EFC Constructions Pty Limited v Malik

we are not satisfied that the proposed new evidence is likely to have produced a different result.

1. Further, because the respondents' case was that the windows did not have labels required by the standards and were therefore defective, we are not satisfied that the evidence the appellant now seeks to rely on was not reasonably available at the time the proceedings under appeal were being dealt with. Nor are we satisfied that it is "significant" as it does not establish the fact that labels or markings as required by the standards were on the glazing.
2. We therefore decline leave to the appellant to rely on the proposed new evidence and reject any application for leave to appeal on the basis set out in cl 12(1)(c) of Schedule 4 of the NCAT Act.
3. It follows that the grounds of appeal with respect to the Glazing Issue should be considered having regard to the Agreed Fact and the evidence that was before the Tribunal.

Ground 2 - what is the proper interpretation of AS 1288- 2006 and ASNZ 2208

1. The Tribunal determined at [86] that in view of the above evidence, (being the summary of the experts' evidence in respect of the glazing)

In view of the above evidence, there can be no doubt that the glazing installed is defective as it does not comply with AS1288-2066 in that it does not have the marking mandated by cl 5.23.1 of AS 1288-2006.

"Each original panel of safety glazing material shall be legibly marked in accordance with AS4/NSZ2208. Marking may be by either a label of a type that cannot be removed and reused or a permanent mark on the glass surface."

"Where non-permanent marking is used, it shall be of a type that remains legible until examined by the appropriate authorities, that can be removed and that will self-destruct when removed."

1. When the Senior Member's finding is examined in light of the Agreed Fact, and that there was otherwise no direct evidence that the required labels or markings had ever been on or removed from the windows, or inspected by "the appropriate authorities", we are satisfied that it was open to the Senior Member to make the finding that he did.
2. Although it is correct to say, that the removal of labels or stickers provided that they cannot be re-used is contemplated by the standard and that a lack of stickers / or labels of itself may not be a breach of AS 1288 - 2006, here:

(1) the Agreed Fact was that the required stickers or labels were never on the glazing, and

(2) there was no evidence that they were.

1. We are not satisfied that there has been an error on a question of law or otherwise an error that gives rise to a substantial miscarriage of justice to justify the granting of leave under cl 12(1) of Schedule 4.

Ground 3 - Whether the respondents discharged their onus to establish that the glazing was defective

1. For the reasons stated above, we are satisfied that it was open to the Senior Member to find that the glazing was defective based on the requirement for labels or markings under the standard, the Agreed Fact, the evidence as to the lack of labels or markings on the windows, and the lack of any other evidence as to the labels or markings having been placed on or removed from the glazing.
2. The comments at [92] of the Decision are in the context of the Senior Member dealing with a further submission by the appellant to the effect that, notwithstanding the Agreed Fact, the Certificates establish that the glass was safety glass or that mindful of the Certificates that the respondents had not established that the windows were not safety glass and therefore defective.
3. As noted above, it was open to the Senior Member to find that the glazing was defective and the Senior Member's comments in dealing with the inadequacies of the Certificates which the appellant sought to rely on to cast doubt on whether the respondents had established that the windows were defective, does not establish the Senior Member reversed the onus of proof.
4. We are not satisfied that this ground raises a question of law. Nor are we satisfied that the appellant has established that it may have suffered a substantial miscarriage of justice for a reason set out in cl 12(1)(a) or (b) of Schedule 4 and in accordance with the principles of Collins v Urban.

Ground 4 - Whether the Senior Member erred in accepting evidence of the respondents' expert when he was not an expert on glazing

1. The difficulty we have with Ground 4 is that in making the finding at [86], the Senior Member was referring to the "above evidence" and the finding must be read mindful of the Agreed Fact.
2. The "above evidence" being referred to was:
   • the evidence of the respondents' expert Mr Steward at [84] that the glazing was required to be safety glazing and labelled in accordance with AS 1288- 2006, in respect of which there was no dispute; and
   • the evidence of the appellant's expert, Mr O' Donnell, which the Senior Member summarised at [85].
3. Further, the evidence which the appellant complains concerned the requirements of the standards, in respect of which there was little dispute, and not as to the structure, makeup or testing of the glass, and even if there is any issue with the evidence relied on, when the Agreed Fact is considered, the complaint cannot be maintained.
4. Noting that the appellant conceded at the hearing of the appeal, that this ground did not involve an error on a question of law, we are not satisfied that the appellant has established that it may have suffered a substantial miscarriage of justice for a reason set out in cl 12(1)(a) or (b) of Schedule 4 and in accordance with the principles of Collins v Urban.

Ground 5 - Whether it was open to the Senior Member to find that the glazing compliance certificate and glass compliance certificate required additional information

1. The Certificates relied on by the appellant stated as follows.
2. The 10 January 2021 Ever Knew Glass Pty Ltd "glass compliance certificate" stated:

"with this certificate of compliance, that all glass, interior and exterior glass panels listed in the above mentioned job site were manufactured in accordance with part 3.6 of BCA 2019. AS 1288 - 2026. AS2047 - 2014".

1. The 23 April 2021 Norman Glazing Aluminium Pty Ltd "glazing compliance certificate" stated:

"this letter serves to confirm that the installation of all aluminium windows and doors is associated with existing building work at [the Property] has been installed in accordance with the provisions of AS1288-2006 and AS2047 - 2014".

1. Dealing with a submission by the appellant to the effect that notwithstanding the absence of labelling as required by the AS 1288 - 2006 and presumably the Agreed Fact, the Tribunal could be satisfied that the glazing was safety glass on the basis of the Certificates, the Senior Member noted at [89] to [91]:

(1) The glazing certificate did not assist because it was concerned with instillation and not the quality or manufacture of the glazing.

(2) The glazing certificate was unreliable because it stated that the glass has been installed in accordance with AS 1298 - 2006, when for the reasons already found, being the lack of labelling, the glazing did not comply with the standard.

(3) Mindful that the glass compliance certificate stated, "glass panels listed in the above mentioned job site were manufactured in accordance to part 3.6 of the BCA 2019, AS 128 - 206 and As 2047 - 2014" , the appellant had not developed an argument as to how the Tribunal could be satisfied that the installed glazing was safety glass [ simply] on the basis of what was stated in the certificate.

(4) That even if as stated in the certificate the glazing was manufactured in accordance with part 3.6 of BCA 2019. AS 1288 - 2026. AS2047 - 2014, the Tribunal was provided little assistance as to whether that meant that the glazing was safety glass, and such an assumption may not be safe.

1. The Senior Member then noted at [92] that he had serious reservations about the reliability of the glass compliance certificate because of a lack of evidence as to its provenance which the Senior Member found arose because:

(a) the certificate was signed by two managers without any evidence as what was done to satisfy the signatories of the matters to be certified and failed to list the glass panels which the certificate states are listed; and

(b) there was a lack of any evidence that the identified panels were delivered and installed at the Property or why the labelling required by AS 1288 - 2006 was missing if the glazing was in fact safety glazing.

1. At [88] to [92], the Senior Member is effectively considering whether despite the Agreed Fact and the lack of direct evidence that the glazing had the required labels, whether the Certificates, on their face, nevertheless established that the glazing was safety glass. In our view the Senior Member's criticism of the Certificates as to whether they established that the glazing was safety glass, and findings on whether the respondents had discharged their onus to establish that the glazing was defective, were open to the Senior Member.
2. We are not satisfied that this ground raised a question of law. Nor are we satisfied that the appellant has established that it may have suffered a substantial miscarriage of justice for a reason set out in cl 12(1) of Schedule 4 and in accordance with the principles of Collins v Urban.

Ground 6 - Whether it was open to the Senior member to reject the Certificates as evidence of the glazing being complaint

1. In support of this ground, the appellant largely relied on its submission in respect of Ground 5 and otherwise submitted that the Senior Member failed to take into account that an occupation certificate was obtained for the works, and that it could be inferred from the fact of its issue that that the Certificates were deemed satisfactory.
2. For the reasons given in respect of Ground 5, including the Agreed Fact, that the glazing never had the required labels or markings and the concerns the Senior Member had with the Certificates, it was open to the Senior Member to reject the Certificates as being able to otherwise satisfy him that the glazing was safety glass.
3. We are not satisfied that this ground raised a question of law. Nor are we satisfied that the appellant has established that it may have suffered a substantial miscarriage of justice for a reason set out in cl 12(1)(a) or (b) of Schedule 4 and in accordance with the principles of Collins v Urban.

Ground 7 - Estoppel defence - whether the respondents were estopped from pressing the glazing defect in circumstances where the appellant had provided the documents requested by the appellant's expert

(1) The joint expert report stated: "If contractors provide evidence of supply and install to AS 2047 and AS 1288 this Item is not pressed".

(2) Nothing further was stated as to what was meant by, or what would count as "evidence of supply and install to AS2047 and AS1288", including whether certificates would be sufficient and if certificates were provided, what would be sufficient as evidence of supply and install to AS 2047 and AS 1288.

(3) The Senior Member rejected a submission made by the appellant to the effect that the appellant had provided what was requested in the joint expert report and that the respondents were therefore estopped from pressing the Item.

(4) In rejecting the estoppel submission, the Senior Member noted that "because of the serious deficiencies with the glass compliance certificate, I do not consider that it can be regarded as credible evidence that safety glazing was supplied and installed on the property".

(1) Because of the Certificates and that the respondents' expert accepted that the requested Certificates were provided and there was no reason on the face of the Certificates to doubt what was stated on them, that it relied to its detriment on what was stated in the joint expert report in circumstances where it understood that the Item would not be pressed; and

(2) in the circumstances, the Senior Member erred by not finding that the respondents were estopped (which in its reply submissions, the appellant contends arises as an estoppel by representation) from pressing the glazing item.

(1) We are satisfied that it was open to the Senior Member to have the reservations referred to in the Decision with the Certificates; and

(2) Mindful that in its reply submissions the appellant says that the estoppel is an estoppel by representation, we do not agree with the proposition that the making of the statement in the joint expert report was a clear and unequivocal representation by the respondents that the Item was not to be pressed if the Certificates were provided.

1. Further, we were not taken to any evidence of the respondents following the supply of the Certificates, stating or representing to the effect that the item would not be pressed, or following the provision of the Certificates, the appellant seeking to confirm or note to the effect that the Item was not being pressed and the respondents agreeing.
2. In our view, it was therefore open to the Senior Member to reject the estoppel argument, and we are not satisfied that in doing so, the Senior Member failed to take into account a relevant consideration or made a finding of fact for which there was no evidence in support of.
3. We are not satisfied that this ground raises a question of law. Nor are we satisfied that the appellant has established that it may have suffered a substantial miscarriage of justice for a reason set out in cl 12(1)(a) or (b) of Schedule 4 and in accordance with the principles of Collins v Urban.

1. The question is whether the appellant was denied procedural fairness in relation to the Decision in respect of the unreliability of the glazing compliance certificate and the glass compliance certificate when the issue was not raised by the respondents' expert and was not addressed in the evidence
2. Notwithstanding that a procedural fairness challenge as a question of law would commonly be considered before any other challenges, because the appellant has identified its procedural fairness ground as Ground 8 and its procedural fairness ground is in part dependant on a consideration of the Certificates that is relevant to at least some of Grounds 2 to 7 in respect of the Glazing Issue, we are of the view that it makes sense to consider Ground 8 in the order that it was referred to by the appellant and considered by the parties.
3. A failure to afford procedural fairness is a question of law, Prendergast at [13] and Donohoe v Albulario [2025] NSWSC 9 (Donohoe), per Basten JA at [39].
4. Relevant principles were recently summarised by the Appeal Panel at [59] to [67] in Boreland v Brewis [2024] NSWCATAP 140 (References to authorities removed):

59 In determining proceedings before it, the Tribunal is under a duty to afford procedural fairness to the parties. .... Procedural fairness requires that the Tribunal give the parties a fair hearing, and that it be free from actual or apprehended bias. The term "procedural fairness" is synonymous with natural justice (the latter term is used in s 38(2) of the NCAT Act).

60 It is well established that the Tribunal must conduct a hearing that gives procedural fairness to both parties, even taking into account the less formal nature of Tribunal proceedings (s 38(4) and subs (5) of the NCAT Act). What is necessary and appropriate to ensure a fair hearing depends on the particular facts and statutory context, rules of procedural fairness being flexible and adaptable so as to be appropriate in a given case so as to avoid practical injustice ....

62 Where there has been a breach of the requirement to afford the appellant procedural fairness, the question arises whether that error was material to the Tribunal's decision. A breach of procedural fairness will constitute jurisdictional error, if the error is material to the Tribunal's decision: .... Materiality is established if the procedural unfairness deprived the appellant of a realistic possibility of a different outcome on the application lodged in the Consumer and Commercial Division.

63 If the appellant succeeds on his ground of appeal which asserts a denial of procedural fairness, it is unnecessary to consider any other issues raised in the grounds of appeal as to whether they can be formulated in substance to identify any other error on a question of law (or if not, whether leave to appeal should be granted under s 80(2)(b) and bearing in mind the limitations set out in cl 12 of Sch 4 to the NCAT Act with respect to internal appeals from decisions made by the Consumer and Commercial Division).

64 As recently noted in the Appeal Panel decision in YHY v YHZ [2024] NSWCATAP 117 at [54], authority dictates that we hear and determine a procedural unfairness challenge prior to any other challenges and that "whenever a matter is remitted for a retrial, it is preferable that the appellate court restrict its assessment of the evidence to matters necessary to the finding of error": ...

65 Procedural fairness requires that parties have an adequate opportunity to put their case and test the case against them. By s 38(5)(c) of the NCAT Act, the Tribunal is required to take "reasonably practicable measures" "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".

66 As Justice Basten stated in Italiano v Carbone & Ors [2005] NSWCA 177 at [88]:

"An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment," as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]:

'"A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations." at [37].'"

67 If it is established that there was a denial of procedural fairness, it must then be considered whether there exists a realistic possibility that the outcome of the decision could have been different had the error not been made .... Finding that a properly conducted application would have inevitably produced the same result is not done lightly: ....

1. The appellant submits that it was denied procedural fairness in respect of the Certificates because the unreliability of the Certificates was not raised by the respondents' expert and not addressed in evidence. It says the lack of procedural fairness arises for the reasons a. to i. at [107] of its submissions.
2. It is not clear to us how one or other or all of the matters listed at a. to i. give rise to a denial of procedural fairness, rather than each being a separate claim of why the appellant says the Senior Member erred.
3. Noting that we have rejected the application for leave to rely on the new evidence the appellant has sought to rely on, the central point appears to be, as noted at [110] of the appellant's submissions, that the appellant says it was denied procedural fairness because it did not have the opportunity to put on any evidence in respect of the reliability of the Certificates.
4. The appellant does not however identify what that evidence would or could have been. The rejected further evidence concerned the labels or stickers to be placed on the windows not the matters stated in the Certificates.
5. Because the contended denial of procedural fairness concerns the Certificates, we note:

(1) The 10 January 2021 Ever Knew Glass Pty Ltd "glass compliance certificate" stated "with this certificate of compliance, that all glass, interior and exterior glass panels listed in the above mentioned job site were manufactured in accordance with part 3.6 of BCA 2019. AS 1288 - 2026. AS2047 - 2014"; and

(2) The 23 April 2021 Norman Glazing Aluminium Pty Ltd "glazing certificate" stated, "this letter serves to confirm that the installation of all aluminium windows and doors is associated with existing building work at [the Property] has been installed in accordance with the provisions of AS1288-2006 and AS2047 - 2014".

(3) Dealing with a submission by the appellant to the effect that notwithstanding the absence of labelling as required by the AS 1288 - 2006, the Tribunal could nevertheless be satisfied that the glazing was safety glass, the Senior Member noted:

(a) That the glazing certificate did not assist because it was concerned with instillation and not the quality or manufacture of the glazing;

(b) The glazing certificate is unreliable because it states that the glass has been installed in accordance with AS 1298 - 2006, when for the reasons already stated by the Senior Member, being the lack of labelling, the glazing did not comply with the standard;

(c) Mindful of what was stated on the compliance certificate, the appellant had not developed an argument as to how the Tribunal could be satisfied that the installed glazing was safety glass;

(d) That even if as stated in the certificate the glazing was manufactured in accordance with part 3.6 of BCA 2019. AS 1288 - 2026. AS2047 - 2014, the Tribunal was provided little assistance as to whether that meant that the glazing was safety glass, and such an assumption might not be safe.

(e) That he had serious reservations about the glass compliance certificate because of a lack of evidence as to its provenance which the Senior Member found arose from:

(i) the certificate simply being signed by two managers without any evidence as what was done to satisfy the signatories of the matters and failing to list the glass panels which it states are listed; and

(ii) the lack of any evidence that the identified panels were delivered and installed at the Property or why the labelling required by AS 1288 - 2006 is missing.

(1) The respondents' case was that the glazing was defective because it did not have and never had the labels required by the labels;

(2) Directions were made for the parties to serve evidence;

(3) The Certificates were served by the appellant shortly before the hearing;

(4) The Senior Member raised concerns with the Certificates during the hearing;

(5) Mr Zhang, was cross examined about the provenance of the Certificates;

(6) The issue as to the reliability of the Certificates was raised by the respondents in its closing submissions, and

(7) The appellant did not apply to seek leave to re -open its case and serve further evidence in respect of the matters stated in the Certificates,

we are not satisfied that the appellant did not have or was denied an opportunity to put on evidence in respect of the reliability of the Certificates.

1. We are therefore not satisfied that the appellant was denied procedural fairness and accordingly reject Ground 8 of the Appeal.

Ground 9 - Work Order - should a work order rather than a money order have been ordered having regard to S 48MA of the HBA

1. At [105] to [112], the Senior Member, referring to s 48MA of the HBA considered whether a "work order" or a "money order" ought to be made and determined that because of the factors identified at (1) to (5) of [111], a money order, rather than a work order, was appropriate and would more likely achieve a timely and cost-effective resolution of the dispute.
2. The appellant submits that the making of a work order was an error of law because:

(1) the Senior Member took into account irrelevant considerations; and

(2) the decision to make a work order was so unreasonable that no reasonable decision maker would make it.

1. The appellant further submits that the Senior Member:

(1) Did not have regard to the appellant's evidence (being evidence which the appellant says identified that the appellant had undertaken rectification work and returned the property on a number of occasions) that the appellant stopped work because he was concerned about the legal situation and that the appellant was ready, willing and able to undertake the work;

(2) Did not have any reason to disregard the appellant's position that he was ready willing and able to do the work;

(3) Had regard to irrelevant considerations including in respect of the air conditioning not being rectified and the appellant not having performed any rectification work whilst the litigation was on foot; and

(4) Gave improper weight and consideration to the fact that an air conditioning technician had attended multiple times and failed to fix the air-conditioning in finding that the appellant had tried, but failed, to rectify the air conditioning defect.

1. The appellant's written submissions do not however identify (save for a transcript reference at [128] where the respondents agreed that some of the appellant's rectification efforts had been successful, including in respect of a leak) the evidence in support of the appellant's position that he was ready, willing and able to do the work, and more particularly the evidence relied on to support that position, or what work (mindful that there were defects that remained in dispute) the appellant says it was ready, willing and able to perform, or that the appellant had undertaken rectification work and stopped rectification work because he was concerned about the legal situation and if so, how that ought to bear on the defective work still to be rectified.
2. The respondents submit that what the appellant submits are errors of law are in fact an attempt to re-argue the work order / money order issue and that none of the matters referred to by the Senior Member properly fall into the category of irrelevant considerations.
3. Part 3A Division 4 (ss 48K-48MA) of the HBA contains the provision dealing with the jurisdiction of the Tribunal in relation to building claims. Section 48MA deals with the preferred outcome in proceedings, and provides:

48MA Rectification of defective work is preferred outcome in proceedings

A court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the responsible party) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome.

1. Part 3A Division 5 (ss 48N-48U) of the HBA contains provisions dealing with the powers of the Tribunal in relation to building claims. Section 48O deals with the orders which the Tribunal may make, and relevantly provides:

(1) In determining a building claim, the Tribunal is empowered to make one or more of the following orders as it considers appropriate -

(a) an order that one party to the proceedings pay money to another party or to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person,

(i) do any specified work or perform any specified service or any obligation arising under this Act or the terms of any agreement, or

1. The requirement under s 48MA of the HB Act for the Tribunal to have regard to the "principle" that a work order is the "preferred outcome" creates a mandatory relevant consideration in exercising its discretion whether to make a money order rather than a work order: Galdona v Peacock [2017] NSWCATAP 64 at [50], [65]; Leung v Alexakis [2018] NSWCATAP 11 (Leung) at [139]; John McDonald Building Services Pty Ltd v Gusa [2022] NSWCATAP 60 at [69]; Moody v M K Building Services Group Pty Ltd [2022] NSWCATAP 212 at [48]- [49].
2. In Leung at [140] the Appeal Panel observed as to the nature of the obligation imposed by s 48MA of the HB Act:

"[140] Being expressed as a "preferred outcome", it operates in the manner of a presumption. That is, unless the facts of the particular case make it inappropriate to order rectification of the defective work by the responsible party, an order should be made in terms that give effect to the principle."

1. In Kurmond Homes at [42]-[46] the Appeal Panel gave an explanation as to the nature of the obligation imposed on a court or the Tribunal by s 48MA of the HB Act. It relevantly included:

[45] Fourth, the term "preferred" is not defined. The HB Act and Regulations do not specify circumstances in which the preferred outcome is not to be adopted. However, guidance as to the meaning of "preferred" and the circumstances that would justify an order for a different outcome is found in the second reading speech where the Minister for Fair Trading makes clear that the purpose of the amendment was to:

(1) prevent a homeowner from unreasonably refusing a builder access to a building site to rectify defective work;

(2) permit a builder to return to carry out necessary rectification work if they are willing; and

(3) support the timely and cost-effective resolution of disputes.

[46] That is, in deciding what order should be made, a court or tribunal may consider whether there is a reasonable basis for any objection raised by the homeowner to the builder being permitted to rectify the defective work, the terms of any order, whether the builder is willing to return and whether such an order would support a timely and cost effective resolution of the dispute."

1. Relevant to the appellant's submission that the Senior Member took irrelevant considerations into account and failed to consider matters that the appellant said should have been taken to account:

(1) In House v The King (1936) 55 CLR 499 (House) at 504-505; [1936] HCA 40 Dixon, Evatt and McTiernan JJ stated:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

(2) In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40; [1986] HCA 40 (Peko-Wallsend) Mason J said:

(a) in respect of failing to take into account a relevant consideration (Gibbs CJ at 30 and Dawson J at 71 agreeing):

The ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making that decision ... What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.

(b) In respect of taking into account irrelevant considerations (Gibbs CJ at 30 and Dawson J at 71 agreeing):

In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard ...

1. Having regard to what was said in Peko-Wallsend at 40, we are satisfied that the factors to which the Tribunal can have regard in considering a money order under s 48O(1)(a) of the HBA rather than a work order under s 48O(1)(c)(i) of the HBA are unconfined by the statute, and do not accept that by reason of the subject-matter, scope and purpose of the HBA that there is a limitation preventing the Tribunal taking into account that an item of defective work (here the air-conditioning unit) had not been rectified or that no rectification work had been undertaken whilst the litigation had been on foot.
2. Having regard to what was said in Peko-Wallsend at 39 - 40 and the Appeal Panel in Noori Homes Pty Ltd v Patel [2023] NSWCATAP 149 (6 June 2023) at [83] we are not satisfied that upon the proper construction of s 48O of the HB Act there are any mandatory considerations that are to be taken into account when the Tribunal exercises its discretion whether to make a work order or a money order other than the principle that rectification of the defective work by the responsible party is the preferred outcome as required by s 48MA of the HB Act.
3. We are satisfied that the Tribunal took this consideration into account.
4. We are therefore not satisfied that the Senior Member erred on a question of law or otherwise in failing to take into account any relevant considerations or taking irrelevant considerations into account or that the Senior Member failed to weigh competing factors and evidence appropriately and to give appropriate weight to various facts so as to constitute an error in the exercise of his discretion in determining to make a money order rather than a work.
5. In our view, the Senior Member, as he was required to do, gave consideration to whether a money order or a work order ought to have been made, and it was open to the Senior Member to make a money order for the reasons he has given.
6. We are therefore satisfied that there is no error of law.
7. Nor are we satisfied that the appellant has established that it may have suffered a substantial miscarriage of justice for a reason set out in cl 12(1)(a) or (b) of Schedule 4 and in accordance with the principles of Collins v Urban.

(1) Leave to appeal (to the extent that leave is required) is refused.

(2) Appeal dismissed.

(3) The stay order, being Order 5 dated 15 January 2025 in respect of the payment of $75,187.82 is lifted.

(4) Order as follows in respect of the costs of the appeal:

(a) The parties are to file any written submissions in relation to the costs of the appeal within 14 days of the date of publication of these orders and are to reply to each other's submissions within 14 days thereafter.

(b) Submissions are to include whether the issue of costs may be determined on the basis of the written submissions and without a hearing in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

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