Domson Construction Pty Ltd v Yanying Li

AW v WW (No 2) [2024] NSWSC 146

Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734

Donohoe v Albulario [2025] NSWSC 9

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26

Electricity Generation Corporation v Woodside Energy (2014) 215 CLR 640

FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127

Hawach v A & A Building Society Pty Ltd [2024] NSWCATAP 138

House v The King [1936] HCA 40

Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325

John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184

Mamo v Surace [2014] NSWCA 58

Maurici v Chief Commissioner of State Revenue [2003] HCA 8

Mount Bruce Mining v Wright Prospecting (2015) 356 CLR 104

Orr v Cobar Management Pty limited (2020) 103 NSWLR 36; [2020] NSWCCA 220

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Wright v Lend Lease Building Pty Ltd Intercon Engineering Pty Ltd v Lend Lease Building Pty Ltd [2104] NSWCA 463

1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 NSW (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 2 October 2024.
2. The decision relates to proceedings commenced by the appellant, Domson Construction Pty Ltd (the builder) against the respondent, Yanying Li, (the owner) seeking an order for payment of money said to be payable for variations. Ms Li lodged a cross application alleging defective work and a claim for liquidated damages for delay.
3. The proceedings came before the Tribunal for hearing on 4 and 5 July 2024. The Tribunal dismissed Domson Construction's application for variations of $81,812.50 and the claim for a final payment of $15,000. The Tribunal made an order that Ms Li was entitled to be paid $109,288.81 by Domson Construction comprised of liquidated damages for delay and damages for defects. The Tribunal also made an order that the builder provide any outstanding certificates and ordered Domson Construction to pay costs on an ordinary basis, as agreed or assessed.
4. Domson Construction lodged an appeal against the decision on 18 October 2024, which was within the prescribed period specified in r 25(3) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules). Domson Construction applied for a stay of the orders, which was granted on 30 October 2024, subject to Domson Construction providing security by payment of $109,000 into a controlled monies account. The Appeal Panel made directions about the conduct of the appeal, which included a direction that Domson Construction file and serve any Amended Grounds of Appeal by 13 November 2024. Both parties were given leave to be legally represented.
5. In essence, Domson Construction contends that the Tribunal erred in its construction of the building contract and erred in its finding in relation to one of the alleged defects by overlooking critical and material evidence from an expert witness. Domson Construction submits that these errors raise questions of law. These had a material impact on its application for the final payment and the cross application lodged by Ms Li for delay and compensation for defects. It is submitted that, if Domson Construction succeeds on the appeal, it follows that the costs order, which was based on the Tribunal's findings in favour of Ms Li, is also in error. In its Amended Grounds of Appeal, Domson Construction sought orders that the decision appealed be set aside and remitted to the Tribunal, differently constituted, to determine the proper sums due and payable under the building contract. Domson Construction also seeks an order for costs of the appeal.
6. The material before the Appeal Panel, being three volumes of an agreed Appeal Book, included material that was before the Tribunal at first instance. Both parties were legally represented, Domson Construction by Mr Bambagiotti of counsel and Ms Li by Mr Soon of counsel. The contentions of Domson Construction were set out in an Amended Notice of Appeal filed on 13 November 2024, written submissions filed on 15 January 2025 and submissions in reply filed on 17 February 2025. The contentions of Ms Li were set out in her Reply to Appeal filed on 27 November 2024 and written submissions filed on 10 February 2025. Both parties made oral submissions at the hearing of the appeal expanding on or explaining the particular written submissions and contentions.
7. Following the hearing, the Appeal Panel requested clarification and further submissions in relation to a ground raised by Domson Construction in oral submissions about practical completion, including whether leave was required and should be granted, to further amend the Grounds of Appeal. Further written submissions were provided by the parties. For the reasons later outlined, we granted leave to amend.
8. At the hearing of the appeal and in subsequent written submission, Domson Construction submitted that if it was successful on any of the grounds raised, the Appeal Panel should determine the appeal by substituting another decision, rather than remitting the matter for reconsideration. This is the contrasted with the position the builder adopted in the Amended Grounds of Appeal. Ms Li submitted that if the Appeal Panel allowed Domson Construction to further amend in relation to practical completion, and Domson Construction is successful on this ground, the matter should be remitted to the Tribunal for reconsideration of this issue, to allow the parties to put on further evidence and submissions.
9. We have granted leave to further amend the Amended Grounds of Appeal and have dismissed the appeal. Our reasons follow.

The proceedings before the Tribunal at first instance and the decision

1. The dispute between the parties relates to a contract entered into on 26 December 2020 for the renovation of residential premises. The estimated costs of the works set out in the contract was $150,000. The building work commenced on 10 January 2021. Domson Construction issued a notice of practical completion on 10 August 2022. The validity of this notice is one of the central issues in this appeal.
2. Domson Construction commenced proceedings against Ms Li on 11 July 2023 for payment of money said to be owing under the contract, specifically relating to "variations". The sum claimed was $81,812.50. There was a further amount of $15,000 for the final payment claimed to be payable on practical completion.
3. Ms Li lodged a cross application on 14 October 2023 seeking an order that she did not have to pay the amount claimed by Domson Construction. She further sought payment in the sum of $100,000 as compensation for loss as a result of breach of the statutory warranties. Ms Li later made a claim for liquidated damages for delay.
4. Directions were made about the conduct of the hearing and the parties relied on documentary evidence, which comprised eight folders, admitted into evidence as Exhibit A, and two additional folders, admitted into evidence as Exhibit B. The Tribunal was provided with statutory declarations from Ms Li and Mr Tsang, director, on behalf of Domson Construction. Included in the tender bundles were experts reports from Mr Robert Taylor on behalf of Ms Li, dated 13 November 2023, and Mr Darren Bland, on behalf of Domson Construction, dated 13 December 2023, and a joint report dated 15 January 2024. Ms Li and Mr Tsang were cross examined on their evidence and Mr Taylor and Mr Bland were cross examined on the contents of their expert reports.
5. The matter was heard on 4 and 5 July 2024 and the Tribunal's reasons for decision were published on 2 October 2024.
6. The Tribunal found, and there is no dispute about this, that the applications related to residential building work, and it therefore had jurisdiction to deal with the matter under the Home Building Act 1989 (NSW) (HBA)
7. The Tribunal found that the contract between the parties was a cost-plus contract with a payment plan which required specified amounts to be paid at specified stages of the work. The analysis of the relevant dealings between the parties is set out at [53] to [72] of the decision, with the critical findings at [71] to [72] as follows:

71. In this case, the result is that the builder is only able to claim its incurred cost of the work plus an allowance of 15%. However, there is no evidence as to what is that amount. As it is agreed that the owner paid a total of $153,880 to the builder, the absence of that evidence means that it is not known what amount, if any, is now owed to the builder since it is not known what the actual cost plus 15% exceeded $153,880.

72. Even if the incurred cost plus 15% of any variation due to any addition, amendment or deletion to the scope of work is proved, the position in relation to the builder's application would still be the builder has not proved the amount payable under the cost plus contract, plus any amount payable for such variations, exceeds the amount the owner has paid to the builder.

1. Ms Li contended that there was a 'side agreement' with Domson Construction in addition to the formal contract for work to be undertaken for a fixed price of $80,000. The Tribunal found at [76] that there was no such side agreement and therefore found that any work that may have been contemplated as part of the side agreement could only be the subject of a variation claim under the cost-plus contract (at [77]).
2. The Tribunal made findings in relation to the amounts claimed by Domson Construction for variations and the amount that were recoverable in respect of those claims (at [78] to [115]). The Tribunal found that, because there was a failure to comply with the requirements of the HBA in relation to the variations, the builder could only make a claim on a quantum meruit basis. As such, each of the variation claims needed to be examined.
3. The Tribunal noted at [81] that if the work the subject to the relevant variation claim was within the scope of the work set out in the quotation, Domson Construction would only be entitled to be paid the actual cost plus an allowance of 15%. However, if the variation related to a change of work covered by the scope of work or related to additional work outside the scope of work, it could be recovered as a variation, but only on a quantum meruit basis. The reference to each of the claims as being "variations" is confusing as it is apparent that a number of the claims made and referred to as a variation in the decision were in fact, and found to be so, claims made within the scope of the contract works. Whatever the terminology used, it was necessary for the Tribunal to consider the nature of each claim made.
4. The Tribunal proceeded to consider each of the 15 variations. The Tribunal found two of the claims were not substantiated and therefore not allowed, four claims were within the scope of the contract and were allowed at cost plus 15% and the remaining claims were allowed on a quantum meruit basis. The total allowed was $62,963.59 based on cost plus (if the change was within the scope of work) and quantum meruit basis (refer [82] to [115] and Appendix C to the decision). However, the Tribunal later found that in the absence of evidence of the actual cost of the work, the Tribunal was not satisfied the actual cost of the work had been proven and therefore could not determine what part of the costs plus contract price was unpaid. Accordingly, the Tribunal found that Domson Construction had not proved an entitlement to be paid any further amount and the claim for the "variations" was dismissed. (at [134]-[135]). Domson Construction has not appealed this part of the decision.
5. Domson Construction issued a notice of practical completion on 10 August 2022. The Tribunal considered the validity of this notice and found that the notice was not valid. Relevantly, the Tribunal was not satisfied the residential work had reached practical completion at the time the notice was issued.
6. The Tribunal reasoning is at [124]- [130].
7. The Tribunal summarised of the contractual provisions relating to practical completion at [124] as follows:

124. In the costs plus contract, the clause dealing with practical completion is clause 20. The effect of that clause may be summarised by saying that it provides two ways in which practical completion can be achieved: by the builder carrying out the work (actual practical completion) or by the conduct of the owner (deemed practical completion). On 10 August 2022 the builder issued a notice of practical completion (Annexure M).

1. The Tribunal noted at [125] that Mr Tsang (on behalf of Domson Construction) made it clear in his statutory declaration that he was alleging deemed practical completion based on clause 20(f)(i) of the costs plus contract (the Tribunal mistakenly referred to clause 22) and set out the relevant provisions of clause 20(f)(i) and (ii).
2. The Tribunal recounts the evidence of Mr Tsang in support of deemed practical completion at [126] of the decision, namely paras 69 and 70 of his statutory declaration, as follows:

69. The Owner did take the works and use them. See photograph attached and marked Annexure L. This photograph shows a view of the works showing the owner has placed furniture and clothing in the works, thus showing occupation by the owner.

70. The Builder notes that the Owner, in advance of inspections, has removed evidence of her occupations.

1. The photograph attached to Mr Tsang's statutory declaration, which was before the Tribunal at first instance and is included in the Appeal Book, shows a portion of the kitchen, which was part of an existing area of the house not subject to the building works, with a door leading into another area, being the extension which was the subject of the building works. The photograph, which has been taken through a glass door, shows furniture in the room together with a bench with something that looks like rolls of fabric. There is no date on the photograph.
2. The Tribunal notes at [127] that Mr Tsang was cross examined about this by Ms Li and he confirmed that the notice of practical completion was based on the movement of the furniture. When it was put to him that the furniture was only there on a temporary basis, he said he did not know that.
3. The Tribunal summarises the evidence of Ms Li in response to this issue at [128] as follows:

128. In her second statutory declaration (A40), the owner responded to that evidence. That evidence may be summarised in the following manner: (1) the photograph on which Mr Tsang relies was taken on 3 July 2023, well after the builders 10 August 2022 notice, (2) furniture was only moved due to painting work carried by the builder's workers, (3) that painting work was the result of a leaking roof due to the builder's work, (4) the painting work was in an existing area of the house, not the area being renovated, (5) the furniture was only moved temporarily and was moved back when the work finished. That evidence was not challenged during the cross examination of Ms Li.

1. The findings made by the Tribunal on whether practical completion was achieved is at [129] and [130] as follows:

129. In relation to this issue, the Tribunal does not accept the validity of the notice of practical completion for the following reasons. First, the evidence does not support actual practical completion, the builder does not allege that, and the unchallenged evidence of Mr Taylor (A1691) is to the contrary. Secondly, the movement of the furniture was only temporary. Thirdly, the movement of that furniture did constitute reoccupation of the premises by the owner. Fourthly, the movement of that furniture was for the purpose of facilitating the work, and did not hinder the work. Fifthly, the Tribunal is not satisfied that the photo upon which Mr Tsang relied was taken prior to 10 August 2022, noting that he did not given evidence as to when it was taken and the owner's evidence it was taken on 23 July 2023 was not challenged. Sixthly, as indicated earlier, the evidence of Ms Li is preferred to that of Mr Tsang. Unusually, on this issue, the self-represented owner put her case to the builder's Mr Tsang but the legally represented builder's case was not put to the owner, Ms Li.

130. Accordingly, the Tribunal does not consider practical completion was achieved. It is convenient to here note that the state of the work as at 24 August 2022 was not such as to justify the final claim for $15,000 that was made in a tax invoice by the builder on that date (A511). The final page of the quotation specified that the final payment would become payable when the work was completed, and any keys handed over. That had clearly not been achieved by 24 August 2022.

1. It should be noted that there is a typographical error in [129], which should read "Thirdly, the movement of that furniture did not constitute reoccupation of the premises by the owner."
2. This finding about the validity of the notice of practical completion goes to the heart of the dispute in the appeal about the liquidated damages claim awarded against Domson Construction and its claim for the payment of the final claim of $15,000 and interest of $1,001.73. The Tribunal deals with these latter claims at [130]-[133]. Domson Construction invoiced Ms Li for the final payment of 15,000 on 24 August 2024 (A 511). The Tribunal states that the final page of the quotation specifies that final payment would become payable when the work was completed and any keys handed over. As noted above in [130], the Tribunal did not consider practical completion had been achieved and found at [132] that Domson Construction was not entitled to make a claim for final payment for $15,000, nor could it claim interest in relation to that amount.
3. Ms Li's liquidated damages claim is considered at [177]-[179] but is also related to the findings made by the Tribunal about Domson Construction's claims about entitlement to suspend the work and claim extensions of time. These matters are considered at [119]-[123]. There is no dispute about these findings.
4. In summary, the Tribunal found that Domson Construction was entitled to an extension of time for variations of 44 days and further found that the work was validly suspended for 18 working days, between 7 May 2022 and 6 June 2022. Accordingly, the Tribunal found that the due date for completion of the work under the contract was 30 June 2022 (refer [121]-[123]). This was relevant to the claim made by Ms Li for liquidated damages for delay. The Tribunal found that, given the due date for completion was 30 June 2022 and the application was lodged with the Tribunal on 14 October 2023, Ms Li was entitled to liquidated damages for delay from 30 June 2022 to 14 October 2023, namely 472 days at a rate of $500 per week under the under clause 10(c)(i) of the contract, which gives a total of $33,500: [177]-[179]. This claim is relevant to the appeal because if it is accepted that practical completion was 10 August 2022, the delay damages should be calculated from 30 June 2022 to 10 August 2022, thereby reducing the monetary claim awarded to Ms Li for delay by $30,000.
5. The Tribunal considered Ms Li's claim for defective work and damages for rectification of the stormwater drain, under s 18B(1) of the HBA at [137] to [173]. After considering each of the defects claimed and the expert evidence of Mr Taylor and Mr Bland, including the joint experts' report, the Tribunal found for Ms Li in the sum of $75,788.81, which comprised $68,898.92 for the defects and stormwater rectification together with GST of $6,889.89: as particularised in [176] and Appendix D of the decision.
6. Relevant to one of the issues in dispute in this appeal, the Tribunal found that rectification costs in respect the claim for defective work on the roof should be allowed in the sum of $28,752.47: [166].
7. The Tribunal noted that there were three aspects raised by Ms Li's expert, Mr Taylor, in relation to claimed defective roof work at [157]. The first related to dents and scratches and the use of touch up paint. The second related to the extension roof not finishing at the same height as the existing roof. The third issue raised was that the extension roof was said to have a pitch of around 20° rather than the 12° specified.
8. Given the importance of the Tribunal's findings on this claim to the appeal, it is relevant to set out the detailed reasoning on how the Tribunal resolved the contested issues at [158] to [166] as follows:

158 When cross examined, Mr Taylor provided a convincing explanation as to how the extension roof could have been built to finish at the same height as the existing roof.

159. Mr Bland accepted the first of those three aspects. As to the second, he said that was a result of the design. In relation to the third, he suggested the pitch was in the vicinity of 12° shown on the plans.

160. Mr Tsang's statutory declaration suggested a speculative explanation in support of his claim that the owner [was] responsible for the first aspect. That evidence, which took the form of asserting what the builder and its roofing contractors "would have done" did not advance the builder's case on that aspect.

161. As to the first aspect, the Tribunal considers it far more likely that the issues raised by Mr Taylor were caused by the builder and its subcontractors rather than the owner [or] her agents. Mr Bland accepted that "All damaged, scratched and dented roofing should be replaced at no expense to the owner" (A1816-1817).

162. In relation to the second aspect, the Tribunal prefers the owner's case because (1) the plans (A1669) suggest the extension roof should finish at the same height as the existing roof, and (2) the explanation of Mr Taylor as to how the outcome could be achieved was persuasive and was, once stated, not challenged.

163. When re-examine, instead of being asked to respond to Mr Taylor's explanation, Mr Bland was asked the leading question of whether the difference in finishing height was inevitable to which he said yes.

164. The third aspect created a situation where the Tribunal was left with (1) one expert saying there was a pitch of 20°, (2) another expert saying there was a pitch of 12°, (3) both experts providing supporting photos. Given that photos clearly show both measurements, the only explanation can be that the measures were taken at different locations with the result that there must be areas of the of the roof with a pitch of 20°, contrary to 12° specified in the plans.

165. Mr Taylor's estimated cost of rectification of $28,752.47 (A1672-1673, which was unchallenged, will address all three aspects. Mr Bland's estimated costs of rectification of $1049.95 (A1814), which was not accompanied by any indication of how that amount was obtained, would only cover the first aspect.

166. The Tribunal is satisfied that (1) this item involves a breach of s 18B(1)A(a) of the HB A and (2) the amount allowed for rectification should be $28,752.47.

1. Domson Construction submitted that a work order should be made in respect of the defects and rectification works. The Tribunal rejected this contention at [174], noting that there was contemporaneous evidence that the relationship had broken down; there was evidence that Domson Construction had failed to comply with the rectification order issued by NSW Fair Trading; the Tribunal did not have confidence that Domson Construction would comply with any work order; and, the Tribunal was therefore concerned that there was a high likelihood of a renewal application being made by both parties. This aspect of the decision is not challenged.
2. Accordingly, the Tribunal made a money order for $75,788.81, together with liquidated damages for delay of $33,500, making a total of $109,288.81 payable by Domson Construction to Ms Li: [186].
3. The Tribunal also made an order for costs Ms Li's costs to be paid on the ordinary basis, as agreed or assessed, pursuant to rule 38 of the Civil and Administrative Tribunal Rules 2014 (the NCAT Rules), subject to the parties making any submissions or providing evidence if they contended for a different order to be made: [187]-[190].
4. The Tribunal dismissed the application of Domson Construction and ordered that it pay $109,288.81 to Ms Li immediately. Domson Construction was also directed to provide to Ms Li with all relevant documents under the contract as set out in Appendix F to the decision, such as compliance such as a peg out survey and various compliance certificates: [191]

1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that a party to an internal appeal in respect of a final decision may appeal as of right "on any question of law". The party may also seek leave to appeal on "any other grounds".

1. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel considered what constitutes a question of law and formulated a non-exhaustive list of those matters. Since that time that there have been several important cases relevant to the construction of s 80 of the NCAT Act. These were recently referred to in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique Commercial).
2. In Unique Commercial, the Appeal Panel summarised at [25] the propositions that arise from those authorities. The propositions include the following:

(1) A question of law should be articulated with precision;

(2) Absent leave to appeal, the question of law is the subject of the appeal;

(3) A question of law means a "pure question of law" which is not dependent on facts not found and is not dependent on the answer to the question;

(4) A party contending that a question of law was wrongly decided must identify the question in abstract terms;

(5) A mixed question of fact and law is not a question of law, and a question of law must not be hypothetical or arid;

(6) A question of law must be capable of affecting orders the subject of the appeal, not purely the reasons; and

(7) There may be disclosed an error of law but this of itself does not necessarily raise a question of law.

1. The Appeal Panel found that Prendergast, which identified some sources of questions of law, was "overly reductive" [31]. Relevantly, the Appeal Panel identified further questions of law [32] including: whether the Tribunal drew inferences that were not available from the facts found; whether the construction of a statute or contract arrived at by the Tribunal at first instance was wrong in some identified way; whether the decision was vitiated by bias, or a reasonable apprehension of bias, raising a procedural fairness question; whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice or, alternatively, a constructive failure to exercise jurisdiction; whether the facts found necessarily satisfied the statute or did not and whether the Tribunal made a jurisdictional error.
2. Examples of questions of law include:

(1) Denial of procedural fairness (Prendergast at [13](4)); FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127 at [83]- [84]).

(2) A failure to exercise jurisdiction, which includes the failure to consider and address a material issue raised by a party in the proceedings that is within the jurisdiction of the Tribunal to determine (Dranichnikov v Minister for Immigration and Migration Affairs [2003] HCA 26; Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]- [12] and [413]). This category of error may also constitute a failure to accord procedural fairness.

(3) Applying the wrong legal principle which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]- [53]).

(4) No evidence to support a factual finding (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23 at [91]).

(5) An error in the exercise of a statutory discretion in the limited circumstances outlined in House v The King [1936] HCA 40; (1936) 55 CLR 499 (House v King), as explained in Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 at [14].

1. Recently in Donohoe v Albulario [2025] NSWSC 9, Basten AJ identified that when a question of law arises as to whether proceedings were procedurally fair it may be appropriate and necessary, on appeal, to make findings about what occurred at the hearing. His Honour noted at [33] (footnotes omitted):

To the extent that there is a fact/law dichotomy, the facts which are not to be reviewed by the appeal court dealing with a question of law are the facts relevant to the matter in dispute. There is a categorical distinction between the Facts in Dispute (what part of the building was completed?) and facts relating to the composition or conduct of the Tribunal."

1. Where the ground of appeal does not raise a question of law, the appellant may seek leave to appeal.

1. The principles governing an application for leave to appeal under the NCAT Act are well‑established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17 at [84]. They are the same principles applied by the courts in exercising the discretion to grant leave to appeal. As observed by Gleeson JA (on behalf of the bench) in Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]:

Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong." (Citations omitted)

1. Further, as Basten JA said (White JA agreeing) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 at [9]:

"... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice."

(Citation omitted)

1. As a gateway to the exercise of discretion, where there is an appeal from a decision of the Consumer and Commercial Division, the circumstances in which Appeal Panel may grant leave to appeal are limited to those set out in cl 12(1) of Sch 4 to the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

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

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

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

1. In Collins v Urban, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:

... there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the owners corporation had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.

1. Accordingly, in an appeal of a decision of the Consumer and Commercial Division, the appellant must satisfy the requirements of cl 12(1) of Sch 4 and, if so, the Appeal Panel must also then consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).

1. Domson Construction raises seven grounds in its Notice of Appeal. Ground 1 relates to the legal construction of the provisions of the building contract dealing with practical completion. The Tribunal found that practical completion was not reached on 10 August 2022, as contended in the notice issued by Domson Construction. It is submitted that this finding was in error and was based on the incorrect construction of the relevant contractual provision. This resulted in other consequential findings which were also in error, namely the rejection of Domson Construction's entitlement to recover the final payment of $15,000 and interest (Ground 2) and the finding of liquidated damages in favour of Ms Li in the sum of $33,500 (Ground 3).
2. Ground 4 relates to the claim that the Tribunal constructively failed to exercise its jurisdiction by overlooking material evidence in the joint experts' report. It is contended that this had the consequential impact such that the Tribunal's findings in relation to the defects alleged for the roof, and compensation ordered for the roof in the sum of $28,752.47, was in error.
3. Ground 5 relates to the Tribunal's exercise of discretion under rule 38 of the NCAT Rules to order costs. Domson Construction contends that if the Tribunal had made different findings in respect of the matters which are the subject of Grounds 1 to 4 above, a question arises as to whether the Tribunal's findings on costs involved an error of law in the application of the principles of House v King [1936] HCA 40 in the exercise of its discretion to make the costs order.
4. Domson Construction contends that these grounds are questions of law and, as such, it does not need leave to appeal.
5. There are two further grounds of appeal (Grounds 6 and 7) which require leave These grounds are made in the alternative in relation to Grounds 4 and 5 in the event the Tribunal is not satisfied that those grounds raise questions of law. Domson Construction seeks leave to appeal on these further grounds on the basis set out in the Amended Notice of Appeal. Those grounds do not directly address which of the permissible grounds of appeal set out in cl 12 of sch 4 of the NCAT Act are relied upon: a basic requirement expected of legally represented parties seeking leave to appeal.
6. Ms Li submits that the appeal should be dismissed with costs. It is submitted that, in the alternative, if the Appeal Panel takes the view that the Tribunal at first instance made an error and that error is one of calculation, the Appeal Panel should substitute its own calculation of the amount due and owing.
7. Domson Construction does not challenge the dismissal of its claim for variations.

Ground 1: Tribunal misconstrued the contractual provision on Practical Completion

1. Before dealing with the parties' submissions in relation to this ground, it is convenient to first set out the relevant contractual provisions in relation to practical completion in cl 20 of the building contract and the relevant provisions relating to payment on practical completion in cl 21, which relate to Ground 2.

20. Practical Completion

(a) Practical completion is that stage when:

(i) the works are complete except for minor omissions and defects which do not prevent the works from being reasonably fit for their intended use; or

(ii) where as a special condition of the contract identifies a special purpose or result to be achieved by reason of the works is relevant, the purpose or result stated therein being achieved subject to an exception for minor omissions and defects which do not prevent the reasonable achievement of the specific outcome, if any listed as a special condition in Schedule 4.

(b) For the purposes of this clause the works that need to be completed to achieve Practical Completion do not include

(i) the results of any labour or materials which are to be or were supplied or fixed by the Owner or work done or to be done by the Owner; or

(ii) the provision of any certificates required to obtain an occupation certificate unless the Builder is the party who is to obtain the occupation certificate.

In this contract and unless stated otherwise as a special condition it is not the Builder's obligation to obtain an occupation certificate.

(c) When in the opinion of the Builder the works have reached Practical Completion, the Builder is to give to the Owner notice of this in writing.

(d) If the Owner disputes that Practical Completion has been reached then no later than five (5) days after the service of notice of Practical Completion the Owner must give to the Builder a written notice, of those things (if any) required by this contract to be done to achieve Practical Completion. The Builder is to as soon as possible do all those things necessary for practical completion and give to the Owner notice in writing on completion of such things.

(e) In the event of the Owner not complying with the provisions of Sub-Clause 20(d), the works will be deemed to have reached Practical Completion.

Occupation or use will amount to Practical Completion

(f)

(i) Should the Owner or any tenant or their employees or agents take possession of the works or any part of the works without the written agreement of the Builder, the date of Practical Completion will be the date possession is taken, unless Practical Completion has already been reached.

(ii) Without limiting the generality of this clause possession being taken will be established by any or all of such things as placement of furniture, use already part of works, denial or access of the Builder to the works or work site or action by the Owner or their agent which prevents the Builder undertaking the work.

Owner must Insure

(g) The works are at the risk of the Owner in all respects upon Practical Completion or from the date possession is taken in the circumstances referred to in Clause 20(f). The Owner will be solely responsible for insurance coverage of the works in either of these events.

21. Payment on Practical Completion

(a) Upon Practical Completion being achieved, the Builder is to receive any other monies which are payable in connection with the works. The Builder is to provide a claim for such work to the Owner. The claim is to comply with Clause 17 and Clause 18.

(b) The amount due under this clause must be paid to the Builder within the period specified in Schedule 1 Part C item (b).

(c) Should the Builder not receive from the Owner any payment or part of any payment on or before the due date then the Builder is entitled to interest at the rate specified in Schedule 2 item (d).

1. Domson Construction relies on cl 20(f) and both parties submit clause 20 should be construed in its entirety.

Outline of initial written submissions of Domson Construction

1. Domson Construction contends that the Tribunal incorrectly construed the practical completion provisions of the building contract by finding that, contrary to Domson Construction's submission, practical completion was not reached in accordance with the notice that was issued on 10 August 2022.
2. Domson Construction contends that the factual findings relevant to the construction of cl 20(f) are set out in the decision at [125]-[128] as follows:

(a) the work involved constructing an extension to an existing house;

(b) at some stage, there was a leak in the roof which required painting work to be done in an existing part of the house;

(c) while painting work was done, Ms Li moved furniture into the extension;

(d) however, that movement was on a temporary basis and was removed to the existing part of the house after the painting was completed.

1. The foundation for the finding that practical completion was not reached was based on the findings made by the Tribunal at [129], including as follows:

... Secondly, the movement of the furniture was only temporary. Thirdly, the movement of that furniture did (not) constitute reoccupation of the premises by the owner. Fourthly, the movement of that furniture was for the purpose of facilitating the work, and did not hinder the work....

As corrected, refer [29] above.

1. This finding involved the construction of cl 20(f)(ii) to the effect that, first, "placement of furniture" was not satisfied by a temporary movement of furniture but something else, secondly, that "placement of furniture" only satisfied cl 20(f)(ii) if it was consistent with, or evidence of, occupation of the work site as ordinary ordinarily understood, as opposed to it operating as a deeming provision and, thirdly, the "placement of the furniture" only satisfied cl 20(f)(ii) if that placement was not for the purposes of facilitating the work or if it hindered progress of the work by the builder.
2. It is submitted by Domson Construction that this construction is in error, and this is an error on a question of law. In summary, it is submitted:

(1) Because cl 20(f)(ii) is a deeming clause, satisfaction of the terms of that clause is taken to amount to practical completion for the purposes of the building contract, even if the contextual facts or the circumstances underlying the satisfaction of those terms does not otherwise support either the general terms for the definition of practical completion as per cl 20(a) or even the concept of taking possession for the purposes of cl 20(f)(i).

(2) The language of cl 20(f)(ii) is relatively clear in the context of a deeming provision. The placement of furniture is a simple term. It does not appear to involve any temporal element. Accordingly, the imposition of the qualification of 'temporary' made by the Tribunal in its decision, is not justified and is in error.

(3) Clause 20(f)(ii) makes no reference to purpose and arguably the fact that the placement of furniture is for one purpose rather than another makes no difference. The fact that the furniture was placed in the work area appears to be the only significant issue for the purposes of cl 20(f)(ii).

(4) This error does not involve any challenge to a finding of fact. The Tribunal found that Ms Li placed furniture in the work site but went on to say this did not matter because of its findings as to the temporary nature of the placement and the purpose of the placement, which Domson Construction submits are irrelevant for the purposes of the construction of the deeming provision.

1. The Tribunal's misconstruction of the requirements of cl 20(f)(ii) resulted in errors in its findings at [130] that practical completion was not achieved and the finding at [129] that the notice of practical completion was not valid. It also led to the error in the finding at [132] that Domson Construction was not entitled to make a final claim and hence was not entitled to interest on the claim for $15,000. The finding in the decision that Domson Construction was liable for damages for delay from 30 June 2022 is therefore also in error. According to Domson Construction the delay was from 30 June 2022 to 10 August 2022, resulting in a reduction of $30,000 in delay damages.

Outline of the initial written submissions of Ms Li

1. Ms Li contends that Ground 1 raises questions of mixed fact and law and is not a pure question of law. Leave to appeal is required. In any event, the Tribunal at first instance made no error for two reasons.
2. First, as a matter of law, the evidence that Domson Construction relied on was not incontrovertible such as to an amount to an error of law on any possible construction of cl 20(f), nor could it have changed the result (Fox v Percy (2003) 214 CLR 118 and House v King (1936) 55 CLR 499). Domson Construction purportedly issued a notice of practical completion on or about 10 August 2022. Over and above the notice, Domson Construction relied, for proof of occupation to establish practical completion, on a photograph of the furniture in a section of the premises whose date cannot be proven in respect of which the only evidence as to its date was 3 July 2023.
3. The only explanation for the photograph was provided by Ms Li. In Ms Li's second statutory declaration dated 7 February 2024, she gave evidence that the furniture depicted was not usually placed there but was placed there temporarily on or about 3 July 2023 to assist the builder with repairs elsewhere and then it was removed. This evidence was not challenged. The provenance of the photograph of Mr Tsang was the subject of cross examination and was interrogated and analysed during the course of the hearing by the Tribunal. Furthermore, no occupancy certificate had been issued and Ms Li's expert (Mr Taylor) set out reasons why practical completion had not occurred. Certain works had never been done, including the stormwater drainage plan which was clearly part of the works contracted and never completed. The builder actively withheld documents which would allow for an occupancy certificate to be issued, and the Office of Fair trading identified and issued a rectification order in relation to a leaking roof on 20 April 2023. There was non-compliance with this order.
4. The Tribunal favoured the evidence of Ms Li over the evidence of Mr Tsang on behalf of Domson Construction. Ms Li submits that the Tribunal identified in its reasons the correct clause that governed whether practical completion had occurred and turned its mind to the proper application of the facts to the operation of the clause.
5. While it is accepted that the proper construction of a clause in the contract is a question of law, Ms Li contends that Domson Construction has gone further and tied the interpretation of cl 20(f) to the question of whether a certain factual finding has or could be made - that is, whether practical completion has occurred for Grounds 1 and 3 and whether the Domson Construction was entitled to demand $15,000 for the final instalment of payments because it had completed the work for which it was contracted.
6. Ms Li further submits that the fundamental attack on the Tribunal in relation to these grounds of appeal is the Tribunal's determination of the date of the happening of a certain event, not the construction of cl 20(f). This is a question of fact, even if it also involves a question of law.
7. Secondly, on its proper construction cl 20(f) calls for practical completion to be reached when furniture is placed for actual use or occupation by Ms Li in the space which Domson Construction had worked on, not in an instance where Ms Li had temporarily moved the furniture there for the builder to work on the homeowner's property elsewhere.
8. A contractual term in a commercial context is to be construed with the overall objective understanding of the purpose of the term (Mount Bruce Mining v Wright Prospecting (2015) 356 CLR 104). Ms Li also relies on Electricity Generation Corporation v Woodside Energy (2014) 215 CLR 640 and, in particular, at [35]:

The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption "that the parties ... intended to produce a commercial result". A commercial contract is to be construed so as to avoid it "making commercial nonsense or working commercial inconvenience".

Endnote citations omitted.

1. It is submitted that Domson Construction's submissions fail to consider the surrounding circumstances or commercial purpose of cl 20(f)(ii) or cl 20 in its totality. It is not clear why cl 20(f)'s characterisation as a "deeming clause" should change the overall structure of commercial construction and no case has been put by Domson Construction that justifies different treatment of such clauses. It is submitted that the relevant pre-condition to establish whether practical completion has occurred is therefore to be read in the context of the contract as a whole as a construction contract for the building of structures to be used as residential space and not just on the bare words on the page. In this regard, Ms Li relies on cl 20(a)(i) which provides as follows:

The works are complete except for minor omissions and effects which do not prevent the works from being reasonably fit for their intended use.

1. Ms Li notes that the Tribunal correctly accepted the relevance of 20(a)(i) in its finding at [129] that one of the reasons the Tribunal did not accept the validity of the notice of practical completion was that the evidence did not support actual practical completion, nor did Domson Construction allege otherwise based on the unchallenged evidence of Mr Taylor to the contrary.
2. It is submitted that, as a matter of commercial construction and taken in its context, the word "placement" in cl 20(f) was clearly and objectively meant, to have an element of permanency or actual use of the premises for the purposes of living in it, which is the tenor of cl 20. The placement of furniture is used as an indicator, not the temporary moving of it. Clause 20(f) is intended to cover situations where there is a dispute as between the parties where the owner is using the premises but denies practical completion. The movement of furniture temporarily by Ms Li did not constitute reoccupation of the premises and was not proof of practical completion. The proper businesslike and commercial interpretation of cl 20(f) and of cl 20 in its entirety is to provide indicators of when premises are being occupied and used for their intended purpose, that is, as a residence. The highest case which Domson Construction could put as a matter of fact and law does not satisfy the proper commercial construction of cl 20(f). There was sufficient material for the Tribunal to find that practical completion had not occurred as a matter both of fact and law.
3. It was further submitted that the notice of practical completion did not cite the rationale for the issue of the notice. That the deemed completion was said to have occurred under cl 20(f) was not advanced by the builder until the proceedings and in the affidavit evidence of Mr Tsang. As such, Ms Li was not on notice of the grounds for the issue but, if the issue of occupation and possession had been raised in the notice, she would have disputed the issue of the notice on that basis.
4. Accordingly, Ms Li argued that this ground has not been made out and should be dismissed.
5. It is also submitted that because this ground raises mixed questions of fact and law, leave to appeal on this ground is required. Leave should not be given because there was material before the Tribunal that supported each factual finding the Tribunal made, all matters were decided by the Tribunal were consequently decided within its jurisdiction, there is no issue of public importance in the appeal, no error was made that would have affected the result and, given these matters, there was no substantial miscarriage of justice or error of law.

1. In reply to Ms Li's original submissions, Domson Construction submits, and this submission is also relevant to contentions made by Ms Li in respect of Grounds 2 to 5 of its Grounds of Appeal, that s 80(2)(b) of the NCAT Act permits an internal appeal as of right on "any question of law" and Ms Li's submission appears to erroneously contend that a mixed error of fact and law is a distinct category by which leave is required to be sought. It is submitted that the NCAT Act does not require a "pure" question of law, as submitted by Ms Li. Domson Construction submits that the decision of Hawach v A & A Building Society Pty Ltd [2024] NSWCATAP 138 at [67] (Hawach), which identifies non-exhaustive instances of an error on a question of law, several of which include consideration of factual findings, demonstrates the relationship between the law and facts when assessing an error of law. One such error, as identified in Hawach at [67(1)], is a constructive failure to exercise jurisdiction, such as in the circumstances alleged in Ground 4.
2. It is further submitted that due to the interrelation between the relevant law and the factual application on which it relies, it is not always possible to point to clear distinctions between issues if fact and law in decisions. In this regard Domson Construction relies on the decision of the High Court in Maurici v Chief Commissioner of State Revenue [2003] HCA 8 at [8] where the plurality observed that "questions of law, fact and opinion do not always readily and neatly divide themselves into discrete matters in valuation". They are often intertwined (Kostas & anor v HIA Insurances Pty Ltd [2010] 32 at [25]).
3. Domson Construction submits that reference to the relevant facts that are affected by the error by which the Grounds of Appeal are founded, does not invalidate the grounds or reduce them to being merely a question on an error of fact. While it is possible for a question of law to be a "pure" question of law, it is submitted that the authorities on which this concept is derived by Ms Li give considerable allowance for facts to be referenced in matters where a question of an error of law is raised. As such, as it is submitted by Domson Construction that this ground, and indeed none of the grounds, require leave to appeal.
4. Counsel for Ms Li made oral submissions at the hearing consistent with Ms Li's written submissions

Oral submissions of Domson Construction - new grounds?

1. Domson Construction expanded on its written submissions in oral submissions at the hearing. Domson Construction contends that cl 20 has two parts dealing with practical completion. Clause 20(a) defines the concept of practical completion, including the character and structure of the work required. However, cl 20(f) contains a provision for practical completion to be deemed, even if work is not completed. Clause 20(f) is a deeming provision based on possession with a further deeming provision as to when possession is taken to be established. Clause 20(f)(ii) is intended to resolve any dispute between the parties by making it clear when "possession" is taken to be established. Given the importance of practical completion, and the various obligations and entitlements that arise (practical completion is a 'marker' under the contract) this deeming provision serves an important function. Clause 20(f)(ii) contains a disjunctive list of matters, with the "placement of furniture" being one of the grounds on which possession will be taken to be established for the purposes of cl 20(f)(i). It is not necessary to establish that there has been a placement of furniture and a denial of access to the builder. This is apparent from the use of the words "any or all" in cl 20(f)(ii).
2. Clause 20(f)(ii) speaks about the "placement of furniture" simpliciter and not about the temporary placement of furniture or the placement a furniture that denies the builder access. In construing the provisions of a contract, it is not appropriate to supply, omit or correct words unless it is necessary to avoid absurdity or inconsistency (Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184 at [118], cited with approval by Beasley P in Wright v Lend Lease Building Pty Ltd Intercon Engineering Pty Ltd v Lend Lease Building Pty Ltd [2104] NSWCA 463 at [41]). Relevantly, in Wright v Lend Lease her Honour said:

41. The appellants also referred to the decision of this Court in Mainteck Services Pty Limited v Stein Heurtney SA [2014] NSWCA 184; 310 ALR 113 where Leeming JA (Ward and Emmett JJA agreeing) stated that two conditions must be satisfied in order to supply, omit, or correct the words in a contract. First, that the literal meaning of the contractual words is an absurdity and, secondly, that it is self-evident what the objective intention is to be taken to have been: see at [117], approving this Court's decision in National Australia Bank Ltd v Clowes [2013] NSWCA 179; 8 BFRA 600, where this Court stated, at [34]:

"Where both those elements are present ... ordinary processes of contractual construction displace an absurd literal meaning by a meaningful legal meaning."

1. Domson Construction submits that there is nothing absurd or contrary to the intention of the contract in this provision. It is submitted that cl 20(f) provides a mechanism for an earlier time for practical completion, which is clear from the ordinary meaning of cl 20(f)(i) and which contemplates that practical completion will be the date of possession unless practical completion has already been reached. Clause 20(f) is not a draconian provision and is intended to make it clear, in the event of dispute, when practical completion will arise. Practical completion as deemed under cl 20(f) is independent of practical completion as described in cl 20(a).
2. Domson Construction also made oral submissions about the structure of cl 20, using the placement of furniture as an example of how sub-clauses (c), (d) and (e) may operate. It was noted that the builder may say, in their opinion, furniture had been placed, which the owner may dispute. If the builder issues a notice saying the builder has reached practical completion and the owner disagrees and issues a notice under cl 20(d), the dispute then gets resolved through the dispute mechanisms in the contract. However, if the owner "sits quietly" and does not dispute the notice, the contract provides the mechanism in cl 20(e) to resolve the dispute, so the builder is not put in peril. When questioned about whether it was contended cl 20(f) was connected to the builder having an opinion for the purposes of sub-clause (c), counsel for Domson Construction responded that cl 20(f) is a qualification to the concept of practical completion which could have been put before the mechanism in cl 20(c) and cl 20(e).That it was put at the end of the clause was "just an infelicity".
3. It was conceded that these contentions were not raised before the Tribunal at first instance, but it was argued that they could be raised now because the Senior Member did something that he should not have done in construing cl 20(f) by considering issues concerning the purpose and proposed length of placement of the furniture
4. Domson Construction also relied on Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113, which concerned a dispute over the deemed date of practical completion in the context of contractual provisions providing for the issue of a certificate of practical completion by a superintendent of works.
5. Following the hearing, the Appeal Panel wrote to Domson Construction seeking clarification in relation to the argument raised about the operation of cl 20(f) in the context of cls 20(d) and (e), noting these contentions were not raised before the Tribunal at first instance or in the Amended Grounds or written submissions. The Appeal Panel asked whether this raised significant new grounds in respect of which leave was required. Directions were made that if Domson Construction sought leave to further amend its Grounds of Appeal, it should provide the Appeal Panel and the other party with any further amended Grounds of Appeal together with written submissions. Directions were made for Ms Li to respond, and the parties were directed to provide any submissions about whether the Appeal Panel should dispense with a hearing in considering the issue of leave to further amend.

Further written submissions of Domson Construction

1. In its further written submissions, Domson Construction contended it does not need leave to amend.
2. Domson Construction contends that that the question of whether practical completion had been reached as a result of cl 20(f) was raised in the proceedings at first instance and the proper construction of cl 20(f) was raised by Domson Construction in its Amended Grounds of Appeal and in its written submissions.
3. It is submitted that the evidence Ms Li moved the furniture into the extension was not challenged at the hearing (as per [128] of the reasons). Ms Li, having performed an act that the contract explicitly states establishes possession, did not contest at the relevant time or in accordance with any contractually prescribed manner that such actions indeed constituted taking possession for the purposes of cl 20(f). The Tribunal should have applied the natural an ordinary meaning of cl 20(f)(ii), the placement of the furniture, and deemed practical completion to occur upon this "conclusive event". It is further submitted that the contract regulates the achievement of practical completion and provides various methods of deeming practical completion. Sub-clauses 20(a) and 20(b) provide for instances where practical completion may be reached while subclauses 20(c) and 20(e) provide practical completion may also be deemed by the opinion of the builder, relevantly cl 20(c), provided that it is not disputed by the owner under cl 20(d). Since the present case relates to the issue of occupation, the deeming provision of cl 20(f) should be applied.
4. These submissions were amplified in its oral submissions in the appeal hearing by reference to Abergeldie Contractors Pty Ltd v Fairfield City Council [2107] NSWCA 113 (Abergeldie). It was submitted that the Court of Appeal (per Basten JA) held that the contract's own defined mechanisms for determining the date of practical completion should be given their intended effect according to their natural and ordinary meaning, as stated at [25] as follows:

These questions may be addressed by applying the usual principles of contractual construction. It is far from clear that the provisions of the contract, given their natural and ordinary meaning, reveal any true ambiguity, but in any event the preferred construction accords with the intention which may be derived from the parties' knowledge as to the surrounding circumstances and the commercial purpose of the contact.

1. Abergeldie is relevant because the Court of Appeal (per Basten JA) held that the function of the court and, in this case the Tribunal, is limited to determining if the opinion was in fact formed, noting at [40]:

Accordingly, regardless of the serious consequences of concluding that a court is the only body with the power conclusively to determine each of the multiple questions to be addressed in deciding whether practical completion has been reached, the structure and language of the contract is entirely consistent with the proposition that the conclusive event is the issuing of a certificate of practical completion, which must depend upon a contemporaneous opinion of the superintendent.

[emphasis added]

1. It is submitted that no further amendment is required but having been invited to consider this, Domson Construction proposed a new ground 3A as follows:

3A Whether, further and in the alternative. the Tribunal erred in its construction of clauses 20(a) to 20(f) inclusive, which led to uncertainty and a meaning contrary to the natural and ordinary meaning of the clauses.

Particulars

a) In making its findings with respect to clause 20(f) of the Contract at Decision [129 & 130]. the Tribunal should have correctly considered and applied the entirety of clauses 20(a) to 20(f) of the Contract, and specifically:

a. The Appellant accepts that the references in the Decision [at 125] are in error and should be to clause 20 of the Contract (not clause 22).

b. The evidence of the Applicant at paragraphs 68 to 71 of the statutory declaration of Dominic declared 11 December 2023 that use and deemed practical completion had occurred under clause 20(f) (noting particular a) above) of the Contract;

c. The evidence of the Respondent at paragraphs 6 to 13 in her statutory declaration declared 7 February 2024 that she in fact used the relevant parts of the building, thus conceding the pre-requisite to clause 20(f) of the Contract: and

d. The:

i. cross-examination evidence adduced by the Respondent from Mr Tsang at Decision [127] that the Appellant did not accept the furniture was there on a temporary basis: and

ii. Appellant's evidence at paragraph 71 and Annexure M of his statutory declaration declared 11 December 2023 he gave evidence that the Appellant claimed practical completion under clause 20 of the Contract (which notice presumes compliance with all of clause 20(a) to 20(f) of the Contract inclusive).

b) The finding at [129 & 130] and the failure to consider and apply those items referred to immediately above, led to an erroneous finding at Decision [130] that practical completion had not occurred, when in fact it had, and erroneous refusal of the Appellant's claim (and erroneous acceptance of the Respondent's claim) at Decision [191].

1. Domson Constructions contends that the Tribunal's interpretation of cl 20(f)(ii) introduced uncertainty by overriding the plain meaning of "placement of furniture". According to Domson Construction, in imposing an unjustified temporal element and purpose-based qualification the Tribunal distorted the meaning of the deeming clause, which frustrated the objective of certainty. The discussion of Abergeldie raised in support of the grounds already submitted at the hearing and in the written submissions prior to the appeal and accordingly do not raise any new ground of appeal.

1. In response to the proposed further amended Grounds of Appeal and the further written submissions of Domson Construction, Ms Li opposes leave for Domson Construction to amend its Amended Grounds of Appeal with the proposed ground 3A. It is submitted that this is a new matter not previously raised, amongst other things, because clauses 20(d) and (e) and the effect of clause 20(f) as a deeming clause was never put to the Tribunal at first instance or even to Ms Li. It is submitted that material was prepared on the basis of the matters put by Domson Construction on the appeal and in the Tribunal at first instance. There are documents that were before the Tribunal that squarely answer the matters raised by Domson Construction that are not in the appeal bundle in relation to clauses 20(c) to (e) and even 20(f) because no party proposed to initially rely on the matters now raised by the appellant in the proposed ground 3A.
2. Counsel for Ms Li contends that Domson Construction cannot attempt to argue that shifting grounds of appeal should have constituted notice of the matter it wished to raise on appeal. Appeal grounds should be both clear and precise. Ms Li was entitled to take the amended Grounds of Appeal as they were at the hearing of the appeal to be what the appellant sought to challenge. They did not mention clauses 20(d) or 20(e).
3. It is further submitted that leave ought not be granted on that basis alone. If it had been properly raised, as it should have, Ms Li could have prepared evidence to properly deal with whether practical completion had occurred, particularly in the context of clauses 20(c) to (e) and with further evidence in relation to why and how the furniture came to be in the extension for the purposes of cl 20(f). Ms Li contends that it would be a denial of procedural fairness to allow the proposed amendment.
4. The submission made by Domson Construction that this issue was raised before the Tribunal at first instance by reference to the transcript referred to in the further submission, does not assist as it is clear that the line of questioning from Ms Li was to cross-examine Mr Tsang about the proposition that he had properly issued a certificate of practical completion on 10 August 2022. Mr Tsang's statutory declaration uses the photograph as proof that he properly issued the notice on 10 August 2022. Clauses 20(d) and (e) were never raised, either by Ms Li or Mr Tsang. Nor was cl 20(f) raised in the manner now contended in ground 3A.
5. It is submitted that Domson Construction, which had the benefit of legal representation when Ms Li did not, never raised the effect of clauses 20(d) and (e) and the interpretation of cl 20(f) for which it now contends and the proposed ground 3A was never put to the Tribunal or Ms Li. It is further contended that the issue of whether furniture placement was relevant to that certificate, or otherwise, was not put to Ms Li at the initial hearing.
6. On the proper construction of cl 20(f), the two important threshold facts that must first be proven, is the timing of occupation and lack of consent of the builder. The Tribunal was entitled, as it did, to find that in the entire context of clauses 20(c) to (f) and the proper interpretation of cl 20(f) precludes simply showing that furniture in the premises was enough to deem that there was practical completion. This is especially so when Ms Li was able to show that Domson Construction could not prove when the photograph was dated. Relevantly, the Tribunal found at [128]-[129] that the photograph was more likely dated July 2023. It is further submitted that, even by itself, cl 20(f) does not apply in the circumstances because on the state of the evidence, Domson Construction was unable to prove the date of any occupation and consequently unable to prove practical completion had occurred.
7. In response to Domson Construction's further written submissions that the deeming cl 20(f) must be read in conjunction with the owner's explicit right under cl 20(d) to dispute practical completion before the deeming provision is engaged, it is submitted by Ms Li that cl 20(d) requires an owner who disputes that practical completion has occurred must give to the builder a written notice of those things to be done to achieve practical completion five days after service of the notice of practical completion. It is submitted that, save as to disputation of this certificate, none of the things that were necessary to occur to obtain practical completion according to clauses 20(c) to (e) occurred. It is further submitted that the evidence before the Tribunal at first instance in any event demonstrates Ms Li exercised her contractual right to dispute practical completion and on 12 August 2022, she provided a comprehensive list of defects, as can be seen from the material in the court book. The Tribunal made substantive findings vindicating Ms Li's position regarding the disputed defects.
8. It is therefore submitted that, in light of the above, the assertion of Domson Construction that Ms Li did not contest at the relevant time or in accordance with any contractually prescribed manner the issue of the certificate is plainly incorrect. Ms Li is in the invidious position where she cannot now deal with matters she could have raised had the points on which Domson Construction seeks leave been squarely articulated either before the Tribunal first instance or before the Appeal Panel.
9. If the Appeal Panel takes the view that leave ought to be granted, it is submitted that, as a matter of fact, Ms Li never agreed that practical completion occurred, which is relevant for clauses 20(c) to (e), and so the question is moot, or if it is not, this is not something that ought to be dealt with on an appeal after judgement was reserved.
10. It is submitted if the Appeal Panel proposes to the allow the amendment of ground 3A, the matter should be remitted to the Consumer and Commercial Division for evidence and submissions on that point only and if it does, given the amount of indulgence Domson Construction will be granted, it should pay Ms Li's costs of the appeal. It is further submitted that there was material before the Tribunal that may have touched upon the operation of clauses 20(d) and (e) but this was not raised until the final hearing of the appeal. This includes matters where Ms Li can show that Domson Construction backed-dated the certificate.
11. On the issue of how to substantively deal with the proposed ground 3A, Ms Li submits that Domson Construction has not displaced the findings of the Tribunal made both in relation to the photograph as proof of the date of occupation and otherwise the photograph does not prove that the certificate of completion was validly issued. Nor does it deal with the issue why the furniture was in this location. It is submitted that if Ms Li had been aware of the point being made against her at the original hearing in relation to clauses 20(c) to (e) she could have put more material before the Tribunal on the question about the certificate of practical completion being backdated, that she disputed practical completion had occurred and that no repairs were done, nor agreement on what had to be done had occurred. Most importantly, particularly because it is undated, the photograph does not reliably indicate any date on which the furniture was placed in that room. It is submitted that even assuming that the machinery provisions on which Domson Construction contends was the correct interpretation, it was open to the Tribunal at first instance to make the finding that it was unable to accept the date on which any furniture was in the room as asserted by Domson Construction. If Domson Construction cannot prove the date on which the room was occupied, it cannot seek to engage the machinery making provisions of cl 20(f), whether by itself or in the entire context of clauses 20(c) to (f).
12. Ms Li also submits that the relevant clause in Abergeldie is distinguishable from cl 20(f) on its face as there is no requirement for the builder in the present case to come to any concluded view on whether practical completion had occurred. The mechanical provisions for practical completion in the present case for clauses 20(c) to (e) rely on the absence of a dispute, or rather a time period passing after the provision of a certificate of practical completion, which Ms Li contends she never got the proper opportunity or notice to do. There is no equivalent cl 20(f) in Abergeldie. This case is therefore of limited use when considering the current fact scenario. Despite this, it is submitted that Abergeldie makes it clear at [25] that interpretation of the practical completion clause is a "case by case process" that takes into account general principles of contractual construction.
13. Ms Li continues to press that the proper commercial construction of the contract, as opposed to the construction insisted by Domson Construction, is that cl 20(f) refers to the occupational use of the works as a residence. It is further submitted that the interpretation of cl 20(f) contended for by Domson Construction is capricious, unreasonable, inconvenient or unjust this ground should be dismissed. However, if the appeal is successful on this ground, it is submitted that the matter should be remitted to the Tribunal at first instance and that the point raised in ground 3A is inchoate until final hearing.

Submissions about the determination of the appeal

1. In further submissions dated 6 June 2025, not directed by the Appeal Panel but in response to the further submissions lodged by Ms Li on 30 May 2025, Domson Constructions submits that the Appeal Panel is empowered to make determinations on internal appeals under s 81 of the NCAT Act and a decision should be determined by the Appeal Panel, whether leave is granted to further amend or not, on the grounds as argued without further hearing.
2. Leave to amend is not formally necessary because these issues were previously raised, but for avoidance of doubt Domson Construction proposed ground 3A. Domson Construction denies that deemed practical completion was not ventilated both at first instance and on appeal. The contract was before the Tribunal at first instance and there was evidence from Ms Li in her statutory declarations of 17 November 2023 and 7 February 2024 about her occupation of the extension and the placement of furniture. The contract makes it plain that the certificate of practical completion operates as a notice for the purposes of cl 20(c). When taken together with Ms Li's own evidence, where she accepts her occupation of part of the works, the formal notice of practical completion of Domson Construction equates to an achievement of practical completion that was contemporaneously known to Ms Li.
3. As to the matter alleged in relation to the date of the photograph, these matters were the subject of cross-examination at first instance by both parties and the evidence is before both the primary decision maker and the Appeal Panel.
4. The submissions of Ms Li about Abergeldie are misconceived. The requirements for the builder to come to a view about whether practical completion had occurred is set out in cl 20(c). The relevant dispute must have occurred in the five-day period in cl 20(d) from the day after service of the notice and cl 20(f) describes itself as "without limiting the generality of this clause". It is therefore submitted that Abergeldie is persuasive, if not binding, in the present case, and submissions to the contrary fail to understand the concept of practical completion and what thereafter follows in a construction contract. Leave to amend the grounds of appeal should be granted.
5. Domson Construction continues to rely on its evidence as put to the Tribunal first instance and says that the Appeal Panel is plainly empowered to determine cases such as this as set out in s 81 of the NCAT Act. Domson Construction contends that the Appeal Panel can consider further evidence to determine the appeal. Ms Li's submission this is procedurally unfair when she also submits this evidence was squarely put before the Tribunal first instance, should be rejected particularly when she also submits that there is ample evidence to indicate that none of the machinery provisions in clauses 20(c) to (e) were engaged to create practical completion.
6. Ms Li submits that if the Appeal Panel is considering determining this question under s 81, she seeks a further hearing. Otherwise, Ms Li is content for the Appeal Panel to determine the appeal and the question of leave without a hearing.

Leave to further amend the Amended Grounds of Appeal

1. The issue raised by Domson Construction in Ground 1 of its amended Grounds of Appeal dated 30 October 2024 is whether the Tribunal erred in its construction of cl 20(f), as applied in [129] and [130], that the placement of furniture, as alleged in the in Domson Construction's notice of practical completion of 10 August 2022, did not satisfy the definition of practical completion for the purposes of that clause. The written submissions of Domson Construction about this ground are set out in detail at [68] above. The focus of the written submission is to the effect that the Tribunal erred in imposing a temporal and purpose qualification into cl 20(f).
2. The proposed ground 3A expands on this ground and contends that the Tribunal at first instance erred because it should have correctly considered and applied the entirety of clauses 20(a) to 20(f) in the circumstances set out in the particulars. These particulars include a reference to evidence that Ms Li conceded she had used parts of the building "thus conceding the pre-requisite to cl 20(f)" and evidence of Mr Tsang that Domson Construction "claimed practical completion under cl 20 (which notice presumes compliance with all of clauses 20(a) to 20(f) of the Contract inclusive)". It is unclear what this latter particular means. If it is intended to open the door for Domson Construction to argue that the notice was valid because Ms Li did not issue a written notice disputing practical completion within the prescribed period or otherwise follow the contractual provisions, this goes beyond what was argued before the Tribunal at first instance and in the Amended Grounds of Appeal and written submissions.
3. A difficulty is that it is unclear from the proposed ground 3A is whether Domson Construction contends Ms Li is precluded from disputing the existence of the pre-requisite to cl 20(f), namely possession, or whether it accepts that consideration of cl 20(f)(ii) is still open for determination. This seems to be the thrust of Domson Construction's latest submissions. The further difficulty is that the proposed amended ground 3A refers to evidence from Ms Li in her statutory declaration dated 7 February 2023 where she is said to concede the pre-requisite to clause 20(f). Ms Li submits this is contested. At [128] the Tribunal refers to this evidence but makes no findings as to when this occurred.
4. Despite the submissions of Domson Construction, we are not satisfied, based on the material before us, that these issues were ventilated before the Tribunal at first instance or that they were clearly raised in the appeal until the oral and subsequent written submissions. Domson Construction contends it does not need leave to amend the grounds to raise this issue. We reject this submission.
5. In this regard, we accept that this is a new ground because it appears to contemplate an interaction between cl 20(f) and clauses 20(c) to (e) that was not particularised in the Amended Grounds of Appeal and was not referred to in the decision of the Tribunal at first instance. Domson Construction has not referred us to any submissions that were made about this to the Tribunal at first instance or that this was implicit in the finding made by the Tribunal at [128] and [129]. We also note that the proposed ground 3A contends that the Tribunal should have considered and applied the entirety of clauses 20(a) to (f) of the contract, having regard to the evidence of Ms Li at paragraphs 6 to 13 of her statutory declaration dated 7 February, that she in fact used the relevant parts of the building, "thus conceding the pre-requisite to cl 20(f) of the contract". This is a question of fact which is contested by Ms Li.
6. Domson Construction relies on the decision of the Court of Appeal in Mamo v Surace [2014] NSWCA 58, per McColl JA (with Ward JA and Tobias AJA agreeing) at [76]-[78], where the Court of Appeal observed that a "party of bound by the conduct of his or her case" but that there are "recognised exceptions to the principle" and that "the particular circumstances of each case must be considered".
7. The proposed amendment not only broadens the scope of the appeal but raises anew question of law that was not raised before the Tribunal at first instance which are, having regard to the submissions made by Ms Li, highly contested. However, the new ground raises an error in the decision, which does not ultimately affect the outcome for the reasons later outlined, but raises a question of law that the interests of justice requires be resolved having regard to the detailed post hearing submissions provided by both parties. We therefore give leave to amend in the form of the new Ground 3A and deal with both Grounds 1 and 3A together.

Did the Tribunal err in construing cl 20(f) of the building contract and was there error?

1. Ground 1, as expressed in the Amended Grounds of Appeal and the initial written submissions, contends that the construction of cl 20(f) adopted by the Tribunal was in error. Domson Construction further contends that this error does not involve any challenge to a finding of fact because the Tribunal found, effectively, that Ms Li placed furniture in the worksite but went on to say that this did not matter because of the temporary nature of the placement and purpose for the placement, which Domson Construction submits is irrelevant (refer para 25d of the written submissions dated 15 January 2025). We accept that this ground as articulated is a pure question of law and Domson Construction does not require leave.
2. We accept the submissions made by Domson Construction about the construction of cl 20(f). In our view, the terms of cl 20(f) are clear. Clause 20(f) provides a mechanism under the contract where practical completion is taken to have occurred, namely where the owner takes possession of the work site without the consent of the builder. The date of practical completion is the date possession is taken. Clause 20(f)(ii) contains a deeming provision, relevantly, that possession is taken to be established by any or all of such things as listed in the sub-clause, including the "placement of furniture" by the owner in the work site.
3. We also accept that the words "placement of furniture" do not contain any temporal element or purpose-qualification. They are not ambiguous and there is no reason why other qualifications or descriptors should be imported into this subclause to give it meaning or effect. Deeming clauses, by their nature, are intended to create certainty. As Domson Construction submits, the question of whether practical completion has been achieved is a critical issue under the contract as important consequences follow. For instance, the date of practical completion impacts Domson Construction's claim for the final payment and Ms Li's claim for liquidated damages. We accept this submission and reject the contention of Ms Li that the nature and purpose of the furniture's placement should be considered when giving the contract commercial effect.
4. Clause 20(f) provides a ground under the contract that establishes practical completion. The other provisions of cl 20 also set out the grounds and mechanisms to establish practical completion. The effect of cl 20(f) is that practical completion is established, regardless of whether clauses 20(a) and (b) are established. In this regard, we accept the submissions of Domson Construction. We also note that Abergeldie is authority for the proposition the contract's defined mechanism to determine the date of practical completion should be given their intended effect according to their natural and ordinary meaningful.
5. For the reasons outlined above, we accept the submissions of Domson Construction about the interpretation of cl 20(f). It follows that we also accept that the findings of the Tribunal about the movement of furniture being temporary and for a limited purpose relating to the building works, were not relevant for the purposes of assessing whether there had been deemed possession. In this respect, the Tribunal was in error. However, a critical finding made by the Tribunal was that it was not satisfied about the evidence relied on to support the finding of possession as of 10 August 2022. The Tribunal otherwise made no findings about when and where Ms Li moved furniture into the extension. Domson Constructions submits it does not challenge factual findings, but these findings do not establish deemed possession as of 10 August 2022 or at any other identified date or time. The only specific findings about this at [128] and [129 are about the photograph of the furniture placed at the site relied on by Mr Tsang. the Tribunal found at [128], was taken on 3 July 2023, nearly a year after Domson Construction asserts practical completion occurred. Accordingly, even if the Tribunal was wrong in relation to the other aspects of its findings, the Tribunal's other findings that lead it to conclude that deemed practical completion under cl20(f) had not occurred remained in place. Issues concerning the date and photograph remain a basis for the Tribunal's finding that the notice of practical completion was not valid issued because it was not satisfied Ms Li had taken possession as of 10 August 2022.
6. Domson Construction submits in its latest submissions that if the Appeal Panel accepts that the Tribunal erred in its interpretation of cl 20(f), the Appeal Panel should make another decision under s 81(1)(d) of the NCAT Act based on the evidence of Ms Li in her statutory declarations of 17 November 2023 and 7 February 2024. Domson Construction relies on that part of Ms Li's statutory declaration of 17 November 2023, where she states that on 6 July 2022 after the new sink was installed, they started to travel between the new and old kitchen. This evidence is not referred to in the reasons and is not about the placement of furniture in any event. Domson Construction relies on paragraph 12 of the statutory declaration of 7 February 2024 (AB 0243) where Ms Li states:

I was not using the part of the building that Mr Tsang says I was for any other purpose. In fact, I removed the furniture and put it back into the already existing parts of the building as soon as the painting was over. I have not occupied that extended area since. It was also not convenient for us to use the extended area for dining because it is far from the kitchen.

1. The evidence of Ms Li does not identify a specific time or date and she was not cross-examined about this aspect. Ms Li raises the issue in response to Mr Tsang's evidence in relation to the issue of possession in paras 68 to 71 of his statutory declaration of 11 December 2023. As noted in the decision at [126] the evidence said to be relied upon by Mr Tsang in support of practical completion was as follows:

69. The Owner did take the works and use them. See photograph attached and marked Annexure L. This photograph shows a view of the works showing the owner has placed furniture and clothing in the works, this showing occupation by the owner.

70. The Builder notes that the owner in advance of inspections has removed evidence of her occupation.

1. As such, the evidence of Domson Construction was focused on the photograph, which was Annexure L to Mr Tsang's statutory declaration. Given the way the evidence had proceeded, the Tribunal took Ms Li's statutory declaration to be responsive to this paragraph and the Tribunal summarises Ms Li's evidence at [128] of the decision by reference to the photograph. This analysis was ultimately one of the matters that resulted in the Tribunal's finding that it was not satisfied about occupation.
2. Accordingly, while we accept the submissions made by Domson Construction that the interpretation of cl 20(f) adopted by the Tribunal was in error, this does not impact the findings made at [129] and [130] that the Tribunal was not satisfied that deemed occupation had been established. Domson Construction does not raise any claim that this finding overlooked other relevant evidence, which may be a question of law, or that it was against the weight of evidence. Domson Construction specifically denies that it is seeking to challenge findings of fact on this issue. We therefore reject the submission that the Appeal Panel should consider the evidence before the Tribunal at first instance to make another decision under s 81(1)(d) of the NCAT Act.
3. In summary, even though this aspect of Ground 1 is accepted, it does not impact the finding made by the Tribunal at [129] and [130].
4. We add that if we are incorrect in our conclusion with respect to the Tribunal's other findings being sufficient to justify its rejection of Domson Construction's claim of deemed practical completion under cl 20(f), then, on reconsideration, we would not be satisfied on the evidence that was before the Tribunal that practical completion was deemed under s 20(f) on 10 August 2022, or on any other date, for the reasons already explained.
5. Ground 1 is dismissed.

1. This brings us to the new Ground 3A of the further Amended Grounds of Appeal.
2. In this case, the notice of practical completion was issued by Mr Tsang on behalf of Domson Construction dated 10 August 2022. It did not include any particulars. Relevantly, there was no reference to the fact that the notice was based on deemed occupation under clause 20(f), or of how deemed practical completion was said to have occurred. Soon after the issue of the notice, Ms Li responded, raising a number of issues about defects and things that need to be completed. This is why she contends that the question of whether she disputed the notice is a contentious issue as required by cl 20(d). She did not understand that the basis for the notice was deemed occupation until it was explained after the commencement of the proceedings and the service of the evidence by Domson Construction. These matters are relevant to Ground 3A.
3. Ground 3A states that the Tribunal erred in its construction of clauses 20(a) to (f) inclusive which led to uncertainty and a meaning contrary to the natural and ordinary meaning of the clauses. According to the particulars, in making its findings with respect to clause 20(f) the Tribunal should have considered and applied the entirety of clauses 20(a) to 20(f) of the contract and specifically the evidence of the Domson Construction and of Ms Li about the placement of the furniture. The particulars state that Ms Li conceded the prerequisites to cl 20(f) in her statutory declaration declared 7 February 2026 and that Mr Tsang declared, in his statement on 11 December 2023, that the notice issued (Annexure M) "presumes compliance with all of the clauses 20(a) to 20(f) of the Contract inclusive".
4. Having regard to the reference in Domson Construction's supplementary submissions to the movement of the furniture as a "conclusive event" and the reference to Abergeldie which also refers to "the proposition that the conclusive event is the issuing of the certificate of practical completion", we have taken this to mean, as has Ms Li in her supplementary submissions, that Domson Construction seeks to rely on clauses 20(c), (d) and (e) to establish the conclusive event of deemed occupation by the issue of the notice.
5. We reject this ground.
6. As we read cl 20(f), it provides a mechanism for establishing the date of practical completion, separate to and independent of the previous provisions set out in clauses 20(a) to (e). Deemed practical completion under clauses 20(a) to (e) relate to the circumstance in which the works reach one of the two stages of completion described in cl 20(a), as modified by the qualifications set out cl 20(b). When "in the opinion of the builder" the works have reached practical completion as defined in cl 20(a), the builder is required to give notice of this in writing under cl 20(c). We think it clear that any such notice must specify the basis on which the builder has reached that opinion, because clause 20(a) contemplates more than one way in which practical completion may be reached. Clause 20(d) then provides that, "if the owner disputes that Practical Completion has been reached" then, no later than 5 days after service of the notice, the owner is to give the builder written notice of what is required to be done to achieve practical completion. The builder is then, "as soon as possible", to do all things necessary to achieve practical completion; and give written notice when those things are completed. Clause 20(e) says that if the owner does not comply with cl 20(d) "the works will be deemed to have reached Practical Completion."
7. In contrast cl 20(f)(i) says that if the owner takes possession of the "works or any part of the works" without the written agreement of the builder, "the date of Practical Completion will be the date possessions is taken, unless Practical Completion has already been reached." It is important to note that the term practical completion is given two meanings in cl 20(f)(i). When first mention it is a reference to practical completion as a consequence of the owner taking possession of the works, while the second reference to practical completion is to one achieved because the works have reached the stage defined in cl 20(a). This confirms that there are two distinct types of practical completion provided for in cl 20: those provided for by cl 20(a) to (e), and that provided for in cl 20(f)(i). Clause 20(f)(ii) then expands on what will establish evidence of possession being taken for the purposes of cl 20(f)(i), including "placement of furniture."
8. In our view, the mechanism in sub-clauses (c), (d) and e) does not apply to sub-clause (f). Rather, read in the context, they apply to practical completion as defined in cl 20(a). This is because cl 20(d) provides that, if the owner disputes that practical completion has been reached, the owner must give the builder a written notice no later than five days after service of the notice of practical completion of those things if any required by the contract to be done to achieve practical completion. The builder is then required to do all of those things as soon as possible and give notice to the owner in writing of the completion of such things.
9. Clause 2(e) provides that if the owner does not comply with the provisions of sub-clause (d), the works will be deemed to reach practical completion. Clause 20(c) contemplates written notice of the matters said not to be completed for the purposes of cl 20(a). Clause 20(d) has no work to do if the builder issues a notice under sub-clause (c), as is claimed to have happened in this case, relying (but not stating the fact of that reliance) on practical completion on the basis of occupation in breach of cl 20(f). As such, it is apparent that clauses 20 (c) and (d) together operate to provide a mechanism to resolve disputes in respect of clause 20(a) alone, and not cl 20(f).
10. Counsel for Domson Construction submits that is not necessary under the provisions of the contract for the builder to provide particulars in a notice of practical completion. However, this tends to support the interpretation that clauses 20(c) and (d) are intended to apply to circumstances where the builder forms a view that practical completion has been reached in accordance with clause 20(a).
11. We are of the view that when cl 20 is read as a whole, it is apparent that the mechanism for establishing practical completion under clause 20(f) is an alternative but independent ground to establish practical completion. It is not open to a builder to issue a notice under cl 20(c) and rely on the failure of an owner to dispute deemed occupation to thereby seek to engage cl 20(e). This is so because cl 20(d) specifies the matters that must be included in the owner's notice in reply, which by their terms have nothing to do with occupation.
12. There may an argument that the notice was issued to fix the date that Domson Construction contended practical completion had been reached. The evidence provided by Domson Construction in support of this date was the photograph, being Annexure L to the statement of Mr Tsang.
13. How the Tribunal resolved the dispute about practical completion was considered at [124]-[130].
14. The Tribunal correctly started at [124] by identifying the questions as whether practical completion had been achieved and if so when. This was critical to whether Domson Construction was entitled to be paid the final claim and, conversely, whether Ms Li's claim for liquidated damages would succeed.
15. The Tribunal also correctly identified that Domson Construction was alleging deemed practical completion based on cl 20(f). The Tribunal analysed the evidence and found, relevantly, given our findings about the construction of clause cl 20(f), that the Tribunal was not satisfied the photographs relied on by Domson Construction to establish practical completion was taken on or prior to 10 August 2022. The Tribunal preferred the evidence of Ms Li over Mr Tsang, finding that her evidence that the photographs were taken on 23 July 2023 was not challenged. The Tribunal was not satisfied about the evidence provided by Domson Construction in support of its contention about deemed occupation and therefore practical completion. We accept, as submitted by Ms Li, that this was open to the Tribunal based on the evidence presented by the parties.
16. The Tribunal then went on to consider whether the notice of completion issued on 10 August 2022 was "valid". It is unclear why this was considered by the Tribunal to be relevant because there is nothing in the reasons or in the material before the Tribunal first instance to the effect that Domson Construction was relying on the issue of the notice and the contractual mechanisms under clauses 20(c) to (e) to establish practical completion. The Tribunal does not refer to the validity of the notice in the context of these contractual provisions and there is no reference to cl 20(c) and whether the notice issued was based on the opinion of Domson Construction by reference to cl 20(f). Instead, the reasons of the Tribunal at [129] analysed the evidence to examine whether it was satisfied that the pre-requisites for cl 20(f) had been established under cl 20(f)(ii) and therefore whether the notice established practical completion at that date.
17. For the reasons outlined in respect of Ground 1, the Tribunal was not satisfied that builder had established deemed occupation or therefore practical completion on this basis. This finding was open to the Tribunal.
18. Further, if we are wrong in our interpretation of clause 20, then the fact that the notice of practical completion relied on by Domson Constructions did not reveal the basis for the builder's opinion that practical completion had been reached is crucial. That there was nothing to indicate that it was based on deemed occupation by the owner. An owner cannot dispute an opinion about practical completion when the owner is not given notice of basis for the builder's opinion under cl 20(c). In those circumstances, because the notice was silent on the basis upon which the builder believed practical completion had been reached, the notice effectively deprived Ms Li of the ability to respond to it, and was insufficient and invalid.
19. Accordingly, we dismiss Ground 3A

Grounds 2 and 3: Consequential errors based on finding about Practical Completion

1. It is convenient to deal with both Grounds 2 and 3 together as, while they relate to different claims made by Domson Construction on the one hand and Ms Li on the other, it is common ground that if Domson Construction does not succeed on Grounds 1 and 3A, Grounds 2 and 3 will not succeed.
2. In Ground 2, Domson Construction submits that if the Tribunal' findings at [129] and [130] are in error, it follows that the finding at [132] is also in error and Domson Construction was entitled to make a final claim. As noted, the Tribunal found at [132] that Domson Construction was not entitled to make a final claim because practical completion had not been achieved.
3. Because we have upheld that finding by the Tribunal Grounds 2 must fail.
4. The contention in Ground 3 is that the Tribunal was also incorrect to find at [179] that Domson Construction was liable to pay delay damages to 14 October 2023 rather than 10 August 2023, being the date of practical completion. There is no dispute about the calculation of the liquidated damages claim other than the period of delay having regard to the date of practical completion. Given our findings on Grounds 1 and 3A, it follows that Ground 3 also does not succeed.
5. Accordingly, Grounds 2 and 3 are dismissed.

Grounds 4 and 6: Failure to exercise jurisdiction by overlooking material in Joint Experts' Report

1. Domson Construction contends that the Tribunal constructively failed to exercise its jurisdiction by overlooking material evidence in the joint experts' report at item 6.9, point 2, being comments made by Mr Taylor acknowledging that the roof pitch of the extension was close to the 12° pitch as stated on the plans. It is contended that the Tribunal should have given determinative consideration to the concession made by Mr Taylor that the roof pitch was 12° instead of 20° as found. It is submitted that the finding at [164] led to an erroneous finding at [166] that the value of defects should include $28,752.47. This amount should not have been included. The total defects would therefore have reduced from $75,788.81 to $47,036.34.
2. In oral submissions at the appeal hearing, it was further submitted that the issues raised by Mr Taylor at points 4, 5 and 6 of item 6.9 of the joint experts' report could be rectified but if the finding in relation to the pitch was wrong then the whole of the finding set out at [166] is incorrect. As such, Domson Construction contends the Tribunal should have accepted the loss estimated by Mr Bland in the sum of $1,049.95.
3. It is submitted that this is a question of law but if the Appeal Panel is not satisfied about this, Domson Construction seeks leave to appeal. It is submitted that the Tribunal's finding of defect on the roof pitch, by overlooking critical evidence, gave rise to a substantial miscarriage of justice that, in the circumstances, was not fair and/or equitable and was against the weight of evidence before it, which was conclusively to the effect that there was no defect in the roof pitch. It is further submitted the finding about the defect created an incurable injustice and leave should therefore be given.
4. Given these claims are made in the alternative about the same alleged error, it is convenient to deal with Grounds 4 and 6 together.

1. In Ms Li's Reply to Appeal, it is submitted that the finding made by the Tribunal about the damages for the alleged roof defects was within its jurisdiction to make. Even if there was an error of fact, there was no error of law because there was other evidence to support the finding the Tribunal made. The Tribunal was not required make a finding based on purported concession made the by Mr Bland alone, but could, as a matter of law, take into account all evidence before it. The Tribunal had before it evidence that supported both a roof pitch of 20° and 12°. There was no attack on the veracity or correctness of any measurement taken by either expert and, importantly, there was no challenge to Mr Taylor's quantification of the loss of $28,752.47.
2. It is submitted that, further and in the alternative, there was no error of law in that the amount awarded for Ms Li's damage in relation to the defect as the damages were not solely reliant on whether the roof pitch was 20° or 12° but also on whether the structure was as built complied with the design plans and exhibited damage by way of scratches and dents and improper use of paint. Particulars were provided for this submission, relying on [161] and [162] of the decision and further noting that there was evidence before the Tribunal indicating that the extension roof should finish at the same height as the current roof as per the design and that the extension roof in the current roof was non-compliant with the design.
3. In written and oral submissions, Ms Li expanded on the submissions made in the Reply to Appeal.
4. It is submitted that this ground relates to the question of whether the Tribunal properly assessed damages for defects based on the materials before it. There is no attack made that the Tribunal misapplied the law, simply that the Tribunal miscarried its jurisdiction by not taking into account a certain fact or not considering the total weight of the evidence. By definition, the assessment requires close analysis of the facts and the materials and is therefore a question of fact and factual finding. It is submitted that to rise to an error of law the Tribunal must not have had regard to incontrovertible evidence such that it would have changed the result as per House v King.
5. Ms Li contends that the defect in the roof was predicated on three matters, identified both in the decision and the Scott Schedule. Those matters were the dents, scratches and other minor issues in respect of which there is no disagreement, the defects that arose because Domson Construction did not comply with the building plans, namely the roof extension did not finish at the same height as the existing roof, and the defects that arose because the Domson Construction built the roof with a pitch of 20°, as opposed to 12°, as provided in the plans.
6. Ms Li contends that the Tribunal set out its consideration of the evidence that was before it. In relation to the second matter, the Tribunal preferred Ms Li's evidence, first, because the plans required that the extension roof should finish at the same height as the existing roof and, secondly, because the Tribunal found the explanation of Ms Li's expert, Mr Taylor as to how this outcome could be achieved to be persuasive, compared to the evidence of Mr Bland. It is further submitted that, importantly, there was evidence in relation to quantum from the two experts. Mr Taylor's evidence was that the quantum of the damages for all defects claimed in relation to the roof, including the second and third matters as well as the first, is $28,752.47. Domson Construction's expert, Mr Bland, opined in relation to the quantum of damages for the first defect only and did not address the second defect alleged at all, simply stating that the "roof was not designed correctly".
7. It is submitted that, assuming the Tribunal made an error on the roof pitch, which is not necessarily conceded, Domson Construction only identified the finding about the roof pitch as being incorrect. It does not deal with the remainder of the analysis in the material before the Tribunal. The Tribunal's findings were that the roof was defective; that the roof was constructed inconsistently with the plans.
8. Ms Li's counsel contends that a proper reading of the decision indicates the Tribunal was alive to the contradictions between the parties' experts regarding the roof pitch and based its judgement on the fact that the actual build was inconsistent with roof plans. It is submitted that the defect, and the cost for rectification, flow inevitably as a matter of logic, let alone law.
9. It is submitted that Domson Construction has therefore failed to articulate with any clarity of precision what exact error of law arises in these circumstances. There is no error of law arising from incontrovertible evidence that justifies setting aside of the decision.
10. As such, this ground does not raise a question of law and there is no appeal as of right. Domson Construction requires leave to appeal.
11. On the question of leave to appeal, Mr Li submits that there was no new evidence sought to be relied, the findings made by the Tribunal were made in a context where there was evidence that was not challenged and supported the findings the Tribunal made and the Tribunal gave Domson Construction the opportunity to set out its case in relation to the pitch of the roof, it was legally represented and the Tribunal gave detailed reasons for the findings made, which favoured the evidence of Ms Li. Furthermore, Domson Construction cannot identify any principle, question of public importance or injustice that is reasonably clear in the sense of going beyond what is reasonably arguable. It is submitted that there is no substantial miscarriage of justice is required under cl 12, sch 4 of the NCAT Act and it is not sufficient to merely to show that the Tribunal below was arguably wrong or that there was a bona fide challenge to an issue of fact.

1. In reply, Domson Construction submits that where material evidence is overlooked, as contended in this case, this is a question of law in accordance with the decision of Hawach v A & A Building Society Pty Ltd [2024] NSWCATAP 138 at [67(1)]. Domson Construction otherwise repeats its submissions in relation to the contention that this ground raises mixed error of fact and law.
2. However, if the Tribunal does not accept this characterisation of Ground 4, Domson Construction maintains its submission that leave should be given for the reasons previously outlined as it would be a clear miscarriage of justice miscarriage of justice for Ms Li to get the benefit of a monetary order in her favour when there was clear evidence to the contrary.

1. To determine this ground, it is necessary to identify whether there was an error in the Tribunal's decision and, if so, the nature of that error.
2. Ms Li identifies the three issues that were raised in relation to the roof. In the joint expert's report, her expert acknowledged the pitch issue but still maintained there were defects and estimated the loss as $28,752.47. Domson Construction's expert stated that the roof was not designed correctly, disagreed that Domson Construction failed to construct to design and assessed the quantum of any loss at $1,049.95.
3. The Tribunal considered this issue at length at [157] to [166]. It is the third aspect of the roof that is in dispute. The Tribunal dealt with this contest at [164] as follows:

The third aspect created a situation where the Tribunal was left with (1) one expert saying there was a pitch of 20°, (2) another expert saying there was a pitch of 12°and (3) both expects providing supporting photos. Given that photos clearly show both measurements, the only explanation can be that the measurements were taken at different locations with the result that there must be areas of the roof with the pitch of 20°, contrary to 12° specified in the plans.

1. In the joint experts' report at item 6.9, point 2, Mrs Li's expert, Mr Taylor, states:

I acknowledge that the roof pitch of the extension is close to the 12° pitch as stated on the plans.

1. This evidence of Mr Taylor and the finding of the Tribunal at [164] is inconsistent. It is clear that the Tribunal relies on the expert's reports and the photographs that were taken at different locations without referring to the subsequent acknowledgment made by Ms Li's expert in the joint experts' report. This supports the contention made by Domson Construction that the Tribunal did in fact overlook this concession. In this regard, the Domson Construction submission is persuasive.
2. However, despite the acknowledgement, Mr Taylor's opinion in relation to the quantum for rectification did not change. This is clear from the joint experts' report (Item 6.9) dated 15 January 2024, where Mr Taylor makes the concession referred to above at point 2: but at point 1, he states "Estimate of Loss - Unchanged $28,752.47 (Excluding GST)". In contrast, Mr Bland states that he disagrees on quantum and liability and estimates the loss as $1,049.95. Mr Bland notes that Mr Taylor agrees about the pitch but states that the roof was designed incorrectly and does not need replacing. It is therefore implicit that his estimate relates to the first defect only.
3. The critical finding of the Tribunal about the cost of rectification is at [165]. The Tribunal notes that Mr Taylor's estimated cost of rectification was "unchallenged" and that Mr Bland's estimated cost of rectification of $1,049.95 was not accompanied by an indication of how the amount was calculation. The Tribunal accepted Mr Taylor's estimate, stating that his estimate would address "all three aspects" of the defects alleged. Given the Tribunal appears to have overlooked the concession made by Mr Taylor, this raises a question of whether the Tribunal also mistakenly failed to consider whether Mr Taylor's estimate was overstated because it included rectification for the roof pitch or whether it was accepted that the roof needed to be replaced anyway, and this would take into account all three issues.
4. Given the Tribunal's findings and the state of the evidence, the question that arises is whether this ground raises a question of law, a question of fact or a mixed question fact and law.
5. We accept the submission made by Domson Construction that not all errors relating to factual findings exclude the possibility that the error alleged raises a question of law. For instance, in Orr v Cobar Management Pty limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Orr v Cobar Management) the Court of Criminal Appeal, when considering the difficulties in relation characterisation, observed at [109]:

Those questions of law should be, in our opinion, what are sometimes described as "pure questions of law". They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts. The construction accords with the cases we have referred to at [48] and [70] above.

1. In AW v WW (No 2) [2024] NSWSC 146, Kunc J, in referring to Orr v Cobar Management, stated at [52]:

Their Honour's exclusion at [109] of "a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts" is a reminder of one source of complication in this area of discourse, being that some questions of law, properly framed and understood as such, will require an examination of the facts. However, in my respectful opinion, this latter category is generally and necessarily confined to submissions of jurisdictional error on grounds such as 'Wednesbury unreasonableness' or constructive failure to exercise jurisdiction.

1. Another circumstance where it may be necessary in an appeal jurisdiction to scrutinise the facts at first instance is where there is a question arising in relation to procedural fairness, as referred to above in Donohoe v Albulario.
2. Despite this, it is clear that an error that raises a mixed question of fact and law is not a pure question of law (Orr v Cobar Management at [60] as per Bathurst CJ and Bell P_)._
3. In this case, there is an argument that the error, as properly understood, is not an error in fact finding but rather an error based on the failure of the Tribunal to have regard to material evidence that was incontrovertible. For instance, there is no dispute that Mr Taylor made a concession about the pitch of the roof and this is referred to in the joint experts' report. It is clear from [164] that the Tribunal considered other evidence on this issue, but it is not apparent from the reasons that the Tribunal considered that acknowledgment. Domson Construction contends that it can be inferred from the Tribunal's findings that it failed to consider, or overlooked, this evidence and was a constructive failure by the Tribunal to exercise its jurisdiction to consider and determine all issues in dispute between the parties. In contrast, Ms Li contends the competing expert evidence of both parties was considered, and the Tribunal preferred the evidence of Mr Taylor. It is further submitted that relevantly, despite his concession, Mr Taylor's evidence in the joint expert's report about the quantum of the defect was unchanged.
4. This issue was considered by Basten JA in Alexandria Landfill Pty Limited v Transport for NSW [2020] NSWCA 165, who explained, at [6] and [7] as follows:

6. The premise underlying a "constructive" failure to exercise jurisdiction is that there has been an apparent exercise of the jurisdiction of the court, but one that has failed in a way which can only be teased out by reference to the underlying issues and the materials presented to the court. It may then be demonstrated that a material issue presented for determination has not been resolved. By contrast, a failure to give adequate reasons implies that the relevant issues have been identified, addressed and resolved, but the reasons for reaching the conclusion have not been adequately expressed.

7. Despite the conceptual difference between the two complaints, they are related in a practical way. Because there is no means of interrogating a judge as to his or her intellectual processes, evidence that issues were not addressed can usually only be demonstrated by reference to the reasons. Thus, on the assumption that the judge addressed in the reasons all material matters, the absence of reference to a particular matter may allow the inference that it was not addressed and determined.

1. His Honour observed that this is often considered in a context where reasons are not provided or where the judgement does not address a material part, or whole, of the case presented. As found in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, the failure to respond to a substantial, clearly articulated argument relying on established facts may be characterises a failure to accord natural justice or a constructive failure to exercise jurisdiction. His Honour also referred at [20] to Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33, where the Court of Appeal held at [9]:

The adoption, on an appeal limited to errors in point of law, of language derived from the supervisory jurisdiction of the court must be undertaken with caution. It is, no doubt, an error of law for the trial court to fail to exercise its constitutional function, which is to resolve a dispute presented to it by the parties by applying the law in accordance with proper procedure. In the present case, that function was almost entirely satisfied by the resolution of disputed factual issues. The term 'constructive failure to exercise jurisdiction' is used to describe a situation where the court has purported to resolve the parties' dispute but has not in fact done so. Thus, particularly with a court or Tribunal required to provide reasons for its decision, it may become apparent from those reasons that a material issue has simply not been addressed or that material evidence has been overlooked......

1. The submissions of Ms Li seek to draw a distinction between the constructive failure to exercise jurisdiction and a factual finding made by the Tribunal that was open on the evidence. The first raises a question of law and the second raises a question of fact.
2. The difficulty in this case is that while it may be inferred that the Tribunal overlooked the Ms Taylor's concession because it was not referred to or analysed in [164], there are limitations in the evidence such that the findings made by the Tribunal at [165] and [166] on their face did in fact resolve the dispute between the parties, albeit not in favour of Domson Construction.
3. On balance, we are satisfied that this ground raises a question of law but the ground is not established because we are not satisfied that the Tribunal failed to exercise jurisdiction. The Tribunal made a determination on the question of the quantum of the rectification for the roof, although we accept there is a plausible argument that this finding was against the weight of the evidence. As such, this raises the question of whether leave to appeal should be granted in these circumstances.
4. There was no evidence, or at least we were not referred to any evidence before the Tribunal at first instance, about the cost of rectification to the roof arising from the pitch issue alone. Domson Construction submits that the first and second defects could have been rectified and the finding at [166] is incorrect. Ms Li submits the roof needed to be rectified anyway and the Tribunal accepted the quantum estimated by Mr Taylor. There was no alternative evidence from Mr Bland about the quantum other than his estimate of the cost to rectify the first defect. Mr Taylor's evidence about the estimate of the loss for the roof rectification was unchanged despite his concession.
5. In other words, the evidence of Mr Taylor was not challenged and, in the absence of evidence from Domson Construction to the contrary, the evidence about the cost of rectification of the second defect was, at best, uncertain. In these circumstances, it was open to the Tribunal to reach the conclusion it did.
6. While it is possible that the finding at [166] is incorrect, this is not a case where it is clear that the finding was in fact against the weight of evidence or that it was not fair and equitable. There is evidence that both parties had the opportunity to put forward their evidence on the contentious issue of defects to the roof, and of the cost to remedy them, and the Tribunal made findings about the issue. This is not a case where there was evidence that the third defect comprised all or even a significant proportion of the rectification costs Nor is there any submission that this issue raises a question of public importance.
7. We therefore reject this ground of appeal and, to the extent that leave is required, leave to appeal is refused.

Grounds 5: Exercise of discretion on order for costs

1. Domson Construction submits that exercise of discretion to order costs in favour of Ms Li where that discretion is based on erroneous facts, raises an error of the kind referred to in House v King. This raises a question of law. It is contended that the order in relation to costs was influenced by the underlying findings now challenged and were a consequence of those findings. Domson Construction therefore submits that any change in the findings the subject of the Appeal means that the costs discretion, which was exercised on a number of erroneous grounds, was in error.
2. Because we have rejected Domson Construction's Grounds of appeal challenging the findings made by the Tribunal, these Grounds are rejected.

1. Rule 38A of the NCAT Rules provides that, despite s 60 of the NCAT Act (which is the general costs provision) the Appeal Panel for an internal appeal must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal. Section 38 sets out the first instance costs provisions in relation to proceedings in the Consumer and Commercial Division. Relevantly, r 38(2)(b) provides that Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if the amount claimed or in dispute in the proceedings is more than $30,000. The amount claimed and in dispute was more than $30,000. The Tribunal at first instance ordered that Domson Construction pay Ms Li's costs as agreed or assessed on an ordinary basis.
2. Ms Li has succeeded on the appeal and would in the normal course of events, absent circumstances not now known to us, be entitled to her costs.
3. Because the parties have not had the opportunity to make any submissions we will make no orders in relation to costs of the appeal at this time. We make the further directions below providing a timetable for submissions. We urge the parties to attempt to resolve the costs issue themselves.

1. For the above reasons we make the following orders and directions:

(1) Leave to further amend the Amended Grounds of Appeal is granted.

(2) Leave to appeal is refused.

(3) The appeal is dismissed.

(4) The stay granted on 30 October 2024 is lifted.

(5) If a party to the appeal wishes to make an application for costs, the following directions apply:

(a) the party applying for costs (the costs applicant) must, within 14 days after the publication of this decision, give the other party (the costs respondent) and the Registry any submissions and documents the costs applicant intends to rely on in relation to the application, including on the question as to whether costs should be fixed or assessed;

(b) the costs respondent must, within 14 days after receiving the submissions and documents of the costs applicant, give the costs applicant and the Registry any submissions and documents the costs respondent intends to rely on in response to the application for costs;

(c) the costs applicant must, within 7 days after receiving the submissions and documents of the costs respondent, give the costs respondent and the Registry any additional submissions and documents the costs applicant intends to rely on in response to the costs respondent's submissions and documents;

(d) the parties are to include, in their written submissions concerning the application for costs, their submissions about whether they consider that a hearing in relation to the application can be dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

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

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.