This is an internal appeal from a decision of the Consumer and Commercial Division made on 28 February 2018. At that time the Tribunal made orders in favour of the present respondent in a dispute arising from a Home Building contract between it and the appellants for the construction of residential premises.
The appellants seek to challenge the effect of interlocutory consent orders which limited the matters to be determined at trial. They say these orders were not, in fact, consent orders. They then seek to challenge the Tribunal's refusal to grant an adjournment of the hearing so that they could inspect the premises and lead evidence about additional defective works not covered by the orders. They assert that the Tribunal failed to properly exercise the discretion to grant the adjournment. The appellants also assert that the Tribunal failed to take into account relevant evidence.
For the reasons outlined below, we would refuse leave to appeal in so far as it is required and would otherwise dismiss the appeal.
[2]
The Proceedings below and the Tribunal's reasons
The appeal purported to deal with two proceedings between the parties which had been listed together. The first proceeding was HB 16/45493 which involved a claim by the appellant Home Owners against the respondent Builder for defective/incomplete building works and a claim for compensation (the Home Owners' Proceedings). The second proceeding was HB17/17971 which involved a claim by the respondent for outstanding payments under the building contract together with interest (the Builder's Proceedings).
On 14 December 2017, the Tribunal made orders stated to be by consent which made orders specifically limiting the issues to be determined at the final hearing and for the preparation of the trial ('the Consent Orders").
On 28 February 2018, after a hearing, the Tribunal made orders in the Builder's Proceedings that the Home Owners pay to the Builder the sum of $37,176.38 on or before 28 March 2018, together with interest running at $10.18 per day until the sum was paid. The Tribunal delivered reasons for that decision. The Tribunal ordered that there be no order as to costs of those proceedings.
In its reasons, the Tribunal recounted some of the procedural history of the two proceedings. In particular, the Tribunal recorded that there had been "multiple procedural directions" for the service of materials in support of the parties' respective claims. The Tribunal referred to the Home Owners seeking an adjournment of the proceedings on the basis that they had not had recent access to the premises and wished to carry out a further building inspection before proceeding. After recording that the proceedings had been going for some time, the Tribunal said that when the matter was last before it, on 14 December 2017, the Tribunal had identified with the parties the "remaining items for determination" and on that basis the matter had been listed on 28 February 2018 for a 1 day hearing. The Tribunal said:
"3. …The Home owners had not sought a relisting of the matter to determine any dispute in relation to the contents of the procedural directions [made 14 December 2017]. The Home Owners had not sought a relisting of the matter to determine any access to the premises dispute (sic). Their application for a further adjournment was only raised at the commencement of today's proceedings.
4. Section 36 of the Civil and Administrative Tribunal Act 2013 states that the "guiding principle" for this Act and the procedural rules…is to facilitate the just quick and cheap resolution of the real issues in the proceedings. The Tribunal was not satisfied that there was sufficient reason for the matters to be again adjourned and delayed. The procedural directions issued on 14 December 2017 clearly set out the remaining items for determination today and gave both parties an opportunity to file and serve any final documents to be relied upon. The Tribunal was satisfied that the proper process had been followed and there was no sufficient reason for any further delay. The Home Owners' application to adjourn the proceedings was refused."
The Tribunal then dealt with the Home Owners' application to rely on further material, over and above that served in accordance with the procedural directions. That material had been in existence for a considerable period of time and not served in accordance with the procedural directions. The Tribunal held that no sufficient reason had been given as to why the material had not been submitted before the hearing, that the Builder would be prejudiced by its acceptance and refused the application to rely on that evidence.
The Tribunal the said that "..following some deliberation, the Home Owners withdrew their application HB 16/45493." The orders made by the Tribunal in the Home Owners' proceedings indicate that on 28 February 2018, the Home Owners' Proceedings were withdrawn in accordance with s 48I(2) of the Home Building Act 1989 and each party was to pay their own costs.
The Builder then proceeded with its claim for payment of monies due under the contract, together with interest. The amount the subject of the claim was not disputed by the Home Owners, however, they contended that practical completion of the contract works had not been achieved. If it was found that practical completion had been achieved, the Builder would be entitled to payment of the outstanding amount.
The Tribunal considered the evidence before it, including expert evidence filed by each party. The Builder claimed practical completion occurred on 29 January 2017. It had issued a notice of practical completion to the Home Owners on or about 5 September 2016. The Home Owners had then denied practical completion and had engaged the Office of Fair Trading. A building inspector identified 17 items to be rectified by 7 December 2016. A subsequent inspection on 16 January 2017 identified 2 items remaining outstanding.
The Builder wrote to the Home Owners on 31 January confirming that the 2 outstanding items had been rectified. It then sought and obtained an independent certifier's certificate which identified that the Home Owners bore the responsibility for any further matters needing to be completed before a final occupation certificate could be issued.
The Builder relied on an expert report of Mr Brincat who opined that practical completion was achieved on 2 September 2016.
The Home Owners relied on an expert report of Mr Berner dated 15 February 2017. That report indentified a large number of defects by way of a Scott Schedule. The Tribunal observed, however, that "there was nowhere in his report that the Tribunal could identify where he disputed directly the Builder's expert's assertion that practical completion had been achieved…"
The Tribunal concluded that practical completion had been achieved on 29 January 2017 and that the premises were fit for habitation from that time. It held Mr Berner's report did not, on the balance of probabilities, displace the Builder's evidence to that effect. Accordingly, the Builder succeeded in its claim.
[3]
A preliminary matter regarding the Home Owners' Proceedings
The Home Owners rely on an Amended Notice of Appeal filed 12 April 2018. It should be observed at the outset, that it purports to be an appeal in each of the Home Owners' Proceedings and the Builder's Proceedings. As is stated above, however, the Home Owner's proceedings were withdrawn on 28 February and an order was made dismissing those proceedings.
That order was made pursuant to s 55 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) which relevantly provides that the Tribunal may dismiss at any stage the proceedings before it if the applicant withdraws the application to which the proceedings relate. That is what happened in the Home Owners' Proceedings.
There is no prayer for relief in the Amended Notice of Appeal which seeks to set aside that order. The orders sought to be set aside are only orders 1 and 2 made by the Tribunal on 28 February, namely the orders in the Builder's Proceedings which deal with the payment of money to the Builder owing under the contract. No application was made to amend the Notice of Appeal to set aside the orders made in the Home Owners' Proceedings.
It was said in submissions at the hearing that the Home Owners' Proceedings were withdrawn because that result was "thrust upon them". A reasonable and proper reading of the transcript of the 14 December 2017 hearing does not support such a submission. So, absent a Notice of Appeal in the Home Owners' Proceedings, or perhaps any application to further amend the Notice of Appeal, we conclude that there is no appeal before us with respect to the Home Owners' Proceedings and we do not need to deal with it.
[4]
The Builder's Proceedings
This leaves the appeal from orders 1 & 2 made by the Tribunal on 28 February 2018. The Notice of Appeal was filed on 16 March 2018 and the Amended Notice of Appeal on 12 April 2018.
The grounds of appeal as stated in the Amended Notice of Appeal are:
1. breach of procedural fairness in failing to grant an adjournment on 28 February;
2. "inflexible application" of the Tribunal's discretion "not to grant an adjournment" on 28 February;
3. The Tribunal's action in ignoring relevant material, in rejecting the Home Owner's expert report and preferring the expert report of the Builder; and
4. "reaching a mistaken conclusion in a way that affects the exercise of power" in not allowing disagreement about outstanding defects to be resolved and acting prejudicially to the Home Owners.
The Home Owners' written outline of submissions and their counsel, Mr De Brennan, at the hearing of the appeal, narrowed or distilled those grounds in essence down to two:
1. a breach of procedural fairness in an inflexible application of the Tribunal's discretion to grant an adjournment; and
2. ignoring relevant material.
[5]
A challenge to events on 14 December 2017
One further matter requires mention before the substantive grounds of appeal are dealt with. In support of the ground that the Tribunal erred by failing to grant an adjournment, it became apparent that the Home Owners wished to challenge the Consent Orders made by the Tribunal on 14 December 2017. Those orders relevantly provided:
1 By consent, on 14 December 2017 the hearing was adjourned to a date to be fixed by the Registrar. The issues that remain in dispute and that will be argued at the formal hearing are limited to the following only:
a Items from the Scott Schedule signed 4/5 May 2017: 15.1d) & 16.1 c);
b Home Owners claim against the Builder for damages for delay in completion;
c Builders claim for payment under the contract by the Home Owners;
d Costs payable by either party
The Tribunal in those orders also made consequential directions for the service of evidence in order to have the matter ready for final hearing.
The Home Owners now effectively (although without any actual prayer for that relief) seek to set aside the Consent Orders on the basis that there was never any agreement that the matters to be determined at final hearing were limited to the two items in the Scott Schedule listed order 1 of the Consent Orders (set out in [23] above). The Home Owners contend that a consideration of the transcript of that hearing shows that, in fact, counsel for the Home Owners who appeared at that hearing only gave qualified consent to limiting the matters for final hearing, such qualification being based on an assumption that all other items had been dealt with. The Home Owners now seek to assert that that assumption was incorrect.
At the hearing of the appeal, the parties proceeded on the basis that an extension of time was required in order for the Home Owners to appeal the Consent Orders as no appeal was brought from them within 28 days of them being made. Argument was heard as to whether an extension of time pursuant to s 41 of the CAT Act should be granted.
On reflection, however, it appears to us that the proper approach is that as the Consent Orders are interlocutory orders which have an effect on the final determination of the matter, subject to any requirement for leave, they can be appealed at the same time as an appeal from the orders made by the Tribunal at the final hearing of the matter: see for example Gerlach v Clifton Bricks [2002] HCA 22, (2002) 188 ALR 353 at [6], [43]-[51].
[6]
The material before the Appeal Panel
The Home Owners sought to rely on a significant amount of new evidence on appeal in the form of affidavits from:
1. William Carney sworn 23 April 2018. My Carney was counsel for the Home Owners who appeared at the Tribunal on 14 December 2017. The affidavit purports to explain the Home Owners' position and agreement to the Consent Orders;
2. Garry Pickering sworn 24 April 2018. Mr Pickering is the solicitor for the Home Owners. This affidavit sets out Mr Pickering's attempts to obtain the transcripts of the 14 December 2017 and 28 February 2018 hearings;
3. Suzanne Azzi sworn 24 April 2018. Ms Azzi is a solicitor employed by Mr Pickering. This affidavit details Ms Azzi's attempts to obtain suitable transcripts of the hearings; and
4. Garry Pickering sworn 4 June 2018.This affidavit purports to set out further details of events said to be relevant to the appeal and attaches transcripts of the hearings.
The affidavit of Mr Carney was objected to as being fresh evidence. It is undoubtedly fresh evidence, however, it purports to detail the Home Owner's position with respect to the Consent Orders made on 14 December 2017. It was said that this was not relevant to the appeal. Mr Hourigan, counsel for the respondent, also sought the right to cross-examine Mr Carney if we allowed the affidavit to be read. However, he had not given prior notice of his intention to do so and Mr Carney was not present. Ultimately, we formed the view that we would admit the affidavit subject to relevance.
The affidavits in (b)-(c) above were objected to on the ground of relevance. It was said that each of the affidavits was relevant only to the conduct of the hearing on 14 December and this was not relevant to the appeal. However, we admitted the affidavits subject to relevance.
The last affidavit was served late and in contravention of directions made by the Appeal Panel on 27 March 2018 and 26 April 2018. The Builder was entitled to see and be able to deal with the affidavit in accordance with the Appeal Panel's directions. Whilst the Home Owners submitted that there was no prejudice, there was no explanation as to why the affidavit was not served in accordance with the directions made. True it is, as the Home Owners submitted, that s 36 of the CAT Act states that that the Tribunal, including the Appeal Panel, is not bound by the rules of evidence and is to conduct itself informally in the interests of justice and subject to the rules of natural justice. However, the application of those guiding principles cannot be used to justify unexplained or repeated failures to comply with procedural directions which are made for the purpose of the fair and proper preparation of proceedings. Such a construction of the guiding principles would be untenable and would not be the expectation of parties before the Tribunal. Parties, and their legal representative, also have a duty by reason of s 36(3) of the CAT Act to co-operate with the Tribunal to assist in the application of those guiding principles and to comply with directions made by the Tribunal. That was not done here and we rejected the application to read this affidavit.
The Builders read an affidavit of Ms La Tella sworn 6 June2018. That affidavit put before us most of the relevant material from the proceedings below.
We also received, as exhibit A, a copy of the transcript of the hearing of 28 February. The transcript of the hearing of 14 November was attached to the Amended Notice of Appeal and to other affidavits.
[7]
Is leave to appeal required?
As observed above, the grounds of appeal pressed at the hearing of the appeal were distilled into 2 grounds. The first, alleging a denial of procedural fairness, raises a question of law. The second, seeking to impugn the decision of the Tribunal in that it ignored relevant material by preferring the Builder's expert to the Home Owners' expert, requires leave to appeal.
In so far as leave to appeal is concerned, the principles applicable are by now well known. They were explained in Collins v Urban [2014] NSWCATAP 17 and have been applied in many authorities since. Ordinarily, it is appropriate to grant leave to appeal only in matters that involve:
1. issues of principle;
2. questions of public importance or matters of administration or policy which might have general application; or
3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
4. a factual error that was unreasonably arrived at and clearly mistaken; or
5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed
Additionally, in Pholi v Wearne [2014] NSWCATAP 78 at [32] the Appeal Panel said:
Even if the Appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The Appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
[8]
Ground 1
The substance of this ground is that, having been alerted to the dispute about the matters to be determined at the hearing, the Tribunal ought to have adjourned the matter on 28 February. In the contention of the Home Owners, the dispute about the matters to be determined, as set out in the Consent Orders, arises from the hearing on 14 December 2017.
It should be recalled that the Home Owners assert that Mr Carney, their counsel on that day, only gave qualified or conditional agreement to the statement that only two items listed as defective on the Scott Schedule remained outstanding. That qualification, or condition, was said to arise from Mr Carney saying that he assumed all required remedial work (apart from the two listed items) had been completed and he would have to get final instructions on this issue.
A close analysis of the transcript of the 14 December 2017 hearing, however, indicates that the Tribunal asked Mr Carney if he agreed there were only two items outstanding and if he needed to double check. Whilst Mr Carney's answers did reflect his assumption that the two items were the only ones outstanding and that he may need to get further instructions, it is perfectly clear from the transcript that the Member explained the orders he was making as he was making them. It is clear that he was making orders that the final hearing of the matter would be limited to the two items he had listed. He read those orders out and no dissent was made by Mr Carney to the form of the orders or noting that they should be subject to his assumption being made good, or receipt of final instructions.
If the real position was that the Home Owners did not accept or consent to those orders, that position should have been made clear by counsel on their behalf.
In so far as Mr Carney, in his affidavit, says that he was distracted at the time the orders were made and did not hear them as they were being made, nor become aware of their form until afterwards, several points can be made. First, the transcript annexed to his affidavit reflects that he engaged with the Member whilst the orders were being made and after they were made. If he was not sure of what orders had been made or felt that the orders did not properly reflect the discussion which had been occurring, he ought to have said so and asked for clarification. Second, as is apparent from exhibit 1 referred to below, the orders were sent to his instructing solicitors very shortly after the hearing. If he remained in any doubt as to the form of the orders at the conclusion of the hearing, he could also have requested a copy from the member at the time.
There is also in evidence correspondence between the Builder and the Home Owners solicitor shortly after the 14 December hearing where the Builder specifically refers to the orders made on 14 December and the fact that the matters to be determined at the final hearing were, by those orders, limited to the two specified defects. There is no evidence that, on having seen that correspondence, Mr Pickering did anything to check with his counsel as to what orders had been made, seek clarification from the Tribunal or take any other action to ensure that all other matters the Home Owners now say were in dispute, would be argued at hearing.
Additionally, there is in evidence (exhibit 1) a letter from Mr Pickering to the registry of the Tribunal dated 21 December 2017 which specifically refers to the orders made on 14 December and states that as he would be overseas, he would require an extension of time to comply with an order about preparing documentation for the hearing. Clearly he had seen and read the Consent Orders. There is nothing in that letter which points to any objection to the form of the Consent Orders which, on a plain reading, could not be more clear as to the limitation of matters to be determined at the hearing.
If the Home Owners disputed the Consent Orders, in these circumstances, they should have taken steps to identify the scope of that dispute, had the matter re-listed and ventilated before the Tribunal. They did not do so.
At the hearing on the 28th of February Mr Niven appeared for the Home Owners. He immediately engaged with the Member in identifying the uncertainty about whether there were only the two items remaining to be rectified. He referred to the transcript and argued that Mr Carney had only given qualified acceptance to the limitation of matters to determined on that day. It was in that circumstance that he stated that the Home Owners were not in a position to proceed and requested an adjournment.
The following is recorded at pages 1-6 of the transcript in exhibit A:
MEMBER: Well, Mr Niven, I'll put this proposition. We either proceed today or your client withdraws their claim. This matter has been running for too long, I expressed my frustration on the last occasion, we are not going past today in this matter.
MR NIVEN: Well, I'm…
MEMBER: So, your clients are in a position where if they're unsure, they can accept the works have been done, they can take possession, they can lodge a fresh claim under the statutory warranty period if they believe once they've got possession that there are still items to be resolved. That's my view.
Mr NIVEN: Well, I mean…
MEMBER: 2016 this claim was lodged and I'm not going past today. So maybe you need to go outside and get some instructions. Mr Hourigan, what do you want to say?
Mr Hourigan for the Builder then referred to the orders made on 14 December 2017 which he (correctly) described as "clear and unequivocal". There was further discussion about the hearing on 14 December. The following then took place:
MEMBER: I think my directions speak for themselves.
MR NIVEN: Well, I'm sorry Mr Tribunal Member, but that is in perfect contrary to my understanding of what transpired and I will get…
MEMBER: Read order 1 made on 14 December. By consent. …. (the Member then read the terms of order 1 as to the limitation of issues to be determined at the hearing)
MR NIVEN: If I can have an opportunity to seek instructions, I would appreciate that.
It is apparent that there was then an adjournment following which the following is recorded:
MR NIVEN: Thank you for the indulgence, Tribunal Member. I've had discussions with my instructing solicitor …. And, I'm instructed that the consent orders as recorded were never actually consent orders. That the transcript doesn't reflect the matters limited to the following, that is, items in the Scott Schedule 15.1B and 16.1C. They're my instructions. As you know, Mr Tribunal Member, I didn't have the - I wasn't here when those orders were made and consequently it's my view that it would be necessary to obtain a formal transcript of what occurred on that day in order for the matter to be ventilated…
…subject to obtaining a formal transcript of what took place on 14 December… under my current instructions it's not a position that there was a consent or there was any consent given to your orders 1A that there was a confining of the items in the Scott Schedule…
MEMBER: Thank you Mr Niven. Firstly, I'll respond in this manner. I don't know except with the assistance of the parties how I would've written those orders and directions because I certainly wouldn't be in the position to make that direction myself on that day. So, at this stage, and I accept that I am at a disadvantage because I don't have a copy of the transcript…so I am going off the best of my recollection but it defies logic to say that I would've written that paragraph by myself without input from the people that were here on the day.
The Member then noted that Mr Carney was not present but that, if required, he would offer time to have him come down to the Tribunal or for him to be telephoned. He then said:
… The other thing I will raise at this stage is if your client believes that what is written there was not correct, they've been on knowledge about this since 14 December and if they wanted to check the transcript, in my view, they've had more than sufficient time to request a copy of the transcript and go through it with a fine tooth comb. So to turn up here on 28 February, some two and a half months later, and say well, now we want to adjourn it so that we can get a copy of the transcript I really think you need to have a look at that submission and those instructions and think whether that's realistic in this matter.
MR NIVEN: Well, I will seek those instructions, I will seek to identify if Mr Carney is available to lend his comments to what occurred on 14 December.
MEMBER: Again, we're just sitting here wasting time. I want to get underway. If you think there's some other point on the Scott Schedule that you've got evidence to prove today hasn't been completed, then maybe you can have some negotiations with the other side about including that to the list.
MR NIVEN: Well,…
MEMBER: And if you don't have evidence in respect of that matter well, I would think you as a legal practitioner will understand your chances of acceding (sic) the claim that you don't have evidence about probably minimal (sic)….
There was then some further discussion about the alternative previously suggested by the Member, under which the Home Owners would take possession and make a statutory warranty claim if they alleged items were defective. After what appears to be another adjournment, the transcript records that the Home Owners' claim in the Home Owners' proceedings was withdrawn and only the Builder's claim proceeded to hearing.
The Home Owners now submit that they have been denied procedural fairness because the Tribunal refused to adjourn the matter so that the issue of whether there were items in addition to the 2 specified in the Consent Orders could be determined. We reject that ground of appeal.
When all of the matters which occurred on 14 December 2017 and 28 February 2018 are taken into account as detailed above, there is simply no room for finding that the Home Owners have been denied procedural fairness. They were aware of plain terms of the Consent Orders made on 14 December on that day or very shortly after. They took absolutely no steps prior to the hearing on the 28th to ventilate any issues or concerns they had with respect to the terms or effect of those orders. They had ample opportunity to do so.
The transcript of the hearing of 28 February 2017 relevant extracts of which are referred to above, does not in our opinion indicate that the Home Owners were denied procedural fairness on that day with respect to the refusal of an adjournment. The Member explained his views to them, noting the lengthy history of the matter. He gave their counsel opportunities to seek instructions, including clarifying matters with Mr Carney.
There have been numerous Appeal Panel decisions dealing with appeals from decisions of the Tribunal refusing and adjournment see, for example Donna O'Neil v T & I Engines Pty Ltd [2015] NSWCATAP 77 at [20]-[23] and Charitable Islamic Association of Beirut City Incorporated v The Owners SP 75506 [2018] NSWCATAP 207 at [57]-[67]. Whilst a decision of the Tribunal to adjourn a hearing is a discretionary decision that must be exercised judicially, it is to be noted that those decisions confirm that:
1. matters should almost always proceed on the date fixed for hearing, including for reasons of minimising the delay and cost of the proceedings and the impact of an adjournment on other litigants and the Tribunal;
2. an application for an adjournment should be seen as the exception rather than the ordinary course;
3. where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively, against the grant of the adjournment; and
4. the effect of any adjournment on the opposing party must be considered
An application of these principles to the facts of the present matter shows, in our opinion, that there was no denial of procedural fairness to the Home Owners. The relevant passages of the Tribunal's reasons are those set out in [7] above. We see no error in those reasons or the matters which support them. The Home Owners have failed to demonstrate that the Tribunal erred in the exercise of its discretion in refusing the adjournment.
We reject ground 1.
[9]
Ground 2
Ground 2 asserts that the Tribunal erred in failing to consider relevant material in that it preferred the expert evidence of the Home Owners to that of the Builder.
At the hearing of the appeal, it was also submitted that the Tribunal ought to have admitted evidence sought to be tendered at the hearing by the Home Owners. However, leaving aside the fact that there is no ground of appeal specifying this as an issue, there were directions made for the service of evidence prior to trial and the Home Owners, at least with respect to this evidence, did not comply. We would not grant leave to the Home Owners to appeal on the basis that this evidence was not admitted.
In relation to the argument that the Tribunal failed to take into account relevant evidence by preferring the evidence of the Builder's expert to that of the Home Owners' expert, there is no substance to this ground. The reasons of the Tribunal are set out at [13]-[15] of the reasons. It is clear from those reasons that the Tribunal considered each of the expert reports and the report from the Office of Fair Trading. The Tribunal concluded that the Home Owners' expert report did not identify any dispute with the Builder's expert on the critical issue, namely when practical completion had occurred. It concluded that the Home Owners' expert was not sufficient to displace the evidence of the Builder's expert on this issue.
The submission by the Home Owners, in their written submissions, that the Tribunal Member "misunderstood and misapplied the nature of expert evidence" cannot be sustained. It was perfectly open to the Tribunal Member, as he did, to consider each of the expert reports before him, together with the other evidence, and form a conclusion as to which of the experts he preferred in relation to the issue of practical completion. This is what he did.
We do not think that the appellant suffered a substantial miscarriage of justice nor that any of the other triggers for the grant of leave have been engaged. We would not grant leave to appeal in respect to ground 2.
[10]
Costs
The Builder seeks an order that the Home Owners pay the costs of the appeal. This matter was not ventilated in any detail at the hearing. We will make directions for the service of short submissions on the question of costs of the appeal. Absent submissions to the contrary, we would propose to deal with that question without a hearing and on the papers.
[11]
Orders
The orders we would therefore make are:
1. In so far as leave to appeal is required, leave is refused.
2. Appeal otherwise dismissed.
3. Within 14 days of these reasons, each party is to file and serve any submissions on the question of costs, no longer than 3 pages in length.
4. Absent submissions to the contrary, the question of costs of the appeal is to be dealt with on the papers.
[12]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 24 September 2018