Goncalves v Bora Developments Pty Ltd - [2021] NSWCATAP 231 - NSWCATAP 2020 case summary — Zoe

NSWNSWCATAP

Goncalves v Bora Developments Pty Ltd

[2021] NSWCATAP 231

NCAT Appeal Panel|2020-11-26

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2020-11-26

Catchwords

(2003) 77 ALJR 1088 DVE18 v Minister for Home Affairs [2020] FCAFC 83
(2020) 276 FCR 401 Goncalves v Bora Developments Pty Ltd

Source

Original judgment source is linked above.

Catchwords

(2003) 77 ALJR 1088 DVE18 v Minister for Home Affairs [2020] FCAFC 83(2020) 276 FCR 401 Goncalves v Bora Developments Pty Ltd

Judgment (35 paragraphs)

[1]

Introduction

These reasons concern a second appeal in proceedings between Ms Goncalves ("Owner") and Bora Developments Pty Ltd ("Builder").
On 4 November 2016, the Owner and the Builder entered into a fixed price contract for the construction of dual residential premises on the Owner's land ("Contract").
On 25 January 2018, the Owner purported to terminate the Contract and in March and April 2018 the Builder and the Owner respectively commenced proceedings in the Tribunal. Those proceedings were heard together and the Tribunal's decision and reasons were published in May 2019. Following appeals by both the Builder and the Owner, an Appeal Panel (comprising S Westgarth, Deputy President and PH Malony, Senior Member) allowed both appeals and remitted each proceeding for rehearing before a differently constituted Tribunal: see Goncalves v Bora Developments Pty Ltd; Bora Developments Pty Ltd v Goncalves [2020] NSWCATAP 9 ("2020 Appeal Panel Decision").
On 18 and 19 June 2020, the hearing of the remitted proceedings took place. Both parties were legally represented at that hearing. On 19 August 2020, the Tribunal published its Reasons for Decision ("Reasons") and made orders, including orders that: 1. the Owner pay to the Builder the sum of $204,119.93; and 2. the Builder pay to the Owner the sum of $2,427.00.
These reasons deal with the Owner's appeal from the Tribunal's decision. The Owner's Amended Notice of Appeal and accompanying documents reveal 17 appeal grounds. Each is relied upon as raising a question of law and as a basis for the grant of leave to appeal.

[2]

Applicable legal principles

This is an internal appeal. Internal appeals may be made as of right on a question of law, and otherwise with the leave of the Appeal Panel: s 80(2) and cl12 Sch 4 of the Civil and Administrative Tribunal Act 2013 ("NCAT Act").
In circumstances, such as the present, where an appellant is not legally represented it is appropriate for the Appeal Panel to look at the appeal grounds generally, and, to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations in favour of the respondent: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]. In Cominos v Di Rico [2016] NSWCATAP 5, an Appeal Panel explained at [13]: 13. It may be difficult for self-represented appellants to clearly express their appeal grounds. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated appeal grounds, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]- [316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
Having undertaken such a review of the Amended Notice of Appeal, its accompanying documentation and the Owner's submissions, the Appeal Panel is of the view that some of the Owner's 17 grounds raise questions of law and in particular: 1. the proper construction of the Contract; 2. whether the Tribunal failed to properly consider arguments made to it by the Owner. In this regard, a material failure by the Tribunal to respond to a "substantial, clearly articulated argument relying upon established facts" may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]- [25] (Gummow and Callinan JJ; Hayne J agreeing at [95]); DVE18 v Minister for Home Affairs [2020] FCAFC 83; (2020) 276 FCR 401 at [34]. Further, as was noted in the 2020 Appeal Panel Decision at [28]: A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). However, by s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
The principles relevant to the Appeal Panel's discretion to grant leave are considered later in these reasons, at [116]-[118].

[4]

Findings of fact

The central findings of fact made the Tribunal are as follows.
As part of an initial exchange of emails on 8 June 2016, the Owner sent to the Builder copies of architectural plans (but no engineering drawings or stormwater plans) (Reasons [9]-[10]).
On 15 August 2016, the Builder provided to the Owner a two-page tender to construct two dwellings on the Owner's land at a total price of $698,755. The tender was expressed to have been based on the plans and specifications provided and indicated that "Full engineering and council development consent are required to issue final tender". It also referred to optional upgrades and suggested a meeting to discuss the details (Reasons [11]). This tender was re-sent to the Owner on 25 August 2016, together with a seven-page document titled "Home Specifications" (Reasons [12]).
On 28 September 2016, Wollongong City Council issued a development consent to the Owner. The conditions of consent included that the development be substantially in accordance with drawings dated 13 July 2016 and a detailed drainage diagram dated 11 August 2016. Condition 7 set out the requirements for an on-site detention facility ("OSD") (Reasons [13]).
On 7 October 2016, the Owner sent an email to the Builder attaching a copy of the development consent and stated that stormwater plans were also attached. There was a dispute as to what pages were attached to the email as stormwater plans (Reasons [14]).
On 14 October 2016, the Owner met with the Builder's office manager and indicated which upgrade options she had chosen. As the final stormwater and engineering plans had not been provided to the Builder, the Owner was asked whether she wished to: (1) wait and have these dealt with as part of the building contract; or (2) have them dealt with later, as a variation to that contract. The Owner chose the second option (Reasons [15]).
On 20 October 2016, the Builder provided a revised tender to the Owner, in which it offered to construct two dwellings for the Owner at a total price of $706,135 (Reasons [16], [43(1)]). That tender, which included upgrade options selected by the Owner, was made on the basis that the OSD and stormwater work was not included in the Contract but would be dealt with by way of a variation. In this regard the revised tender included: "As discussed any additional requirements in way of stormwater and engineering etc will be attended to by way of variation" (Reasons [16], [43(2)]).
On 4 November 2016, following the Owner's acceptance of the revised tender, the Owner and the Builder entered into the Contract (Reasons [17], [43(3) and (4)]). It was common ground between the Owner and the Builder that the Contract comprised the following documents (Reasons [34]): 1. the March 2015 version of the HIA standard form contract titled "NSW Residential Building Contract for New Dwellings" ("HIA Contract"); 2. the March 2015 version of the HIA standard form specifications titled "HIA General Housing Specifications - NSW" ("HIA Specifications"); and 3. two copies of an adaptation of the Builder's seven-page standard form titled "Home Specifications", one for each dwelling ("Builder's Specifications").
The following are features of the Contract: 1. the description of the work to be performed was: "The building works are described in detail in the plans and specifications" (Reasons [35(2)]); 2. no plans were attached to the Contract and no particular plans were identified in it (Reasons [35(2)]); and 3. the Contract contained a price of $706,135 which matched the price in the revised tender (Reasons [17], [35(3)], [43(5)]).
On 28 November 2016, the Builder received 5 pages of stormwater plans dated 9 November 2016 and 11 pages of structural engineering plans dated 4 November 2016 (Reasons [18]).
On 9 December 2016, a private certifier issued a construction certificate, to which were attached architectural plans dated 16 October 2016, stormwater plans dated 9 November 2016 and structural engineering plans dated 4 November 2016 (Reasons [19]).
On or about 19 December 2016, Home Warranty Insurance Certificates bearing that date were obtained (Reasons [83]).
Between 11 April and 20 July 2017, the Owner and the Builder negotiated for OSD and stormwater work to be done under a "costs plus contract" but were unable to agree on the margin that would apply to the cost of that work and, as a result, those negotiations did not produce agreement for that work (Reasons [22]-[24]; [43(6)-(7)]; [57]-[60]).
On 10 October 2017, the Owner advised the Builder that the Home Warranty Insurance Certificates had been issued to the wrong entity (Reasons [25]).
On 14 December 2017, the Builder posted to the Owner a Notice of Practical Completion and a tax invoice. The Notice of Practical Completion assessed the date for practical completion to be 20 December 2017 and requested a site meeting with the Owner for an inspection of the building works (Reasons [26]).
On 15 December 2017, the Owner attended the property for a "walk through" (Reasons [26]).
On 19 December 2017, the Owner sent an email to the Builder in which she suggested that a number of items of work were incomplete; suggested that there was an agreement to construct the OSD on a "Cost Price Plus 20% basis"; requested a "Cost Price Contract"; claimed the OSD work needed to be completed in order for her to obtain an Occupation Certificate; and raised other issues (Reasons [27], [43(8)]).
On 21 December 2017, replacement Home Warranty Insurance Certificates were provided to the Owner, but these showed an incorrect address (Reasons [25], [84]).
On 15 January 2018, compliant Home Warranty Insurance Certificates were provided to the Owner (Reasons [25], [85]).
On 25 January 2018, the Owner took possession of the property and issued a document titled "Notice of Breach of Contract and Ending of Contract" dated that day ("Termination Notice"). The Termination Notice did not refer to the OSD and stormwater work (Reasons [31], [43(9)]).
On 6 February 2018 the Builder responded to the Termination Notice and claimed that it was wrongful and a breach of the Contract. The Builder also purported to elect to terminate the Contract (Reasons [32], [105]).

[5]

Conclusions

The Tribunal reached the following conclusions relevant to the appeal: 1. the Builder was not obliged to carry undertake OSD and stormwater work because such an obligation did not form part of the Contract (Reasons [37]- [60]); 2. the Builder did not repudiate the Contract (Reasons [60]); 3. the Owner was not entitled to terminate the Contract on any of the ten grounds set out in the Termination Notice (Reasons [75] - [100] and [103]) or because of the Builder not performing the OSD and stormwater work (Reasons [101]-[102]); 4. the Owner's service of the Termination Notice was a repudiation of the Contract (Reasons [104]), which was accepted by the Builder on 6 February 2018 when it terminated the Contract (Reasons [105]); 5. as a result, the Owner and Builder were relieved from further performance of the Contract but their accrued rights and liabilities were unaffected (Reasons [105]); 6. thus the Builder was entitled to recover amounts owing to it under the Contract prior to termination, including an instalment due upon practical completion (Reasons [107]), practical completion having occurred on 20 December 2017 (Reasons [61]-[74]); 7. the Builder was entitled to interest under cl 33 of the Contract (Reasons [130]-[132]); 8. as to the Owner's claim against the Builder: 1. she was not entitled to recover from the Builder amounts she paid for the occupation certificate because it was not the Builder's obligation to obtain that certificate (Reasons [37],[40], [102] and [174]); 2. she was not entitled to costs incurred in completing the construction, including the costs of the OSD and stormwater work (Reasons [175] - [176]); 3. she was entitled to liquidated damages because of the delay in completing the construction, in the sum of $97, for the 97 working days in the period from 4 August 2017 to 20 December 2017 (Reasons [188]-[194]); and 4. she was not entitled to unliquidated damages from 25 January 2018 because she had repudiated the Contract (Reasons [187]).

[9]

Tribunal's reasoning

The Tribunal found that the Contract did not require the Builder to undertake the OSD and stormwater work because an obligation to perform such work did not form part of the Contract, there had been no variation to the Contract to include such an obligation; and there was no separate subsequent contract for that work (Reasons [60]).
The Tribunal's reasoning to that conclusion may be summarised as follows.
First, the text of the Contract did not include any attached plans or identify any particular plans (Reasons [35(2)].
Secondly, in construing the Contract it is appropriate to take into account matters external to the text of the Contract, including the commercial purpose or objects of the Contract, its genesis and the surrounding circumstances known to both parties (Reasons [44]-[49]). In this regard, the Tribunal found that the revised tender: 1. was the genesis of the Contact given that the tender price of $706,135 was the same in that tender and in the Contract (Reasons [46]); 2. included the words: "As discussed any additional requirements by way of stormwater and engineering etc will be attended by way of variation" (Reasons [46]); and 3. was a surrounding circumstance known to both parties (Reasons [48]).
In these circumstances, to construe the Contract as including within its scope of work the OSD and stormwater work would create a result that was not intended when the Contract was signed (Reasons [48]).
Thirdly, the Owner made post-contractual admissions which are able to be taken into account as an exception to the parol evidence rule in the construction of a contract (Reasons [50]). In this regard, the Tribunal found: 1. that emails exchanged between the Owner and the Builder between 19 April and 10 July 2017 reflected the mutual intention of both the Owner and the Builder that the OSD and stormwater work was not included in the scope of work of the Contract. The Tribunal found that those emails constituted admissions because their content is consistent only with the OSD and stormwater work not forming part of the scope of works under the Contract. If, as the Owner contended, such work was required under the Contract then she had no reason to enquire subsequently as to its costs (Reasons [51]); and 2. an implied admission from the absence of any reference to the OSD and stormwater work in the Termination Notice, in circumstances where a reference to that work in the Termination Notice would have been expected if it was part of the work contracted for and had not been performed (Reasons [52]).
The Tribunal recognised (Reasons [54]) that: "the following words appeared in within (sic) the first and last pages of the 'Home Specifications': 'Lay Stormwater as per plan to pick up all downpipes and overflow from tank, includes pick up points for Agricultural Drains ... Any additional requirements required by local Council or approving authority to submitted plans will be charged to the Owners'." but held that by reason of the exception to the parol evidence rule and post contract admissions it was satisfied that the OSD and stormwater work was not an obligation imposed on the Builder by the Contract (Reasons [55]).
The Tribunal also found that there was no evidence that the Contract had been varied or that a subsequent contract had been created creating an obligation on the Builder to undertake the OSD and stormwater work (Reasons [56]-[59]).

[10]

Submissions and consideration

Grounds 1 and 2 are described in the Amended Notice of Appeal as: "By law what must form part of the contract documents?" and "Were approved engineering stormwater plans - major works - considered part of the scope of works?", respectively. The Builder conceded that these grounds raise questions of law.
The Owner submitted that the obligation on the Builder to perform the OSD and stormwater work arose in numerous ways, some from within the text of the Contract and some via the operation of statutory provisions.
The first textual reference is to the entry in the Builder's Specifications to the following effect: SERVICES- Lay stormwater as per plans to pick up all downpipes and overflow from tank, include pickup points for Agricultural Drains - included.
The Owner contends that the Tribunal failed to construe and give effect to these terms. Whilst it may be an error of law to fail to engage with a substantial, clearly articulated argument, no such error was made. As noted at [45] above, the Tribunal did take into account that text at Reasons [54] but held that by reason of the exception to the parol evidence rule and the post contract admissions, it was satisfied that performance of the OSD and stormwater work was not an obligation imposed upon the Builder by the Contract (Reasons [55]). The Appeal Panel does not see any error in the approach taken by the Tribunal.
The second textual reference is cl 39.1(a) of the Contract which provides that it is an implied term of the Contract that "the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract". This does not assist the Owner as it begs the question as to what the plans set out in the Contract were. A similar conclusion follows with respect to the Owner's reliance upon cl 1.1 and 8.3 of the HIA Specifications.
The third textual reference is to cl 39.1(e) of the Contract which provides that if "the building works consists of the construction of a dwelling…the building works will result, to the extent of the building works conducted, in a dwelling that is reasonably fit for occupation as a dwelling". The Owner submitted that this clause required the builder to undertake the OSD and stormwater work, because the dwellings would otherwise not be reasonably fit for occupation as such. The Appeal Panel does not accept this submission. This clause does not create an absolute obligation on the Builder to ensure that a dwelling is reasonably fit for occupation, rather the obligation only operates to the extent of the building works conducted, which in turn depends upon the scope of the works agreed.
The fourth textual reference is cl 40.3 of the Contract, which provides: To the extent required by the Home Building Act: (a) all plans and specifications for the building works including any variations to those plans and specifications form part of this contract…
Section 7 of the Home Building Act 1989 ("HB Act") provides in so far as is presently relevant: 7 Form of contracts (other than small jobs) (1) A contract must be in writing and be dated and signed by or on behalf of each of the parties to it. (2) A contract must contain - … (c) a sufficient description of the work to which the contract relates, and (d) any plans and specifications for the work, … (3) The contract must comply with any requirements of the regulations.
This section provides that a building contract must contain a sufficient description of the work and attach any plans and specifications for the work. However, it does not follow, as the Owner seems to submit, that any plans she provided to the Owner thus became part of the Contract.
The fifth textual reference is to the following clauses of the HIA Specifications: 1. cll 1.1 and 1.2 which provide that the HIA Specifications form part of the Contract; 2. cl 1.3 which requires the Builder to maintain a legible copy of the plan and the HIA Specifications; 3. cl 2.1 which provides that the building works outlined in the annexed Schedule of Works are to be construed in accordance with (1) the Regulations and the Performance Requirements in the NCC Housing Provisions Volume 2 and (2) any conditions imposed by the relevant development consent; and 4. cl 2.2 which requires the Builder to comply with the legal requirements of all legally constituted authorities having jurisdiction over the building works and the provisions of the HB Act.
There is nothing in these clauses which assists the Owner's arguments or contradicts the findings made or conclusions reached by the Tribunal.
As part of this argument the Owner contended that the Builder was obliged to carry out the OSD and stormwater work because the development consent granted by the Council made that work mandatory. However, that consent was granted to the Owner and the obligation to have it performed fell upon the Owner, not the Builder. The Builder was not under any obligation arising from the development consent. Its obligations were contractual and defined by the terms of the Contract.
The Owner also relied on various statutory provisions to support her argument that the Builder was obliged to carry out the OSD and stormwater work because she had provided plans for such work to the Builder. Those provisions, such as ss 7 and 18 of the HB Act, do not assist the Owner in particular because they do not have the effect of making any plans provided to the Builder a part of the Contract or because they otherwise do not define the scope of the works to be performed.
The Owner also submitted that a contract in which a builder is not required to complete mandatory work or meet statutory obligations and provide a property in accordance with plans and fit for use is an unfair contract. However, for the reasons set out above, the Builder has not failed to complete mandatory work or fulfil statutory obligations.
A major hurdle for the Owner to overcome in order to succeed on this appeal is the Tribunal's findings as to the post contract admissions and their effect upon the proper construction of the Contract. Whilst the owner submitted that the Tribunal erred in relying upon the exception to the parol evidence rule and in using post contract admissions, instead of relying upon the HB Act, she did not identify any error in the Tribunal's approach to the use of post contract admissions. As noted above at [50], the Appeal Panel sees no error in the Tribunal's approach. Those admissions are powerful considerations supporting a conclusion that the OSD and stormwater work were not part of the work that the Builder was required to perform under the Contract.
The Owner submitted that the Tribunal failed to consider critical evidence, such as the stormwater plans dated 11 August 2016, the 7 October 2016 email, the final stormwater plans dated 9 November 2016 as contained within the construction certificate, the HIA Specifications reference to "Lay Stormwater to Plan" and the Builder's final tender. The Appeal Panel is not satisfied that these items of evidence were not considered by Tribunal, particularly in view of the Tribunal's reference to them in its Reasons.
For all of the above reasons, the Appeal Panel is not satisfied that the Tribunal erred in law, or otherwise, in reaching the conclusion that the Builder was not obliged to undertake the OSD and stormwater work.

[15]

Appeal ground 8

The second of these submissions concerned the failure of the Builder to obtain compliant insurance until 15 January 2018 (ground of appeal 8 and grounds of termination 1-3).
The Tribunal considered these grounds of termination at Reasons [82]-[87] and held in essence that: 1. the original insurance certificates were obtained on 19 December 2016 in the name of the Builder's parent company rather than the name of the Builder; 2. replacement certificates were obtained, dated 21 December 2017, but contained an incorrect address; 3. compliant certificates were obtained and provided to the Owner on 15 January 2018; 4. these events did not provide a basis for termination because: 1. the effect of s 94(3) of the HB Act is that the work ceased to be uninsured work upon the obtaining of the compliant certificates; 2. as at the date of the Termination Notice (25 January 2018), there was no extant breach of the obligation to obtain insurance; and 3. no submission was made that there was any practical consequence for the Owner in the insurance position being irregular prior to 15 January 2018.
The Owner's submissions on appeal are in essence that: 1. the Builder failed to obtain insurance until 15 January 2018, and as a result breached s 92 of the HB Act; 2. although that breach was rectified, it affected the Owner by causing unreasonable delay; and 3. the Tribunal failed to consider the breach as contributing to unreasonable delay and failed to apply ss 18(1)(d) and 92(1) of the HB Act.
The Appeal Panel is not satisfied that the Tribunal erred. The Tribunal's reasoning with respect to s 94(3) and the absence of an extant breach as at the date of termination is orthodox.
The Owner's submission that there was a failure by the Tribunal to consider the effect of delay is not accepted. As the Tribunal noted at Reasons [87], no such submission was made to the Tribunal. The Owner has not identified where such a submission was put to the Tribunal. Further, the Owner's written submissions before the Tribunal did not address the grounds of termination at all (Reasons [81]) and the transcript of the hearing does not record such an oral submission having been made.
The Owner's submissions on appeal also addressed several grounds of termination that were not included in the Termination Notice.

[21]

Submissions and consideration

The Owner has submitted in essence that: 1. the Tribunal erred in law in reaching the conclusion that practical completion had been achieved, on the basis that practical completion could not have been achieved when the OSD and stormwater work had not been completed; 2. it was an error of law to rely on the photographs, in light of what was said by the Appeal Panel in the 2020 Appeal Panel Decision at [91]; and 3. although the photographs may have shown that the work looked complete, they do not show the stormwater position, which is underground.
As noted above at [38]-[63], the Builder was not obliged to complete the OSD and stormwater work. It follows that the Owner's submission that practical completion could not have occurred until that work had been done must be rejected.
In order to consider the Owner's submission that it was an error of law to rely on the photographs, in light of what was said by the Appeal Panel in the 2020 Appeal Panel Decision, it is necessary to set out paragraphs [89] - [93] of that decision: 89. In submission on appeal, the owner argued that practical completion could not have been reached under the contract because the notice had not been given in accordance with clause 21 and 23 of the contract. It is clear that the Tribunal was aware of these arguments but found "some problems" with them. The Tribunal did not say what those problems were. The Tribunal did not outline or discuss in any detail either party's evidence and submissions concerning when the notice was given to the owner, nor did the primary member weigh or balance that evidence or address the owner's submission that the notice relied on by the builder was not a valid notice, and that practical completion had therefore not been achieved. She also argued that that the duplexes were not "reasonably capable of being used for their usual purpose" if the OSD and stormwater works were not completed. 90. On appeal, the builder supported the Tribunal's conclusions. 91. Whether or not practical completion had been achieved was a central question in the proceedings which would impact on the Tribunal's decisions regarding, among other things, the extent of delays in constructing the building works, whether and when the builder was entitled to a final payment, and whether the builder's delays amounted to conduct which would entitle the owner to treat the contract as at an end. The failure by the Tribunal to address the issues raised by the owner concerning compliance with the contractual regime for achieving practical completion, and its reliance on the photographs alone when determining that practical completion occurred on 20 December 2017, is a failure to address important and relevant considerations. This is itself an error of law. It also constitutes a failure by the Tribunal to give any reasons with respect to an important part of the dispute before it. 92. We also note that, if the owner's submissions that the OSD and stormwater works formed part of the contract had been accepted by the Tribunal, then the primary member's conclusion that practical completion was achieved on 20 December 2017 would not necessarily stand. 93. As we are satisfied that there are a number of errors of law with respect to the Tribunal's determination of the practical completion issue, there is no need to consider the owner's application for leave to appeal in this regard.
It may be seen from these paragraphs that the error of law was not the Tribunal's reliance on the photographs but its failure to address important and relevant considerations raised by the Owner, namely whether the Builder had complied with the contractual regime for achieving practical completion, including whether the Builder had failed to complete the OSD and stormwater works. Thus, the Appeal Panel is not satisfied that the Tribunal erred in law in relying on the photographs.
The Owner's submission that the photographs could not have shown that the stormwater work was yet to be done because that work is done underground may be accepted. However, because of the Appeal Panel's conclusion that the Tribunal did not err in finding that the Builder was not obliged to undertake the OSD and stormwater work, that submission does not establish error by the Tribunal.
The Owner also made submissions as to whether there had been a deemed practical completion because, she contended, the procedures required by cl 21 of the Contract had not been followed. It is not necessary to resolve this issue, given the Appeal Panel's view, set out above, that the Tribunal did not err in finding that practical completion had been achieved as a matter of fact.
The Owner also submitted that practical completion could not have occurred at a time when the Builder's insurance position was non-compliant. The Appeal Panel does not accept that submission. The provisions concerning insurance do not affect the question of whether practical completion has been achieved.
The Appeal Panel is not satisfied that the Tribunal erred in law or otherwise with respect to its conclusion that practical completion occurred on 20 December 2017.

[33]

Application for leave to appeal

The Appeal Panel has a discretion under s 80(2) of the NCAT Act to grant leave to appeal. Where, as in the present case, the appeal is from a decision of the Consumer and Commercial Division of the Tribunal, regard must be had to cl 12 of Sch 4 to the NCAT Act which provides: An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17, an Appeal Panel stated at [76]- [79] and [84(2)] as follows: 74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in clause 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in paragraph (a) or (b) not occurred or if the fresh evidence under paragraph (c) had been before the Tribunal at first instance. 75 As to the particular grounds in clause 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in clause 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. … 84 The general principles derived from these cases can be summarised as follows: … (2) 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.
If the Owner were to establish that one or more of cl 12 (a)-(c) of Sch 4 were satisfied and that she may have suffered a substantial miscarriage of justice, the Appeal Panel would still have a discretion whether or not to grant leave under s 80(2): Pholi v Wearne [2014] NSWCATAP 78 at [32]. The matters summarised in Collins v Urban, above, at [84(2)] would come into play in the Appeal Panel's consideration of whether or not to exercise that discretion.
As noted above, the Appeal Panel is not satisfied that the Tribunal erred, in law or otherwise, with respect to appeal grounds 1 to 15.
The Owner's Submissions on appeal are replete with assertions that the Tribunal failed to consider the operation of a particular clause of the Contract or a particular statutory provision or a particular piece of evidence; or that such clause, provision or evidence was given insufficient weight.
In many cases it is obvious that the Tribunal did take such matters into account and did not fail to give them sufficient weight.
However, in other cases, it is not obvious that the particular matter was put before the Tribunal for consideration, particularly in view of the commendably focussed oral submissions made on behalf of the Owner to the Tribunal and in the absence before the Appeal Panel of the Owner's written submissions before the Tribunal. Further, the Owner has not identified where the particular submission or evidence was put to the Tribunal. In these cases, the Appeal Panel is unable to be satisfied that there was a failure to take a particular matter into account or to give it sufficient weight.
The Appeal Panel has also considered appeal grounds 16 and 17, titled "Miscarriage of Justice". Those grounds reiterate points made in the appeal grounds 1 to 15. They also raise matters not raised, or not the subject of evidence, before the Tribunal (including various allegations of misconduct) and which cannot be taken into account on the appeal. The Tribunal is not satisfied that the matters raised in appeal grounds 16 and 17 demonstrate an error of law or that any part of the Tribunal's decision was against the weight of evidence, not fair and equitable, or liable to be disturbed on the basis of significant new evidence.
For the above reasons, it follows that none of cl 12(a) - (c) of Sch 4 to the NCAT Act are satisfied and there can be no grant of leave to appeal.

Goncalves v Bora Developments Pty Ltd

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