellants were, at all material times, ready willing and able to expeditiously carry out the rectification work; and 3. the Tribunal did not give sufficient weight to the purpose of s 48MA.
On the question of leave to rely on fresh evidence, the appellant says in connection with both the money order and the amendment order that: 1. there was a miscarriage of justice because it had "sought legal representation, but was not properly represented insofar as the no evidence was put filed (sic) on the appellant's behalf"; 2. the orders were made on evidence "which was misleading or otherwise insufficient"; 3. despite the homeowners having evidence to the contrary, they maintained the appellant refused to carry out rectification works; and 4. there is a real likelihood that the evidence would have led the Tribunal to make a different order.
The appellant then made submissions about denial of access, cl CG5.8 of the contract (which relates to access to the site to perform rectification work) and s 18BA (which relates to the obligation of the party having the benefit of the statutory warranties under s 18B of the HB Act to mitigate their loss). This latter obligation included an obligation to "not unreasonably refuse a person who is in breach of the statutory warranties such access to the residential building work concerned as that person may reasonably require" for the purpose of carrying out rectification work: s 18BA(3)(b) of the HB Act.
Reliance was placed on the statutory declaration of Mr Bartholomaeus and the documents exhibited to his statements to support a submission that it would be unconscionable and unreasonable for the respondents to have caused delay in completion of the rectification works by denying access and be able to recover "a higher monetary payment than otherwise would have been made" if the works had been rectified at an earlier point in time and/or by the appellant's sub contract doors. The conduct of the homeowners was said to amount to a breach of contract and a failure to mitigate.
In light of the homeowners' evidence concerning refusing access, the appellant contends the Tribunal was in error in concluding that: 1. the appellant had "failed over a period of almost 7 months to respond to the [appellants] entreaties to rectify a serious failure in the septic tank installation"; and 2. the appellant was disinclined to take action to perform rectification work.
In supplementary submissions, the appellant also referred to the evidence given by Mr Adams at the September hearing and the submissions made by his solicitor Mr Graham concerning the appellant making no attempt to rectify the defects in the 7 month period. Of Mr Snelgrove's conduct, the appellant submitted Mr Snelgrove knew, or ought to have known, that the appellant did not sit idly around and, after being put on notice of the defects "on or about 14 May 2020 (sic) contacted the homeowners on several occasions to arrange rectification. However, the homeowners denied access. Consequently, the appellant says "Mr Snelgrove failed to raise any objections" to the homeowners' evidence concerning the respondent's conduct.
On the question of whether a work order or money order should have been made, the appellant says there is a presumption in favour of making a work order and that it was for the homeowners to rebut that presumption. It was then for the Tribunal to make an objective decision and weigh up the relevant factors in determining what orders should be made.
Having referred to various factors that might be relevant, as identified in earlier decisions of the Tribunal, the appellant submitted that the homeowners had not satisfied the onus of displacing the presumption because: 1. they relied on their own refusal to grant access as the basis for the appellant's purported failure to take any action; 2. the appellant was, and likely would have been, properly licensed to have carried out the work; 3. "as one of Australia's longest standing residential building companies" the appellant would likely have had capacity to carry out the rectification work; and 4. any animosity between the parties was not so severe as to operate as a barrier. Any reliance upon the statement of Mr Adams that he would "feel crook in the stomach" if the appellant returned to the property to carry out rectification work was not objectively a reason not to make a work order. Rather, the parties had a duty to co-operate in respect of any orders which the Tribunal might make.
In summary, the appellant submitted that the Tribunal: 1. gave insufficient weight to the homeowners' denial of access; 2. failed to properly consider the invoices submitted by the homeowners and their substantial differences in amount; 3. should have made a money order in accordance with the first quotation 471 or, alternatively, should have directed the parties to "provide quotations for the reasonable cost carrying out rectification works" or directed the homeowners to provide more than one quotation for carrying out the rectification work.
In supplementary submissions the appellant also referred to the submissions of the homeowners' solicitor made at the September hearing and said in light of the evidence of Mr Bartholomaeus "the respondents seemingly misled the Tribunal in the initial proceedings" in connection with a company called JAC Plumbing carrying out rectification work. This submission appeared to rely on events subsequent to the September hearing that is, after the money order had been made based on quotations provided by Alstonville. The submission was to the effect that: 1. JAC Plumbing had been approached by the homeowners on about 11 December 2019 to carry out rectification work; 2. the homeowners "were not prompt in rectifying the defects", commenced the proceedings "hastily" and, 3. "despite having repeatedly denied JAC Plumbing access to the Property, [the homeowners] contacted JAC Plumber to carry out the rectification work".
Consequently, having referred to a decision of Hodgson JA in Tyco Australia Proprietary Limited v Optus Networks Pty Ltd & Ors [2014] NSWCA 333 at [261], the appellant says: 1. the homeowners were awarded money for works "not reasonably necessary"; 2. the cost to the builder would have been $17,600.10 only; and 3. in any event, "the rectification works were not carried out in accordance with the [amended] quote #417A".
In relation to the application of the slip rule, having referred to the decision of the Appeal Panel in Yang v Oppidan Homes Pty Ltd [2016] NSWCATAP 146 (Yang) at [83], the appellant submitted that the slip rule could not be used to substitute a new party because this would have the consequence of making "fresh findings of fact … against the new party" who would not have had an opportunity to be heard. In making this submission, the appellant said "the test for applying the slip rule has been held to be whether, if the matter had been drawn to the Tribunal's attention, a mistake or omission would have been corrected at once". In the present case, the appellants said given the legal consequences of deregistration of Dixon Homes, there was no certainty the Tribunal would have or even could have corrected the error at once. In this regard the appellants said they have not been able to find any authority whereby the Tribunal has substituted a party after final determination.
Consequently, the appellant submits no correction can be made, the money order was made against a non-existent entity, not the appellant, the slip rule has no application and the Tribunal erred in making the amendment order.
In oral submissions, the appellant raise the following further matters: 1. Natural justice was not afforded; and 2. On the day of the hearing, an amended quotation was tendered. The appellant should have been offered a chance to seek an adjournment, the claim having increased from approximately $60,000-$99,000.
In making this submission, the appellant accepted that directions had been made prior to the hearing for the filing and service of evidence. The appellant also accepted that there was no evidence of denial of access provided to the Tribunal at the September hearing.
However, the appellant says the hearing was not conducted by its lawyer in accordance with the instructions given. Reliance was placed upon para 28 of the Second Bartholomaeus statement and a conversation said to have occurred between Mr Bartholomaeus and Mr Snelgrove during the hearing.
Further, the appellant submitted that the Tribunal was entitled to act on the submission or advice from the lawyer appearing to the effect that the appellant could start work immediately. While practical completion occurred in February 2019, there was at least an offer to do the work made on 17 September 2019.
In relation to the new evidence, the appellant conceded in oral submissions that the evidence concerning events prior to the September hearing was reasonably available. The evidence in connection with the rectification work done after that time was otherwise new evidence.
In relation to the extension of time, the appellant maintained a position that time does not commenced to run until the name of money order was amended. In any event there was no prejudice to the respondents. Rather, if the work had been done there may be a prejudice to the appellant if an award has been made which is found to be excessive.
Lastly, on the extension of time point, the appellant reiterated the delay in lodging the appeal arose from obtaining legal advice from new lawyers.

Respondents' submissions

The respondents opposed the extension of time for filing the notice of appeal.
In written submissions, the respondents said that the appellant had, at all relevant times, been legally represented. It was a major project homebuilder operating in both Queensland and New South Wales that would have had substantial experience in dealing with building disputes.
The appellant did not seek to stay the money order which was paid on 27 November 2019. Consequently, the respondents say the appellant "is estopped from raising any issues concerning the original orders made by the Tribunal". Further, in light of the fact no stay was sought, upon receipt of the payment from the appellant, the respondents immediately instructed Mr Rizzo from Alstonville to order a new septic tank. However, the respondents say that installation was delayed due to extreme bushfires in the immediate vicinity of the respondents' property.
In oral submissions, the respondents said there was no explanation about why the appeal was not filed in time. In connection with the appeal against the money order, the appeal was filed 3 months out of time, the money order paid on 28 November 2019 and the works completed by early/mid-January 2020.
In short, the respondents say they would be disadvantaged by an extension of time in the present case.
In relation to the question of leave to appeal, the respondents made the following submissions concerning the circumstances in which the money order was made: 1. the respondents had advised the Tribunal that a work order would be acceptable. However it was on condition that a Taylex septic system not an Aqua Nova (Everhard) system be used as the replacement. The original system had, apparently, been an Aqua Nova system which was defective; 2. the evidence showed that the attempts by the appellant to rectify the original Aqua Nova system that was installed had failed and that the system was unsuitable. Consequently, at all times the respondents refuse to have the system replaced with another Aqua Nova system; 3. Mr Snelgrove indicated on behalf all the builder that his client refused to install a Taylex system. 4. the Tribunal had noted the work order proposed by the respondent was "a fairly brief Scope of Works" and seemed "a little light on detail". The Tribunal invited submissions from Mr Snelgrove, the appellant's then lawyer, on this matter.
In relation to access to the site and the preparedness of the builder to carry out rectification work, the respondents say the builder failed to provide a scope of works from JAC Plumbing. No evidence was provided to the Tribunal concerning the works proposed, a matter identified by the Tribunal during the course of the hearing. Further, the builder failed to address the issue of site remediation to remove soil which had been contaminated by raw sewerage.
The respondents challenged the new evidence concerning when the builder was notified of the defects in the septic system. Their position is that the builder was notified by them or Richmond Valley Council on seven occasions before 17 May 2019. While JAC Plumbing did attend the site on behalf of the builder, its attempts to rectify the existing system were unsuccessful.
In relation to the reasons of the Tribunal for not making a work order and the contention the Tribunal did not give sufficient weight to s 48MA of the HB Act, the respondents said that the Tribunal did consider relevant evidence and gave reasons for its decision. Seven factors were identified from the reasons justifying the decision made. Further, reference is made to the transcript and to the evidence of Mr Rizzo that he was ready to immediately commence work.
The respondents say that the money order was made based on the second quotation from Alstonville and that the appellant did not cross-examine Mr Rizzo about the estimated costs. The respondents submitted there was no evidence to counter the evidence provided by Mr Rizzo and his company, the replacement Taylex system was $2000 cheaper than the Aqua Nova system and that no error is demonstrated in connection with the amount of the award.
In relation to inadequacy of legal representation, the respondents noted that the appellant appeared to have engaged a second lawyer, Cardew Salmon, solicitors in Queensland, to advise it in connection with this dispute. Correspondence had been written by the respondents' lawyer shortly prior to the September hearing about the failure of the appellant to serve any evidence. There was no response. Further, despite there being correspondence indicating Mr Snelgrove would attend the September hearing with Mr Bartholomaeus, Mr Bartholomaeus was not present and no explanation for his absence has been provided
While there was an objection to the respondents relying upon the second quotation from Alstonville, the representative of that company, Mr Rizzo attended and was cross-examined.
In these circumstances the respondents say that virtually all the evidence now sought to be relied upon was reasonably available at the time of the September hearing. Consequently, leave should be refused.
On the question of amending the name of the builder in the money order, the appellant says there is no error in the application of s 63(1) of the NCAT Act by the Tribunal. Reliance is placed on the decision of the Court of Appeal in Pearlman (Veneers) SA Pty Ltd v Bartels [1954] 3 All ER 659 (Pearlman).

Consideration

There is a right of appeal on a question of law, otherwise leave to appeal is required: s 80(2)(b) of the NCAT Act. Leave may only be granted if an appellant can show that they may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, against the weight of evidence or there was significant new evidence that was not reasonably available at the time of the original hearing: Sch 4 cl 12(1) of the NCAT Act. The principles applicable in considering the question of leave are set out in Collins v Urban [2014] NSWCATAP 17 (Collins).
Further, as stated above, both the appeal in connection with the money order and the amendment order are out of time.

Appeal against amendment order

The amendment order was made on 25 November 2019 and notice of that order was given on that date. It is a decision within the meaning of s 5 of the NCAT Act, the time to appeal being 28 days from 25 November 2019, namely 23 December 2019. Consequently, the appeal lodged 2 January 2019 is out of time.
The first issue to consider is an extension of time in connection with the appeal against the amendment order. If time is extended, the next question is whether the appeal should be allowed. If the amendment order is set aside, the appellant could have no liability in respect of the money order.
These issues involve the interpretation of s 63 of the NCAT Act and whether, in the circumstances of this case, it is broad enough to permit the amendment of the money order to change the name of the builder from Dixon Homes Pty Ltd to Dixonbuild Pty Ltd. It also includes a consideration of the findings of the Tribunal in the Amendment Reasons said to justify the making of the order.
The Tribunal's decision concerning the amendment order is found in the Amendment Reasons at [35]-[46]. It is appropriate to set the reasons out in full: My Determination 35 The Applicants reference to the inherent jurisdiction of the courts is appropriate in circumstances where it is intended to superimpose another party into a determination or to replace one party with another in circumstances where the substitute party is unaware of the proceedings. 36 To replace a party with another in the Guardianship Division of the Tribunal, is at an entirely different level to changing the name of a party which has accepted responsibility for defective work, has been represented throughout the proceedings, has been aware of the issue, even before the proceedings in the Tribunal by virtue of its involvement with the Office of Fair Trading (as it then was), has been identified in the proceedings by its correct ABN, Builders Licence and Insurance coverage for the work in issue but has simply been identified by a name which it replaced some years ago. 37 I find that there has been an error in the description of the builder by an inadvertent reference to a name which formerly identified the company. All other identifiers refer to the company which is the subject of these proceedings. 38 The company has been represented throughout the proceedings by an Australian Legal Practitioner "…who is under a duty to cooperate with the Tribunal to give effect to the guiding principle, and for that purpose to participate in the processes of the Tribunal…" 39 The Respondent was in a better position than the Applicant to draw the error in the name of the Respondent to the attention of the Tribunal and to have it rectified. 40 Contrary to the assertion by the Respondent that there is no record of such corrections being made, I note that it is common practice for the Tribunal to correct the names of parties, usually at directions hearings when an error is pointed out by either party. 41 In this application the Applicants fell into error by citing the name of the Respondent, which appears in bold type on the contract used by the Respondent, The error was perpetuated through the hearing process, and when orders were made against the Respondent in a form other than that which the Respondent sought, it claims that the orders are made against a non-existent party, and the only way to rectify the problem is to vacate the orders and re-hear the application. 42 It claims that to simply correct the name on the orders would be to deny the company procedural fairness or natural justice because the company should have a right to be heard. It does and it has been and the alteration of its name from Dixon Homes Pty Limited to Dixon Build Pty Limited, in the circumstances of this case could have been rectified immediately at the hearing. To use the word of Spigelman CJ in Newmont Yandal Operations Pty Limited, albeit in relation to the court's inherent jurisdiction "…is to be determined by broad considerations of justice…" "…rather than focusing specifically on the correction of accidental slips or omissions," 43 Notwithstanding that the words of Lord Denning also relate to the inherent jurisdiction of a superior court, they resonate with the circumstances of this claim. 44 There has been a simple mistake, the name of the building company has been incorrectly identified, but the company against which the proceedings are brought was at the directions hearing, was represented there and at the final hearing, submitted its licence in evidence, agreed that it was the party responsible for the works, although they were performed by its sub-contractor, was "ready willing and able to take a work order". 45 There is no need to consider "the legal effect of deregistration of a company" the need is to rectify a simple mistake in the naming of the party who was present to defend its actions or to accept responsibility for them. I am satisfied that there is an obvious error and I find that it can be rectified in accordance with S 63 (1) which course I find to be consistent with the Tribunal's guiding principle. 46 I have therefore directed the Registrar to amend the name Dixon Homes Pty Limited to the name Dixon Build Pty Limited on orders made in application HB19/265493 under the provision of S63 (1) of the NCAT Act 2013.
In connection with the application to extend time to appeal the amendment order, in our view it should be granted for the following reasons: 1. The appeal in connection with the amendment order was lodged 10 days out of time, the Notice of Appeal having been filed on 2 January 2020. This period includes the Christmas break. 2. The delay is not excessive. 3. The appeal raises a novel question concerning the scope of the power to correct errors under s 63. It is a matter of general importance. 4. If such an order could not be made it should be set aside and the original application dismissed. This might give rise to prejudice in the sense the amount of the award has been paid by the appellant, the respondents have carried out rectification work and, in all probability, spent some or all of the money received from the appellant for this purpose. However, the consequences of the order being set aside would mean the respondents will be able to pursue their claims against the appellant.
Accordingly, we will extend the time to file the Notice of Appeal in connection with the amendment order until 2 January 2020 being the date when the appeal was lodged with the Tribunal.
Section 63 provides: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where - (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons.
The language of s 63(1) talks of an obvious error. As made clear by subs 63(3)(a) and (b), such errors include a clerical mistake and an error arising from an accidental slip or omission. In addition, by reason of subs 63(3)(c) and (d) obvious error includes corrections to rectify a defect in form or an inconsistency between the stated decision and the stated reasons.
In interpreting s 63, the Tribunal must have regard to the guiding principle found in s 36(1) of the NCAT Act which requires the Tribunal "to facilitate the just, quick and cheap resolution of the real issues in the proceedings".
Section 36(2) of the NCAT Act provides: (2) The Tribunal must seek to give effect to the guiding principle when it - (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules.
When interpreting similar provisions found in s 56(1) and (2) of the Civil and Procedure Act, 2005 (NSW) (CP Act), Spigelman CJ (with whom Santow JA and Handley AJA agreed) said in Newmont Yandal Operations Pty Limited v The J. Aron Corporation & The Goldman Sachs Group, Inc & 3 Ors [2007] NSWCA 195 (Newmont) at [25)-[28]: 25 An "overriding purpose" was inserted in the Supreme Court Rules in 2000. It is now found in s56 of the Civil Procedure Act 2005 (NSW) which, relevantly, provides: "56(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule." 26 Accordingly, this Court, unlike other courts which have the traditional form of slip rule, is required to approach the task of interpreting the relevant words, including "error", "accidental slip or omission" and "correct", in such a manner as to give effect to the overriding purpose. Such an interpretive requirement may lead to different results in New South Wales when compared with the past or with other jurisdictions. 27 Similarly, the Court must seek to give effect to the overriding purpose when exercising the discretion to correct an error or mistake in a judgment or order pursuant to r 36.17. In each respect this constitutes a substantive difference which requires the Court to treat prior case law and the case law from other jurisdictions with some care. 28 Accordingly, when considering the exercise by White J of the discretion under the slip rule, the obligation cast on his Honour by s56(2) is pertinent.
It is in this context that the task of interpretation must be undertaken. In doing so, it is still appropriate to have regard to previous decisions of the courts interpreting the various expressions now found in the NCAT Act.
The language of s 63(3)(a) and (b) of the NCAT Act is similar to r 36.17 of the Uniform Civil Procedure Rules, 2005 (NSW) (UCPR). 36.17 Correction of judgment or order ("slip rule") (cf SCR Part 20, rule 10; DCR Part 17, rule 10; LCR Part 16, rule 10) If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.
Of r 36.17, in Newmont at [139], Spigelman CJ agreed with the conclusion of White J (as he then was) in the proceedings at first instance- J Aron Corporation v Newmont Yandal Operations [2006] NSWSC 849 as to the test to be applied. There, White J said at [95]-[97]: 95 If the matter had been drawn to the attention of Austin J when the order was made, and submissions had been made as to the appropriate form of order, I do not think that his Honour would have made an order in terms of paragraph 1 of the notice of motion. However, it is clear that his Honour would have "at once" made an appropriate order to ensure that no order was made for the disposition of the proceedings which created any wider estoppel than arose from the determination of the separate questions. The making of a declaration to reflect the answer to the first question, and a declaration that by reason of that answer the other questions for separate determination did not arise, and otherwise staying the 2004 proceedings until further order, is the appropriate means of achieving that outcome. It is the only appropriate order which the parties sought to identify to give effect to that intention, once order 1 in the notice of motion is left out of the picture. 96 I acknowledge that arguments are available as to whether it is appropriate to dispose of the 2004 proceedings on the basis that no wider estoppel is created. In the usual course, proceedings are expected to be brought to finality as soon as they can be, consistently with the just, quick and cheap resolution of the real issues in the proceedings. On the face of the pleadings, the appropriate order to be made in the 2004 proceedings was the order which was in fact made. It is only because the 2004 proceedings were seen by Austin J as a convenient vehicle for raising separate questions for determination which could not be raised in the 2003 proceedings, having regard to the way they were constituted, that a different order is necessary to give effect to his Honour's intention. 97 However, I do not think that an order under the slip rule cannot be made if it is arguable whether the judge's intention as to the orders he or she intended to make is correct. The test is whether the amendment is beyond controversy to give effect to the judge's intention; not whether it is beyond controversy that the amendment proposed would be a proper order. A judgment does not have to be beyond the possibility of appeal before it is susceptible to correction under the slip rule. In my view, it is not for me as a single judge, standing in Austin J's place, to express any view as to whether his Honour was correct or incorrect in forming the intention which he did. If I am satisfied, as I am, that if the matter had been properly raised on 7 April 2005, his Honour would "at once" have made the declarations and ordered a stay of the proceedings, then the jurisdiction exists to set aside the order of 7 April 2005 to give effect to his Honour's intention. Whether that intention was correctly formed is a different issue which I should not entertain.
When considering an earlier manifestation of the slip rule found in the then District Court Rules (at a time when there was no like provision to s 56 of the CP Act), McHugh JA, in Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, made the following comments at 452-3: "If the proposed variation of an order relates to a matter which was in issue in the proceedings or to something which was incidental to such a matter, the court, in my opinion has power to amend its order if the need for the variation is the result of an accidental omission or mistake … No doubt in some cases there will be difficulty in determining whether or not the subject of the proposed variation relates to a matter which was in issue or whether it is to be regarded as a separate and distinct matter which was not in issue … When that sort of problem arises, the level of classification of the matter in issue will usually prove decisive." … "The requirement that the proposed amendment must relate to a matter which was in issue in the proceedings or what was incidental thereto merely serves to emphasise that it is only omissions or mistakes that are accidental which can be rectified. It would be contrary to the rationale of the slip rule to allow judgments and orders to be amended to deal with matters which were not in issue in the proceedings … The need to confine amendments to matters in issue or incidental thereto is necessitated by the fact that an amendment operates from the date of the original order no matter how long a period had elapsed since the original order was made." … The rationale of the slip rule also requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist … In general the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris [[1892] AC 547] (at 558) if the matter had been drawn to the Court's attention would the correction at once have been made?
Similarly, and paying due regard to the comments of Spigelman CJ in Newmont concerning the need to interpret the particular legislation, in Elyard Corporation Pty Limited v Ddb Needham Sydney Pty Ltd [1995] FCA 1685; 91995) 61 FCR 385, when considering the slip rule under the Federal Court Rules, Lockhart J (with whom Black CJ agreed) said at [24]: 24. It is well settled that the application of the slip rule is not confined to giving effect to the intention of the judge at the time when the Court's order was made, or judgment given. It extends to the intention which the Court would have had, but for the failure that caused the accidental slip or omission: Symes v Commonwealth of Australia (1987) 89 FLR 356. The rule also extends to permit the correction of an order or decree where the omission results from the inadvertence of a party's legal representative: Fritz v Hobson (1880) 14 ChD 542 at 561-2; Chessum and Sons v Gordon (1901) 1 QB 694; Tak Ming Co Limited at 304; Shaddock per Mason A.CJ, Wilson and Deane JJ at 594-5; and Gould v Vaggelas at 274-275.
Finally, reference should be made to the reasons of Denning LJ (as he then was) and Hodgson LJ in Pearlman. In that case the Court of Appeal was considering the operation of R.S.C. Ord 28, r 12 which provided: The court or a judge may at any time, and on such terms as to costs or otherwise as the court or judge may think just, amend any defect or error in the proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.
In dismissing the appeal against an order amending the name of the defendant, Denning LJ said at 660: When the substantive judgement is not being altered, but only the title of the action, it is to my mind quite plain that this Court has ample jurisdiction to correct any misnomer or misdescription at any time whether before or after judgement.
Similarly, Hodgson LJ said at 661: I think the wording of that rule is wide enough to cover the amendment of the title …
Having regard to the above, in our view s 63 operates to permit the amendment to an order in circumstances where: 1. There is an obvious error in the order; 2. Even if the Tribunal was unaware of the error at the time the order was made, the error arises from facts which, if known to the Tribunal, would have caused it at once to make an order correcting the error; 3. Correcting the error does not involve redetermination of the real issues in dispute; 4. The correction of the error will not be contrary to other orders made and/or any reasons given in respect of the original orders, unless those other orders and reasons also require correction for obvious error; and 5. The amendment will not give rise to any injustice on the party affected.
Injustice might include where a party has been denied a reasonable opportunity to be heard on the substantive dispute to which the error relates or has subsequently acted to their detriment in reliance of the original decision.
Errors include where the parties, through inadvertence or being unaware, have not raised the error with the Tribunal.
In this regard, we reject the appellant's submission that the decision of the Appeal Panel in Yang determined that the slip rule could not be used to substitute a new party on the basis this would have the consequence of making fresh findings of fact.
The appellant placed reliance on what the Appeal Panel said in Yang at [83]. However, an understanding of what the Appeal Panel said requires a consideration of the reasons at [78]-[85]: 78 In the Decision, the Tribunal found that the sum of $13,330.00 was due to the Builder for additional piering. The Decision also found that the sum of $5,436.00 was to be allowed in favour of the Owner for air-conditioning. The Owner's slip rule application submitted that the correct allowance in respect of piering was that the Owner should have been given an allowance of $40,104.00 and, in respect of air-conditioning, that the Owner should have been given an allowance of $15,856.00. On the other hand, the Builder submitted that the allowance made for additional piering in the Builder's favour of $13,330.00 was in error and that the correct allowance in favour of the Builder should have been $18,330.00. The Builder also submitted that interest calculations were mistakenly calculated: the allowance for interest in favour of the Builder which was $5,246.00 in the Decision should have been $21,591.00. 79 In the Slip Rule Decision (which ran for 20 pages) the Tribunal in dealing with the slip rule application changed some of the figures previously decided. 80 In dealing with the air-conditioning item the Member, in our view, made fresh findings. For example, in par [40] of the Slip Rule Decision the Member found that the Builder's accounting in the final progress claim did not take account of the receipt of $8,100.00 in progress claim 5. 81 In respect of the adjustment for additional piering, par [45] of the Slip Rule Decision contains fresh findings that the amounts charged for piering were included in progress claims 1 and 2 and in par [51.] The Member appears to have made fresh findings concerning "the evidence, reasoning and calculations" argued for by the Owner. 83 We are of the view that the slip rule should not be used as a vehicle for the reopening of a decision which has already been published to the parties. There may be an exception in a case where all parties consent to a reopening. In our view, the slip rule mechanism should be limited to the subject matter expressly referred to in s 63 namely for the correction of obvious errors, and should not be a vehicle for revised or fresh findings of fact. 84 In this respect, we note the following. (1) In Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 McHugh JA (at 449) referred to the inherent power of the Courts of Common Law and the Court of Chancery to correct any clerical mistake or error in a judgment or order if it was the result of an accidental slip or omission (referring to Lawrie v Lees (1881) 7 App Cas 19 at 34-35). His Honour there noted that the "dividing line between a mistake or error which is the result of an accidental slip or omission and a mistake or error which is the product of a deliberate decision has often been difficult to draw". (2) In order for the slip rule to apply, the Court (here the Tribunal) must be satisfied that had the matter been drawn to its attention it would have made the correction at once: Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453; Newmont Yandal Operations Pty Limited v The J Aron Corporation and the Goldman Sachs Group [2007] NSWCA 195; 70 NSWLR 411 at [137]; Wardle v Agricultural & Rural Financers Pty Ltd (No 3) [2013] NSWCA 207; (2013) 303 ALR 298 at [61]. (3) The slip rule is not applicable where it involves the exercise of an independent discretion not exercised at the time in question: Storey & Keers Pty Ltd & Anor v Johnstone (1987) 9 NSWLR 446; Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287 at [62] to [64]. 85 This case appears to be an exception because both parties treated the slip rule application as an occasion to go beyond the identification of obvious errors and seek a reconsideration of a number of findings.
There is nothing inconsistent with our view as to the circumstances in which s 63 might operate and what the Appeal Panel said in Yang. Rather, the changes to the decision which were the subject of amendment in Yang involved the Tribunal in making fresh findings of fact, different to the primary reasons on which the original (unamended) decision was based. To this extent, we agree s 63 cannot ordinarily be used to change a deliberate decision concerning a real issue in dispute because further analysis of evidence (whether existing or new) might lead to a different conclusion. Rather, its purpose is to correct errors of a type which, if drawn to the attention of the Tribunal at the time of the original hearing would have been corrected immediately.
We should record that our views should not be taken as an exhaustive statement as to the circumstances in which an error might be corrected under s 63. For example, whether s 63 can also be used to correct errors by way of omission of the Tribunal to make determinations on relevant questions, it is unnecessary to decide. In Newmont, when referring to the decision of L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 (Shaddock), Spigelman CJ suggested the slip rule may be utilised for this purpose. At [125] his Honour also said: In Shaddock supra the High Court amended its own order to include a sum for interest, notwithstanding the fact that the Notices of Appeal to the Court of Appeal and to the High Court had not sought any order for interest. In that case, at 594, the joint judgment of the High Court noted that the Court would have made provision for interest on damages "but for the inadvertence of counsel for the applicants". The judgment referred to authorities which suggested that the slip rule applied to correct an omission arising from such inadvertence, even after the order had been entered. These cases, which were referred to with approval, did not involve a final court of appeal. Notwithstanding the fact that the matter had not been raised in the appeal to the High Court, the Court determined that the issue of the award of interest should be determined.
Finally, in expressing this view, we should make clear that the Tribunal has no inherent jurisdiction of the type to which the Court referred in Newmont and such concepts do not apply to the Tribunal. As Spigelman CJ (with whom Handley AJ and Campbell AJA agreed) said in John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors [2004] NSWCA 324; 61 NSWLR 344 at [24]: 24 As a statutory court, the District Court of New South Wales has only such powers as are expressly conferred on it or as are necessarily implied from the express conferral of jurisdiction upon and grant of powers to the Court. A statutory court like the District Court does not have an inherent jurisdiction of the character traditionally exercised by the Royal Courts of Justice in England. Such an inherent jurisdiction is conferred on the Supreme Court of New South Wales.
The source of power of the Tribunal is found in the NCAT Act and relevant enabling legislation conferring jurisdiction on the Tribunal, such power being express or necessarily implied by reason of the language of the relevant legislation. In this regard, while s 36(2) makes relevant the guiding principle to the task of the Tribunal in interpreting and exercising its powers, its obligation to do so is not based on any concept of inherent jurisdiction as might attach to a superior court: Logwon Pty Ltd V Warringah Shire Council (1993) 33 NSWLR 13 per Kirby P at 16-17.
Applying these principles to the present case, it is clear from the material we have been provided that: 1. The dispute, the subject of these proceedings, arose from a written contract to do residential building works dated 17 May 2018 and signed by the parties; 2. The parties to that contract were the appellant and the respondents (see Exh TB-1 p3), the appellant's correct name "Dixonbuild Pty Ltd", the ABN and builder's licence number for that entity being recorded on the written contract. 3. The advertisements by the appellant made reference to the name Dixon Homes, being part of its web address "DixonHomes.com.au", including in a "voucher" provided to the respondents as part of the proposal by the appellant to carry out a building work for them: Exh TB-1 p 22. This voucher recorded at the top (TB-1 p 22): Home to 70,000 Australians WWW COM.AU DIXONHOMES 1300 10 10 10 Admired since 1959 1. The homeowners filed their application at a time when they were acting for themselves. The application incorrectly named "Dixon Homes Pty Ltd" as the respondent; a company the appellant accepted had been deregistered in 1992. However, the application recorded the ABN and contractor's' license number of Dixonbuild Pty Limited, as recorded on the contract. 2. Dixonbuild was registered on 6 December 2004 and was in existence at all relevant times: TB-1 p 216. 3. At the September hearing, and prior thereto, the appellant was represented by Mr Snelgrove, a lawyer who conducted negotiations for the appellant in an attempt to settle the dispute prior to the September hearing and who acted as an advocate at the September hearing, including cross-examining the respondents' witnesses. 4. The communications prepared by Mr Snelgrove recorded "Dixonbuild Pty Ltd" as the respondent in the proceedings at first instance as did the draft work order which Mr Snelgrove prepared. 5. While it was necessary for the homeowners to prove the relevant contract with the builder and a breach thereof in order to establish an entitlement to the money order, at no time was there a dispute concerning the proper identity of the builder, it being absolutely clear that the homeowners contracted with Dixonbuild. Rather, the real issue in dispute concerned whether a work order or money order should be made in respect of a defective septic system. 6. There is no evidence to suggest Dixonbuild did not know of the dispute or the proceedings in the Tribunal. To the contrary, the only conclusion that is available is that at all relevant times it was aware of the proceedings and the directions which had been made before the hearing (requiring the parties to file and serve evidence) and that it had instructed Mr Snelgrove to act on its behalf at the hearing. In this regard, while its director Mr Bartholomaeus did not attend the hearing, it is clear from communications which he says he had with Mr Snelgrove during the course of the hearing that he was aware of the hearing and actively participated in providing instructions. 7. Aside from the assertion there was a denial of procedural fairness; no issue of prejudice was raised by the appellant, either in its submissions to the Tribunal at first instance or on appeal.
As to the issue of prejudice arising from the suggestion the appellant was denied procedural fairness, this assertion is without merit. The appellant was aware of the proceedings, participated in the proceedings and, through its solicitor Mr Snelgrove, advocated that a work order should be made against it in respect of any defects arising from the performance of its contract with the homeowners.
The fact it failed to obtain a work order does not mean that there was a denial of procedural fairness.
It follows that the Tribunal was correct to conclude it had power to amend the name of the builder on the money order and that it was appropriate to do so.
In reaching this conclusion, we note in the Amendment Reasons at [36] the Tribunal spoke of a name that had been "replaced some years ago". While this is not correct, there being no suggestion that Dixonbuild was formerly known as "Dixon Homes Pty Ltd", this is of no moment. Rather, we take this reference as no more than a statement that those behind the various corporate entities who have apparently been trading under the banner "Dixon Homes" since 1959 have changed the company that contracts to carry out residential building work. However, in this case, at all times the appellant was the contracting party with the respondents.
The final matter to deal with is the terms of the amendment order which referred to "Dixon Build Pty Ltd" rather than Dixonbuild Pty Ltd. While this is a minor discrepancy, having regard to what we have said and having regard to the Notice of Appeal and history of the proceedings, we should make orders to correct this misspelling in both the proceedings at first instance and in this appeal. Accordingly, we will make the following orders: 1. The name of the appellant is amended to Dixonbuild Pty Ltd ABN 80 112 083 842. 2. The name of the respondent in the order made 17 September 2019 in application HB 19/26493 is amended to Dixonbuild Pty Ltd ABN 80 112 083 842.

Appeal against money order

The second matter to consider is an extension of time in connection with the appeal against the money order and, if time is extended, whether the appeal should be allowed.
The money order was amended on 25 November 2019. Once amended, "the altered text is taken to be the notice of the Tribunal's decision or statement of its reasons": s 63(2). That is the text of "the notice" is that of the amendment made. In addition, notice of the amendment "is to be given in the manner as the President or member may direct": s 63(2).
However, the amendment takes effect on the date of the original order, otherwise the correction would not give effect to the intention of the Tribunal on the date when the order was made: Elyard per Lockhart J at [29]: see also the approach of the High Court and the orders made in Shaddock.
The time to appeal the money order is regulated by r 28(4)(c) of the Rules. This rule provides that the appeal must be lodged: within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later).
In our view the appellant "was notified of the decision" on the date the appellant was notified the original money order was made, not the date the amendment order was made. This is because: 1. The decision being challenged is the order to pay money; 2. The amendment made has the consequence of altering the text of the original decision on and from the date of the original decision, the original decision (even with the altered text) operating from the earlier point in time; 3. The amendment in this case does not change the obligation to pay, but rather corrects the name of the party required to pay. It alters the text of the original decision. It does not impose an obligation to pay a different amount. For the purpose of r 28 the situation may have been different if there was a correction to the substantive obligation which was consequently altered: cf Shaddock where the High Court amended the orders to add an amount of interest to the judgement.
It follows that the time to appeal the money order was on or before 23 September 2019 and that an extension of time is required.
Even if we are wrong on this issue and the time runs from the date the parties were notified of the decision concerning the amendment application, the appeal is still out of time for the reasons given in connection with the appeal against the amendment order.
Be that as it may, the question is whether time to appeal should be extended.
As to the period between 17 September 2019 and 25 November 2019, in our view this delay is explainable because the appellant was resisting the amendment, contended the orders should be set aside, including for reasons of procedural fairness, and said there was no order against it which could be enforced. As the resolution of this issue in its favour would, at least, have caused the money order to be set aside and a new hearing to occur, in the peculiar circumstances of this case this period of delay should not, of itself, lead to a refusal to extend time.
In respect of the period after 25 November 2019, in our view this period is significant, being an additional period of 38 days until the appeal was lodged on 2 January 2020. Further, the following matters count against an extension of time: 1. according to the correspondence to which we have been referred, the appellant had been contemplating an appeal since at least 23 September 2019, when the error in the appellant's name was notified by its then solicitor, Mr Snelgrove, to the Tribunal; 2. the appellant must have known of its rights to appeal in September 2019, 3. from when the amendment order was made until the Notice of Appeal was filed, no advice appears to have been given to the respondents of an intention to appeal; 4. no explanation has been given as to why a Notice of Appeal could not have been filed immediately, or at least within the 28 day period after the amendment order was made. The only explanation offered is that the appellant had, by then, decided to change solicitors and that CDI receive the file held by Snelgrove's on 20 December 2019. No details are provided as to what steps were taken to obtain the file at an earlier time or what was the cause of any delay. 5. The money order was paid on 28 November 2019. No stay of this order was sought although the appellant now contends that the order should be set aside and a work order made in substitution for the original money order. However, the rectification works, the subject of the dispute, have now been completed. These facts give rise to prejudice to the respondents. As to the alternative relief, that an amount of money be refunded, we will deal with that matter below.
Consistent with the principles in Jackson at [18] and following, where the explanation for delay is weak, it is necessary to look at the substance of the appeal and the prospects of success. This also involves a consideration of whether leave should be granted to adduce fresh evidence.
During the hearing of the appeal, Counsel for the appellant accepted that directions had been made in the proceedings at first instance for the filing and service of evidence by the parties. Counsel also accepted that there was no evidence provided to the Tribunal at first instance concerning the respondents denying access to the site for the appellant to carry out rectification work. Finally, Counsel accepted that the evidence of Mr Bartholomaeus of events prior to the September hearing was reasonably available and could have been provided at that time. No explanation was provided about why there had been a failure to comply with directions.
Schedule 4 cl 12(1)(c) permits leave to appeal only if a party may have suffered a substantial miscarriage of justice because there is significant new evidence that was not reasonably available at the time the proceedings under appeal were being dealt with. It is clear in the circumstances of this case and from what we have been told in the appeal, that the evidence of Mr Bartholomaeus and the material relating to events prior to the September hearing was evidence reasonably available: see Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [19] and following. Consequently, leave to rely on the fresh evidence should be refused.
In relation to the proceedings at first instance, the following is the position: 1. There was no dispute that the septic system, the subject of the dispute, was faulty or had been improperly installed and needed to be removed. Rather, the transcript reveals the dispute concerned whether a work order or money order should be made and/or whether the existing Aqua Nova system should be replaced with the same system or a Taylex system. 2. Despite directions of the Tribunal, the appellant did not provide any statements from Mr Bartholomaeus or any other witness to support the contentions now made on appeal concerning the contract, what occurred during its performance and access to the site to carry out rectification work now said to have been denied. Further, no expert evidence was provided to support the appellant's position concerning the work required to be done to rectify the defective work; 3. At the hearing, the respondents provided a second quotation from Alstonville in relation to their claim which had the effect of increasing the claim for rectification costs from $60,270 to $99,350 which was the amount of the money order. Alstonville was the company the respondents proposed carry out the rectification work: RB Tab 8 p 137 paras 29-30. Importantly, in connection with this amendment and late provided quotation, the appellant's then solicitor, MrSnelgrove did not seek an adjournment. Rather, when asked by the Tribunal at the hearing whether that was something he was "able to deal with today" Mr Snelgrove said yes, maintaining a position that he would challenge the evidence on the basis it was not expert evidence but rather evidence from a plumber who had an interest in the proceedings. 4. Mr Rizzo, the representative of Alstonville, also provided oral evidence concerning the work to be undertaken. This evidence included information concerning the scope of work required, the amount of contaminated soil that needed to be removed, that the Taylex system, proposed as an alternative to the Aqua Nova system, was $2000 cheaper. He also said that he thought the Taylex system was a better product than the Aqua Nova system. Mr Rizzo was cross-examined on his evidence by Mr Snelgrove.
All this occurred in circumstances where Mr Snelgrove maintained, on behalf of the appellant, that a work order should be made. In doing so, there was no dispute that the existing system needed to be replaced. In this regard Mr Snelgrove said to the Tribunal (at RB Tab 8 p 141 line 6): … we agree that the system needs to be replaced, it is defective, and that [the appellant] would agree to a work order as required, given by the Tribunal to [the appellant], and ultimately, if we don't get the approval of Richmond Valley Council, if we haven't done it the second time properly, then the applicants are entitled to a reinstatement application and to seek a money order from [the appellant] and that is where Alstonville might become enlivened …
It also occurred in circumstances where the respondents, through their lawyer Mr Graham, indicated they would accept a work order as long as the Taylex system was used as the replacement system, rather than a new Aqua Nova system being installed. This was something the appellant did not accept.
The application of s 48MA has been dealt with in various cases including Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 and Leung v Alexakis [2018] NSWCATAP 11 (Leung). In Leung at [139]-[140] the Appeal Panel said: 139 Rather, there was a discretion the Tribunal was required to exercise as to whether or not to make an order for compensation, an order in the nature of a work order or some other order as permitted by s 48O(1). In this regard, s 48O(2) provides the Tribunal can make a work order even if not asked for by the applicant who makes a claim for defective residential building work. In doing so, s 48MA requires the Tribunal "to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome". Section 48MA is not, in terms, mandatory. Rather, it is a factor to be taken account of in the exercise of a discretion about what orders should be made to resolve a building claim. 140 Being expressed as a "preferred outcome", it operates in the manner of a presumption. That is, unless the facts of the particular case make it inappropriate to order rectification of the defective work by the responsible party, an order should be made in terms that give effect to the principle.
Ultimately the Tribunal determined a work order should not be made and accepted the Alstonville revised quotation of $99,350 as the reasonable cost to rectify the defects. It did so for the following reasons: 1. the appellant "failed over a period of almost 7 months to respond to the [homeowners'] entreaties to rectify a serious failure of the septic tank installation"; 2. the appellant failed to file and serve evidence in support of its contention that a work order should be made; 3. the homeowners refused to have the builder return to the site because of its failure to rectify the defect which had damaged their land and put them at serious health risk; 4. the applicants want to install a different system (namely that Taylex system) to that which needs to be removed and replaced (namely the Aqua Nova system). The Taylex system is $2000 cheaper, a matter not denied by the appellant; 5. the only evidence provided concerning the cost of a new septic tank installation and remediation of the site was that provided by the homeowners; 6. although "strenuous representations" were made to the Tribunal to adopt the preferred outcome of a work order, the Tribunal rejected this course because "the system installed is not correctly sited, it has not been commissioned, it has failed to operate and it has caused and continues to cause a health hazard to the [homeowners] and if left to continue longer will probably cause a health hazard to the community in general by causing raw sewerage to enter the drainage system by flowing out of the site and into other properties".
The decision to refuse to make a work order involved the exercise of a discretion. Consequently, the appellant must show an error of the type in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-5: Leung at [141].
While the Tribunal's reasons are brief, in our view they sufficiently set out why the Tribunal declined to make a work order. Of particular relevance, the appellant did not provide evidence to support its contention that a work order should be made. No doubt this evidence could have detailed the extent of the defect and the nature of the work required as well as providing costings for such work and the timeframe within which it would be undertaken. This did not occur. Rather, as the transcript reveals, submissions were made by Mr Snelgrove unsupported by relevant evidence.
On the other hand, Mr Rizzo from Alstonville provided oral evidence and was cross-examined on relevant topics. His view was that any proposed scope of work to replace the existing Aqua Nova system with the same product was inappropriate, both in terms of costs and its ability to process and discharge water of appropriate quality. The Tribunal accepted the Taylex system should be used for cost reasons and found this work proposed in the Alstonville amended quotation to be a reasonable course to follow to rectify the defects.
While there is some inconsistency in the reasons between the finding that the appellant failed to carry out rectification works for over 7 months and the finding that the homeowners refused to let the appellant return to site to carry out rectification work, having reviewed the transcript and having regard to the concessions made by the appellant during the hearing of the appeal, we are not satisfied this inconsistency is of any significance. In this regard, the evidence of Mr Adams, the first respondent, at the September hearing was to the effect that he was unaware the appellant "had no problem fixing the septic system" until the directions hearing before the Tribunal: see eg RB Tab 8 Tscpt p 166, paras 475-480. As stated above, this directions hearing occurred on 17 July 2019, approximately 5 months after the work was completed.
In these circumstances, we are not satisfied the exercise of discretion may have miscarried.
Further, and in any event, we would not extend time to appeal on the basis a work order should have been made as, in our view, the respondents would suffer prejudice for the reasons outlined above. No stay of the money order was immediately sought, nor was it sought after the amendment order was made. The money order was paid on 28 November 2020 and we understand the respondents have carried out the rectification work.
As to that part of the appeal seeking that the money order be varied to a lesser amount, in our view this part of the claim has little or no prospects of success.
In a breach of contract claim, an applicant is entitled to the reasonable cost of carrying out such work rectify the defects and bring the works into conformance with the contract: Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 (Bellgrove).
While the appellant asserted at the September hearing that the Tribunal should not accept the Alstonville second quotation as it was not supported by independent expert evidence and/or that there was only one quotation, in our view no error was shown in the approach adopted by the Tribunal.
The only evidence that the Tribunal had as to the work required to rectify the defect and the cost of doing so was provided in the quotations from Alstonville. A comparison of these quotations (417 and 417A (found at RB Tab 9 pp 180 and 184) clearly shows the increase in the amended quotation was due to additional cost associated with removal and transport of contaminated soil and its replacement, the change in scope being detailed in the body of the quotations: see eg RB Tab 9 pp 179, 181 and 183. This evidence also included oral evidence from Mr Rizzo detailing the area of land to be remediated: see eg RB Tab 8 tscpt p 155 para 274.
As to this evidence, it does not appear Mr Snelgrove submitted the amended quotation should be rejected as unreasonable or that the area requiring remediation was incorrect, his final submissions focusing on whether a work order should be made and his earlier submissions relating to the issue of expert evidence.
While Mr Snelgrove may have been correct in his submission that Mr Rizzo was not an independent expert, there was no suggestion that Mr Rizzo was not a third party service provider able to supply a replacement septic tank system and qualified to provide the requisite services to install it and remediate the site. There is no suggestion his engagement was not at arm's length and no reason to doubt his evidence concerning the cost of carrying out the work.
It was open to the appellant to provide evidence in reply. The appellant failed to comply with the Tribunal's directions and failed to avail itself of the opportunity of providing evidence at the September hearing. When faced with the revised quotation at the September hearing, no adjournment was sought. Rather, the appellant sought to challenge the admission of this evidence as not being an expert opinion and by cross-examining Mr Rizzo.
The original septic tank system was defective and needed to be removed and replaced. It is clear from the evidence that this resulted in the escape of effluent that contaminated the surrounding area. There is no suggestion the Tribunal accepted Mr Rizzo's evidence as to the cost to rectify the defective system and remediate the site as that of an independent expert. Rather, the Tribunal accepted a quotation from a third party supplier to rectify the defects, having considered the scope of work contained in the amended quotation and having heard Mr Rizzo cross-examined by Mr Snelgrove about the nature and extent of the work required. It did so in circumstances where there was evidence about the experience of Mr Rizzo and Alstonville carrying out this type of work and where there was an absence of any evidence from the appellant to contradict this evidence.
It is clear from the transcript that the Tribunal accepted the absence of an independent expert report might go to the question of weight. However that does not render the above evidence inadmissible on the question of what work was reasonably required or what was the reasonable cost to do so.
There was no challenge in the appeal based on adequacy of reasons. Otherwise, a review of the evidence demonstrates there was a proper basis for accepting the amended quotation as evidence of the reasonable cost of rectifying the defective septic system and remediating the land contaminated in consequence thereof. The evidence to which we referred identified the cost a qualified third party contractor would charge to remove and replace the existing system and provided an estimation of the area of contaminated soil to be removed and the cost to do so. In the absence of evidence to the contrary, this was sufficient basis for the Tribunal to determine the reasonable cost of that work. Mr Snelgrove's conduct of the hearing, about which complaint was made, and any alleged failure to make submissions concerning site access, could have no impact on the decision in circumstances where the appellant failed to file and serve as required by earlier directions.
It follows that leave to appeal should be refused.
The last matter to deal with in the appeal against the money order is the appellant's contention that what occurred after the September hearing and after the money order was paid was to be taken into account in determining whether an error had been made in the amount of the award. This submission should be rejected for the following reasons. 1. At a final hearing, damages are assessed once and for all: see eg Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 per Gibbs CJ and Wilson J at 412 2. The Tribunal must determine the necessary and reasonable cost to rectify the defective work: Bellgrove at 619. Where rectification work has not been carried out, an assessment is made on quotations or estimations of the reasonable cost to do so from appropriately qualified people. 3. Whether a greater or lesser amount is subsequently spent on rectifying the works is not a ground for review of an award on appeal; and 4. The use to which an award of damages is put is ordinarily irrelevant to what the award should be: Westpoint Management Ltd v Chocolate Factory Apartments Ltd; Chocolate Factory Apartments v Westpoint Finance & Ors [2007] NSWCA 253 at [54] per Giles JA (with whom McColl and Campbell JJA agreed). See also Todorovic per Gibbs CJ and Wilson J at 412.
The appellant relied on the decision of Hodgson JA in Tyco. There, his Honour said at [261]: 261 First, if a plaintiff choses to acquire a more valuable asset than that which had to be replaced, where the plaintiff could for a lesser expenditure have acquired an asset that would have been as satisfactory as that replaced, the plaintiff cannot recover more than that lesser expenditure: British Westinghouse Electric & Manufacturing Co. Ltd. v. Underground Electric Railways Co. of London Ltd. [1912] AC 673.
The present case is not one where a more valuable asset has been purchased or proposed to be purchased to replace an item which has been damaged. To the contrary, the Tribunal found that the cost of the Taylex system was less than the Aqua Nova system.
In any event, the fact that a cheaper method to rectify the works might later be found does not mean the Tribunal's decision based on the evidence then before it should be set aside or varied on appeal. As stated above, the assessment of damages is once and for all. Further, the fact the appellant could have done the work for a lower cost or engaged others to do so at a lower cost again is of no moment in this case because no evidence was provided by the appellant about these matters at the September hearing. The fact it failed in its application for a work order, because it failed to provide evidence on this topic, is no reason to reach a different conclusion.

Conclusion

Having regard to the above, we are not satisfied that there are any real prospects of success in the appeal. This is so whether or not the time to lodge the appeal in respect of the money order commenced to run on the date of the money order or the amendment order.
Consequently, leave to extend the time to appeal should be refused and the appeal should be dismissed because it is out of time

Costs

The parties agreed in submissions that cost should follow the event. The appellant should pay the respondents' costs of the appeal, as agreed or assessed on an ordinary basis

Orders

The Appeal Panel makes the following orders: 1. The name of the appellant is amended to Dixonbuild Pty Ltd ABN 80 112 083 842. 2. The time to lodge the appeal in respect of order 1 made in application HB 19/26493 on 25 November 2019 is extended to 2 January 2020. 3. The name of the respondent in the order made 17 September 2019 in application HB 19/26493 is amended to Dixonbuild Pty Ltd ABN 80 112 083 842. 4. Save as provided in order 3, leave to extend the time to lodge the appeal in respect of order 1 made 25 November 2019 is refused and the appeal is otherwise dismissed. 5. The application to extend the time to appeal the order made 17 September 2020 is refused. 6. The appeal is otherwise dismissed. 7. The appellant is to pay the costs of the respondents as agreed or assessed on an ordinary basis.

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

Amendments 15 September 2020 - Orders corrected. 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: 15 September 2020

Dixonbuild Pty Ltd v Adams

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