This appeal arises out of a decision published 21 June 2022 (the "Decision") concerning a dispute between homeowners (now the Respondents) and a builder (now the Appellant) arising out of a contract regulated by the Home Building Act 1989 (NSW) (the HB Act). The Tribunal was exercising its jurisdiction under that Act. The Tribunal made orders for the Appellant to undertake certain work, as identified in order 1, and made an order that the respondent below (now the Appellant) was to pay the Applicants' (ie. the current Respondents) costs of the proceedings as agreed, or as assessed, subject to directions concerning submissions called for by directions numbered 3, 4 and 5.
On or about 19 July 2022, the Appellant lodged a Notice of Appeal.
In order to understand the basis for the appeal, it is necessary to summarise the Decision, which is done in the following paragraphs.
[2]
Summary of Decision at First Instance
By a contract dated 10 May 2017 (described as a Simple Works Contract in the Australian Building Industry standard form), it was agreed that the Appellant would undertake alterations and additions to the Respondents' dwelling: see [5] of the Decision.
The work, the subject of the contract included excavation and construction of a lower ground floor including storage, study, media and games rooms, the removal of an existing bathroom and ensuite and reconstruction of the bathroom and ensuite with new tiling, the construction of a concrete suspended deck at the rear of the property and supplying and laying tiles to the lower patio area [6]. The work commenced on or about 15 May 2017 and practical completion was achieved on 11 October 2018 [7].
In late 2018 or early 2019, the Respondents raised with the Appellant the proposition that marble tiles installed by the Appellant in the main bathroom were discoloured. In April 2019, the Respondents engaged Mr Nicholas Joannides of Partridge Remedial Pty Ltd to provide a report concerning the discolouration of floor tiles in the main bathroom and, in addition, alleged water seepage and water ingress [8]. Mr Joannides supplied a report dated 1 May 2019, in which he made certain conclusions concerning water ingress [9]. The Appellant retained Mr Chris Zervos of CRD Building Consultants & Engineers to prepare a response to Mr Joannides' report [11].
On 29 May 2019, an inspector from Fair Trading NSW attended the site and on 31 May 2019 Mr Kerin, an inspector from Fair Trading NSW issued a rectification order. On 13 June 2019 Fair Trading issued a notice of completion of the rectification order [14] and, on the same day, the Respondents emailed Mr Kerin suggesting that there was still water ingress. Mr Kerin attended the site on 14 June 2019 and, on the following day, issued an email to the parties, which included a statement that "At present there is water ingress which needs to be fixed" [15]. Around this time the Respondents retained Mr Poole of Hydromedial Consulting to provide advice and investigate the cause of water ingress into the main bathroom and lower area [16]. Mr Poole produced a report completed on 16 October 2019, in which he concluded that, in respect of the bathroom, the cavity masonry walls did not incorporate a compliant dampproof course [18]. His report stated that the cause of the defect in the waterproofing membrane was related to "insufficient surface preparation, non-compliant application and ground subsidence caused by a delay in the connection of a downpipe to a stormwater drainage point outside the affected corner of the bathroom" [19]. He also expressed the opinion that there were multiple major defects in relation to the tiled balcony. The Decision contains extracts of further conclusions made by Mr Poole concerning the work of the Appellant.
At [23], the Decision stated that the evidence disclosed that Mr Poole had undertaken the removal of the tiles and screed in the bathroom to expose the waterproof membrane. The Appellant had not been invited to attend or permitted to have its own expert observe the removal of the tiles and screed. Photographs produced by Mr Poole showed that there was a hole in the membrane. The Respondent maintained that the hole in the membrane was caused by Mr Poole removing the tiles and screed and that the existence of the hole in the membrane was not evidence of defective work [23].
Subsequently, there were communications between the parties and a further complaint lodged with Fair Trading NSW. Fair Trading NSW issued a further rectification order on 18 February 2020 [33]. The Decision records the work required to be undertaken by the terms of the rectification order.
On 19 February 2020, Mr Pearson, solicitor for the Appellant, wrote to the Respondents concerning the rectification order issued on 14 February 2020 (note: the date of the order is recorded as 18 February 2020 at [33] and 14 February 2020 at [35]). Mr Pearson's communication stated that his client (the Appellant) will comply with the terms of the rectification order.
The Decision then records communications between the parties concerning how and when the work required by the rectification order would be undertaken.
The Decision records that on 10 April 2020, the Appellant forwarded to Mr Daniel of Fair Trading NSW a report concerning completion of the defects listed in the rectification order of 18 February, other than items 3 and 9. On 14 April 2020, Mr Zervos inspected the bathroom and rear deck and the following day (15 April 2020) Mr Zervos sent a lengthy email to the Appellant reporting on his inspection. The terms of that email are set out at [48] of the Decision.
At [56] the Decision records that the Appellant undertook work on the rear deck including installation of a fresh waterproof membrane during early May 2020 and that the Respondents maintained that that work did not satisfactorily resolve the issues with the deck asserting, in particular, that the falls on the deck were insufficient and that the water stop was not high enough. On 26 May 2020, the solicitor for the Appellant emailed to Mr Daniel of Fair Trading NSW and to the Respondents a scope of works for the rectification of the bathroom [57]. On the same day, the Respondents replied that the proposed scope of works was totally inadequate [58]. In June 2020, Mr Daniel of Fair Trading wrote to the Respondents noting that he was satisfied that some items of the rectification order had been rectified but that item 3 remained unresolved.
In early June 2020, Mr Poole undertook further investigations and produced a further report, dated 10 June 2020. Mr Daniel then issued a further rectification order on 24 July 2020. Then in August 2020, Mr Daniel issued a further report stating that the rectification order had been complied with and that Fair Trading would take no further action in relation to the work "at this time" [63]. He also stated that some items remained outstanding and are the "contractor's responsibility". Mr Daniel later issued a certificate on 2 September 2020 recording that the rectification order had been complied with. An extract of his report is recorded at [65] of the Decision to the effect that in Mr Daniel's opinion, whilst the order has been complied with, part of the work as built does not comply with the National Construction Code (the "Code"). He also stated that there was no evidence available to demonstrate that the work as built did not meet the performance requirements of the Code.
The Respondents commenced proceedings in the Tribunal on 22 July 2020.
From [67] onward, the Decision records the nature of the evidence relied upon by the parties. There were three reports prepared by Mr Poole: dated 16 October 2019, 10 June 2020 and 11 September 2020.
The Appellant relied upon evidence from Mr Cordony and a report dated 10 February 2021 from Eric Byrne, a building consultant specialising in waterproofing [71]. At [75], the Tribunal stated that the evidence of Mr Byrne addressed only the waterproofing in the main bathroom. The Appellant did not seek to rely upon any independent expert evidence in relation to the other issues raised by the Respondents. The Appellant sought to rely upon Mr Cordony. The Tribunal described Mr Cordony as "not an independent expert and his evidence was clearly not disinterested". At [76], the Tribunal noted that Mr Poole and Mr Byrne prepared a joint report addressing the main issues arising in relation to the main bathroom.
At [78], the Tribunal recorded that the Respondents had identified the statutory warranties upon which they relied as being those set out in s 18B(1)(a) and (c) of the HB Act, that is that the works were not carried out with due care and skill and that they did not comply with the law, being the Code.
At [85], the Tribunal stated that in order to establish the existence of the defects alleged the Respondents relied upon the reports of Mr Poole and that in respect of the alleged bathroom defect the joint report of Mr Poole and Mr Byrne. However, the Tribunal noted that there was a continuing issue as to whether the hole in the membrane was present before Mr Poole conducted his "invasive investigation" or whether it was in fact caused by the investigation. The Appellant described Mr Poole's evidence as unreliable, incomplete and misleading, and the Tribunal was required to consider whether and to what extent reliance should be placed upon Mr Poole's evidence. From [88] onwards, the evidence of Mr Poole is dealt with in some detail.
One of the issues concerning Mr Poole's evidence was that there was evidence that one of the Respondents (Mr Anderson) had drafted, or partly drafted, the statement of Mr Poole dated 25 March 2021.This statement was referred to at [77]. The Tribunal described it as a summary of Mr Poole's expert reports and stated it would not be treated "as evidence of the matters stated, independently of Mr Poole's reports and evidence".
The Tribunal recorded that Mr Poole initially stated that he had written the statement himself [90] but then conceded that Mr Anderson had forwarded a draft to him. These matters produced submissions from the Appellant to the effect that Mr Poole could not be relied upon to give expert evidence consistent with his duty of impartiality and independence as an expert.
At [97] the Tribunal found that the evidence of Mr Poole should not be accepted "unquestionably". We take this to be a typographical error and that the Tribunal intended to say "unquestioningly". The Tribunal said that his opinion should not be wholly disregarded, that he was not a dishonest witness and that he had not sought to mislead or deceive the Tribunal [97].
At [98], the Tribunal stated that there was one example only of direct inconsistency in Mr Poole's evidence and that was the assertion that he completely "rewrote the statement". The Tribunal described this as hyperbole rather than dishonesty. Mr Poole later conceded that parts of the statement were authored by Mr Anderson.
The Decision analysed further aspects of Mr Poole's evidence that had been the subject of criticism by the Appellant. At [113], the Tribunal stated that the "force" of the Appellant's submissions is "somewhat diminished by the fact that the [Appellant] elected not to obtain its own independent expert report, other than in relation to the bathroom. A respondent [ie. the Appellant], which relies upon alleged inadequacies in the evidence led by the applicant cannot complain if the trier of fact concludes that the applicant's evidence, while not perfect, is sufficient to establish the applicant's case."
The Decision goes on to analyse aspects of Mr Poole's evidence and the Appellant's criticism of that evidence and then at [127] makes a number of conclusions which may be summarised as follows:
1. Mr Poole's initial involvement in the project was not in the role of independent expert, subject to the Expert Code of Conduct and the manner in which Mr Poole conducted the invasive investigation of the bathroom floor was not reflective of the conduct of an independent expert.
2. However, Mr Poole subsequently accepted the Code of Conduct in relation to his reports and maintained before the Tribunal that they reflected his independent expert opinion.
3. During his evidence Mr Poole defended his opinions and the Tribunal did not consider that he did otherwise than as an objective and independent expert.
From the [129] to [149] the Tribunal dealt with the alleged defects to the main bathroom. These alleged defects were the subject of the joint report of Messrs Poole and Byrne. The Tribunal made the following findings of fact:
1. There were no falls in the substrate towards the floor waste [135].
2. Mr Byrne confirmed that he agreed with Mr Poole that there was a problem with the fall of the floor in the bathroom and his evidence described the rectification which both experts had agreed was necessary [136].
3. There was an insufficiency of the fall in the substrate which constitutes a failure to carry out work with due care and skill and requires the rectification as described by Mr Byrne [138].
At [141] the Tribunal determined that it was necessary to consider whether the hole in the membrane was present before Mr Poole's investigation or was a consequence of that investigation. The Tribunal said that that question was necessary because whether the Appellant should be liable for the rectification of the bathroom hinged critically upon the question of whether the hole of the membrane existed prior to Mr Poole's investigation or was a consequence of it.
The Tribunal addressed criticism of Mr Poole's conduct at [142]. He failed to undertake a flood test before commencing destructive investigation. He failed to ensure that the investigation was video recorded. He failed to invite the builder to attend to observe the investigation. He inserted a screwdriver into the membrane without fully documenting including with close-up photographs the hole which he asserted he observed when the screed had been removed.
At [143] the Tribunal found "on the balance of probabilities" that the hole in the membrane was not caused by Mr Poole's investigation and that the Tribunal was satisfied that the hole was present before the removal of the tiles in the screed. The Tribunal's finding was stated to be based upon Mr Poole's report of 16 October 2019, which stated that "after the careful removal" of tiles the membrane was exposed and initial observations noted "the small fracture in the membrane in the corner". The Tribunal stated that it also relied upon Mr Poole's evidence that the screed was easy to remove and the Appellant's submission that the screed could be removed without damaging the membrane [145].
Further, the Tribunal stated that it relied upon photographs contained in Mr Poole's report, particularly those at pages 113-116 of his report of 16 October 2019. At [148] the Tribunal found that the photographs suggest that the screed was not adhering to the membrane and could have been scraped away easily without impact on the membrane. The Tribunal found that photographs 113 and 114 suggest that the hole in the membrane was present before Mr Poole inserted the screwdriver.
At [149] the Tribunal found that the membrane in the main bathroom was defective and required rectification for which the Appellant is responsible.
From [150] the Tribunal dealt with the rear deck. There were two issues. Firstly, the Respondents allege that the fall on the rear deck is insufficient and does not comply with relevant standards in the Code. Secondly, the Respondents allege that the step down from the internal areas to the rear deck was insufficient. These complaints were supported by Mr Poole's reports.
Mr Poole's evidence was that the minimum grade (of fall) required by the relevant standard was 1:100. The Tribunal recorded the Appellant's criticism of Mr Poole's report, but the Tribunal noted at [154] that Mr Cordony (of the Appellant) conceded that the falls did not meet the 1:100 standard. His evidence was that the falls set out in the standard were only a recommendation, not a requirement.
In respect of the dispute concerning the step down, the Tribunal recorded that Mr Cordony's evidence was that the step down was sufficient and measured 40 mm. Mr Poole asserted that the stepdown was required to be 50 mm. Mr Poole acknowledged that the stepdown requirement only applied if a local wind rating was "N2". He had no knowledge of the relevant wind rating but Mr Zervos in his scope of works for rectification of the rear deck made reference to a requirement to comply with an N2 rating. At [159] the Tribunal found that Mr Zervos' scope of works was the scope of works by reference to which the Appellant had undertaken rectification of the rear balcony and the Appellant had failed to comply with that scope of works. At [160] the Tribunal stated that it inferred from the fact that Mr Zervos required the water stop angle to be sized in accordance with the N2 wind classification requirements as stated AS4654.2-2012 that Mr Zervos had identified the relevant wind classification for the area as N2.
At [163] the Tribunal found that the water stop angle at the bifold doors separating the interior of the house from the internal alfresco area of the rear deck did not comply with the requirements of the Code in breach of the statutory warranty in s 18B(1)(c) of the HB Act, and accordingly requires rectification for which the Appellant is responsible.
From [164] the Tribunal dealt with the lower courtyard area. There were two issues (identified in the Fair-Trading report as items 2 and 4), namely that there was a requirement to ensure that the slab on ground floor construction incorporates adequate stepdowns to prevent the ingress of water (item 2) and the requirement to ensure tiled external surfaces have sufficient fall to prevent water ingress (item 4). In the course of the hearing the defects relied upon by the Respondents were limited to items identified as "Add (ie. additional items) 4, 7, 8, 10-19 and 22. These related to the adequacy of step-downs.
At [171] the Tribunal noted that the Appellant did not lead evidence to suggest that the particular issues raised by the Respondents had been rectified. Rather, as recorded by the Tribunal at [172], the evidence of Mr Cordony and the Appellant's submissions were directed to the proposition that the limited falls and stepdowns were constructed in response to requests by the Respondents. The Tribunal noted that there was no evidence of written instructions having been given by the Respondents.
At [176] the Tribunal found that it was satisfied that items relating to stepdowns (items 4 and 19, items 7, 14 and 16 and items 8 and 12) are supported by Mr Poole's evidence.
From [178] to [181] the Decision records the following findings:
1. In respect of items 11, 13 and 15, there were inadequate falls as asserted by Mr Poole and those inadequate falls involved a breach of the National Construction Code.
2. The evidence of Mr Poole is to be preferred over the evidence of Mr Cordony where there is a conflict.
3. The defects identified by Mr Poole in his 10 June 2020 report as additional items 4, 7, 8, 11, 12, 13, 14, 15, 16 and 19, involved a failure by the Appellant to comply with the Code and as such constitute breaches of the statutory warranty implied by s 18B(1)(c) of the HB Act, which the Appellant is responsible for rectifying.
From [197], after having dealt with whether it is appropriate to make a monetary order or a work order, the Tribunal (having determined that a work order is appropriate) considered the scope of works.
At [199] the Tribunal stated that the defect concerning the construction of the rear deck was the failure to install a 50 mm water stop angle at the bifold doors separating the interior of the house from the alfresco areas of the rear deck. In the following paragraphs the Tribunal described the appropriate work order by reference to the evidence of Mr Poole.
[3]
The Notice of Appeal
A Notice of Appeal was lodged on or about 19 July 2022. By that Notice the Appellant seeks orders upholding the appeal, setting aside the orders made at first instance and dismissing the Respondents' application at first instance. The Appellant also seeks costs of the appeal and costs at first instance.
The grounds of appeal may be summarised as follows:
1. The Tribunal erred in law by unreasonably giving any weight to the evidence of Mr Poole.
2. The Tribunal erred by relying, against the weight of the evidence, on the evidence of Mr Poole.
3. The Tribunal erred in law by determining that the provisions of s 18G of the HB Act operate to exclude doctrines of estoppel. This ground was not pressed.
4. The Tribunal mistook that the facts by finding that the Respondent did not lead evidence of rectification undertaken of the lower courtyard area.
5. The Tribunal erred by finding, against the weight of the evidence, that the Respondent was responsible for defects in the bathroom.
6. The Tribunal erred by finding, against the weight of the evidence, that the rear upper deck was defective.
7. The Tribunal erred by finding, against the weight of the evidence, that the rear lower deck was defective.
8. The findings of the Tribunal were unsafe and unsound on account of the mode by which the hearing was conducted namely the hearing occupied four days over a period of 10 months, was conducted remotely via unsatisfactory AVL and judgment was reserved for a period of approximately seven months from the final date of submissions. This ground was not pressed.
9. The Tribunal denied the Appellant procedural fairness on account of the Tribunal relying on the wind rating of Mr Zervos, refusing to admit expert evidence on the applicable wind rating, imposing time restraints on the conduct of the Appellant's case, finding the Appellant liable for an alleged defect beyond the Respondents' claim, and expressly abandoned by the Respondents in the course of the hearing (item 7) by disallowing Mr Byrne to give evidence on a material issue in concurrent evidence in circumstances where another expert had expressed an opinion on that issue, and by ordering rectification of the upper deck and rear courtyard area where there was no cogent evidence as to what rectification was required.
10. The Tribunal erred in law by misapplying the onus and burden of proof in reasoning on the basis of an absence of expert evidence adduced by the Appellant and the absence of evidence as to compliance with the performance requirements of the Code.
The Respondents have filed a Reply to Appeal giving notice of their objection to the appeal.
[4]
Grounds 1 and 2
The Appellant submitted that in considering the "acceptability" of expert evidence, the issue is not one of credibility in the sense that such would be applied to a witness giving evidence of primary facts. It is submitted that for expert evidence to be accepted, it must comply with additional and higher standards. These are set out in the case of the Tribunal by the Code of Conduct contained in Procedural Direction 3. That Code mirrors common law principles regarding the obligations on experts and the requirements of expert evidence if it is to be relied upon. On the evidence before the Tribunal in these proceedings, viewed as a whole, it was not reasonably open to give any weight to the evidence of Mr Poole. The Appellant referred to matters relevant to Mr Poole's conduct as set out in their written submissions at first instance.
The Appellant referred to the finding of the Tribunal at [98] that Mr Poole's evidence that he rewrote entirely his statement of 25 March 2021 as "hyperbole". That was not a rational finding on the evidence. Mr Poole only resiled from that position in cross-examination. The Appellant relied upon statements by his Honour McElwaine J in New Aim Pty Ltd v Leung [2022] FCA 722. In that case, the evidence of an expert was rejected in its entirety. The expert's report was drafted substantially by the tendering party's legal representatives and had been adopted by the expert. The fact that the report had been drafted by others and had not been disclosed except through the course of cross-examination of the expert was, as his Honour described, "grossly unsatisfactory".
The Appellant submitted that the Tribunal erred when assessing Mr Poole's evidence by taking into account the absence of expert evidence called by the Appellant. The Appellant submitted that the onus of establishing that expert evidence is reliable, independent and soundly based, and competent falls on the party relying on the evidence and the expert himself. It is not for the other party to establish that expert evidence should not be relied upon.
The Appellant submitted that the Tribunal at [118], in effect, reversed the onus by noting that the assumptions that Mr Poole conceded he had made to the benefit of the Respondents were not explored in evidence (other than wind ratings and rainfall categories). The Appellant submitted that revealing the assumptions upon which opinion evidence is based is an obligation attaching to the expert and the party calling the expert.
The Appellant further submitted that the Tribunal did not take into account Mr Poole's own evidence that his defect reports and costs assessments were "preliminary" and required "additional investigations": see Transcript day 4, p 99.4892-4899.
The Appellant submitted that on the whole of the evidence, particularly when the deficiencies of Mr Poole's evidence are considered cumulatively, it was unreasonable and against the weight of evidence to rely on his opinion.
To the extent that leave is required in respect of ground 2, the Appellant submitted that leave ought to be granted on the basis that the integrity of expert evidence before the Tribunal is an important issue of principle as well as a matter of public importance and policy of general application.
[5]
Ground 5
This ground concerns the contention that the Tribunal erred by finding, against the weight of the evidence, that the Appellant was responsible for defects in the bathroom. The Appellant's case at first instance regarding the bathroom is set out at [63] to [122] of the Respondent's written submissions. The finding of the Tribunal that the perforation was present prior to the invasive investigation of Mr Poole is simply not justified on the evidence. The Tribunal did not take into account evidence which cast overwhelming doubt over the reliability of Mr Poole's finding. This included that the entirety of the evidence of Mr Byrne was overlooked. The findings of the Tribunal recorded at [142] alone make unreasonable any finding that the Respondents had established, on balance, the presence of the perforation to the membrane prior to the invasive investigation. Mr Byrne was not permitted to give evidence as to the failure to conduct a flood test being negligent. That matter went to the very heart of the reliability of the evidence relied upon by the Respondents as to the presence of a perforation in the membrane.
The Appellant submitted that the fact that the investigation was done in a manner which made it in possible for the Appellant or any expert appointed by him to properly verify the findings is a matter of significance tending against the finding of the Tribunal.
Leave should be granted pursuant to cl 12(1)(b) of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) on the basis that the Appellant has suffered a clear injustice, that an error is established, which is plain and readily apparent and that there is a factual error which has been unreasonably arrived at.
[6]
Ground 6
This ground concerns the assertion that the Tribunal erred by finding, against the weight of the evidence, that the upper rear deck was defective. The Respondents' claim relating to the back deck initially related only to the inadequate falls in parts of the rear upper balcony. In evidence, Mr Poole indicated that there was an alleged defect in relation to the stepdown between the interior and exterior surfaces at the bi-fold doors. This was the first time any issue relating to this alleged defect was raised in the proceedings. In cross-examination Mr Poole conceded that the readings apparent on his levels in his report were inconsistent and within the margin of error relating to the alleged deficiency in the falls. In relation to the stepdown, Mr Poole conceded that there was no wind rating for the site in the architectural plans and that he did not know the applicable wind rating. He stated that the required stepdown of 50 mm was based on wind rating N2. He said that he had not actually viewed the relevant vertical upturn at the bi-fold doors. Mr Cordony stated that the stepdown was approximately 45 mm.
The Tribunal found at [156] that the water stop angle at the bifold doors did not comply with the requirements of the National Construction Code and required rectification. The Appellant submitted that this finding was made in the absence of any proper evidence and was arrived at against the strong preponderance of the evidence. The Appellant submitted that the first claim for any defect of the water stop/stepdown at the bifold doors emerged in oral evidence on the third day of the hearing. Mr Poole stated that there was no drainage at the door. The Appellant submitted that there is no mention of inadequate water stop angle or absence of drainage in that location in any report of Mr Poole. The evidence of Mr Poole did not establish that there was any defect in the falls on the balcony or that the property was subject to a high wind rating as asserted in his report.
The Appellant submitted that the Tribunal did not make any finding regarding the falls on the balcony in reliance on Mr Poole's evidence. The only finding made regarding the falls on the balcony was to the effect that Mr Cordony conceded in his evidence that the falls did not meet the 1:100 standard. The only concessions made as to the falls was at T102.5011 where Mr Cordony stated that the area where Mr Poole said it was not compliant is a small area under the barbecue.
The Appellant submitted that the only evidence of the termination height at the bifold doors was that of the Appellant who stated that the termination height was approximately 45 mm. Mr Poole conceded that he had not viewed the vertical upturn.
In determining the applicable wind rating for the site, the Tribunal relied on a scope of works prepared by Mr Zervos at the behest of the Appellant for the purpose of a previous and completed rectification of the balcony. There is no evidence that Mr Zervos was qualified to express an opinion on the wind rating applicable to the balcony.
The Appellant submitted that it was not open on the evidence to find that the stepdown at the bifold doors was non-compliant. The inference drawn by the Tribunal at [160] was not open on the evidence and/or was not sufficient to establish that the actual wind rating for the site was as stated by Mr Zervos.
For the above reasons, the Appellant submitted that leave should be granted pursuant to clause 12(1)(b) of sch 4 of the Civil and Administrative Tribunal Act 2013 NSW (the NCAT Act) on the basis that the Appellant has suffered a clear injustice, that an error is established, which is plain and readily apparent and that there is a factual error which has been unreasonably arrived at.
[7]
Ground 9
This ground concerns the refusal of the Tribunal to admit the report of Cavassini & Associates. The Appellant submits that the refusal to submit this report amounted to a denial of procedural fairness. The tender of the report was rejected at the commencement of day four of the hearing. The report included an expert opinion as to the wind rating applicable to the rear deck.
The Appellant submitted that the first evidence relating to the wind rating of the site was given on the third day of the hearing by Mr Poole in relation to an alleged defect of the stepdown at the bifold doors on the rear balcony. No such defect was alleged in Mr Poole's defect reports, nor was any such defect alleged in the Respondents' claim. In the evidence on day three, Mr Poole sought to give an opinion as to the wind rating applicable to the site upon which turned the alleged inadequacy to the stepdown at the bifold doors. Mr Poole ultimately conceded that he did not know the wind rating applicable to the site. The Appellant had previously not been on notice that the wind rating was a relevant issue. The Tribunal relied on a wind rating stated in a scope of works prepared at the direction of the Appellant in relation to a previous rectification of the upper deck. Mr Cavassini's report asserts that the site is not subject to a high wind rating, contrary to the ultimate finding of the Tribunal.
The Appellant submitted that in the circumstances where any issue relating to a wind rating first arose mid-hearing, it was unfair to preclude the Appellant from obtaining and relying on evidence as to the actual applicable wind rating on the site.
[8]
Grounds 4, 7 and 10
These grounds concern the rear courtyard.
Ground 4 asserts that the Tribunal mistook the facts by finding that the Respondent did not lead evidence of rectification undertaken of the lower courtyard area. Ground 7 concerns the Appellant's contention that the Tribunal erred by finding, against the weight of the evidence, that the rear lower courtyard was defective. Ground 10 concerns the Appellant's contention that the Tribunal erred in law by misapplying the onus and burden of proof in reasoning on the basis of an absence of expert evidence adduced by the Appellant and the absence of evidence as to compliance with the performance requirements of the Code.
The alleged defects with respect to the rear courtyard were the subject of inspection on 25 June 2020 by Mr Daniel of Fair Trading. Rectification work was performed by the Appellant and Mr Daniel issued a report on 28 August 2020. The Respondents' claim in the Tribunal at first instance, was particularised by reference to items 2 and 4 of that report. The Appellant submitted that the evidence did not support a finding that there was any defect to the lower courtyard area (ie. items 2 and 4 of the Daniels report).
The photographic defect report upon which the Respondents relied was prepared prior to the rectification works undertaken by the Appellant in August 2020. Contrary to the Tribunal's findings, evidence of rectification work performed by the Appellant was before the Tribunal: see the further statement of Mr Cordony dated 22 February 2021 and day four Transcript pp 35-75. Mr Daniels' report stated that the items in the report are not compliant with the National Construction Code but at the time of preparing the report there was no evidence that the work as carried out failed to meet the performance requirements of the Code. The evidence of Mr Poole as to water penetration to the relevant parts of the building was unsupported by any proper measurement or analysis.
The Appellant submitted that the Tribunal's reasoning at [179] regarding the performance requirements of the Code erroneously shifts a burden to the Appellant. The Appellant submitted that compliance with the Code can be achieved either by meeting the prescriptive requirements or by complying with the performance requirements. The Appellant submitted that the onus is on the party contending for breach to establish a failure to comply with both modes of compliance.
The Appellant submitted that the finding by Mr Daniels that there was no evidence that the work as carried out failed to meet the performance requirements of the Code should have been taken into account by the Tribunal. The Appellant submitted that there was no evidence that Mr Poole had performed any inspection of the site after rectification work had been performed.
To the extent that leave is required, the Appellant submitted that leave should be granted pursuant to cl 12(1)(a) on the basis that the Appellant has suffered a clear injustice, that an error is established, which is plain and readily apparent and that there is a factual error which has been unreasonably arrived at.
[9]
Ground 9 - submissions concerning items 4 and 7
The Tribunal found that additional items 4 and 7 in Mr Poole's defect report of 10 June 2020 amounted to defects for which the Appellant was responsible. Those items related to stepdown issues on the eastern side of the building. On the second day of the hearing there was an exchange in which the Respondents confined their claims to the rear courtyard area and in effect abandoned any claim in relation to the eastern wall of the house: see Transcript 23 February 2021 p 14. Further objection was raised by the Appellant on the fourth day of the hearing when the Respondents sought to re-agitate the claim at the commencement of Mr Poole's evidence regarding the rear courtyard: see transcript day 4 pp 38-39. Further, evidence was adduced by Mr Cordony that rectification work had been performed in this area: see further statement of Mr Cordony at [9]. This evidence was not challenged.
At [171] the Tribunal found that the Appellant did not lead evidence to suggest that the particular issues raised by the Respondents had been rectified. The Tribunal erred by failing to accord procedural fairness to the Appellant in respect of taking into account a claim effectively abandoned by the Respondent. The Tribunal erred in failing to take into account material evidence, namely evidence of rectification work performed by the Appellant in relation to this claim.
[10]
Respondents' Submissions
The Respondents' submissions are summarised in the paragraphs that follow.
The Respondents' claim with respect to the main bathroom was the subject of the joint experts' report authored by Messrs Poole and Byrne. They agreed that there were no falls in the substrate towards the floor waste, agreed that there was a problem with the falls and agreed that it was necessary, by way of rectification, to take up the bedding in the shower floor area, put the topping down and make good the falls to the drain: see [134]-[135] of the Decision.
The Appellant submitted that the evidence of Mr Poole that there was water penetration should not have been accepted. The Respondents submitted that the only evidence that may have been to the contrary, and which was far from clear, was that of Mr Cordony. The Tribunal preferred, and was entitled to prefer, the evidence of Mr Poole. The Tribunal gave four reasons for finding that the hole in the membrane was not caused by Mr Poole. These are set out in paragraphs 144, 145,146, 147 and 147 to 148 of the Decision.
In respect of the rear deck, the Tribunal inferred from the evidence of Mr Zervos who had been retained by the Appellant that the wind rating was N2. There was no error in drawing this inference or that the step down was not sufficient.
In respect of the lower courtyard area the Tribunal preferred the evidence of Mr Poole to that of Mr Cordony. The Tribunal found that Mr Cordony was not independent or disinterested.
With respect to ground 1, concerning the contention that the Tribunal erred in law by unreasonably giving any weight to the evidence of Mr Poole, the Respondents submitted that there has been no identification of any error of law. There is no identification of any part of the evidence which was given weight to which weight should not have been given, nor is there any identification of any paragraph or part on the Decision where weight was given to the evidence of Mr Poole where it should not have been. If this ground involves an assertion of an error of fact, then the Appellant would need to show that the evidence in its totality preponderates against the conclusion of the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach. There is no submission to that effect.
With respect to ground 2, concerning the contention that the Tribunal erred by relying, against the weight of the evidence, on the evidence of Mr Poole, the Respondents submit that the issues concerning Mr Poole's evidence are expressly addressed at [88] to [128] of the Decision. If and to the extent that it is submitted that it was an error of law for the Tribunal not to have disregarded the evidence of Mr Poole in its entirety, the Respondents submit that, firstly, s 38 of the NCAT Act says that the Tribunal is not bound by the laws of evidence. Secondly, there would have been an error of law if the Tribunal had said that the report of Mr Poole was inadmissible because he had previously assisted the homeowners and was therefore not independent: see, for example, Chi Building Pty Ltd v Wedgwood [2016] NSWCATAP 64 and Vujica v TNM Roofing Pty Ltd [2022] NSWCATAP 305.
With respect to ground 4, by which it is said that the Tribunal mistook the facts by finding that the Appellant did not lead evidence of rectification undertaken in the lower courtyard area, the Respondents submit that work was carried out in the lower courtyard area by the Appellant. Neither the further statement or the transcript indicates that, in relation to the defects in question, Mr Cordony or his representatives indicated that the issues raised had been rectified by subsequent rectification. It is submitted that it is difficult to discern the relevant error of law or fact relied upon.
With respect to ground 5, concerning the contention that the Tribunal erred by finding, against the weight of the evidence, that the Appellant was responsible for defects in the bathroom, the Respondents submit that this ground does not raise an issue of law. Leave has not been sought. The Tribunal set out the competing considerations in relation to this issue and it is submitted by the Respondents that it cannot be said to be against the weight of evidence in the necessary sense that the evidence, in its totality, preponderates so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach. Even if the Tribunal's jurisdiction is enlivened, the Tribunal should not exercise its discretion to grant leave. There is no issue of principle or question of public importance or injustice which is reasonably clear or other ground justifying the grant of leave (see Collins v Urban [2014] NSWCATAP 17.
With respect to ground 6, concerning the contention that the Tribunal erred by finding, against the weight of the evidence, that the upper rear deck was defective, the Respondents submitted that there is no issue of law and leave has not been sought. With respect to the Appellant's contention that the first claim for any defect of the water/step down at the bifold doors emerged in oral evidence of the third day of the hearing, the Respondents say that the sequence of events is as follows:
1. The original report of Mr Poole identified problems with falls to the rear deck.
2. Subsequently, Mr Daniels ordered the falls to be rectified. Rectification was done in accordance with the scope of works prepared by Mr Zervos.
3. In an email dated 15 April 2020 from Mr Zervos to Mr Cordony, Mr Zervos said that the waterproofing termination heights installed to the southern balcony were non-compliant by reference to the applicable standards and explained that the termination height was dependent upon the wind-rating.
4. In Mr Zervos' scope of works to Mr Cordony he specified that the water stop angle should be of a suitable material and sized in accordance with an N2 wind classification which required a 50 mm termination height.
5. In the statement of Mr Poole dated 25 March 2021, Mr Poole identified that the 50 mm stepdown, or termination height, was not achieved and the existing upturn would not be sufficient.
6. The Respondents contend that the achievement of falls is interconnected with the stepdown of the door because to achieve falls it is necessary to either raise one part of the deck or lower another. It is impractical to lower the deck and it is therefore necessary to raise part of the surface. This necessarily means raising the surface at the door.
7. Although the dispute in relation to the water stop emerged in oral evidence on the third day of the hearing, the Appellant would have been aware of the issue before that because it emerged from his own expert's specification. The Tribunal's decision was not against the weight of evidence. The only evidence before the Tribunal in relation to the wind rating and the appropriate water stop height which was evidence adduced on behalf of the Appellant was to the effect that it was required to be 50 mm high.
8. Ground 7 (which concerns the contention that the Tribunal erred by finding, against the weight of the evidence, that the rear lower courtyard was defective), the Respondents contend that there is no suggestion in the submissions that the defective waterproofing was carried out by someone other than the Appellant or that the waterproofing was defective because of the act of some other party after the Appellant had completed its work. At [177]-[179], the Tribunal found that there was a failure to comply with the deemed to satisfy provisions of the Code and that the performance requirements of the Code require exclusion of water, and that there is evidence of water penetration. The Appellant's submission appears to be that the evidence of Mr Poole that there was water penetration should not have been accepted. The evidence to the contrary was far from clear and was that of Mr Cordony. The Tribunal was entitled to prefer the evidence of Mr Poole (see [180] of the Decision).
With respect to ground 9, there was no error by the Tribunal in relying upon the evidence of Mr Zervos.
With respect to that component of ground 9 concerning the contention that the Tribunal found the Appellant liable for an alleged defect beyond the claim of the Respondents and which had been expressly abandoned by the Respondents, the Respondents make the following submissions.
The Tribunal was correct to refuse the tender of the Cavassini report. The issue addressed by the report had been a live issue beforehand.
The evidence of the transcript at pages 38-39 does not indicate that items 4 and 7 were abandoned. The Appellant's submissions also allege a failure to take into account evidence of rectification work. However, the Appellant's submissions do not identify the evidence that the Appellant now says should have been taken into account and which constitute error by the by the Tribunal in the alleged failure to take them into account.
With respect to ground 10, the Respondents submitted that this ground raises the same matters as are raised in relation to ground 7. The Respondents' submissions in relation to ground 7 are repeated.
[11]
Appellant's Submissions in Reply
The Appellant's submissions in reply are summarised in the following paragraphs.
The Appellant seeks leave to appeal in relation to grounds 2, 5, 6 and 7. It was submitted in relation to each ground that the ultimate findings of the Tribunal were against the weight of the evidence and/or not fair and equitable for the reasons particularised in the Notice of Appeal and in the Appellant's written submissions. An application for leave to appeal in relation to each of these grounds was foreshadowed in paragraphs 15, 23, 35 and 54 of the Appellant's written submissions.
With respect to grounds 1 and 2, the Appellant submitted that the error of law is legal unreasonableness being that the conclusion reached by the Tribunal at first instance in relying on the evidence of Mr Poole was not one that a reasonable Tribunal member could reach. Mr Poole's opinion was neither independent, competent, complete nor reliable.
The Appellant submitted that the evidence should satisfy the Appeal Panel that the Appellant may have suffered a substantial miscarriage of justice on the basis that the Decision was not fair and equitable and was against the weight of evidence.
With respect to ground 5, the Appellant submitted that the Tribunal should not have relied on the evidence of Mr Conomos. His own evidence was to the effect that he did not have a clear view of the process of excavation of the tile-bed by Mr Poole. Mr Conomos' account of the excavation was not consistent with the account of Mr Poole. Mr Conomos was not independent or disinterested having been a family friend of the Respondents for many years. In cross-examination it became apparent that Mr Anderson (one of the Respondents) had been the writer of an unknown portion of Mr Conomos' statement.
With respect to ground 6, the Appellant submitted that there was no evidence of the matters described in the Respondents' written submissions to the effect that the achievement of falls is interconnected with the step down at the door because to achieve falls, it is necessary to either raise one part of the deck or lower another.
The Appellant submitted that the wind rating applied in the scope of works is not evidence of the actual wind rating applicable to the property. The Appellant had no contractual obligation to build in accordance with the scope of works. There was no claim in Mr Poole's defect report or the Respondents' initial claim in relation to the step down at the bifold doors. Mr Poole pivoted from claiming that the fall on the deck was inadequate to claiming the step down at the bifold doors was inadequate. The Appellant submitted there was no "proper evidence" establishing any defect in this area.
With respect to ground 9 (which concerns the finding that the Appellant was liable for an alleged defect beyond the Respondents' claim, and expressly abandoned in the course of the hearing), the Appellant accepts that the Notice of Appeal referred only to item 7 (ADD7). This was an error and leave is sought to amend the Notice of Appeal to include item 4 (ADD4) as stated in the Appellant's written submissions. Both items relate to the eastern wall of the property. The relevant portion of the transcript from day 2 relied upon by the Respondents is relevant in that it records that the Respondents indicated that items 4 and 7 did not form part of the back/lower courtyard area and was not part of the claim. Furthermore, the Tribunal did not address the evidence of rectification work performed by the Appellant. The Tribunal has failed to afford procedural fairness and there has been a failure to take into account relevant evidence.
[12]
Consideration
Grounds 1 and 2 of the appeal concern the evidence of Mr Poole and in particular whether the Tribunal's reliance upon his evidence constituted an error of law or a ground requiring leave.
The Tribunal considered the evidence of Mr Poole and the Appellant's submissions as to why his evidence should not be relied upon in great detail. The Tribunal found that Mr Poole's evidence should not be accepted unquestioningly but that his opinion should not be wholly disregarded (see [97]) The Tribunal found that Mr Poole was not a dishonest witness and that he did not at any time seek to mislead or deceive the Tribunal [97]. Later at [127] the Tribunal stated that it considered Mr Poole to be a witness who is prepared to defend his opinions and that he did so as an objective and independent expert. Thus, the Tribunal not only addressed the question of the "credibility" of Mr Poole's evidence but also whether the evidence was given consistently with his obligations as an expert witness to be objective and independent.
In our view, the Tribunal's analysis and conclusions concerning Mr Poole's evidence do not demonstrate any error of law. It cannot be said that the Tribunal came to conclusions so unreasonable that they could not be described as conclusions made by a reasonable Tribunal member.
Furthermore, in our view, the Tribunal's conclusions with respect to Mr Poole's evidence do not demonstrate that the Tribunal erred in accepting evidence which was given inappropriate weight or that it could be said that Mr Poole's evidence and conduct preponderates against the Tribunal's conclusions. Nor is there any clear injustice in the Tribunal's conclusions concerning Mr Poole's evidence.
The Appellant submitted that the Tribunal reversed the onus of proof at [112], [113] and [118] of the Decision. At [113] the Tribunal noted that the force of the Appellant's submissions critical of Mr Poole's evidence was diminished by the fact that the Appellants elected not to obtain their own independent expert report, other than in relation to the bathroom. We do not read that as reversing the onus of proof. Rather, the Tribunal was merely stating that Mr Poole's evidence is not contested by an opposing expert and that therefore it is relevant that there was no persuasive countervailing evidence put forward by the Appellant. The criticism concerning [118] is that the Appellant submitted that Mr Poole had made assumptions to the benefit of the Respondent. The Tribunal found that there were no such assumptions disclosed in the evidence, other than the evidence concerning the wind rating. In our view these submissions do not detract from the findings made by the Tribunal with respect to Mr Poole's evidence.
In short, appeal grounds 1 and 2 are rejected.
Ground 3 is not pressed.
Grounds 4, 7 and 10 concern the rear courtyard.
Ground 4 concerns the contention that the Tribunal erred in finding that the Appellant did not lead evidence to suggest that the particular issues raised by the Respondents had been rectified. The Tribunal stated that Mr Cordony's evidence and the submissions of the Appellant were directed to the proposition that the limited falls and step downs were constructed in responses to requests by the Respondent. The Appellants contend that the evidence of Mr Cordony (both in his statement and the evidence given on day 4) was that there was rectification work undertaken. On the other hand, the Respondents says that neither the statement of Mr Cordony dated 22 February 2021 or the transcript contain evidence that work was carried out. Whether or not the Tribunal erred in stating that the Appellant did not lead evidence to demonstrate that particular issues had been rectified, the position is that the Tribunal found that there were the defects identified by Mr Poole. To the extent that there was conflict between his evidence and that of Mr Cordony the Tribunal preferred the evidence of Mr Poole (see [180]) and gave reasons for so doing. Accordingly, ground 4 is rejected.
Ground 7 concerns the contention that the Tribunal erred by finding against the weight of evidence that the rear lower courtyard was defective. We are in agreement with the submissions of the Respondents who point out that the Tribunal found at [177] to [179] that there was evidence of water penetration, inadequate falls and non-compliance with the National Construction Code. The Tribunal stated that to the extent that there was conflict between the evidence of Mr Poole and Mr Cordony, the evidence of Mr Poole was preferred. The findings of fact made by the Tribunal were open on the evidence and the basis for granting leave to appeal is not made out. This ground is rejected.
Ground 10 concerns the Appellant's contention that the Tribunal erred in law by misapplying the onus and burden of proof in reasoning on the basis of an absence of expert evidence adduced by the Appellant and the absence of evidence as to compliance with the performance requirements of the Code. The particular paragraph relied upon by the Appellants is [179] where the Tribunal stated that it did not consider that "if non-compliance with the prescriptive provisions of the Code is established and there is evidence of water penetration, the performance requirements of the Code, which require the exclusion of water, can be shown to have been complied with in the absence of evidence of testing to establish that proposition". We do not see that the Tribunal's process of reasoning reverses the onus of proof. Rather, the Tribunal is stating that if non-compliance with the prescriptive provisions of the Code is established and if there is water penetration then breach is established and that the performance requirements of the Code cannot be shown to have been complied with, unless there is evidence of the fact that there is no water penetration. In our view, this process of reasoning, having regard to the evidence of Mr Poole, was sufficient for the Tribunal to find, as it did, at [181] of the Decision that there was a failure by the Appellant to comply with the Code. This ground is rejected. To the extent that this ground is a ground requiring leave for an error that is plain and readily apparent or factual error that has been unreasonably arrived at there is no basis to grant leave .
We now turn to ground 5.
Ground 5 concerns the contention that the Tribunal erred by finding, against the weight of the evidence, that the Appellant was responsible for defects in the bathroom. This ground is based upon the Appellant's contention that there was "overwhelming doubt over the reliability" of Mr Poole's evidence. We have already determined that the Tribunal was cognisant of some issues with Mr Poole's evidence and careful in accepting the truth of his evidence.
The Appellant submitted that the Tribunal erred in relying upon the evidence of Mr Conomos. In our view the evidence of Mr Conomos was not determinative. The Tribunal found at [143] that it was satisfied that the hole in the membrane was not caused by Mr Poole. At [146] the Tribunal added that it "further" relied upon the evidence of Mr Conomos. We conclude that the finding made at [143] was made independently of the Tribunal's view of the evidence of Mr Conomos.
In our view, there is no error of law in the approach taken by the Tribunal to the assessment of evidence and that there is no basis for granting leave to appeal under this ground. As the Respondents' submissions contended, even if the Tribunal's jurisdiction is enlivened (and our view is that that is not the case) the Appeal Panel should not exercise its discretion to grant leave because there is no issue of principle, question of public importance and injustice which is reasonably clear, a factual error unreasonably arrived at and clearly mistaken or other ground of the kind identified in Collins v Urban [2014] NSWCATAP 17.
Ground 5 is rejected.
Ground 6 concerns the contention that the Tribunal erred by finding, against the weight of the evidence, that the upper rear deck was defective.
The focus of the Tribunal's orders with respect to this ground was to order the installation of a 50 mm water stop angle at the bifold doors which included regrading and resurfacing the rear deck to the extent necessary to enable the installation of the water stop angle or a grated drain at the boundary ( see order 1(b)). The conflict between the parties also concerned Mr Poole's evidence that the fall on the deck was inadequate. Mr Cordony conceded that the fall did not meet the 1:100 standard.
In coming to the finding that the water stop was inadequate the Tribunal took into account the evidence of Mr Zervos as to the relevant wind rating affecting the site. The opinion of Mr Zervos was contained in an email to Mr Cordony and, in our view, there was no unfairness to the Appellant in that evidence being taken into account by the Tribunal.
Both sides agreed that the issue became apparent only on the third day of the hearing. We note that the fourth day occurred six months after the third day. However, the Appellant would have been aware of the view of his expert, Mr Zervos, by reason of the email from Mr Zervos dated 15 April 2020 and it would be reasonable to have expected the Appellant to have considered whether countervailing evidence was necessary.
The inference drawn by the Tribunal as to the required size of the stop based upon the opinion on Mr Zervos was, in our view, open on the evidence in the absence of other evidence. There is no error of law and nor is there a ground requiring leave available to the Appellant. This ground is rejected.
Ground 8 is not pressed.
Ground 9 concerns the rejection of the Cavassini report. We have considered the transcript for day four of the hearing and note that the Senior member gave reasons for the rejection of that report. Essentially the Senior Member said that the evidence was completed on day 3, that the hearing was cut short that day through technological issues and that the purpose of day four was to receive submissions. Further the issue raised in the report was not one that had taken the Appellant by surprise. We see no error or injustice arising by reason of the Tribunal's ruling to reject the tender of the report. This ground is rejected.
We turn to the remaining part of ground 9. This ground concerns the contention that the Tribunal found against the Appellant in respect of defects 4 and 7 to the eastern wall of the house, which claims had been abandoned on the second day of the hearing. In our view the transcript for that day does not support the Appellant's contention. Further the transcript for day four records that the Respondents continued to press these two claims and that Counsel for the Appellant had submitted that he understood that the claims had been "disavowed" by the Respondents (p 38). However, it is not evident when and in what form that occurred. Accordingly, this contention is rejected. The Appellant also submitted that the Tribunal erred in not accepting the evidence of Mr Cordony that these two items had been the subject of rectification work. In this respect the Tribunal stated at [179] that it preferred the evidence of Mr Poole over that of Mr Cordony and gave reasons for that preference.
In our view the submissions in respect of ground 9 do not disclose any error of law or any basis for granting leave to appeal. Ground 9 is rejected.
It follows from the reasons expressed in the above paragraphs that each of the grounds of appeal are rejected and that therefore the appeal should be dismissed.
After the hearing of the appeal the Respondents solicitors wrote to the tribunal in which the Respondents made an application for the work order to be set aside and instead they sought that a monetary order be made. We are of the view that such application is to more appropriately to be made before the Consumer and Commercial Division of the Tribunal.
Costs of the appeal should be paid by the Appellant pursuant to r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW).
The following orders are made:
1. Appeal dismissed.
2. The orders made at first instance are affirmed subject to the alteration that the time of four months for compliance with order 1 commences on the publication of these orders.
3. The Respondents have leave to apply to the Consumer and Commercial Division for order 1 to be replaced by a monetary order.
4. The Appellant is to pay the Respondents costs of the appeal on the ordinary basis in an amount agreed or as assessed.
[13]
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: 16 January 2023