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Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 34, 80, 83
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), Pt 50

Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Chapmans Ltd v Yandell [1999] NSWCA 361
Colman v The Owners – Strata Plan 61131 [2025] NSWCA 203
CPE15 v Minister for Immigration & Border Protection [2017] FCA 591
Dokas v Gallagher (No 2) [2024] NSWCA 236
Dwyer Building Group Pty Ltd v Spicer; Spicer v Dwyer Building Group Pty Ltd [2025] NSWCATAP 133
Hawach v A & A Building Services Pty Ltd [2025] NSWSC 1174
Makowska v St George Community Housing Ltd [2022] NSWCA 5
Spicer v Dwyer Building Group (NSWCATCD, 30 August 2024, unrep)
SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; 317 ALR 365
Targeted Property Investment Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416; 20 BPR 43,135
The Owners - Strata Plan No 73943 v Gazebo Penthouse Pty Limited [2014] NSWSC 1536
Walshe v Prest [2005] NSWCA 333

Category: Principal judgment

Parties: Dwyer Building Group Pty Ltd (Applicant)
Deanna Spicer (Respondent)

Representation: Counsel:
N Simone (Applicant)
J Horowitz (Respondent)
Solicitors:
Wilsons Solicitors (Applicant)
Contracts Specialist (Respondent)

File Number(s): 2025/266476

Publication restriction: Nil

JUDGMENT

1. By a summons filed 11 July 2025, the applicant seeks leave to appeal from a decision dated 13 June 2025 by an Appeal Panel of the New South Wales Civil and Administrative Tribunal (NCAT) (see Dwyer Building Group Pty Ltd v Spicer; Spicer v Dwyer Building Group Pty Ltd [2025] NSWCATAP 133).

2. The appeal is brought under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and Pt 50 of the Uniform Civil Procedure Rules 2005 (NSW). Under s 83(1), the applicant (the Builder) must obtain the leave of the Court to appeal on a question of law against the Appeal Panel’s decision. There is no right of appeal on a question of fact nor any right to seek leave to appeal on such a question.

3. The proceedings have a notably long history. They date back to 2020 when the respondent (the Owner) commenced home building proceedings in NCAT, which resulted in the parties agreeing to a Work Order dated 4 May 2021. This required the Builder (in accordance with applicable laws, rules, codes and standards and in a proper and workmanlike manner) to complete works under a contract dated 29 November 2018 (the Contract) within a reasonable time. A Note to the Work Order stated that, on 17 July 2020, the Builder proposed an amended project schedule which, inter alia, provided for the completion of the works within six and a half months of recommencement. The Builder recommenced work at the Owner’s property in May 2021 but relations between the parties significantly deteriorated and the Builder ceased work on about 10 December 2021.

4. On 21 January 2022, the Owner commenced renewal proceedings in NCAT seeking to enforce the Work Order. In mid-2022, the Builder issued a notice of termination of the Contract, which caused the Owner to accept what it described as the Builder’s unlawful repudiation of the Contract and the Owner then elected to terminate the Contract.

5. The central issue was whether the Builder was in breach of the Work Order on 21 January 2022, when the renewal proceedings were commenced. This in turn depended upon whether the Builder was entitled under the Contract to extensions of time (EOTs) of a sufficient period to avoid the Builder being in breach as at 21 January 2022.

6. NCAT heard the renewal proceeding over three days in March and August 2023. The parties provided numerous sets of written submissions, culminating in the Owner’s closing submissions in reply dated 15 December 2023. The parties’ written submissions before NCAT totalled approximately 230 pages. NCAT was faced with more than 4,000 pages of evidence. This may explain why there was almost an eight-month delay in NCAT publishing its reasons for decision on 30 August 2024 (see Spicer v Dwyer Building Group (NSWCATCD, 30 August 2024, unrep). NCAT ordered the Builder to pay the Owner the sum of $251,187.45 on or before 25 September 2024 and to pay the Owner’s costs of the renewal proceeding.

7. On 25 September 2024, the Builder filed an appeal under s 80(2)(b) of the CAT Act (which confers a right of appeal on any question of law and, with the leave of the Appeal Panel, on any other grounds). The Builder raised 12 grounds of appeal and provided written submissions totalling 38 pages. The Owner’s written submissions in response totalled 15 pages. The Owner also filed a cross-appeal. After a half-day hearing, the Appeal Panel published its reasons for decision on 13 June 2025. It allowed both the appeal and the cross-appeal. In order (2), the Builder was ordered to pay the Owner the sum of $241,305.74 (less any amounts paid since 30 August 2024). (On 12 August 2025, Elkaim AJ stayed order (2) pending determination of the summons in the present proceeding.) The Appeal Panel’s reasons contain 272 paragraphs and cover 77 pages.

8. Having regard to the history of the proceedings as outlined above, it is hardly surprising that the Appeal Panel was moved to comment as follows at [172] of its reasons:

The proceedings to date have consumed significant resources and time of the parties, and of the Tribunal: beyond what they merit on an objective assessment of the amounts involved.

9. Guided by the need to conduct the proceedings so as to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”, as required by s 36 of the CAT Act, the Appeal Panel said at [173] that it had paid due regard to that guiding principle and would proceed to “redetermine the issues necessary to finally resolve the proceedings following the appeals” and that its reconsideration would be on the basis of the evidence and material before NCAT below and the parties’ submissions to the Appeal Panel.

10. For the reasons that follow, leave to appeal will be refused and the summons dismissed with costs. Accordingly, the Owner’s notice of contention filed on 29 August 2025 need not be determined.

Background facts further summarised

11. For present purposes, it is sufficient substantially to adopt the Builder’s outline of submissions in this Court dated 14 October 2025 which describe the relevant background (footnotes omitted):

4. The plaintiff is a builder. The defendant is a homeowner. The parties entered into a building contract for the renovation of a residential dwelling. The overall renovation was to be conducted in part by the homeowner and in part by the builder. The parties fell into dispute which led them to the Tribunal.

5. The dispute was initially resolved by a ‘Work Order’ made by the Tribunal with the consent of the parties. However, further dispute arose with respect to the performance of the Work Order which led to ‘renewal proceedings’.

6. The scope of the renewal proceeding, being a statutory mechanism for enforcing work orders in the Tribunal pursuant to clause 8 of schedule 4 to the Civil and Administrative Tribunal Act 2013, was to assess whether the Work Order had been breached by the builder and, if so, determine an appropriate remedy.

7. Senior Member McDonald determined the renewal proceeding on 30 August 2024.

8. The builder appealed from that decision to the Appeal Panel, resulting in the Decision.

9. The specific part of the dispute in the renewal proceedings and the Appeal Panel proceedings which is relevant to this appeal is the issue of whether the builder was in breach of the Work Order as at 21 January 2022 when the renewal proceeding was commenced, or entitled to extensions of time (EOTs) under the building contract such that it was not in breach as at 21 January 2022.

10. In each of the earlier proceedings, the homeowner alleged:

(a) the Work Order required that all work under contract be completed within 6.5 months of that order; and

(b) that, as at the date the homeowner commenced the renewal proceeding on 21 January 2022 (being approximately 8.5 months after the Work Order), the builder was in breach of the Work Order as the work, had not been completed.

11. In turn, the builder alleged:

(a) it was entitled to some 15 mandatory EOTs under the building contract which then extended the time for compliance with the Work Order; and

(b) the cumulative duration of the EOTs to which the builder was entitled exceeded two months, such that it was not in breach of the Work Order (and had in fact substantially performed it) as at the time the renewal proceeding commenced.

12. The Appeal Panel determined that the first instance Tribunal had erred by wholly failing to determine the builder’s entitlement to EOTs under the contract at all, the terms of which were applicable in conjunction with the Work Order. The builder’s appeal was mostly successful in that regard and the Appeal Panel went on to assess the builder’s entitlement to EOTs. Some EOT requests were determined in favour of the builder, and some determined in favour of the homeowner.

13. The Appeal Panel found that the builder’s time for completing the Work Order should be extended by 20 business days (4 weeks) to 18 December 2021, about one month shy of the date when the homeowner commenced renewal proceedings, being 21 January 2022.

14. In the result, the Appeal Panel ordered the builder to pay the homeowner $286,550.87 (Payment Order). The lion’s share of the Payment Order represents damages for the cost of completing “incomplete work”, by reason of having breached the Work Order, and not for any defects in the work actually performed by the builder.

15. The builder alleges:

(a) its delay in completing the Work Order was by reason of matters outside of its control, some of which were in fact within the control of the homeowner;

(b) the corresponding EOTs to which it was entitled under the building contract substantially exceeded the 4 weeks found by the Appeal Panel; and

(c) there are errors of law arising out of the Decision in failing to find accordingly.

16. The consequence of the Appeal Panel’s finding of a 4-week delay, in line with the evidence on this application, will be catastrophic for the builder, and a stay of the Payment Order has been made by this Court pending determination of this appeal.

Applicant’s proposed grounds of appeal

12. The five proposed grounds of appeal in respect of which leave to appeal is sought are as follows:

Extension of time claim # 5

1. Whether the Tribunal erred, and constructively failed to exercise its jurisdiction, by failing to determine the Builder’s entitlement to an extension of time under the contract in relation to extension of time # 5 notified to the Owner on 30 September 2021?

Extension of time claims # 9, 10, 11, 13, 14 and 15

2. Whether the Tribunal erred, by identifying a wrong issue or asking a wrong question, or otherwise erred, and, in doing so, erred by finding the Builder was not entitled to extension(s) of time:

(a) # 9 notified to the Owner on 21 October 2021 (J [228]);

(b) # 10 notified to the Owner on 27 October 2021(J [236]);

(c) # 11 notified to the Owner on 3 November 2021 (J [236]);

(d) # 13 notified to the Owner on 10 November 2021 (J [236]);

(e) # 14 notified to the Owner on 19 November 2021 (J [236]); and

(f) # 15 notified to the Owner on 26 November 2021 (J [236])?

3. Whether the Tribunal erred by finding there was no evidence to support a finding of fact, namely “as to how complete ducting was necessary for the other work to proceed” (J [236(2)]), and thereby failed to consider relevant evidence in relation to the Builder’s claims for extensions of time # 9, 10, 11, 13, 14 and 15 insofar as those claims related to the Owner’s failure to undertake the Owner’s works?

4. Whether the Tribunal erred by identifying a wrong issue or asking a wrong question, or otherwise erred, and, in doing so, erred by finding extensions of time # 9, 10, 11, 13, 14 and 15, insofar as those claims related to the Owner’s failure to undertake the Owner’s works, did not entitle the Builder to extensions of time under the contract (J [228], [229], [236])?

Renewal Proceedings

5. Whether the Tribunal erred by finding that the Owner was entitled to commence the renewal proceedings when she did (J [262])?

13. In circumstances where the Court was not satisfied that the summons precisely identified all the questions of law to which the grounds of appeal relate, it directed the Builder to state those questions of law. In response, the Builder provided the following statement of what it claims are the questions of law:

Extension of time claim # 5

1. Whether the Appeal Panel constructively failed to exercise its jurisdiction, by failing to determine the Builder’s entitlement to an extension of time under the contract in relation to extension of time (EOT) #5 notified to the Owner on 30 September 2021.

2. Whether the Appeal Panel failed to take into account a relevant consideration, being EOT #5, in the task it identified at J [168] when it reached its finding at J [256] that the Builder was only entitled to a 20-business day extension to the time to complete the Work Order.

Extension of time claims #9, 10, 11, 13, 14 and 15

3. Whether the Appeal Panel erred by finding there was no evidence to support a finding of fact, namely “as to how complete ducting was necessary for the other work to proceed” (J [236(2)]), which related to the Builder’s claims for extensions of time # 9, 10, 11, 13, 14 and 15 insofar as those claims related to the Owner’s failure to undertake the Owner’s works

4. Whether the Appeal Panel erred by identifying a wrong issue or by asking a wrong question when it adopted the first-instance tribunal’s reasons and conclusions (at J [236(2)]), insofar as they related to EOT #9, 10, 11, 13, 14 and 15, when it had earlier found (at J [132]) that those reasons and conclusions were themselves the product of error and the first-instance tribunal having identified the wrong issue or having asked the wrong question and thereby failed to determine the matters identified at J [168].

5. Whether the Appeal Panel took into account an irrelevant consideration by reason of its adoption of the first-instance tribunal’s reasons and conclusions (at J [236(2)]).

6. Whether the Appeal Panel failed to take into account a relevant consideration, being the existence of relevant evidence, when it rejected the Builder’s entitlement to an extension of time in respect of each of EOT #9, 10, 11, 13, 14 and 15 (at J [228], [229] and [236]).

Consideration and determination

(a) The significance of s 83(1) of the CAT Act, the need precisely to identify one or more questions of law and the requirement to obtain leave

14. At the outset, it is critical to appreciate the nature and scope of an appeal to the Court under s 83(1) of the CAT Act. The right of appeal is confined to a question of law against any decision made by the Tribunal and that right can only be exercised if the Court grants leave. These important restrictions on the right of appeal under s 83(1) reflect a deliberate legislative policy of tapering rights of appeal in relation to administrative decisions as one ascends the appellate hierarchy. This tapering effect is manifest, for example, in the fact that, although there is a full merits review before NCAT in relation to a reviewable decision, s 80 of the CAT Act confers a right of appeal to an Appeal Panel in the case of an “internally appealable decision”, but then imposes certain constraints on that right (which constraints are not as severe as the constraints under s 83). Thus, s 80(2)(a) provides for a right of appeal to the Appeal Panel from an interlocutory decision of NCAT which is not constrained other than by the requirement that the Appeal Panel grant leave. Further, s 80(2)(b) constrains the right of appeal to the Appeal Panel from other decisions of NCAT. That right of appeal is limited to any question of law (and there is no requirement to obtain leave) or with the leave of the Appeal Panel on any other grounds apart from a question of law.

15. The tapering effects of ss 80 and 83 of the CAT Act are not circumvented if a party who is dissatisfied with a decision of NCAT or an Appeal Panel seeks to invoke the Court’s supervisory jurisdiction by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW). That is because the Court has a discretion to refuse to conduct a judicial review “because the inference may readily be drawn that, by commencing proceedings for judicial review, the moving party is deliberately seeking to avoid the obligation to obtain leave to appeal” (see Makowska v St George Community Housing Ltd [2022] NSWCA 5 at [28] per curiam). Furthermore, it is notable that s 34(1) of the CAT Act confers a statutory power on the Court to refuse to conduct a judicial review of an NCAT decision where an internal appeal to an Appeal Panel or an appeal to a Court could be, or has been, lodged.

16. I sought to identify relevant principles relating to s 83(1) of the CAT Act in Targeted Property Investment Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416; 20 BPR 43,135 at [32]–[39] (noting that [33] was approved in Dokas v Gallagher (No 2) [2024] NSWCA 236 at [66] per Kirk JA and Griffiths AJA and, more recently, in Hawach v A & A Building Services Pty Ltd [2025] NSWSC 1174 at [7] per Stern JA). Despite their length, I will reproduce that statement of the principles:

[32] Section 83 of the CAT Act relevantly provides as follows:

(1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.

(2) A person on whom a civil penalty has been imposed by the Tribunal in proceedings in exercise of its enforcement or general jurisdiction may appeal to the appropriate appeal court for the appeal on a question of law against any decision made by the Tribunal in the proceedings.

(3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following—

(a) an order affirming, varying or setting aside the decision of the Tribunal,

(b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.

…

[33] There are several important points to make about this provision:

(1) There is no appeal to this Court from a decision of the Appeal Panel as of right. The applicant must persuade the Court that leave should be granted.

(2) An appeal is limited to “an appeal on a question of law”.

(3) As was recently emphasised in in Thomas and Naaz at [32], “it is not sufficient merely to assert that the Tribunal erred in law in order to satisfy the limited conferral of jurisdiction”. (To similar effect, see Ferella v Chief Cmr of State Revenue [2014] NSWCA 378; (2014) 96 ATR 875 at [6] and [22]; and Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]). Accordingly, it is well-settled that a challenge which is wholly or partly factual cannot be converted into a question of law merely by asserting that a question of law is involved or merely by asserting error itself.

(4) What constitutes a question of law is “vexed and context dependent” in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises (see Thomas and Naaz at [52] and Da Costa v R (1968) 118 CLR 186 at 194; [1968] HCA 51).

(5) Although there is no clear test of what constitutes a question of law for the purposes of s 83 of the CAT Act, it is important not to lose sight of the continuing binding authority in this State of the Court of Appeal’s decision (by majority) in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. Azzopardi stands for the proposition that a particular finding which is alleged to be “perverse” or “unreasonable” or “not reasonably open” is not ordinarily a question of law. At pp 155–156, Glass JA (with whom Samuels JA agreed, Kirby P dissenting) said:

It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers’ Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654.

Furthermore, at p 157, Glass JA said:

…when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the [course] of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council; Australian Gas Light Co v Valuer-General.

See also Thomas and Naaz at [53].

(7) It is unnecessary to decide for the purposes of this appeal whether a “question of law” encompasses a mixed question of fact and law (see generally, at the federal level, the decisions of the Full Court of the Federal Court in Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 and May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397; [2015] FCAFC 93 and contrast the position at the State level, which is reflected in cases such as Attorney-General for the New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [44]; Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60]; and Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 at [45] per Chen J).

(8) The existence of a question of law is not merely a qualifying condition to the statutory right of appeal; rather, the question of law alone is the subject matter of the appeal (see Osland v Secretary to the Dept of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21] per French CJ, Gummow and Bell JJ and Davis v NSW Land and Housing Corporation [2016] NSWCA 325; (2016) 18 BPR 36,459 at [77] per McColl JA, with whom Meagher and Leeming JJA agreed).

(9) Whether or not an appeal is on a question of law should be approached as a matter of substance and not merely form. As the Full Court of the Federal Court said in Haritos at [107], if, as a matter of substance, there exists a question of law, the Court has “a procedural discretion, to be exercised judicially and where it is in the interests of justice to do so, to direct its formal identification in an amended notice of appeal even where the question of law has not been identified before the primary judge”. It is notable that the Court there viewed this approach as consistent with that of the Court of Criminal Appeal in R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 at [57]–[69] per Spigelman CJ (with whom Mason P, McClellan CJ at CL, Hidden and Howie JJ agreed). Where an appellant is unrepresented, it may be appropriate to adopt a more generous or benevolent approach in assessing whether the notice of appeal identifies a question of law (see, for example, Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75]–[77] per Mortimer J, as approved in Haritos at [104] and see also Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]).

(10) A s 83 appeal to this Court is confined to a decision of the Appeal Panel and does not extend to the NCAT at first instance (see Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 at [10]).

…

Principles guiding the issue of leave

[36] The relevant core principles are well-settled. They were helpfully summarised by Gleeson JA (with whom Macfarlan and Payne JJA agreed) 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: Sharpe v Heywood [2013] NSWCA 192 at [34]; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [57]. 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: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32].

[37] Other helpful guidance is provided by the observations of Basten JA (with whom Tobias AJA agreed) in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]–[37]:

[32] The principles governing cases such as these have recently been restated in Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56. As Campbell JA noted (with the agreement of Young JA) at [22]:

“It is of some importance to reiterate the principles that were stated in Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69, where Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Cole JA relied on a principle that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute.”

[33] In Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Campbell JA, with the agreement of Young and Meagher JJA, expanded on his summary of Carolan, noting that Kirby P had recognised “that ordinarily it was appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond [what is] merely arguable”: at [46].

[34] Kirby P in Carolan set out a number of reasons for the constraint on rights of appeal in such cases. Not all of them have been repeated in later cases. Not all are universally relevant. Thus, the delay in obtaining a hearing in this Court appears to have been greater at that time than is the case presently, although an overly liberal approach to leave applications might well result in an increase in the period between filing and hearing.

[35] In Coulter v R [1988] HCA 3; 164 CLR 350, dealing with a challenge to a refusal of the South Australian Full Court to grant leave to appeal in a criminal matter, the majority noted that a leave requirement was a preliminary procedure “recognised by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention”: at 356 (Mason CJ, Wilson and Brennan JJ). That statement is clearly applicable to civil, as well as criminal, appellate jurisdiction.

[36] As the High Court has noted, an application for leave is not a proceeding in the ordinary course of litigation but a preliminary procedure: Collins v R [1975] HCA 60; 133 CLR 120 at 122; Coulter at 356. On the other hand, there is no reason to doubt that s 58 of the Civil Procedure Act 2005 (NSW), requiring a court to act in accordance with “the dictates of justice” when making an order or direction “for the management of proceedings”, applies in respect of a leave application. One of the factors to be taken into account pursuant to s 58 is “the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction”: s 58(2)(b)(vi). That provision, like s 56, identifying the overriding purpose of the Civil Procedure Act as being to facilitate the just, quick and cheap resolution of the real issues in the dispute, recognises that questions of injustice are relative. Similarly, the requirement that this Court not order a new trial unless it appears that “some substantial wrong or miscarriage” has been occasioned, also reflects a principle of parsimony in requiring that the parties be put to the expense of a second trial: UCPR, r 51.53.

[37] The idea that injustice may be measured on a scale reflects a number of underlying considerations. First, the ability to assess the existence of an injustice in a preliminary proceeding, such as a leave application, is limited. In assessing the merit of a proposed appeal, the Court may well apply a vague criterion, such as whether the judgment below is attended by “sufficient doubt”. Secondly, injustice involves a balancing exercise. The delay and cost of further litigation will constitute a form of injustice to the successful party below, whatever the outcome of the appellate process. Thirdly, the entitlement of the parties to justice is not unconditional, but is dependent upon the resources of the court made available by the government and the appropriate allocation of resources by the parties, which may depend upon their individual assessments of the importance of the issues in dispute. The parties may well make disparate assessments in a particular case.

[38] An applicant for leave under s 83 must demonstrate something more than that the impugned decision of the Appeal Panel is arguably wrong. Ordinarily, leave will only be granted where there is a matter that involves 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.

[39] Where leave is sought in order to challenge an interlocutory decision, it is relevant to take into account the fact that it is an interlocutory, as opposed to a final, decision, and to consider whether the grant of leave will unduly disrupt the orderly despatch of the NCAT’s business (see Grygiel v Baine [2005] NSWCA 218 at [78] per Basten JA, with whom Mason P agreed).

17. To the above summary of principles guiding the issue of leave may be added the important observations of Fitzgerald JA (with whom Mason P and Davies AJA agreed) in Chapmans Ltd v Yandell [1999] NSWCA 361 at [11] that a requirement of leave to appeal is “intended to act as a filter to ensure that unsuitable appellant proceedings which are not able to be brought with the demands which that places upon the resources of the Court and the burden which it places upon other parties and the delays which it causes to other litigants”. Those observations have a strong resonance in the present proceeding.

18. As noted above, the fundamental requirement of identifying with precision one or more questions of law the subject of a proposed appeal under a provision such as s 83(1) is not circumvented by asserting, for example, that the Appeal Panel “erred in law”. I also respectfully agree with Stern JA’s observations in Hawach at [75], where her Honour said (emphasis added):

… I would add that it is far from clear that the contentions under these grounds are sufficient to constitute questions of law within s 83 of the CAT Act. The contentions are in reality a disagreement with the Appeal Panel’s conclusions on the issues raised. The Appeal Panel’s reasoning plainly did not suggest that it had overlooked a substantial clearly articulated claim, nor even that it had overlooked Mr Eassey’s evidence in cross-examination. The plaintiffs’ invocation of descriptions such as a constructive failure to exercise jurisdiction or unreasonableness does not suffice to constitute a question of law for the purposes of s 83 of the CAT Act.

(b) Relevant provisions of the Contract

19. Clause 2A of the Contract deals with the joint responsibilities of the parties. Relevantly, it states:

2A. Joint Responsibilities of the Builder and Owner

The Parties acknowledge the fact that the amount payable by the Owner under this contract and the time taken to carry out the work is subject to change for various reasons, As at the date of the contract the work detailed in Schedule 3 is work which can be carried out for the contract sum.

The contract sum will be affected by the impact of choices made and work done under the provisional sum and prime cost allowances as well as the various other matters listed on the page 1 warning as to matters which may change the contract price. The Parties agree that:

a) they will conduct regular meetings in order to:

i) review the work done and money paid under the contract; review the work to be done and the amount payable for such work; and iii) make decisions and choices regarding work under the contract covered by "allowances" (see Schedule 2 point 11) and required by variations (see Clause 14) so that the work to be paid for by the Owner is consistent with the Owner's capacity to pay.

b) any adjustments to the work to be done under the contract are to be recorded in writing and signed by both parties. If such adjustment comprises a variation under Clause 14, the variation should be valued under that clause and the contract price adjusted Builder accordingly.

c) they will act co-operatively and in a manner which progresses the works.

d) either party may require a meeting to be held within five (5) days of a written request for a meeting. Both parties must attend such a meeting. The party if the calling the meeting will identify issues to be covered at the meeting.

The Builder will provide a report on the matters raised at the meeting within a reasonable time but no later than ten (10) business days after the meeting.

20. Clause 2 deals with the Owner’s responsibilities, which relevantly include:

d) provide written instructions to the Builder, where required, in a timely and proper manner so as to avoid delay to the works. This specifically relates to variations, directions and instructions in relation to work under the contract.

21. Clause 11 deals with delays and extensions of time and relevantly provides:

11. Delays and Extensions of Time

a) Should the progress of the works be delayed by any of the following matters, conditions or consequences resulting from them:

i) variations;

ii) suspension of the works under Clause 21;

iii) latent conditions affecting the site, the ability to carry out work or requiring work;

…

v) any act, default, delay or omission on the part of the Owner including, but not limited to, providing instructions, making payment or doing a thing necessary to allow the works to proceed (including signing instructions concerning variations);

vi) delay in having a mandatory inspection carried out by the PCA or an authorised person;

vii) an instruction by the Owner to stop the works;

…

ix) civil commotion or industrial dispute affecting any of the trades employed upon the works or the manufacture or supply of materials for the works;

x) inclement weather and the effect of weather on site access, site safety or the ability to do the work;

…

xii) any other cause, thing or matter beyond the reasonable control of the Builder, such as trade shortages or material shortages, which affect the Builder's ability to do the work;

then in any such case the Builder must receive a fair and reasonable extension of time to the Construction period.

Builder to Advise of Matters Causing Delay

b) i) The Builder is to notify the Owner in writing of any matters which cause delay, within a reasonable time of becoming aware of their occurrence, together with an extension of time to the Construction Period, if it is known .

ii) If the period of delay referred to in Sub-Clause (i) is not known at the time of that notice then the Builder shall issue a further notice after the period of delay is determined stating the extension of time to the Construction Period.

c) Should the Owner not dissent, in writing from the above notification within five (5) days, the Construction Period will be extended by the period claimed in the notification under Sub-Clause (b).

d) Delay in notifying or a failure to notify a delay will not of itself prohibit an extension of time provided the matter which is claimed to cause delay is shown to cause delay to the works.

e) The Builder must use his best endeavours to minimise any delay.

Compensation to Builder for Delay not caused by Builder

f) …

22. Clause 14 deals with variations. It relevantly provides:

14. Variations - How to Deal with Changes to the Work

a) The works may be varied by such things as:

i) execution of additional work;

ii) decreases in or omissions from the works;

iii) changes in the character or quality of any material or work such as may be necessary due to the existence of a latent condition;

iv) changes in the levels, lines, positions or dimensions of any part of the works.

b) For the sake of clarity, a variation is established by:

i) written instructions from the Owner or the Owner's representative; and or

ii) the supply to the Builder of post contract details such as drawings; and or

iii) the discovery of an otherwise unknown or latent condition; and or

…

c) The Builder is not obliged to vary the Contract works or carry out any extra work unless the Builder consents. Such consent will not be unreasonably withheld.

d)

i) If the Builder agrees to undertake a variation requested or required by the Owner, the variation is to be detailed in writing and signed by the Owner (or the Owner's agent) and the Builder. Documents detailing the variation, including as appropriate, amended drawings or specifications, become contract documents.

ii) The Builder may require, prior to the execution of any variation that the Owner produce evidence, satisfactory to the Builder, of the Owner's capacity to pay for the variation.

Builder to Advise Value of Variations

e) The Builder, within a reasonable time of receipt of instructions to execute a variation (i.e. an instruction signed by the Owner or Owner's agent), is to notify the Owner, in writing, of the value of the variation.

Less Work due to a variation

f) …

Additional work due to a variation

g) Where the work to be done is increased, the cost of the extra work is to be added to the contract price. The Builder can choose when and how often to claim payment for variation work and is not required to wait until the next stage claim.

h) Where a price has not been previously agreed for additional work, the Builder may proceed with the variation work and the price to be paid for the work will be the cost as calculated in accordance with Sub-Clause (i) below, together with the allowance specified in Item 1 of Schedule 2 for supervision, overhead and profit.

i) The cost referred to in Sub-Clause (h) above, unless otherwise agreed, will be calculated as follows:

i) for work by the Builder’s employees, the rates for such labour are those set out in Item 2 of Schedule 2. If no rates are shown, then the rates to be used are the rates published by the Master Builders Association of NSW current at the time the variation is made; ii) where the work or some part of it is executed by a sub-contractor, the cost to be paid under Sub-Clause (h) above is the amount properly paid or payable to the sub-contractor which will be established by provision of a proper tax invoice from the sub-contractor engaged to do the extra work.

iii) the price for materials is the cost of the materials to the Builder. The Builder is not entitled to any discount other than a discount for prompt or cash payment.

All Directions Concerning Work are to be Given to the Builder

j) Neither the Owner nor any duly appointed representative will give or are entitled to give at any time directions to the Builder's workers or subcontractors concerning the works or any part thereof. All instructions are to be given to the Builder and are to be in writing.

(c) How EOT**s #5 and 10 were raised in the NCAT and the Appeal Panel

23. It is necessary to trace at some regrettable length the history of EOT #5 and 10, including their terms, the parties’ submissions in relation to them and how those particular EOTs were dealt with by both NCAT at first instance and, more importantly, the Appeal Panel. These matters illuminate how and why EOTs #5 and 10 were addressed by the Appeal Panel in the way that they were and why leave to appeal to this Court should not be granted. I shall summarise relevant parts of the NCAT proceedings, not because they are the subject of the present proceedings, but because they provide context for the subsequent proceedings before the Appeal Panel.

(i) NCAT proceedings

24. The notice concerning EOT #5 is dated 30 September 2021. Its substantive terms are as follows:

| Description | Date of Notice | Cause of Delay | Days Added to Construction Period | | Client advised to stop works in mudroom area of property, causing delays to ongoing work. Builder is currently waiting for directions on other matters and client tasks to be finalised before other works at the property can continue. Materials for this area have been ordered and purchased and due to commence this coming week. | | Conditions of Contract: 11. Delays & Extensions of Time. (a) Should the progress of the works be delayed by any of the following matters, conditions or consequences resulting from them: iii) Latent conditions affecting the site, the ability to carry out work or requiring work; vii) an instruction by the Owner to stop the works. | | | | 30.9.21 | 30.9.21 - Client advised via email: “Hi Kyle, In our site meeting on Monday 27 September 2021, you said you won't take responsibility for the damages to the mudroom floor despite there being a court order in placing calling for you to protect the property and the flooring becoming damaged while in your possession. Therefore, as discussed, I will arrange replacement of the damaged floor and seek claim if applicable for the cost of the repair at the end of the contract. Please refrain from installing the V-Jay panelling in accordance with Variation 3 until I’ve notified you that the damaged floor in the mudroom has been replaced. Thanks Deanna” 30.9.21 - Builder advised via email: “Hi Deanna, That is correct, we will not be accepting liability regarding your damaged mudroom floor. Your information is incorrect. In an effort to rectify the confusion you're facing, please see attached photographs taken before we commenced on site: (Photos attached here) Visible in the photographs is the lack of existing verandah which we have knowledge of yourself and Robert removing before construction commenced. Existing water damage to whatever type of board has been placed over the top of the doorway (we are assuming at one stage this was glass and yourself and Robert have covered it) can be seen and the existing flooring shows evident existing damage as well as the plaster drops, debris, scaffolding and miscellaneous items yourself and Robert had on the flooring. We will not be accepting liability for the existing state of your mudroom floor. In regards to replacement of the flooring and ceasing work in this area, this has now put us in a difficult situation. Materials for this area have been ordered and purchased and we were due to commence works in this area next. We request that this be organised and completed as soon as possible to avoid further delays or costs to us. Thanks. Charlea Dwyer” | Seven (7) business/working days | | | | Works will continue to be delayed until client has rectified damaged mudroom floor. This Extension of Time covers until Monday 11th October 2021, if flooring has not be completed, more Extensions of Time will be submitted. | | | | | Total Days Added To Construction Period by Extension of Time Notice #4: | Nine (9) Calendar days total. Seven (7) business/working days. | | | | Total Days Added to Construction Period by Extension of Time Notice: | Fifty Four (54) business/working days. |

25. It is to be noted that EOT #5 is directed exclusively to the mudroom area of the property.

26. In the Builder’s written outline of submissions dated 9 March 2023 before NCAT, 15 separate extension of time notices were identified which it contended were relevant to the assessment of what constituted “a reasonable time” to implement the Work Order. It submitted that it was entitled to have added to the six and a half month period specified in the Note the length of time specified in each EOT notice or, where the Owner expressed dissent to any particular EOT within five days as provided for in the Contract, it sought an extension which was “fair and reasonable” having regard to the circumstances at the time.

27. The Builder provided NCAT with the following table particularising each of the 15 EOTs (including EOTs #5 and 10, to which the summons in the present proceeding is primarily directed):

| No. | EOT notice date | Dissent date | Time sought | Reason | | 1 | 7 June 2021 | 21 June 2021 | 10 business days | Variations / no written instructions | | 2 | 5 July 2021 | 9 July 2021 | 29 business days / 41 calendar days | Variations / no written instructions | | 3 | 15 July 2021 | 22 July 2021 | 20 business days | Materials supply delay and COVID-19 | | 4 | 30 September 2021 | 6 October 2021 | 7 business days / 9 calendar days | Variations / no written instructions | | 5 | 30 September 2021 | 6 October 2021 | 7 business days / 9 calendar days | Latent condition affecting site | | 6 | 30 September 2021 | 6 October 2021 | 10 business days / 14 calendar days | Owner’s works incomplete | | 7 | 8 October 2021 | 12 October | 6 business days / 8 calendar days | No written instructions | | 8 | 11 October 2021 | 18 October 2021 | 7 business days / 11 calendar days | Latent condition / no written instructions | | 9 | 21 October 2021 | 22 October 2021 | 60 business days / 84 calendar days | Owner’s incomplete works / no written instructions | | 10 | 27 October 2021 | 28 October 2021 | 40 business days / 56 calendar days | Owner’s incomplete works / no written instructions | | 11 | 3 November 2021 | 9 November 2021 | 40 business days / 56 calendar days | Owner’s incomplete works / no written instructions | | 12 | 3 November 2021 | 9 November 2021 | 20 business days / 28 calendar days | Materials supply delay | | 13 | 10 November 2021 | 16 November 2021 | 40 business days / 56 calendar days | Owner’s incomplete works / no written instructions | | 14 | 19 November 2021 | 24 November 2021 | 40 business days / 56 calendar days | Owner’s incomplete works / no written instructions | | 15 | 26 November 2021 | 26 November 2021 | 40 business days / 56 calendar days | Owner’s incomplete works / no written instructions |

28. At [153] of its closing written submissions dated 17 November 2023 before NCAT, the Builder explained that, consistently with NCAT’s approach to the EOTs at the hearing (which it described as dealing with “certain EOTs as being representative of the approach taken by the parties”), it would address EOTs #4–15 “globally and with reference to the previous submissions”. The reference to “previous submissions” presumably refers to the Builder’s written outline of submissions dated 9 March 2023.

29. Later in its closing submissions, under a heading “Alleged damage to property”, the Builder denied that it was liable for various forms of water ingress damage to the property. It is unclear whether this included EOT #5 because there is no express reference to that particular EOT in this part of the Builder’s written submissions. The Builder described the Owner’s claims regarding water damage as “circumstantial”. It urged NCAT to find, as a matter of causation, that the Builder’s actions were not the cause of any water ingress or that any water ingress which resulted in damage already existed at the 130-year-old property. The Builder added that, because it was not the cause of any damage resulting from water ingress, it was entitled to be recompensed for the additional work of remediating any damage and was entitled to require the Owner to sign a written variation for the additional scope and cost. It further submitted that because the Owner failed to provide a signed variation, the Builder was entitled to an extension of time for a reasonable period pursuant to the Contract. The Builder made no express reference to damage to the mudroom and, apart from some passing references to the existence of EOT #5, the Builder did not develop any further in its written closing submissions its claim regarding EOT #5.

30. Turning now to EOT #10 and the way in which the Builder presented its case on that item, the evidence before me contains copies of three separate documents titled EOT #10. The first is dated 27 October 2021 and the two subsequent documents are both dated 3 November 2021. In the EOT #10 dated 27 October 2021 and the first of the two EOTs #10 dated 3 November 2021, the Builder gave notice in respect of the Owner’s failure to complete what were described as “AC Works”, for which the Builder sought to add to the Construction Period five business / working days. Both those notices describe the cause of delay as “owners [sic] failure to complete AC works. Builder cannot progress with works to this area until completed”. The document dated 27 October 2021 appears to be the one relied on by the Builder in respect of EOT #10 (and also EOTs #9, 11, 13, 14 and 15 where air conditioning formed one of numerous items). The tables are referred to at [27] above and [32] below. They refer to the EOT #10 dated 27 October 2021.

31. In its 62-page written closing submissions to NCAT dated 17 November 2023, the Builder addressed EOT #10 under the heading “Air-conditioning”. In brief, it submitted that there was conflicting evidence on the question whether AC ducting had been installed by November 2021. Reference was made to the Builder’s email dated 10 November 2021 which asked the Owner to confirm that the AC works had been completed. This request was made in circumstances where Mr Kyle Dwyer (the director of the Builder) said that he had visited the site the previous week and noticed that “there was ducting all over the site that was not installed into the ceiling space”. He added that, as per quote 1004, “all heating and cooling works are the clients [sic] responsibility, and we have been asking for months for this work to be completed. Please confirm if the AC works are completed, this is delaying the progress of works”. The Builder submitted to NCAT that it should be guided by the contemporaneous business records on the issue whether ducting had been installed. It added that because of the Owner’s delays on this issue, it was entitled to an extension of time for a reasonable period under the Contract.

32. The Builder’s closing submissions before NCAT included another table describing the 15 EOTs, including EOTs #5 and 10. The entries for these items are substantially similar to the earlier table (which is set out at [27] above). In the written submissions, the Builder submitted that if NCAT found it necessary to determine each of EOTs #5–15 and attribute a time period to each of them, NCAT should accept the time sought for each item in the table (which in the case of EOTs #5 and 10 were seven business days / nine calendar days and 40 business days / 56 calendar days respectively).

33. I turn now to summarise relevant parts of the Owner’s closing written submissions dated 4 October 2023 before NCAT. The issue concerning damage to the mudroom floor was addressed by the Owner not in direct response to the Builder’s EOT #5 but rather with reference to Item 17 of its Schedule of Damages relating to defective works. This Item concerned the Owner’s claim for damage to the mudroom. It is desirable to set out [125]–[130] of the Owner’s closing written submissions in relation to this Item (footnotes omitted):

125. The experts disagree on liability but agree on quantum (on an if found basis). The dispute on this item relates to whether the Builder caused damage to the mudroom, partly because he used it and partly because he removed the door and left it exposed to the weather.

126. In cross-examination, Mr Dwyer accepted that he used the mudroom to store items.

127. Mr Dwyer, however, denied that he removed the mudroom door, instead, alleging that the Owner’s partner, Mr Tavian removed it. The difficulty with accepting Mr Dwyer’s recollection is that he took possession of the property in June 2019 and at that time the mudroom door had already been painted.

128. When it was put to Mr Dwyer in cross-examination that the door was already painted at the time he took possession he initially denied it, but then he suggested that it only had a layer of paint and was not finished.

CB 2582

129. In determining which party removed the mudroom door, the Owner submits that the Builder’s evidence ought not be accepted in light of the evidence that the door was painted at the time the Builder took possession of the property. Furthermore, in relation to the question of whether the Owner performed the Owner’s Works, Mr Dwyer demonstrated that he was often unaware of what had occurred on site.

130. The Owner claims $1,630 for this item.

34. As to the issue relating to air conditioning, the Owner made the following written submissions to NCAT in her closing written submissions dated 4 October 2023 (footnotes omitted):

31. On 22 March 2020, Mr Tavian sent an SMS to Mr Dwyer which read: “Hi Kyle. The air cooler and big pieces have been lifted into the ceiling cavity. Everything is ok for you to install the timbers in the kitchen ceiling.” Photos taken on 2 March 2021 confirm the air cooler had been installed. Then on 6 November 2021, the Owner sent a letter to the Builder which stated “the ac ducting is now installed.”

32. It was put to Mr Dwyer in cross-examination that the air conditioning was installed and completed as of mid-November 2021. Mr Dwyer answered “I can’t, Mr Horowitz, agree with that because I don’t know, yes there was some air conditioning ducting thrown around, stuff screwed up in the ceiling, but how was I to know if it was done and completed.”

33. Mr Dwyer should have known that the air-conditioning unit had been installed in a sufficient manner to allow him to continue with his works because he was told as much on 22 March 2020 by Mr Tavian and then again on 6 November 2021. In light of this evidence, the Builder’s allegation that the Owner’s failure to install the air-conditioning unit prevented it from complying with the Work Order cannot be sustained.

35. The Owner also provided closing written submissions in reply dated 15 December 2023 before NCAT. The submissions total 83 pages. The Owner claimed that the manner in which the Builder calculated the extensions of time sought in its EOT notices was “farcical”. The submissions included detailed replies on EOTs #1–4, but no submissions were directly addressed to EOTs #5 or 10.

36. The Owner’s closing written submissions in reply included a table comprising three columns. The first two columns referred to the Builder’s closing written submissions (i.e., the paragraph number and the text of that paragraph) and the third column constituted the Owner’s reply. The table does not explicitly refer to EOT #5, but the material relating to air conditioning was as follows (footnotes omitted, emphasis in original):

| AIR CONDITIONING 166 | On 22 March 2020, Mr Tavian on behalf of the owner communicated to the builder that “the air cooler and big pieces have been lifted into the ceiling cavity. Everything is ok for you to install the timbers in the kitchen ceiling”. Evidently, from photos taken 1 year later on 2 March 2021, that was incorrect – the owner had not installed the ducting for the air conditioner and the builder could not install the ceiling. | Mr Tavian in his correspondence to the builder, doesn’t claim to have installed the ducting, he refers to ‘the air cooler big pieces’ only. CB 585 - 587– In August 2020, a dispute resolution telephone conference was held between the parties. 18 August 2020, the owner writes to the Builder’s party with a summary of the events. In it, (CB586, para f.iii) the Builder confirms: Air conditioning unit – written instruction was provided on 20/3/2020 & 22/3/2020 Air conditioning ducting – builder will instruct owner when site is ready for ducting to be installed The owner relies on CB 1457 – 1460 (Para 66 – 91) CB1459, para 78 - On 9 September 2021, the owner emailed the builder to confirm if the LVL beams have been installed into the ceiling as per the framing requirements, in order to continue on with the air conditioning installation of the ducting. The email correspondence is attached as Tab 28 of exhibit DS-6. | | 167 | On 3 November 2021, the builder sought an update on the installation of AC ducting. On 6 November 2021, the owner responded “the ac ducting is now installed”. | CB 1453, Para 28 -29 – After the 4 May Work order was in place, the Builder set out their site access restrictions, and due to these restrictions it was difficult for the owner to arrange access to site for trades to complete tasks. To ensure they was no delay to the Builder, the owner emailed on 15/09/2021 (CB1661) requesting site access on Saturdays: How about looking at making the site accessible for a set time each Saturday such as 10am-4pm for the purpose of Robert and trades to carry out work. Robert is inducted to site, as are the trades therefore your supervision wouldn’t be required and it would assist you in getting to project completed closer to the ordered time frame? The Builder rejected the request. Because an air conditioning system was able to be installed after the completion of the Builder’s works were done, and because of the Builder’s site restrictions, the owner gave the builder the following instructions on 20 October 2021 (CB1459, para 86): “The AC is completed to the point where you can carry on with completing your contract. Only the ducting needs to be run to complete the AC works, however the electrical works in your contract needs to be done before the ducting is installed and the ducting can be done once you've completed your contract so it has no effect on you completing your works.” The email correspondence is attached as Tab 15 of exhibit DS-6. The builder would not accept those instructions. | | 168 | In ACS at [33], the owner hangs her hat entirely on this communication as conclusive proof that the ducting was installed as at 6 November 2021. But again, it was incorrect. | Not withstanding that on 1 November 2021, the owner emailed the Builder and requested access to the Property for Bromson Energy and Mr Tavian on 3 and 4 November 2021. The Builder responded and confirmed access. (CB1460, par 89) And notwithstanding the Builder, in cross examination conceded that the air conditioning work was done. | | 169 | The following week the builder conducted an inspection which suggested the ducting was not complete – on 10 November 2021, the builder wrote: “On my site visit last week there was ducting all over the site that was not installed into the ceiling space. As per Quote 1004, all heating and cooling works are the clients (sic) responsibility, and we have been asking for months for this work to be completed. Please confirm if the AC works are completed, this is delaying the progress of works.” | Notwithstanding that on 1 November 2021, the owner emailed the Builder and requested access to the Property for Bromson Energy and Mr Tavian on 3 and 4 November 2021. The Builder responded and confirmed access. (CB1460, par 89). Notwithstanding the communication to the builder on 6 November 2021, The Builder continued to purport that the work was not done. The issues surrounding the builder’s belief that the work was not done, seemed to be miscommunication between Charlea and Kyle, as they shared an email address. This is evident from the following emails: (CB3997 - 3998) – 3 November 2021, Charlea send an email to owner requesting information. (CB4006) – 9 November 2021, Owner responds and includes a letter outlining responses to all the Builder’s requests. (CB4003 – 4006) - 10 November 2021, Mr Dwyer responds to the email, requesting the information that was already provided in the email and letter to the builder that the owner sent on 9 November 2021. On 15/11/2021 – (CB1640) – Kyle emails requesting information that the owner had already confirmed in the letter and email of the 9 Nov 2021 (CB4007) On 16/11/2021 – (CB1641) - Charlea emails, with the same request for information that was in Kyles email that the owner received the day before) On 19/11/2021 – (CB1643) - Charlea emails, again with the same request for information that was already provided in the owners letter and email of the 9 Nov 2021 (CB4007) On 24/11/2021 – (CB1646) - Charlea emails, again with the same request for information that was already provided in the owners letter and email of the 9 Nov 2021 (CB4007) On 26/11/2021 (1630-31) – Kyle emails again requesting the same information again. On 26/11/2023 (CB1630) – The owner confirms again that the work is done: The work you requested I complete are done, hence why no further site access has been requested for trades these past weeks…. I’ve provided all the information I possibly can and done all the work you’ve requested to meet your needs however the issue seems you still aren’t understanding my directions. On 26/11/2021 (1629) – Mr Dwyer responds, requesting the same information again. On 26/11/2021 (CB1627) The owner emails Kyle with the following concern: It seems both you and Charlea haven’t read and/or understood the information and directions I have provided Dwyer Builder Group as you continue to request the same information when it’s already been provided to you. On 6/12/2021 (1633-1634) – Charlea emails requesting the same information that the owner had confirmed with Mr Dwyer in the previous email correspondence. | | 170 | The owner cannot simply rely on assertions in her own communications as fact where, as in this instance, consistently demonstrate an inaccurate recording of the contemporaneous state of affairs. Contrary to ACS at [32], it is not to the point that the builder, in cross-examination (many months after the fact), could not recall the date the AC works were completed. | The Builder never requested any type of certification documents, or any other documentation to suggest the Air Conditioning had been installed, and the installers never provided any certification as far as the owner was aware, air conditioning systems don’t require certification. | | 171 | The Tribunal is best guided by the contemporaneous business records and, in that regard, EOT Notice 10 and the builder’s email dated 10 November 2021 demonstrate that the owner was dilatory in installing the AC ducting, despite requests from the builder over many months, causing delays in the builder’s ability to perform the work under contract. | CB 4002, EOT 10, does not relate to owner’s works, or air conditioning works. The Builder’s email of 10 November does request information if the Air Conditioning works in complete, not withstanding the correspondence via email and a letter to the Builder from the owner on 8 November 2021, detailing that the | | 172 | Because of those delays caused by the owner, the builder is entitled to an extension of time for a reasonable period pursuant to the contract. | The Builder hasn’t provided any evidence on how the air conditioning works directly affect their critical work path to complete the contract. |

37. Only the transcript for day two of the three-day hearing before NCAT was included in the evidence before me. The transcript records the NCAT Senior Member expressing concern about the time available to complete the hearing. He urged the parties not to deal with every one of the EOTs in the same way because, if that were to occur, “we won’t finish”. The transcript includes re-examination of Ms Spicer regarding the mudroom door and her knowledge of the date of a photograph of the door. Ms Spicer said she had taken the photograph “weeks prior to the builder taking possession of the property”. In further cross-examination, Ms Spicer agreed that her evidence that the photo was taken prior to June 2019 was inconsistent with [61] of her affidavit which indicated that photos she had taken depicted the Builder leaving paint cans and other matters while in possession of the property.

38. The transcript also included cross-examination of Mr Roberto Tavian (who is Ms Spicer’s partner) and Mr Dwyer. The lengthy cross-examination of Mr Dwyer, which covered almost 100 pages of the transcript, included questions regarding the timing of the painting of the mudroom door, damage to the mudroom floor and the use of that area by the Builder to store materials. Mr Dwyer was also briefly cross-examined on whether the installation of air conditioning was complete. There was the following exchange on that topic:

HOROWITZ: So I suggest to you that the air conditioning, was installed and completed as of mid November 2021. Do you agree with that

DWYER: I can’t, Mr Horowitz, agree with that because I don’t know, yes there was some air conditioning ducting thrown around, stuff screwed up in the ceiling, but how was I to know if it was done and completed.

39. The transcript of the NCAT hearing before me did not include the evidence of the experts, nor oral closing submissions. Presumably this is because neither party considered these parts of the transcript to be relevant.

(ii) NCAT’s reasons summarised

40. In its reasons for decision dated 30 August 2024, NCAT concluded that it did not need to determine any of the EOTs because there were provisions in the Contract relating to extension of time which could not be imputed into the Work Order (see at [70]). Accordingly, there is no direct reference to either EOT #5 or 10 in NCAT’s reasons.

41. Later in its reasons, NCAT addressed the Builder’s claim that the Owner had failed to undertake or complete the Owner’s works, including installation of air conditioning. NCAT made the following observations and findings at [95] (which observations and findings were adopted by the Appeal Panel, as will emerge):

95 The evidence shows that Mr Dwyer was told by Mr Tavian on 20 March 2020 and on 6 November 2021 that the air conditioning unit had been sufficiently installed to allow the Builder to continue with his works. In cross examination Mr Dwyer expressed some uncertainty as to whether the installation was complete [8009-8014]. There appears to be little substantive evidence to support his assertion that the Owner's failure to install the air conditioning unit prevented the Builder from complying with the Work Order.

42. The reference to what Mr Tavian told Mr Dwyer on 20 March 2020 is a reference to a text message which Mr Tavian sent to Mr Dwyer on that day. The text message was described at [166] of Mr Tavian’s affidavit dated 1 April 2021. Mr Tavian said that he told Mr Dwyer that the person responsible for installing the air conditioning was sick but that “hopefully he will be at the Property on the weekend”. In response, Mr Dwyer sent a thumbs up emoji, which Mr Tavian understood to mean that there was no problem. Mr Tavian then deposed at [167] of his affidavit that the air cooler was installed on 22 March 2020 and that he sent a further text message to Mr Dwyer telling him that the “air cooler and big pieces have been lifted into the ceiling cavity. Everything is okay for you to install the timbers in the kitchen ceiling”.

43. The reference to what Mr Dwyer was told on 6 November 2021 appears to include a typographical error because, although there is no communication dated 6 November 2021 in evidence regarding the air conditioning, there is a letter dated 8 November 2021 which was sent by email to Mr Dwyer by Ms Spicer. In that letter, Ms Spicer relevantly said:

As per my email to the builder on 20 October 2021. I provided the builder with the following information:

The AC is completed to the point where you can carry on with completing your contract. Only the ducting needs to be run to complete the AC works however the electrical works in your contract needs to be done before the ducting is installed and the ducting can be done once you've completed your contract so it has no effect on you completing your works.

The electrical rough in, which is part of the builder's contract, remains incomplete. The AC ducting is now installed and the electrician will have to work over the top of the ducting and ensure no damages are caused to any part of the AC system, the builder will be liable for any damages as it was their demand to install the ducting prior to electrical rough in.

44. For completeness, it might also be noted that in her witness statement dated 24 August 2022, which was before both NCAT and the Appeal Panel, Ms Spicer deposed at [89] that all of the air conditioning ducting was installed and completed by 3 and 4 November 2021.

(iii) Appeal Panel proceedings

45. I will now turn to the proceedings in the Appeal Panel.

46. Curiously, a copy of the Builder’s notice of appeal was not included in the papers before me. It is evident, however, that the Builder raised 12 grounds of appeal before the Appeal Panel. Ground 11 related to the EOTs. As noted above, the Builder had a right of appeal on any question of law without the need to obtain leave, but required the leave of the Appeal Panel to raise any other grounds.

47. In its written outline of submissions dated 10 December 2024 before the Appeal Panel, the Builder summarised ground 11 as follows (noting the reference to EOTs #5 and 10 in sub-paragraphs 64(a) and (b) respectively):

64 The question for the Appeal Panel to determine is whether the Tribunal ought to have found that the builder was entitled to EOTs under the contract and, if so, whether:

(a) as to EOT 1, 2, 4, 5 and 7, the Tribunal constructively failed to exercise its jurisdiction (J [79], [80], [93], [106]-[107]);

(b) as to EOT 8, 9, and 10, the Tribunal failed to identify the correct issue or ask itself the correct question (J [81]-[93]); and

(c) as to EOT 3, the Tribunal constructively failed to exercise its jurisdiction or failed to provide adequate reasons (J [106]-[107]).

48. With specific reference to EOT #5, the Builder made the following written submissions (footnotes omitted):

74 EOT 5 related to a variation sought for additional work outside the scope of the contract which related to damage to the dwelling. At J [79], the Tribunal found that the builder issued a variation under the contract, but found that “there were material grounds for the Owner to refuse to pay” for that variation.

75 On finding a valid variation, a mandatory entitlement to an extension of time arose, thereafter the only task for the Tribunal was to then determine whether “a fair and reasonable extension of time to the Construction Period”. Further, on finding a valid variation, the Tribunal should have found that the builder was entitled to a signed copy of it before proceeding any further, in line with cl. 15(d)(i) of the contract. The Tribunal failed to do so, and instead asked itself the wrong question and determined the irrelevant matter of payment of that variation.

49. As to EOT #10, the Builder addressed it (together with EOTs #8 and 9) under the heading “variations / no signed instructions”. In its written submissions, the Builder described EOT #10 as relating to the “approval of quotes”.

50. In its written outline of submissions dated 23 December 2024 before the Appeal Panel, in addressing ground 11 of its notice of appeal, the Builder claimed with respect to EOT #5 that NCAT found at [79] that a variation had been issued but then failed to determine whether this should produce an extension of some length of time. With respect to EOT #10, the Builder said that it (and EOTs #8 and 9) related to “documents titled quotes but which were sought as variations”. The Builder claimed that NCAT had failed to determine whether there was any such variation and, if so, whether there should be an extension of some length of time.

51. Turning now to the Owner’s written submissions to the Appeal Panel and focussing on ground 11, the Owner contended that this (and related grounds 3 and 5) were an attempt by the Builder to re-run its case on questions of fact or mixed fact and law, which required leave. The Owner addressed EOTs #1, 2, 4, 5 and 7 as a group under a heading “Variations / no signed instructions”. She identified the common theme of these EOTs as allegations that the Owner had caused the delay. The Owner submitted that NCAT had properly considered the evidence and correctly rejected the Builder’s claim that the Owner caused delay, including by refusing to pay for variations to repair water damage to the bedroom wall (referring to NCAT’s decision at [79]) and to the claim that the Owner failed to undertake or complete her works (referring to NCAT’s decision at [105]).

52. The section of NCAT’s reasons addressing the claim that the Owner had failed to undertake or complete the Owner’s work included [95] (which is set out at [41] above) in which the issue regarding air conditioning was addressed. As noted above, on this issue, NCAT had concluded that there appeared to be “little substantive evidence to support [Mr Dwyer’s] assertion that the Owner’s failure to install the air conditioning unit prevented the Builder from complying with the Work Order”.

53. The evidence before me included the transcript of the half-day hearing before the Appeal Panel which occurred on 3 February 2025. Senior Member Molony is recorded as emphasising that the Appeal Panel’s function was not hearing the case again but rather was “to see if there are any errors of law or whether leave to appeal should be granted …”. Significantly, there was no oral evidence before the Appeal Panel. Rather, the Appeal Panel had before it evidence given below in NCAT. The materials before the Appeal Panel also included copies of the parties’ submissions below in NCAT and various additional written submissions prepared by the parties for the purposes of the Appeal Panel hearing.

54. The Builder contended that NCAT had erred in not considering its submissions on delay and the EOTs. Specific reference was made to EOTs #4 and 7, which the Builder’s counsel claimed had not been considered by NCAT. He then added that the balance of the EOTs (i.e., necessarily including EOTs #5 and 10) were “covered in writing, and I won’t dwell on those matters, but those are examples”. The following significant exchange then occurred:

MR SIMONE: … What is the Appeal Panel to do with that on appeal? Well, it's open to the Appeal Panel to consider whether or not a variation existed and what a fair and reasonable extension might have been with reference to the renewal bundle, the joint tender bundle, and the submissions made already in writing below. It is open to the Appeal Panel to do that by way of rehearing.

In circumstances where the builder says there's 15 working days between the 6.5 month assessment and the commencement of the renewal, the builder's submission is that if the Appeal Panel considers only a few of the delay events not engaged with by the decision below and makes factual findings, then that would be sufficient for a finding that the builder was not in breach of the work order as at the time –

SENIOR MEMBER MOLONY: And you invite us to do that. Do I understand that correctly?

MR SIMONE: That is an avenue that's available to –

SENIOR MEMBER MOLONY: I know it's an avenue. Are you inviting us to do that?

MR SIMONE: I am inviting the Appeal Panel to do that. It's the position, I understand, of the owner as well that the Appeal Panel would be positioned to do that. But I do appreciate the volume of material, the minimal amount of time now and the scope of that task, and it's for that reason that in writing I've also said that it might be appropriate for that matter to be remitted also.

55. After that exchange, the Builder’s counsel said that he would “spend more time considering the extensions of time … ”. Counsel then proceeded to make brief oral submissions on EOT #3, which related to the effect of COVID.

56. It is notable that, in the 41 pages of transcript of the Appeal Panel hearing, no oral submissions were made by either party in respect of EOT #5. EOT #10 was addressed only very briefly and in conjunction with EOTs #8 and 9, as is reflected in the following extract:

MR SIMONE: … With respect to extension of time 8, 9 and 10, the Tribunal's assessment was in relation to the reasonableness of the owner's actions with respect to requests for variation. That's, in my submission, the Tribunal asking itself the wrong question, the correct question being whether or not the builder complied with the work order. And that is assessed by reference to Clause 11 of the contract, which is an assessment of things affecting the builder and things outside the builder's control, and not an assessment of the reasonableness of the owner's actions. And so those matters were errors.

57. In oral address, counsel for the Owner made the following submissions regarding the nature and scope of the appeal:

So, where the builder seeks to take the Appeal Panel on a journey through each extension of time and add weeks here and weeks there, that is a factual question which requires leave. Those facts were determined and rejected. It is not for the Appeal Panel today to go through each extension of time, adding a day or a week to the six-and-a-half-month notation in order for a finding that there was no breach. The finding was that the builder failed to complete within a reasonable time, which was six-and-a-half months, and each of the reasons for delay were rejected.

58. In reply, counsel for the Builder criticised his opponent for claiming that the Builder’s approach regarding delays and EOTs “was to take the Appeal Panel on a journey through an enormous amount of material”. Counsel submitted:

It's a surprising position given it was understood by the appellant that it was a joint position that the Appeal Panel would consider delays and extensions of times by reference to submissions already made and the material already in evidence. That's a surprising complaint. But the option for rehearing arises in this way.

59. Counsel for the Builder complained that the case before the Appeal Panel was not being conducted on the basis of the Appeal Panel considering EOTs with respect to documents in evidence only and existing submissions. Instead, he complained that the Owner was taking the Appeal Panel to select documents and select submissions.

60. The transcript of oral addresses records no direct submission being made by either party on either EOTs #5 or 10, save for the passing reference by the Builder’s counsel to EOT #10 as noted at [56] above.

61. After hearing oral submissions from both parties as to whether the Appeal Panel should remit any part of the proceeding, the hearing ended with Senior Member Molony highlighting his concerns about the costs of the proceeding to date (which concerns have proved to be prescient):

Thank you. I think that we are just about done, and it's 10 to 1, well done. Could I just urge the parties, again, it's never too late, we're going to reserve our decision, and if ever I've seen a case that should settle, I would have thought this case should settle, because it seems to me to be on a path that's likely to just incur more costs. I may be wrong about that on reflection, but at the moment, I'm very concerned about the potential for costs to (indistinct) everything. The matter is reserved. Thank you very much, gentlemen.

(iv) Appeal Panel’s reasons summarised

62. As noted above, the Appeal Panel’s reasons are lengthy. It must be emphasised, however, that numerous matters apart from EOTs #5 and 10 are covered in those reasons, reflecting the way in which the case was presented to the Appeal Panel by both parties. This also reflects the fact that of the 12 grounds of appeal, only one (ground 11) related to the issue of extensions of time, of which there were 15 in all, including EOTs #5 and 10.

63. In respect of the EOTs generally, the Appeal Panel found that NCAT had erred in not determining whether the Builder was entitled to any EOTs under the Contract and that this was necessary to determine a reasonable time for carrying out the Work Order.

64. The Appeal Panel then divided EOTs #1–15 into the following five categories (noting that EOTs #5 and 10 are identified in categories “1”, “3” and “5”):

186 In issue were extensions of time number #1 to 15. They can be divided into five categories which we will consider separately. They are:

(1) Delays due to variations/adjustments where the builder claimed an extension of time due to the homeowner not providing written instructions – extensions of time # 1, 2, 4. 5 and 7.

(2) Delays due to COVID which were beyond the reasonable control of the builder – extension of time # 3.

(3) Delays due to latent conditions – extensions of time # 5 and 8.

(4) Material supply delays – extension of time # 9 and 12.

(5) Delays due to owners work being incomplete – extensions of time # 9, 10, 12, 13, 14, and 15

65. The Appeal Panel acknowledged that EOT #9 contained nine separate extension of time claims and that the first eight claims were made on the same basis as inter alia EOT #10. Since they were worded similarly, the Appeal Panel said that they would be “considered together” (at [187]).

66. Although the Appeal Panel squarely addressed EOTs #1, 2, 4 and 7 under the heading “Delays due to no instructions being given for variations / adjustments”, it made no express reference in this part of its reasons to EOT #5.

67. Similarly, although the Appeal Panel addressed EOT #8 under the heading “Delays due to latent conditions”, it did not explicitly address EOT #5 in this part of its reasons (but see at [70] below).

68. The Appeal Panel addressed EOT #10 in that part of its reasons relating to “Delays due to owners work being incomplete”, which also included consideration of EOTs #9, 11, 12, 13, 14 and 15. The issue of air conditioning was squarely addressed by the Appeal Panel at [236(2)] of its reasons in which the Appeal Panel made clear that it saw no reason to disagree with NCAT’s findings on this issue as set out in [95] of NCAT’s reasons (which paragraph is set out at [41] above) (emphasis in original):

236. The fourth, sixth, and seventh 5 day extension claims in each extension of time, relate to delays said to be caused by the owner failing to complete owners work, with the result that the “Builder cannot progress with works to this area until completed.” The owner’s work was:

…

(2) The AC works. When considering whether this provided a reasonable excuse for non-compliance the work order the Tribunal wrote, at D [95]:

95 The evidence shows that Mr Dwyer was told by Mr Tavian on 20 March 2020 and on 6 November 2021 that the air conditioning unit had been sufficiently installed to allow the Builder to continue with his works. In cross examination Mr Dwyer expressed some uncertainty as to whether the installation was complete [8009-8014]. There appears to be little substantive evidence to support his assertion that the Owner's failure to install the air conditioning unit prevented the Builder from complying with the Work Order

We can see no reason to disagree with that conclusion on reconsideration. We note the suggestion that ducting was incomplete. If that were the case, we do not see and there is no evidence as to how complete ducting was necessary for the other work to proceed. We are not satisfied that there was any act, default, delay or omission on the part of the homeowner which would entitle the builder to an extension of time under cl 11(a)(v) of the contract.

…

69. The Appeal Panel added at [237] that it was unable to understand how the Builder’s claims with regard to the air conditioning works and some other matters gave rise to an extension of time under cl 11(a)(xii) of the Contract (relating to causes beyond the Builder’s control).

70. Finally, the Appeal Panel made the following observations at [255]–[257] regarding the extensions of time generally (presumably including EOTs #5 and 10):

255 We note that, apart from extension of time # 3 it is clear that the owner objected to the extensions of time # 1 to 9 in writing. In the case of the remaining extensions of time, the builder knew that the homeowner had already objected in writing to the basis on which the builder was claiming those extensions, but the builder nonetheless repeatedly made them, disregarding the objections. Each of those objections was an objection in writing by the homeowner for the purpose of cl 11(c) of the contract which prevented the extensions of time having effect.

256 As a result of our consideration of these claims the builder is entitled to a 20 business time under extension of time # 3 only.

257 Between the time the work order was made on 4 May 2021 and when work ceased on 10 December 2021, there were 155 business days. The total extensions of time of time claimed by the builder in that period, as set out in its submissions to the Tribunal below (AB 267) was 276 business days, of which we will allow 20. Our impression, having reviewed the extension of time claims, is that many of the builder’s requests for extensions of time were unjustified. They put mounting pressure on the homeowner to do as the builder required.

71. It is clear from the reference in [255] of the Appeal Panel’s reasons to “extensions of time #1 to 9” that the Appeal Panel was mindful of all nine of those EOTs, including EOT #5. Fairly read, the Appeal Panel’s subsequent reference in [256] to its “consideration of these claims” necessarily includes consideration of the claim concerning EOT #5. The same may be said with reference to [257], where the Appeal Panel recorded its impression “having reviewed the extension of time claims” that many of the Builder’s requests were unjustified. Fairly read, these conclusory paragraphs of the Appeal Panel’s reasons should be viewed as including EOT #5.

(d) Disposition

72. For the reasons that follow, while I accept that proposed Ground 1 (concerning EOT #5) raises a question of law, leave to appeal should not be granted. Moreover, I consider that each of proposed grounds of appeal 2–5 do not relate to any question of law. Rather, they relate to questions of fact and fall outside the scope of s 83 of the CAT Act.

(i) Proposed Ground 1: EOT #5

73. The Builder describes EOT #5 as relating to an instruction given by the Owner to the Builder to stop work until further notice, while the Owner addressed damage to the mudroom flooring, and the Owner never provided any notice in the form of an instruction to the Builder to recommence work.

74. The Builder contends that the Appeal Panel failed to determine the Builder’s entitlement to EOT #5 under the Contract, which was notified to the Owner on 30 September 2021. This is said to constitute a failure by the Appeal Panel to determine an issue in dispute (citing The Owners - Strata Plan No 73943 v Gazebo Penthouse Pty Limited [2014] NSWSC 1536 at [76]) and / or a failure to deal with a substantial and well-articulated argument, giving rise to a constructive failure to exercise jurisdiction (citing Colman v The Owners – Strata Plan 61131 [2025] NSWCA 203 at [23]–[26]).

75. The Builder claims that, in the light of the Appeal Panel’s failure to give any consideration to EOT #5, there was a further error of law in the ultimate finding that the Builder was entitled to an overall extension of only 20 business days. The Builder emphasises that it was never its position that an extension of time for EOT #5 should be limited to only seven business days. Rather, relying on cl 11 of the Contract, it says that it was entitled to an extension of time which is “fair and reasonable”, which necessarily focuses attention on the circumstances surrounding the subject delay. The Builder adds that the issue of what is a reasonable period to extend time would only arise if the Court found an error of law and the issue should then be remitted to NCAT (if it was not determined by the Appeal Panel).

76. In support of these submissions, the Builder emphasises the following matters:

(a) EOT #5 was expressly raised before the Appeal Panel, which had the benefit of the parties’ written submissions on the question of the instructions provided by the Owner, how they affected the Builder’s ability to perform its works, and why this should or should not give rise to an extension of time. (b) The Appeal Panel at [186] recognised that EOT #5 needed to be determined, as it was expressly referred to in two of the five categories of issues concerning extension of time. (c) The contractual context in which EOT #5 arose made it a fundamental issue for determination. The Builder refers in this respect to cl 11(a) of the Contract, which requires it to be given “a fair and reasonable extension of time” where works are delayed, relevantly, by “an instruction by the Owner to stop the works”. In circumstances where “the evidence fairly squarely demonstrated a request from the owner to stop work”, the Builder contends that the fair and reasonable length of an EOT was a mandatory consideration ignored by the Appeal Panel.

77. I accept that proposed Ground 1 relates to a question of law, namely whether the Appeal Panel’s failure to determine EOT #5 amounts to a constructive failure to exercise jurisdiction, but that is not the end of the matter. The Court also needs to be persuaded that the Builder should have leave to appeal in relation to that ground. For the following reasons, I would not grant leave.

78. I am not satisfied that proposed Ground 1 raises 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. I do not accept the Builder’s contention in oral address that a question of public importance is raised by proposed Ground 1 because “there is a public importance to all decisions of the tribunal being within power and within jurisdiction”. As I pointed out, acceptance of that proposition would mean that there would be a grant of leave in any case under s 83 of the CAT Act where there was a claim that the Appeal Panel had acted beyond jurisdiction. That proposition is not voided by the terms of the grant or jurisdiction under cl 8 of Sch 4 to the CAT Act, which the Builder’s counsel described as “being of exceptionally narrow compass”. It is understandable that the Builder itself has a strong interest in seeking to have the Appeal Panel’s decision set aside on judicial review but that falls far short of demonstrating that there is any question of general public importance. It may also be accepted that the Builder holds a sincere subjective view that it has suffered substantial injustice in not achieving any extensions of time within which to complete the Work Order, but none of the proposed grounds of appeal are sufficiently strong to warrant a grant of leave.

79. I also consider that proposed Ground 1 is flawed because it does not take into account the way in which the case was conducted before the Appeal Panel. As is evident from the lengthy summary above of the proceedings in both NCAT and the Appeal Panel, EOT #5 attracted little if any real attention by the parties. It was well open to the Appeal Panel to approach the matter in the way that it did, namely by proceeding on the basis that it was open to address variations, including that relating to EOT #5, on a global rather than individual basis. The Appeal Panel’s failure to make specific, explicit findings in respect of EOT #5 was not inconsistent with the parties’ approach. Moreover, although there are only a few express and passing references to EOT #5 itself in the body of the Appeal Panel’s reasons, for the reasons set out at [71] above, I consider that the Appeal Panel’s reasons at [255]–[257] (as set out at [70] above) should fairly be read as covering EOT #5.

80. There can be no constructive failure to exercise jurisdiction where the decision-maker acts consistently with the way in which the parties presented their cases. EOT #5 was given only nominal attention by the parties in both their written and oral submissions before the Appeal Panel, as is evident from the detailed summary above.

81. There is “an air of artificiality” surrounding proposed Ground 1, which is the expression used by Basten JA in Walshe v Prest [2005] NSWCA 333 at [19] (Giles JA and Campbell AJA agreeing). The air of artificiality relates to the Builder’s attempt, with the benefit of hindsight, to elevate the significance of EOT #5 notwithstanding its substantially muted treatment in both the parties’ argument and in the reasons of the Appeal Panel.

82. The following observations of Mortimer J (as her Honour then was) in CPE15 v Minister for Immigration & Border Protection [2017] FCA 591 at [40] are apposite to proposed Ground 1 here. After referring with approval at [36] to SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; 317 ALR 365 at [75]–[82] per Griffiths J*,* Mortimer J said:

The kind of argument which must have been articulated by an applicant in order for the Tribunal to exceed its jurisdiction by failing to consider it was described by Griffiths J in SZSSC as “a substantial and clearly articulated argument”. In other words, the Tribunal as the decision-maker on the merits must have clearly been put on notice by an applicant of a contention, submission or argument the applicant wished to make in support of a decision in her or his favour on the review. Unless the argument has been “clearly articulated”, the Tribunal would not be put on notice. Unless the argument is “substantial”, a reviewing court cannot be confident or sufficiently confident that the Tribunal’s failure to deal with the argument may have affected or been material to the conclusion it reached. Ultimately the argument put by an applicant in these circumstances must be characterised as capable of affecting the formation of the state of satisfaction required by section 65 of the Migration Act. If it is not so capable, then the Tribunal will not exceed or fail to exercise its jurisdiction in not considering such an argument.

83. An additional reason for refusing leave concerning EOT #5 relates to utility. The first point to note is that in EOT #5 (the terms of which are set out at [24] above), the Builder contended that it relied upon sub-cll 11(a)(iii) and (vii) of the Contract. Sub-clause (iii) relates to latent conditions affecting the site, the ability to carry out work or requiring work. Sub-clause (vii) relates to an instruction by the Owner to stop the works. Despite that bifurcated reliance on these two provisions in EOT #5 itself, the table in the Builder’s written outline of submissions dated 23 December 2024 before the Appeal Panel stated that the only reason why the Builder sought an additional seven business days / nine calendar days in respect of EOT #5 was “latent condition affecting site”. Mr Simone (who appeared for the Builder before me) confirmed that the Builder now placed no reliance on sub-cl (iii) regarding latent conditions and that the reference to that sub-clause in the Builder’s table was abandoned. In those circumstances, as Mr Horowitz (who appeared for the Owner) submitted, correctly, there would be no utility in remitting the matter to the Appeal Panel because the only basis for supporting EOT #5 as identified in the Builder’s 23 December 2024 submissions to the Appeal Panel was now abandoned.

84. There is a further obstacle to the Builder obtaining leave to appeal in respect of EOT #5. It relates to the fact that the Builder claimed an additional seven business / working days in respect of EOT #5. Thus, if EOT #5 was remitted to the Appeal Panel, was upheld, and the Appeal Panel was required to determine what would be a reasonable extension time, it would need to grant an extension of time for several additional weeks and well in excess of the seven days identified in EOT #5, so as to avoid the Builder being in breach of the Work Order as at 21 January 2022. This uncertainty casts further doubt on the utility of granting leave.

(ii) Proposed Grounds 2, 3 and 4: EOTs #9–11 and 14–15

85. For the following reasons, I do not consider that these grounds truly relate to any question of law. Rather, they are properly characterised as raising questions of fact (or, at the very least, questions of mixed fact and law) for which there is no right of appeal to this Court, even with leave.

86. EOTs #9–11 and 14–15 were considered by the Appeal Panel together, under the category reflecting cl 11(a)(v) of the Contract which relates to “Delays due to owners work being incomplete”. The Appeal Panel said at [223] that although it could not locate a copy of EOT #12 in the materials, it would determine that item as well under this category on the basis that EOT #12 was to the same effect as the Builder’s email at p 4007 of the Tender Bundle.

87. The alleged errors the subject of proposed Grounds 2, 3 and 4 specifically relate to delays in the completion of the Owner’s AC Works. The AC Works included running air conditioning ducting in the void between the ceiling and the roof. The Owner was installing air conditioning as part of renovation works being carried out by it at the same time as the Builder was implementing the Work Order. The Builder contended below that it had a reasonable excuse for its failure to complete ceiling framing and sheeting work and close up the roof space because the Owner’s work on the air conditioning ducting was incomplete. The Appeal Panel dealt with this contention at [236(2)] (see at [68] above).

88. The Builder submits that the Appeal Panel erred in finding that there was “no evidence as to how complete [air conditioning] ducting was necessary for the other work to proceed” and in failing to consider relevant evidence as to this issue. The Builder emphasises that:

(a) Mr Dwyer gave evidence, which was not challenged during cross-examination, as to why the AC Works needed to occur prior to completion of the ceiling framing and sheeting work and the closing up of the roof space. (b) There was also unchallenged evidence before the Appeal Panel that the Builder had explained to the Owner the need for the works to be sequenced in this way and notified her that delay in completion of the AC Works was delaying its own performance.

89. The Builder further submits that the Appeal Panel erred by embracing NCAT’s finding at first instance concerning the “air conditioning unit” in circumstances where NCAT had failed to determine any of the EOTs. The Builder also submits that NCAT’s finding referred to by the Appeal Panel did not relate to air conditioning ducting, but only to the air conditioning “unit”. The Builder contends that the unit itself had no relevance to the delays with the ceiling framing and sheeting works. The Builder claims in its summons that the Appeal Panel identified the wrong issue, asked itself the wrong question or “otherwise erred”.

90. I am not satisfied that proposed Grounds 2, 3 and 4 relate to any question of law. Rather, in substance, they challenge the correctness or merits of the Appeal Panel’s fact finding, which falls outside the scope of s 83 of the CAT Act.

91. The true character of these proposed grounds is revealed by the Builder’s challenge to the Appeal Panel’s finding at [236(2)] that there was “no evidence as to how complete [air conditioning] ducting was necessary for the other work to proceed”. That finding is quintessentially a finding of fact, not law.

92. The Builder seized on the Appeal Panel’s reference in [236(2)] to “no evidence”, as though the use of that expression alone involved a question of law. I readily accept that, where there is no evidence to support a finding of fact, this may give rise to a question of law (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–6; [1990] HCA 33). But I do not accept the Builder’s reading of this part of the Appeal Panel’s reasons. The primary basis for the Appeal Panel’s rejection of the Builder’s case concerning the Owner’s failure to install air conditioning was its adoption of NCAT’s conclusion at [95] of its reasons (which is set out at [41] above). NCAT concluded that the air conditioning unit had been sufficiently installed to permit the Builder to pursue his works and it rejected Mr Dwyer’s claim that the Builder had been prevented from complying with the Work Order within a reasonable time because of the Owner’s failure to install the air conditioning unit.

93. The Appeal Panel then turned its mind in [236(2)] to the specific issue of air conditioning ducting. It was in that particular context that the Appeal Panel stated that “we do not see and there is no evidence as to how complete ducting was necessary for the work to proceed”. Even if the Appeal Panel erred in stating that there was no evidence on that issue (where the Builder had in fact adduced such evidence, as to which see at [88] above), that error would be one of fact, not law.

94. Furthermore, even if I am wrong in my characterisation of the Appeal Panel’s statements in [236(2)] as relating to questions of fact and not law, I see no utility in granting leave to appeal on this matter. That is for two reasons. First, there was in fact conflicting evidence before the Appeal Panel on whether installation of the ducting was holding up the Builder’s work (see the summary of the Builder’s evidence at [88] and the summary of the Owner’s evidence outlined at [42]–[44] above). This is not a case of all the evidence pointing one way such that a successful outcome on remitter is assured insofar as EOT #10 is concerned.

95. Secondly, even if the Builder succeeded on this issue on a remitter, there is the obstacle created by the fact that, in EOT #10 itself, only an additional five business / working days were sought to be added to the Construction Period insofar as the Owner’s alleged failure to complete air conditioning works is concerned (noting that EOT #10 contained eight separate items for which a five day extension was sought, giving rise to the 40 business days / 56 calendar days specified in the table at [27] above). The same additional period of five business / working days in respect of the air conditioning item in each of EOTs #9, 11, 13, 14 and 15 was sought by the Builder. Even if those five business / working days were cumulated across all those EOTs together with EOT #10 and also recognising that, on the Builder’s case, the Appeal Panel would need to determine what is a reasonable period, there is considerable uncertainty whether the Appeal Panel would view the air conditioning ducting issue as warranting such a lengthy extension of time as to avoid the Builder being in breach of the Work Order as at 21 January 2022, which is the Builder’s abiding objective.

96. The Builder also contends that the Appeal Panel identified the wrong issue, asked the wrong question or took into account an irrelevant consideration when it adopted the Tribunal’s finding at first instance that there was “little substantive evidence to support [Mr Dwyer’s] assertion that the Owner’s failure to install the air conditioning unit prevented the Builder from complying with the Work Order”. As noted above at [68], the Appeal Panel said at [236(2)] that it saw no reason to disagree with that finding. It then added in response to the suggestion that the air conditioning ducting was incomplete that, even if that were so, there was no evidence as to how complete ducting was necessary for the other work to proceed, with the consequence that cl 11(a)(v) did not apply. These matters all relate to the Appeal Panel’s fact finding and not to any question of law as required by s 83 of the CAT Act.

(iii) Proposed Ground 5: renewal proceedings

97. The question of law raised by proposed Ground 5 is identified by the Builder in its written submissions as “whether the Tribunal has the power to make orders at all in the renewal proceeding”. I shall assume that the Builder’s reference to the “Tribunal” should be read as a reference to the Appeal Panel.

98. The Builder accepts that the Court does not need to address this question, since “it likely first arises following the matter being remitted back to the Tribunal, and only if the Tribunal determines that the builder did not breach the Work Order.” Accordingly, proposed Ground 5 is no longer pressed by the Builder and need not be determined.

Conclusion

99. For all these reasons, the summons filed 11 July 2025 will be dismissed, with costs. There is no need to determine the notice of contention. The stay dated 12 August 2025 will be discharged.

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