GMI Construction Pty Ltd v Keshavarz - [2024] NSWCATAP 68 - NSWCATAP 2023 case summary — Zoe

NSWNSWCATAP

GMI Construction Pty Ltd v Keshavarz

[2024] NSWCATAP 68

NCAT Appeal Panel|2023-11-30|Before: Dr J

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Source facts

Court

NCAT Appeal Panel

Decision date

2023-11-30

Before

Dr J

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

Solicitors: Barber Lawyers (Appellant) First Respondent (self-represented) Second Respondent (self-represented) Third Respondent (self-represented) File Number(s): 2023/00217270 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 22 June 2023 Before: R Titterton, Senior Member File Number(s): HB 22/53869

[2]

REASONS FOR DECISION

The appellant (the "Building Company") appealed from an order requiring it to pay damages to the first and second respondents (the "homeowners") in respect of their home building claim.
The afternoon before the hearing of the homeowners' application, the solicitor for the Building Company and its director, the third respondent (Mr Imad Marta), emailed the Tribunal asking for an adjournment of the hearing because the solicitor was sick. The Tribunal Registry advised him by reply email that the adjournment application would be decided the following morning at the hearing. Nobody appeared for the Building Company or its director at the hearing. The Tribunal refused their adjournment application, heard the homeowners' application and awarded the homeowners damages.
The Building Company appealed from that decision on various grounds. It contended that the Tribunal denied it procedural fairness when it refused the adjournment application, or that its discretion miscarried when making this decision. It also submitted that the Tribunal did not have jurisdiction to hear the application and that it made findings upon which its jurisdiction depended without evidence. Finally, it said that the Tribunal erred in finding that it was a party to the contract with the homeowners and that, properly construed, Mr Marta was the contracting party.

[3]

Background

The homeowners entered into a contract for the building of a house on a block of land in 2019. The cover sheet to the contract featured the name of the Building Company in large type. The contract was signed by Mr Marta, a director of the Building Company. The "contractor name" stated in the contract was that of Mr Marta.
The building work was completed in September 2020. The homeowners paid the Building Company in full.
By application dated 5 December 2022, the first respondent sought a money order that Mr Marta pay him $50,000.
The basis of the first respondent's claim was the Building Company's work when building the homeowners' house was defective. He claimed that there were leaks from the ceiling and windows, amongst other alleged defects.
At the first directions hearing, Mr Marta was represented by a solicitor, Mr Tony Barber. The Building Company was joined as a respondent and orders were made for the filing of evidence and other matters.
At a second directions hearing held on 3 April 2023, neither Mr Marta nor the Building Company appeared. The Tribunal noted that the respondents' expert had inspected the homeowners' premises on 31 March 2023 and extended the time for them to file their expert report. They did not file any report.
On 18 April 2023, the Tribunal's Registry advised the parties that the matter was set down for hearing on 22 June 2023.
On 21 June 2023 at 2.40pm, the Tribunal received an email from Mr Barber which stated as follows: "We note that the above matter is listed for hearing tomorrow at 9.15am. The writer is in no condition medically to be able to proceed with the hearing. The writer suffered from positional vertigo recently and still nursing the terrible effect of nausea, headaches and muscles aches. Accordingly, We seek to adjourn the matter for approx. six (6) weeks hoping for full recovery. Please find attached medical certificate for your records."
The attached medical certificate stated: "THIS IS TO CERTIFY THAT Mr Tony Barber has a medical condition and will be unfit to Attend Court from 20/06/2023 to 23/06/2023 inclusive."
The Registry responded to Mr Barber at 2.49pm as follows: "Your request to adjourn the Tribunal hearing has been received too late to be determined by a Tribunal Member prior to the hearing. You should attempt to contact the other party to seek their written consent to the adjournment. Your request will be considered on the day of the hearing and you will be notified in writing of the Tribunal's decision."
The homeowners appeared at the hearing on 22 June 2023. There was no appearance for Mr Marta or the Building Company. The homeowners opposed the adjournment application.
The Tribunal refused the adjournment application. Its reasons were, in summary: 1. the information in the medical certificate was inadequate to support the adjournment application and was of limited probative value. The Tribunal noted that the certificate did not provide any information as to why Mr Barber's medical condition would prevent him from attending the Tribunal for three days; 2. there was no reason why Mr Marta, being the Building Company's director and a party, failed to attend the hearing; 3. no materials had been filed by Mr Marta or the Building Company in defence of the application; and 4. Mr Marta and the Building Company had received notice of the hearing.
At the hearing, the Tribunal joined the second respondent as an applicant.
The Tribunal considered the homeowners' evidence, including an expert report of Mr Bleeker of South West Property Inspections, an expert report of Mr Brook of Southern Independent Building Inspections, a defects schedule, a home building contract and a Scott Schedule prepared by Mr Brook. It also heard brief oral evidence from each of the homeowners, which it accepted, and brief oral evidence given by Mr Brook.
Mr Brook identified in his report a number of defects which were broadly concerned with inadequate waterproofing. He expressly identified many of these as being major defects.
The Tribunal made a finding, which has not been challenged, that the work was completed in September 2020. This means that, by operation of s 18E of the Home Building Act 1989 (NSW), the warranty period for a breach that did not result in a major defect in residential building work expired in September 2022, about three months before the first respondent commenced proceedings for breach of a statutory warranty.
The Tribunal stated that it was satisfied on the evidence that all the claimed items in the Scott Schedule were major defects as defined in s 18E of the Home Building Act. It referred in support of this conclusion to Mr Brook's opinions given in his report, providing specific references. The Tribunal was accordingly satisfied that it had jurisdiction to determine the homeowners' building claims.
In its reasons, the Tribunal expressed itself to be satisfied, on the uncontested expert evidence of Mr Bleeker and Mr Brook, that the Building Company's work the subject of the defects set out in the Scott Schedule was not done with due care and skill and in accordance with the plans and specifications set out in the Contract, or in compliance with the Home Building Act. That finding uses the language of the statutory warranty in s 18B(1)(a) of the Home Building Act (the "care and skill warranty").
The Tribunal's finding that the work was done in breach of the care and skill warranty has not been challenged.
The Tribunal ordered the Building Company to pay the homeowners the sum of $146,751.03 by 6 July 2023.
The Building Company filed a Notice of Appeal, and an application for a stay of the order that it pay the homeowners the sum of $146,751.03, on 6 July 2023.
The Appeal Panel stayed that order on 6 October 2023.

[5]

Appeal grounds

The appellant was granted leave to amend its appeal grounds on 6 October 2023. The amended appeal grounds and orders sought are as follows: "First question of law: procedural unfairness [Ground 1] The first question of law is whether the Tribunal's decision to refuse the appellant's adjournment request at the hearing of this matter constituted procedural unfairness. The appellant says that it did constitute procedural unfairness and was therefore an error of law. Second question of law: miscarrying of discretion [Ground 2] The second question is whether the Tribunal's decision to refuse the appellant's application failed to take into account a material consideration, namely the description of the medical condition contained in Mr Barber's email dated 21 June 2023 received by the Tribunal at 2.40pm that day. The appellant says that the Tribunal description of the medical condition was a material consideration that the Tribunal in error, failed to take into account and one that led to the miscarrying of the discretion. Third question of law: construction of the contract [Ground 3] The third question of law is whether GMI Construction Pty Ltd was a party to the relevant contract. The decision of the Tribunal proceeded on the basis that the Home Building Contract between 'the applicants and the Builder on 28 August 2019' was between the [sic] Amin Keshavarz and Sara Ghafoori and GMI Construction Pty Ltd. The contract was in fact between Amin Keshavarz and Sara Ghafoori and Imad Marta. The appellant says that the Tribunal necessarily and in error construed the contract on the incorrect basis that GMI Construction Pty Ltd was the Builder. Fourth question of law: lack of jurisdiction [Ground 4] The fourth question of law was whether the Tribunal had jurisdiction to determine the alleged breaches of statutory warranty and damages comprising items 2, 4, 5, 6, 7, 9, 11 and 12 in the absence of evidence that they were major defects. The appellant says that items 2, 4, 5, 6, 7, 9, 11 and 12 were not major defects and the Tribunal did not have jurisdiction in relation to those items. Fifth question of law: no evidence [Ground 5] The fourth [sic] question of law was whether there was any evidence to support the finding that items 2, 4, 5, 6, 7, 9, 11 and 12 were major defects. The appellant says that there was no such evidence. Orders sought The appellant seeks orders that the decision under Appeal be quashed or set aside and remitted to a differently constituted Tribunal to be determined afresh. Alternatively it seeks an order that the money order be varied."
The first and second grounds of appeal concern the Tribunal's decision to refuse the appellant's adjournment application. This is an interlocutory decision (see definition of "interlocutory decision" in s 4(1) of Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act")). The Building Company needs leave to appeal an interlocutory decision (see NCAT Act, s 80(2)(a)).
The principles to be applied when deciding whether to grant leave from an interlocutory decision are to be derived from the principles applicable to leave applications in courts: Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35]. These principles include that leave should only be granted where there are substantial reasons to allow an appellate review; that circumstances justifying leave may be an error of principle resulting in substantial injustice; and that leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body.
The principles applicable to the grant of leave to appeal set out in Collins v Urban [2014] NSWCATAP 17 are also relevant (see Ghazal v Masterton Homes Pty Ltd [2018] NSWCATAP 227 at [35]). As summarised by the Appeal Panel in Ghazal at [35], those principles are: "Ordinarily, it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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."
The fourth ground of appeal concerns the Tribunal's decision that it had jurisdiction. That is "a decision concerning whether the Tribunal has jurisdiction to deal with a matter" and, in our opinion, is not an interlocutory decision, so is properly characterised as an ancillary decision (see NCAT Act, s 4(1), definition of "ancillary decision").
We are satisfied that each of the third to fifth grounds of appeal raise a question of law, such that leave to appeal is not required (NCAT Act, s 80(2)(b)). We have considered these grounds first, because they do not require leave.

[7]

Relevant legislative provisions

Section 48K of the Home Building Act is headed "Jurisdiction of Tribunal in relation to building claims." Subsection 48K(7) provides (and provided at all relevant times): The Tribunal does not have jurisdiction in respect of a building claim arising from a breach of a statutory warranty implied under Part 2C if the date on which the claim is lodged is after the end of the period within which proceedings for a breach of the statutory warranty must be commenced (as provided by section 18E).
The term "building claim" is relevantly defined in s 48A(1) to include a claim for the payment of a specified sum of money that arises from a supply of building goods or services, with certain inapplicable exceptions.
Section 18E of the Home Building Act relevantly provides: 18E Proceedings for breach of warranty (1) Proceedings for a breach of a statutory warranty must be commenced in accordance with the following provisions - (a) proceedings must be commenced before the end of the warranty period for the breach, (b) the warranty period is 6 years for a breach that results in a major defect in residential building work or 2 years in any other case, (c) the warranty period starts on completion of the work to which it relates (but this does not prevent proceedings from being commenced before completion of the work), (d) if the work is not completed, the warranty period starts on - (i) the date the contract is terminated, or (ii) if the contract is not terminated - the date on which work under the contract ceased, or (iii) if the contract is not terminated and work under the contract was not commenced - the date of the contract, (e) if the breach of warranty becomes apparent within the last 6 months of the warranty period, proceedings may be commenced within a further 6 months after the end of the warranty period, (f) a breach of warranty becomes apparent when any person entitled to the benefit of the warranty first becomes aware (or ought reasonably to have become aware) of the breach. … (4) In this section - major defect means - (a) a defect in a major element of a building that is attributable to defective design, defective or faulty workmanship, defective materials, or a failure to comply with the structural performance requirements of the National Construction Code (or any combination of these), and that causes, or is likely to cause - (i) the inability to inhabit or use the building (or part of the building) for its intended purpose, or (ii) the destruction of the building or any part of the building, or (iii) a threat of collapse of the building or any part of the building, or … major element of a building means - (a) an internal or external load-bearing component of a building that is essential to the stability of the building, or any part of it (including but not limited to foundations and footings, floors, walls, roofs, columns and beams), or (b) a fire safety system, or (c) waterproofing, or (d) any other element that is prescribed by the regulations as a major element of a building.

[8]

Jurisdictional issue

By Ground 4, the Building Company alleges that the Tribunal did not have jurisdiction in respect of some of the homeowners' building claims. Its argument is that the majority of the defects found by the Tribunal were not major defects, contrary to the Tribunal's finding, meaning that the homeowners only had two years to bring a claim in respect of those defects (not six) and the proceedings were to that extent out of time.
The Tribunal was required to satisfy itself that it had jurisdiction to determine the homeowners' building claims. As White JA observed in Dyldam Developments Pty Ltd v Owners - Strata Plan 85305 (2020) 104 NSWLR 19 at [45] (Emmett AJA and Simpson AJA agreeing): "The Tribunal does not have jurisdiction to determine a building claim that is brought outside the limitation period for the bringing of a claim (s 48K(7)), but does have jurisdiction in respect of a building claim brought within the limitation period (s 48K(1) and (2)). The first obligation of a court is to be satisfied that it has jurisdiction to decide the claim brought before it: M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Sydney, Federation Press) pp 37ff. That is also the obligation of a tribunal. Because the Tribunal's jurisdiction depends upon whether or not the claim has been brought within time, the Tribunal has jurisdiction to determine that question: Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213 at [12]-[15], [72], [74].
As Walton J stated in Secretary of Ministry of Health v New South Wales Nurses and Midwives' Association (2022) 320 IR 249; [2022] NSWSC 1178 at [174], with reference to Dyldam Developments, "[t]o put it simply, the Tribunal could not proceed to hear and determine the building claim until and unless it was satisfied that it had jurisdiction within ss 48K(1)-(2) that was not denied by s 48K(7)."
The Tribunal did satisfy itself that it had jurisdiction in this case. The question raised by the Building Company was whether it erred in so doing. The Tribunal's decision on the question of jurisdiction is not conclusive and may be challenged on appeal (see Bailey v Owners Corporation Strata Plan 62666 [2011] NSWCA 293 at [55]).

[12]

Evidentiary obstacle to establishing grounds 4 and 5

The Appeal Panel has not been provided with a transcript or sound recording of the hearing before the Tribunal. On 19 July 2023, the Building Company was directed by the Appeal Panel (differently constituted) to lodge with the Appeal Registry and provide to the homeowners by 9 August 2023: "If what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing." The "Index to Appellant Bundle Documents" has an entry for "Transcript of NCAT Proceedings" next to which appear the words "To be added." However, the transcript was not included in the bundle and was not added to it.
The Appeal Panel cannot be satisfied that the Tribunal did not have jurisdiction in relation to some of the homeowners' building claims, on the basis that certain defects are not "major defects," in circumstances where the oral evidence before the Tribunal may have been relevant to determining this. In this case, the homeowners put before the Tribunal expert evidence relevant to every defect, discussed below, which the homeowners' oral evidence, and Mr Brook's oral evidence, may have supplemented.
The Tribunal was entitled to form its opinion about whether a major defect exists on the basis of expert evidence and was not required to rely upon evidence from the homeowners directly, but that evidence could be taken into account (Stevenson v Ashton [2019] NSWSC 1689 at [74]). Even if the Tribunal did not expressly rely upon oral evidence for its findings about whether the defects were "major defects," the oral evidence could be relevant to our conclusion about whether the Tribunal's determination that it had jurisdiction was correct. It may have helped to establish, for example, in combination with the expert evidence, that each of the defects associated with the items set out in the Scott Schedule caused the inability to inhabit or use parts of the home.
For obvious reasons, we cannot be satisfied that the "no evidence" ground is established in circumstances where we do not have before us all the evidence which was before the Tribunal.
That is, in our view, sufficient to dispose of Grounds 4 and 5. However, in case we are wrong about this, we have proceeded to consider whether, on the basis of the documentary evidence which was before the Tribunal and which has been provided to us, the Tribunal was in error in concluding that it had jurisdiction to hear and determine the homeowners' building claims.

[13]

Correct approach to jurisdictional issue

As indicated above, s 18E of the Home Building Act requires "proceedings for a breach of a statutory warranty" to be commenced within a specified period (the "warranty period"), the length of which depends upon whether the breach in question results in a major defect in residential building work. Section 48K of the Home Building Act expressly deprives the Tribunal of jurisdiction in respect of a building claim arising from a breach of a statutory warranty if the claim is lodged after the end of the warranty period.
There is a question as to the level of generality at which these provisions are to be approached. The homeowners commenced only one set of proceedings for a breach of a statutory warranty, being the care and skill warranty. That breach resulted in at least one major defect, as the Building Company appears to acknowledge. We note that the Building Company does not challenge the Tribunal's findings that some of the items in the Scott Schedule (items 1, 3, 8 and 10) "were" major defects. Each of the defects which has not been challenged was found to be a "defect in a major element of a building" (being waterproofing) "that is attributable to defective design, defective or faulty workmanship, defective materials, or a failure to comply with the structural performance requirements of the National Construction Code (or any combination of these)" and which causes, or is likely to cause, one of the outcomes in (i) to (iii) of the definition of "major defect" (a "statutory outcome").
On one view, the circumstance that a defect in waterproofing caused a statutory outcome means that "the warranty period is 6 years for a breach that results in a major defect in residential building work" within s 18E(1)(b) in relation to all the "particular deficiencies" in the work which result from defects in waterproofing (to use the language of s 18E(2)). In other words, it may be that s 18E(1) does not require an analysis of each defective piece of workmanship, or each particular breach of a statutory warranty, to determine whether the 6-year period applies. Rather, if a breach of a statutory warranty results in a defect in a particular "major element of a building" (such as waterproofing) which is a "major defect," the 6-year period will apply to the proceedings as a whole, or at least to every claim relating to the breach of the particular statutory warranty which has resulted in a major defect.
On this construction of s 18E, it may be that the "building claim" to which s 48K(7) refers is the claim made in the proceedings as a whole for payment of a lump sum, and not to claims for individual items of damage. That interpretation would appear to be supported by s 48K(1), which provides a monetary limit for a "building claim" of $500,000.
An alternative construction, upon which the Building Company's submissions appear to be based, is that s 18E requires an analysis of each deficiency in the work to determine whether the 6-year or 2-year warranty applies to that particular deficiency. On this construction, the "building claim" to which s 48K(7) refers (adopting a harmonious construction of the provisions) might be understood to be the claim for money which is referable to a particular defective item, such that one proceeding might involve numerous building claims, and the Tribunal may have jurisdiction in relation to some but not others.
As this constructional issue was not argued, we have not determined it. We have assumed, favourably to the Building Company, that there may be different warranty periods for the same type of breach of warranty (such as the care and skill warranty), in relation to building work, and that it is necessary to analyse each defect in a major element of a building (such as waterproofing) separately, if the warranty has been breached in different ways. In other words, we have assumed that we are required to consider whether a failure of waterproofing of a particular window constitutes a major defect, to determine the warranty period applicable to the building work associated with that window, then to consider separately whether a failure of waterproofing of the roof also constitutes a major defect, for the purpose of determining the warranty period applicable to the work associated with waterproofing the roof.
We do not, however, consider that the question of whether "a breach [of a statutory warranty] … results in a major defect in residential building work," for the purposes of s 18E(1)(b), is properly approached by considering whether each item in a Scott Schedule "is" a major defect.
The Building Company's submissions appeared to assume that the Tribunal was required to consider whether each item in the Scott Schedule constituted a major defect. Whilst an item in a Scott Schedule may in some circumstances identify a major defect, it is important to note that there may be a distinction between "a defect in a major element of a building" (within the definition of "major defect" in s 18E(4), paragraph (a)) and damage caused by that defect. As indicated above, one meaning of "major element of a building" is "waterproofing." There may be a defect in waterproofing which causes damage to other parts of the building (such as damage to a ceiling). In this case, the relevant question is not necessarily, or not only, whether the damage to the ceiling causes, or is likely to cause, a statutory outcome, but rather whether the defect in waterproofing is likely to do so. It is only if the ceiling is also a major element of a building, that it may be relevant to ask (additionally) whether the damage in the ceiling causes or is likely to cause a statutory outcome.

[14]

Item 2

Item 2 in the Scott Schedule is described as "repair water damaged ceiling due to water ingress from bed 2 window." Item 1 (which the Building Company accepts "is" a major defect) is described as "Rectify the lack of flashings to bed 2 window." The "defect in a major element of a building" to be considered for both items is a defect in waterproofing (here, of the bedroom 2 window).
In relation to Item 1, Mr Brook found that the "missing bed 2 window flashing" had "resulted in the evident failure of the RHS hallway load bearing frame" (report, page 10). He found that the water damage in the front entry rendered "the area of the entry unsuitable for use of its intended purpose" and that this was a "major defect."
Mr Brook stated in relation to Item 2 (at page 12 of his report): "The event water ingress has resulted from the lack of flashings to the above noted window of bed 2. The water ingress will result in damage wall framing and structural members. This is a major defect as defined in the Home building Act 1989 Sect 18E part (4) (a) (i) (ii) and (iii)."
At the conclusion of his report, Mr Brook stated (page 54): "8.2 It is my expert opinion that exterior roof of this dwelling requires complete replacement with the front balcony requiring strip and refit due to water ingress and damage. 8.3 The interior entry ceiling has failed from water damage and requires replacement. 8.4 The stairwell window has no seals to the window glass and requires replacement. 8.5 External windows require removal and flashing installed. 8.6 The above defective works have directly resulted in failure of the entry ceiling with additional water ingress in contact with structural framing elements which will result in failure of the framing elements which [sic] the existing entry not suitable for its intended purpose and failure of the internal ceiling. This is a 'major defect' as outlined in the Home building Act 1989 Sect 18E part (4) (a), (i), (ii) and (iii)."
In our view, Mr Brook's expressed opinions in the body of his report, referred to above, taken with his comments at [8.3] to [8.6], constitute evidence that the defect giving rise to the damage identified in item 2 of the Scott Schedule is a major defect. First, Mr Brook has identified it as such, with reference to s 18E(4)(a)(i) to (iii). That is a shorthand way of expressing an opinion that each of those sub-paragraphs applies to the defect, or that at least one of them does. Secondly, Mr Brook stated that the defect has resulted in an area of the house becoming unsuitable for use of its intended purpose. Thirdly, the Building Company has not challenged the finding that the lack of flashings in the window in bedroom 2 which require rectification (item 1) is due to a major defect (being the defective waterproofing of the windows of bedroom 2). According to Mr Brook, that major defect has caused the water damaged ceiling. Fourthly, it may be inferred from Mr Brook's opinion that the "water ingress will result in damage wall framing and structural members" in relation to Item 2 that the defect is likely to cause the inability to inhabit or use a part of the building for its intended purpose.

[15]

Item 4

The Building Company has described Item 4 in the Scott Schedule as being "rectify window reveals to bed 2 window." However, it is in fact described in that schedule as "rectify water ingress past the flashing to the rear family room." Due to the Building Company's reference to the bed 2 window, it is not plain to us whether this item (with the correct description) is challenged.
If the Building Company is challenging a requirement relating to failures of waterproofing in the window to bedroom 2, this is a major defect, for reasons given above.
Assuming that the Building Company is challenging the Tribunal's conclusions about item 4, Mr Brook stated in his report at page 17 in relation to Item 4: "The builder has failed to install anti capillary breaks over the parapet flashing in accordance with the 2019 NCC volume 2 section 3.5.1.6a which is allowing water ingress of the family room and wall framing and will damage the structural wall framing. This is a major defect as defined in the Home building Act 1989 Sect 18E part (4) (a) (i) (ii) and (iii)."
Mr Brook's expressed opinion that the failure to install anti capillary breaks over the parapet flashing is a major defect within s 18E(4)(a)(i) to (iii), taken with his comments in his conclusions at [8.2] to [8.6] of his report, quoted above, provides evidence that the defective waterproofing here is a major defect. Although he has not given detailed reasons for his conclusion, it is expert evidence that the defect has caused a statutory outcome. Further, it may be inferred from Mr Brook's opinion that the defect is allowing water ingress of the family room that this causes or is likely to cause the inability to inhabit or use part of the building (being the family room) for its intended purpose. It may also be inferred from his opinion that the water ingress "will damage the structural wall framing" that the defect is likely to cause a threat of collapse of part of the building. We note that s 18E(4) does not require any degree of imminence to the damage (Stevenson v Ashton [2019] NSWSC 1689 at [76]).
Taken with the homeowners' lay evidence, discussed below, the expert evidence establishes that breach of the care and skill warranty, by failing to install anti capillary breaks over the parapet flashing, has resulted in a major defect.

[19]

Item 9

Items 8 and 9 are described together in the Scott Schedule as "roof sheeting, instal [sic] missing flashings to the roof exterior." The Tribunal's jurisdiction and findings in relation to the building claim referable to Item 8 are not challenged.
Mr Brook has stated in relation to Item 8 at pages 24-25 of his report: "No anti capillary breaks or flashing installed to the front roof exterior to the LHS of the veranda allowing water ingress of the front upper LHS wall with previous attempted repairs and silicone evident. … The builder has failed to install anti capillary breaks or flashings over the parapet flashing which is allowing water ingress of the front entry that has resulted in failure of the internal ceiling of the entry. This is a major defect as defined in the Home building Act 1989 Sect 18E part (4) (a) (i), (ii) and (iii)."
In relation to item 9, Mr Brook stated in his report at pages 28-29: "All external roof flashings and roof sheeting are damaged have inadequate overlap and have been cut to allow fitment resulting in additional damage and corrosion. … The builder has failed to install the flashings with due care or skill that is resulting in water ingress and damaged flashing with all flashings requiring replacement. This is a major defect as defined in the Home building Act 1989 Sect 18E part (a)."
In our view, the deficiencies identified in Items 8 and 9 are properly considered to be caused by the same defect, being a defect in waterproofing of the roof. As such, as implicitly acknowledged by the Builder, this has caused a statutory outcome (the failure of the internal ceiling of the entry, being the destruction of part of the building, and resulting in the inability to inhabit or use part of the building).
If, on the other hand, the deficiencies in Item 9 are caused by a different defect from those in Item 8, contrary to our view, that defect could be described as defective waterproofing associated with the badly installed and damaged flashings on the roof. We consider this to be a major defect.
For reasons given above, we find that Mr Brook's expressed opinion that the defective waterproofing associated with the badly installed and damaged flashings constitutes a major defect within s 18E part (a), taken with his conclusions in [8.2] to [8.6] of his report, constitutes evidence that this defect is a major defect. His conclusion is supported by his opinion that the defect has resulted in water ingress. As Mr Brook stated in [8.6] of his report, the defects allowing water to enter the roof (and other defects) "have directly resulted in failure of the entry ceiling with additional water ingress in contact with structural framing elements which will result in failure of the framing elements which [sic] the existing entry not suitable for its intended purpose and failure of the internal ceiling." That is capable of supporting the conclusion that the defective waterproofing was likely to cause "the inability to inhabit or use the building (or part of the building) for its intended purpose," "the destruction of the building or any part of the building" and "a threat of collapse of the building or any part of the building."
The homeowners' lay evidence also supports that conclusion.

[22]

Homeowners' lay evidence

As is apparent from our remarks above, we do not accept the Building Company's submission that Mr Brook's report was the only evidence that the defects caused or were likely to cause one of the statutory outcomes. There was an expert report by Mr Bleeker which was relevant and which broadly supported many of Mr Brook's opinions. There was also evidence of a Fair Trading rectification order.
Most relevantly, the homeowners provided annotated photographs of the damage. These include photographs stated to have been taken in March 2022 headed "ceiling crack from rain" showing ceiling cracks from rain in February to March 2022. The photographs show cracks in a ceiling stated to be the front living room. Further photographs show large holes in the ceiling of the front living room with beams exposed, accompanied by a comment: "Leaking from windows upstairs and roof caused main structural beam of the front room become wet with excessive water." It may be inferred from these photographs that the waterproofing defects caused the inability to inhabit or use the living room for its intended purpose, or at least that the waterproofing defects were likely to do so.
Photographs stated to show "leaking under window bedroom upstairs" as well as mould near that window provide visual evidence of the leak from that window caused by the ineffective waterproofing. Other photographs depicted leaking through the carpet in the upstairs bedroom. The photographs supported the conclusion that the poor waterproofing had either caused, or was likely to cause, the inability to inhabit or use that part of the building for its intended purpose.
Other photographs of other rooms and areas demonstrated widespread damage throughout the home caused by inadequate waterproofing. The photographs demonstrated that the homeowners were unable to inhabit or use parts of the building for its intended purpose. It was not suggested by the Building Company that these photographs did not depict the damage they were said to depict. Taken with the expert evidence, this was sufficient to establish that each defect in question caused a statutory outcome and was thus a "major defect."
We consider that it was open to the Tribunal to conclude, on the basis of all of the documentary evidence including the photographic evidence, that each of the defects was a "major defect." We also consider that conclusion to be correct. We are accordingly satisfied that the Tribunal had jurisdiction to determine the homeowners' building claims.
For these reasons, we dismiss Appeal Grounds 4 and 5.

[23]

Ground 3: Construction of the Contract

The third appeal ground is that the Tribunal erred in finding that the Building Company was a party to the contract. The Building Company contends that Mr Marta was a party, but the Building Company was not.
The homeowners submitted that the Tribunal was correct to find that the Building Company was the party to the contract. The homeowners stated that "the contract, home warranty insurance, invoices, payments, and correspondences were all with" the Building Company. They sought to rely upon evidence of invoices, receipts and emails, being evidence which was not before the Tribunal.
Mr Davie, for the Building Company, submitted that in accordance with conventional principles, post-contract documentation (such as invoices) is not of assistance in determining what a contract says, unless it is an oral contract, which this contract is not. He relied upon Leeming JA's decision in BH Australia Constructions Pty Ltd v Kapeller [2019] NSWSC 1086. In that decision, after an extensive review of the relevant authorities, Leeming JA concluded (at [90]): "With great respect to the broader statements in the cases referred to above, to the effect that post-contractual evidence may be used to identify the parties, I do not think that is so in the case of a contract which is wholly written and which is not said to be a sham or to involve fraud or is sought to be rectified in equity."
We accept, in accordance with his Honour's remarks, that post-contractual evidence in not relevant to establishing the identities of the parties to the contract. Accordingly, we have decided not to admit the homeowners' evidence of post-contractual invoices and other documents. It is not relevant to the construction of the contract. Nor have we had regard to evidence before the Tribunal of post-contractual conduct (such as the issue of the home warranty insurance certificate). We have proceeded on the basis that "the post-contractual conduct must be disregarded, except insofar as it bears upon some relevant aspect of the pre-contractual purpose or context" (BH Australia Constructions Pty Ltd v Kapeller [2019] NSWSC 1086 at [118]).
The issue of the correct contracting party was not raised, as far as the material before the Appeal Panel discloses, in the proceedings below. Had it been raised by the Building Company then, the homeowners would have had an opportunity to provide evidence of the pre-contractual purpose or context, relevant to construction of the contract.
The Building Company and Mr Marta were directed by the Tribunal on 16 January 2023 to provide to the homeowners and the Tribunal all documents on which they intended to rely at the hearing by 27 March 2023. A notation to the order stated: "The documents to be provided will always include on the part of a respondent or cross-respondent a brief outline of the defence, the reasons for opposing the claim …" The Building Company and Mr Marta did not comply with that direction. They did not provide any evidence, or any outline of their defence, or any reasons for opposing the claim. The Building Company could have filed a document opposing the claim on the basis that it was not a party to the contract, but did not do so. It could also have opposed its joinder to the proceedings on that basis, but (as far as the material before us discloses) did not do so.
In these circumstances, and in circumstances where it did not attend the hearing through an agent or officer, it would not be fair for the Building Company to be permitted to make this argument on appeal. That would unfairly prejudice the homeowners. As Leeming JA observed in Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57 at [37], in the context of an appeal to the Court of Appeal: Parties do not have an unrestricted right to present a new argument for the first time on appeal, even though an appeal to this Court is by way of rehearing. A new point cannot be taken on appeal where, had the issue been raised in the court below, evidence could have been given which "by any possibility" could have prevented the point from succeeding: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35; Coulton v Holcombe (1986) 162 CLR 1 at 7-8; [1986] HCA 33; Water Board v Moustakas (1988) 180 CLR 491 at 497; [1988] HCA 12. If on the other hand there is a pure question of law, even one which was not even obliquely raised at first instance, there are occasions when it is appropriate to let that be advanced for the first time on appeal (noting this may be a basis for a departure from the ordinary rule that costs follow the event). A recent example is Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62, where the point belatedly taken would inevitably arise in future disputes between the same parties.
The same principles have been applied in appeals before the Appeal Panel: see Gill v The Owners - Strata Plan No. 17913 [2024] NSWCATAP 37 at [46]; Udy v Tilley [2018] NSWCATAP 89 at [34]; Drivas v Burrows [2014] NSWCATAP 87 at [31]-[33].
The identity of the proper party to the contract is not a "pure question of law." It may depend in part upon factual findings as to the parties' pre-contractual purpose or context. The Building Company's failure to raise this issue before the Tribunal is a sufficient reason to reject Appeal Ground 3.
In case we are wrong about this, however, we have considered whether the Tribunal erred in finding that the contracting party was the Building Company.
The Building Company submitted that the correct party was Mr Marta because: 1. The name "Imad" appears beside the words "Contractor's signature" on the page of the contract headed "The contract starts here"; 2. Mr Marta's name appears in the contract as the name of the contractor; 3. Beneath the place to insert the contractor's name is a note that says: "Note: Where the owner of the contractor is a company or partnership or the contract is to be signed by an authorised agent of the owner, the capacity of the person signing the contract, eg director, must be inserted." There was no such insertion. 4. In the checklist included in the contract, where it states, "Have you checked the contractor holds a current contractor licence," the box marked "Yes" is ticked, as is the box beside the words, "Is the name and number on the contractor's licence the same as on the contract?" The licence number appearing on the contract is Mr Marta's licence number.
Whilst the licence number appearing on the contract may be Mr Marta's licence number, the Building Company has not pointed to any evidence before the Tribunal establishing that as a fact. Otherwise, we accept that the above factors point to the contracting party being Mr Marta.
There are, however, conflicting indications in the signed contract as to the identity of the builder-party. The cover page has the Building Company's name in bold and in large type face. It is hard to see why its name would feature on the contract in that way if it were not a party. The cover page also includes, in smaller type, an ABN and ACN. Whilst the contract is stated to start on a page after the cover page, the cover page is numbered 1 and the pages thereafter are numbered consecutively, and it is initialled apparently by the homeowners and Mr Marta. Further, under the "Contractor name" on the page headed "Owner and Contractor details" appears, amongst other details, an Australian Company Number. This could indicate that Mr Marta has been named as the agent for the company (or the person performing the work, but not the contracting party).
Mr Marta's affidavit, which was relied upon by the Building Company in support of its stay application, does not assist. In that affidavit, Mr Marta states that the Building Company was not a party to the contract. Mr Marta's subjective opinion is not relevant to the question of whether, objectively construed, the Building Company was a party to the contract.
On balance, we consider that it was open to the Tribunal, given the conflicting indications in the contract, to find that the contracting party was the Building Company.
Further, we could not be satisfied that the Tribunal erred as alleged in Appeal Ground 3 in circumstances where we have not been provided with a transcript of the oral evidence given at the Tribunal hearing. That evidence may have identified "some relevant aspect of the pre-contractual purpose or context" (Kapeller at [118]). It may be that that evidence provided support for the conclusion that the Building Company was the contracting party.
For these reasons, we have dismissed Appeal Ground 3.

[24]

Grounds 1 and 2: Procedural fairness and Miscarrying of discretion

The Building Company's first ground of appeal is that the Tribunal's decision to refuse its application for an adjournment denied it procedural fairness. Its second ground is that the Tribunal's discretion miscarried when making that decision because it failed to take into account the description of the medical condition contained in Mr Barber's email. We have decided to deal with both grounds together.
As indicated above, the Building Company needs leave to appeal on the first two grounds because they challenge an interlocutory decision (NCAT Act, s 80(2)).
A failure to accede to a reasonable request for an adjournment may, in some circumstances, constitute procedural unfairness (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, French CJ at [21], Hayne, Kiefel and Bell JJ at [48]). That is because procedural fairness requires that a person be given a reasonable opportunity to be heard (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]). However, an appellate body "should be slow to interfere with decisions to grant or refuse an adjournment unless injustice is demonstrated" (Austin v Dwyer [2023] VSCA 227 at [47]).
The refusal of the Building Company's request for an adjournment was not unreasonable and did not deny it procedural fairness. The Building Company's solicitor was promptly informed, when he made the request by email the afternoon before the hearing, that the adjournment request would be considered on the day of the hearing. The Building Company was therefore on notice that the adjournment application would be considered at the hearing and that it may be refused, in which case the hearing would proceed. It could have attended the hearing through a director, such as Mr Marta, an agent, or another solicitor. It did not do so.
The adjournment request was not "reasonable" in that, as the Tribunal found, it was not supported by satisfactory evidence. The medical certificate stating that the respondents' solicitor was ill did not "address the 'critical question whether, and if so why, the medical condition would prevent the [solicitor] from travelling to the Court and participating effectively in a court hearing'" (Bobolas v Waverley Council [2016] NSWCA 139; (2016) 92 NSWLR 406 at [221]). Further, even if the medical certificate had explained this, which it did not, there was no evidence before the Tribunal to explain why the Building Company itself did not attend.
The Building Company submitted that the email sent by the solicitor constituted evidence of his illness which the Tribunal should have taken into account. The solicitor's description in that email of his medical condition was said to be a "material consideration" that the Tribunal failed to take into account, leading to the miscarrying of its discretion.
The Tribunal set out the solicitor's email in full and later referred to it in its reasons. It did not fail to take it into account. It commented upon the apparent inconsistency between the email and the medical certificate.
An email to a Tribunal registry is not evidence and its contents in this case are not, in our view, a "material consideration." In any event, as the Tribunal noted, the solicitor's illness did not prevent the Building Company itself from attending the hearing. We are not persuaded that the Tribunal's discretion miscarried, as alleged.
We have decided not to grant leave to the appellant to appeal from the interlocutory decision refusing its adjournment application. The Building Company has not identified an injustice that is reasonably clear, or any other proper basis for granting leave.

GMI Construction Pty Ltd v Keshavarz

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