Dwyer Building Group Pty Ltd v Spicer; Spicer v Dwyer Building Group Pty Ltd (No 2)

"1. On 4 July 2024 the Appeal Panel received an application under s 63 of the NCAT Act to reconsider the decision in this matter from the respondent, Ms Spicer, together with supporting submissions.

2. The Appeal Panel has since been reconstituted for purpose of these proceedings.

3. The appellant, Dwyer Building Group Pty Ltd, is the file and serve any submissions (not exceeding 2000 words) it wishes to make with respect to the s 63 application by 1 August 2025.

4. The respondent is to file and serve any submissions in reply (not exceeding 1000 words) she wishes to make in reply by 8 August 2025.

5. The Appeal Panel proposes to determine the s 63 application on the papers having regard to the materials filed by the parties. The parties submissions should address whether the s 63 application can be determined without a hearing."

1. Neither party has filed any further submissions with respect to the s 63 application. Both have subsequently filed submissions relating to the issues of costs, which do not mention the s 63 application.

Should the s 63 application be determined without a hearing?

1. Subsections 50(2) to (4) of the NCAT Act provide:

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

1. In this case both parties have been given an opportunity to make submissions as to whether the Appeal Panel should decide the s 63 application without a hearing and on the papers. No further submissions have been received. Registry have advised me that inquiries made of the solicitors for the Dwyer Building Group Pty Ltd indicate that the decision of the Appeal Panel is being appealed, and that no further submissions would be made.
2. I am not aware of any order staying the proceedings before the Appeal Panel. I therefore intend to proceed with the s 63 application. Given the conclusion I have come to, with respect to the s 63 application, doing so can only assist in clarifying the decision.
3. Having reviewed all the materials I am satisfied that it is a matter that can be determined in the absence of the parties by considering the materials lodged by them in the appeal and with respect to the s 63 application. I therefore dispense with a hearing.

63 Power to correct errors in decisions of Tribunal

(1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member.

(2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct.

(3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where -

(a) there is an obvious clerical or typographical error in the text of the notice or statement, or

(b) there is an error arising from an accidental slip or omission, or

(c) there is a defect of form, or

(d) there is an inconsistency between the stated decision and the stated reasons, or

(e) there is an inconsistency between the name of a person stated in the text of the notice or statement and the name stated on the person's birth certificate or other form of identification.

1. An issue in the appeals was whether the Tribunal fell into error when finding that the homeowner was entitled to damages for defects not claimed in the original proceedings. The homeowner had been awarded $38,400.00 for defective works, $7,350.00 of which - for items 4 (the front entry steps), 7 (the verandah slab) and 13 (the verandah steps) - related to defects not claimed in the original proceedings.
2. At [78] of the decision we found:

"... The damages the Tribunal awarded on renewal for items 4, 7 and 13 were not claimed in the original proceedings. They are separate and distinct from the homeowner's original claims. Therefore, renewal of the proceedings under cl 8 of Sch 4 did not empower the Tribunal to award those damages, irrespective of the Tribunal's interpretation of the work order. To do so, was an error of law."

1. Later in the decision, at [167] we incorrectly said:

"First, because the homeowner was not entitled to claim for defects not previously claimed in the renewal proceedings, she is not entitled to recover the $38,400.00 awarded for them by the Tribunal. This will require an adjustment to any monetary order in her favour."

1. This was inconsistent with our earlier finding. Later when reconsidering the parties' respective entitlements to damages, at [264] we said:

"We have found that the homeowner was not entitled to recover the sum $38,400 for defects not previously claimed, which the Tribunal awarded her. That amount is not allowed."

1. Once again, that paragraph was at odds with our earlier finding that, of the $38,400.00 allowed by the Tribunal, the value of the defect not previously claimed was $7,350.00 which sum should be deducted from the $38,400 allowed. These are obvious errors on our part resulting from an accidental slip.
2. We should have ordered that the homeowner recover $31,050.00 of the $38,400.00 allowed by the Tribunal, after deducting the $7,350.00 incorrectly allowed for defects not previously claimed. By not allowing the homeowner to recover the $31,050.00 we made an error which went on to affect, and led to further errors in, the calculation of the homeowner's damages.
3. Properly calculated, in accordance with Table A to these reasons, the owner is entitled to an order for $286,550.87.
4. I am satisfied that this resulted in an inconsistency between our reasoning and our decision. I will amend the decision and the Appeal Panel's order 2, to cure the inconsistency and resulting errors.
5. I apologise to the parties for the inconvenience caused by this obvious error.

1. Given that this decision has changed the outcome of appeals to the homeowner's advantage, I will give each of the parties a short time to indicate whether it has made any material change to their costs submissions.

(1) Order 2 of the Appeal Panel's orders made on 13 June 2025 is amended pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 by deleting the sum "$241,305.74" and substituting "$286,550.87".

(2) The Appeal Panel's reasons for decision dated 13 June 2025 are amended pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 as follows:

(a) Inserting after the word "recover" in [167] "$7,350 of";

(b) Inserting after the word "recover" in [264] "$7,350 of";

(c) Inserting after the word "sum" in [264] "awarded for defects of";

(d) Inserting after the figure "$38,400" in [264] the words "because it relates to";

(e) Deleting the word "for" where it appears in [264];

(f) Inserting after the word "amount" in [264] "$31,050";

(g) Deleting the word "not" from the last sentence in [264];

(h) Deleting the entire table in [267] and substituting for it Table A to these reasons;

(i) Deleting the figure "$241,305.74" from [268] and substituting "$286,550.87";

(j) Deleting the words "a comparatively small reduction when" from [268]; and,

(k) Deleting the figure "$241,305.74" from order 2 in [272] and substituting "$286,550.87".

(3) The parties shall file and serve any further submissions they wish to make with respect to costs, not exceeding 1,000 words as follows:

(a) Ms Spicer by 8 September 2025; and

(b) Dwyer Building Group Pty Ltd by 15 September 2025.

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