Goncalves v Bora Developments Pty Ltd

Applicable legal principles

1. 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").
2. 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.
3. 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].
4. The principles relevant to the Appeal Panel's discretion to grant leave are considered later in these reasons, at [116]-[118].

The Tribunal's Decision

1. The Tribunal's Reasons comprise 200 paragraphs over 58 pages. Set out below is a summary of the salient aspects of those parts of the Reasons relevant to the issues for determination on this appeal.

Findings of fact

1. The central findings of fact made the Tribunal are as follows.
2. 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]).
3. 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]).
4. 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]).
5. 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]).
6. 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]).
7. 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)]).
8. 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").
9. 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)]).
10. 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]).
11. 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]).
12. On or about 19 December 2016, Home Warranty Insurance Certificates bearing that date were obtained (Reasons [83]).
13. 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]).
14. On 10 October 2017, the Owner advised the Builder that the Home Warranty Insurance Certificates had been issued to the wrong entity (Reasons [25]).
15. 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]).
16. On 15 December 2017, the Owner attended the property for a "walk through" (Reasons [26]).
17. 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)]).
18. On 21 December 2017, replacement Home Warranty Insurance Certificates were provided to the Owner, but these showed an incorrect address (Reasons [25], [84]).
19. On 15 January 2018, compliant Home Warranty Insurance Certificates were provided to the Owner (Reasons [25], [85]).
20. 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)]).
21. 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]).

Conclusions

1. 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]).

Appeal grounds - overview

1. As noted above, the Owner's Amended Notice of Appeal and other documents refer to 17 appeal grounds. It is convenient to consider appeal grounds 1 to 15 by reference to the following issues: 1. was the Builder obliged to perform the OSD and stormwater work?; 2. did the Owner validly terminate the Contract?; 3. was the Builder entitled to recover the instalment payment which depended upon practical completion having been achieved?; 4. was the Tribunal's calculation of interest owing to the Builder correct?; 5. was the Owner entitled to recover the costs she incurred in obtaining the occupation certificate?; and 6. was the Owner entitled to compensation for economic loss beyond the $97 awarded?
2. These issues follow the order of the summary of the conclusions reached by the Tribunal set out at [33] above. As a result, appeal grounds 1 to 15 are considered out of numerical order. Appeal grounds 16 and 17 are considered later in these reasons at [123] as part of the application for leave to appeal.

Preliminary observations

1. The task of the Appeal Panel is to determine whether the Tribunal has erred in law, or there are matters which justify the exercise of the discretion to grant leave to appeal. Importantly, it is not the role of the Appeal Panel to hear the proceedings de novo and to consider each and every argument that was or could have been run before the Tribunal. In other words, it is not an opportunity for an appellant to re-run their case. The Owner's submissions, which exceed 80 pages, together with various schedules and attachments, cover a much broader field than the case run by her legal representative before the Tribunal. In this regard, it is noteworthy that the oral submissions made on behalf of the Owner (transcript pages 86 - 101): 1. started with an indication that the issues in dispute were quite narrow and in particular that the real issue for determination was whether or not as at 25 January 2018 the Owner had a right to terminate the contract, based on the Builder's repudiation of the Contract, where the issue of repudiation was whether, properly construed, the Contract required the Builder to undertake the OSD and stormwater work and the Builder did not do that work; 2. addressed at some length the contractual construction issue; and 3. did not address many of the matters now raised on appeal by the Owner.
2. The focus of the Appeal Panel in its analysis below is whether the Tribunal erred in its disposal of the case presented to it.

Was the Builder obliged to perform the OSD and stormwater work? (appeal grounds 1 and 2)

1. The central issue before the Tribunal was whether the Contract required the Builder to undertake the OSD and stormwater work (as the Owner contended) or not (as the Builder contended).

Tribunal's reasoning

1. 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]).
2. The Tribunal's reasoning to that conclusion may be summarised as follows.
3. First, the text of the Contract did not include any attached plans or identify any particular plans (Reasons [35(2)].
4. 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]).
5. 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]).
6. 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]).
7. 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]).
8. 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]).

Submissions and consideration

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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…
8. 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.
9. 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.
10. 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.
11. There is nothing in these clauses which assists the Owner's arguments or contradicts the findings made or conclusions reached by the Tribunal.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.

Did the Owner validly terminate the Contract? (appeal grounds 7-10 and 12-13)

1. As noted above, the Tribunal concluded that the Owner was not entitled to terminate the Contract on any of the ten grounds set out in the Termination Notice or because of the Builder not performing the OSD and stormwater work.

Tribunal's reasoning

1. The Tribunal's reasoning with respect to the termination of the Contract was in essence: 1. termination can occur pursuant to a specific provision in the Contract (cl 27) or pursuant to the common law (Reasons [75]-[77]); 2. in the present case, the Owner indicated through her legal representative that she relied only on her common law right (Reasons [78]); 3. the Termination Notice contained ten grounds for termination (Reasons [80]); 4. having considered each of those grounds, none of them was sufficient to justify termination (Reasons [79]- [100]). (It will be necessary to consider in greater detail the reasoning with respect to some of these grounds below); 5. the Owner was also entitled to rely upon grounds not included in the Termination Notice but which existed at the time of termination. However, the OSD and stormwater work did not provide such a basis because the Builder was not obliged to undertake that work and in any event such work was not of such significance that a failure to perform it would justify termination of the Contract (Reasons [101]-[102]); and 6. thus, the Owner did not have a valid basis for terminating the Contract as at 25 January 2018 (Reasons [103]) and the service of the Termination Notice by her was a repudiation of the Contract (Reasons [104]).

Submissions and consideration

1. The Owner's submissions address several of the grounds contained in the Termination Notice.

Appeal ground 7

1. The first of these submissions concerned the failure of the Builder to complete the works within a reasonable time (ground of appeal 7 and ground of termination 4).
2. The Owner submitted that the Tribunal failed to properly construe cl 39(1)(d) of the Contract and s 18(1)(d) of the HB Act, which required that "the building works be done with due diligence and within the time stipulated in this contract, or if no time is stipulated, within a reasonable time". The Owner's submission appears to be that the Tribunal erred in law because it failed to consider whether the Builder completed the works with due diligence and within a reasonable time, in circumstances where the Contract required the work to have been completed by 4 August 2017 and (on the Owner's case) it had not been completed by 25 January 2018, 25 weeks late.
3. The Owner's submission is not accepted. As the Tribunal held at [74] and [88], where practical completion had been achieved (a conclusion which the Appeal Panel upholds in this appeal at [85]-[95] below) the fact that there had been delay in its achievement is not of the requisite significance to warrant the termination of the Contract.

Appeal ground 8

1. 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).
2. 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.
3. 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.
4. 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.
5. 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.
6. The Owner's submissions on appeal also addressed several grounds of termination that were not included in the Termination Notice.

Appeal ground 9

1. The first such submission was that the Builder substantially breached the Contract by suspending work from 10 October 2017 to 8 December 2017, following the Owner's notification of there being an issue with the Builder's insurance. The Owner relied upon cl 27.1(b) of the Contract which provides: "A substantial breach of this contract by the builder includes but is not limited to if the builder …suspends the carrying out of the building works other than under Clause 25" and submitted that the Tribunal failed to have regard to that clause or to consider the evidence of the suspension.
2. The Termination Notice does not refer to such a suspension as a breach. Whilst termination grounds 9 and 10 are: "The builder has been advised of breaches in contract however state 'We don't believe we are in breech (sic)'" and "Significant time has been given to the Builder to rectify breaches in contract and reach practical completion", the Tribunal noted at Reasons [96] and [97] that there had been no identification in the Owner's evidence or submissions of any particular breaches by the Builder relied upon by the Owner.
3. In circumstances where the Owner has not identified where a submission was put to the Tribunal to the effect of the submission now made by the Owner and it is not apparent that such a submission was put to the Tribunal, the Appeal Panel is not satisfied that the Tribunal erred.

Appeal ground 10

1. The second such submission was that the Tribunal failed to have regard to cl 19.2 of the HIA Contract, which provided that: "The builder is to give the owner written notice of an entitlement to an extension of time detailing both: (a) the cause of the delay and (b) the extension of time, within 10 working days after becoming aware of both the cause and extent of the delay" and the failure of the Builder to give such a notice.
2. The Termination Notice does not refer to a failure by the Builder to provide such notice as a breach. The matters noted above at [77] with respect to appeal ground 9 are apposite.
3. In circumstances where the Owner has not identified where a submission was put to the Tribunal to the effect of the submission now made by the Owner, and it is not apparent that such a submission was put to the Tribunal, the Appeal Panel is not satisfied that the Tribunal erred.

Appeal grounds 12 and 13

1. The Owner also submitted that: 1. cl 39 of the Contract and s 18B(1)(e) required the Builder to provide dwellings fit for occupation; 2. as at 25 January 2018, the dwellings were not fit for occupation because the Builder had failed to complete major works (namely, the OSD and stormwater work); 3. by asserting that practical completion had occurred without having completed those major works, the Builder evinced an intention not to be bound by the Contract, which provided a basis for the Owner to terminate the Contract at common law; and 4. the Tribunal referred to the Owner's common law right to terminate but did not consider or gave no weight to her evidence and did not address the common law basis for termination.
2. Those submissions are founded upon the proposition that the Builder breached the Contract because it failed to carry out the OSD and stormwater work. For the reasons set out earlier in this decision, the Tribunal was correct to find that the Builder was not obliged to carry out such work. Further it is clear from the Reasons ([75]-[103]) that the Tribunal gave detailed consideration to the Owner's right to terminate at common law.
3. The Appeal Panel is not satisfied that the Tribunal erred in law or otherwise in its conclusion that the Owner did not validly terminate the Contract.

Was the Builder entitled to recover the instalment payment which depended upon practical completion having been achieved? (appeal grounds 3,4 and 12)

1. As noted above, the Tribunal concluded that the Builder was entitled to recover amounts owing to it under the Contract prior to termination, including an instalment due upon practical completion, practical completion having occurred on 20 December 2017.
2. Grounds 3, 4 and 12 concern the Tribunal's finding that practical completion had occurred on 20 December 2017 (Reasons [74]).

Tribunal's reasoning

1. The Tribunal reached that conclusion by: 1. noting the definitions of "practical completion" and "building works" in cl 1 of the HIA Contract (Reasons [62]); 2. considering whether practical completion had occurred because it was deemed to have occurred by reason of the operation of cl 21 of the HIA Contract (Reasons [63] - [71]). The Tribunal concluded that there was such a deeming; and 3. then considering the position if cl 21 had not been complied with, namely whether the definition of "practical completion" had been satisfied as a matter of fact (applying the decision of an Appeal Panel in Woodward v DJ & TL Mellross Pty Ltd [2018] NSWCATAP 179). The Tribunal concluded that that definition was satisfied, on the basis of photographic evidence of the state of the building work as at 20 December 2017 (Reasons [72] - [73]).

Submissions and consideration

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

Was the Tribunal's calculation of interest owing to the Builder correct? (appeal grounds 7 and 11)

1. As noted above, the Tribunal concluded that the Builder was entitled to interest under cl 33 of the Contract.

Tribunal's reasoning

1. The Tribunal applied cl 33 and item 12 of Schedule 1 of the HIA Contract, which provided that the Builder was entitled to charge interest at a rate of 10 per cent from the day on which amounts falls due to be paid until the day the amounts were paid. The dates on which amounts fell due to be paid were 29 August 2017, 17 and 24 October 2017, 21 December 2017 and 1 February 2018.

Submissions and consideration

1. The essence of the Owner's submission is that: 1. the Builder did not have compliant insurance in place until 15 January 2018; 2. prior to that date, the Builder was not able to demand or receive money from the Owner by reason of s 94 of the HB Act; and 3. thus, interest should run only from 15 January 2018.
2. Section 94 of the HB Act provides in so far as is presently relevant: 94 Effect of failure to insure residential building work (1) If a contract of insurance required by section 92 is not in force, in the name of the person who contracted to do the work, in relation to any residential building work done under a contract (the "uninsured work"), the contractor who did the work - (a) is not entitled to damages, or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, in relation to that work, and (b) is not entitled to recover money in respect of that work under any other right of action (including a quantum meruit). … (3) Residential building work that is uninsured work at the time the work is done ceases to be uninsured work for the purposes of this section if the required contract of insurance for the work is subsequently obtained.
3. The effect of s 94(3) is, as the Tribunal held at Reasons [85], that upon compliant insurance being obtained on 15 January 2018, the work undertaken by the Builder ceased to be uninsured work. It follows that the Builder was able to seek recovery of interest in accordance with cl 33.
4. The Appeal Panel is not satisfied that the Tribunal erred in law or otherwise with respect to the calculation of interest.

Was the Owner entitled to recover the costs she incurred in obtaining the occupation certificate? (appeal grounds 5 and 6)

1. As noted above, the Tribunal held that the Owner was not entitled to recover amounts she paid for the occupation certificate from the Builder because it was not the Builder's obligation to obtain that certificate.

Tribunal's reasoning

1. The Tribunal reached this conclusion by: 1. noting, at Reasons [37], that it was part of the Owner's case that cl 22 of the HIA Contract did not require the Builder to obtain an occupancy certificate; and 2. applying cl 22, which provided: "The builder is not required to obtain any certificate of occupancy of final inspection certificate relating to the building works" (Reasons [174]).

Submissions and consideration

1. The Owner has submitted that the Tribunal made an error of law in reaching that conclusion because the Builder's Specification for each dwelling included: "Private Certificate and Occupation Certificate - Included".
2. As the Builder conceded, the proper construction of the Contract is a question of law.
3. Whilst there may be an inconsistency between cl 22 of the HIA Contract and the entry in the Builder's Specification noted above, it does not follow (even if that inconsistency were to be resolved by a construction that the entry in the Builder's Specification should prevail over cl 22) that the Tribunal has made an error of law. This is because the argument based on the entry in the Builder's Specification was not put to the Tribunal and it cannot be an error to not consider an argument not raised: see the 2020 Appeal Decision at [103]. Even more so, when the Owner's case presented by her legal representative to the Tribunal was to the contrary of the case she now puts. Her case before the Tribunal (as recorded at Reasons [37] and reflected in the transcript at page 90) was that cl 22 did not require the Builder to obtain an occupancy certificate.
4. The Owner sought to introduce new evidence concerning the alleged conduct of the Builder and the certifier on other projects. The Appeal Panel declines leave to introduce that evidence in view of its low probative value, particularly concerning the construction of the Contract, and the absence of a satisfactory explanation as to why such evidence was not adduced before the Tribunal.
5. The Appeal Panel is not satisfied that the Tribunal erred in law or otherwise with respect to its conclusion that the Builder was not obliged to obtain the occupation certificate.

Was the Owner entitled to compensation for economic loss beyond the $97 awarded? (grounds 7 and 14-15)

1. As noted above, the Tribunal held that the Owner: 1. 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; and 2. was not entitled to unliquidated damages from 25 January 2018 because she had repudiated the Contract.

Tribunal's reasoning

1. The Tribunal's reasoning with respect to the Owner's claim for economic loss was as follows (Reasons [187] - [194]): 1. the claim has two components - liquidated damages to 25 January 2018 and unliquidated damages thereafter; 2. the liquidated damages claim: 1. was governed by cl 32 and item 11 of Sch 1 of the HIA Contract which provided that if the building works did not reach practical completion by the end of the building period, then the Owner would be entitled to damages of $1 per working day from the end of the building period until the earliest of: (1) the date of practical completion; (2) the date the Contract ended; and (3) the date the Owner takes possession of the site or part of it; 2. operates upon the following facts: 1. the building period ended on 4 August 2017; 2. the earliest of the three specified end dates was the date of practical completion (20 December 2017); 3. there were 97 working days between 4 August 2017 and 20 December 2017; and 1. thus, totals $97; 1. the unliquidated damages claim was based on there being a breach of contract by the Builder and it is rejected because of the Tribunal's findings in relation to the issue of repudiation and termination (Reasons [187]).

Liquidated damages

1. The Owner submitted that the earliest of the three specified end dates in the calculation of liquidated damages was the date on which the Contract ended, 25 January 2018. This is of course consistent with the Owner's position that practical completion did not occur prior to that date. For the reasons set out earlier at [85]-[95], the Appeal Panel is satisfied that the Tribunal's conclusion that practical completion occurred on 20 December 2017 is correct. It follows that there was no error in the Tribunal's calculation of liquidated damages.

Unliquidated damages

1. The Owner submitted that she was entitled to unliquidated damages from 4 August 2017 to 27 August 2019, being the date on which certain certificates were provided to her by the Builder, with such damages calculated by reference to the rental available for the two dwellings on the basis that such an intended use was within the contemplation of both the Owner and the Builder at the time the Contract was made.
2. The Appeal Panel does not accept that submission for the following reasons. First, as the Tribunal held at Reasons [105], upon termination of the Contract, the Builder was relieved of further obligations under the Contract, but accrued liabilities were unaffected. Secondly, the accrued liability of the Builder with respect to the delay in completing the building work was governed by the liquidated damages clause.
3. The Appeal Panel is not satisfied that the Tribunal erred in law or otherwise with respect to its conclusions as to economic loss the subject of challenge in this appeal.

Conclusions as to appeal grounds 1-15

1. For the reasons set out above, the Appeal Panel is not satisfied, with respect to appeal grounds 1 to 15, that the Tribunal erred in law or otherwise.

Application for leave to appeal

1. 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).
2. 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.
3. 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.
4. 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.
5. 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.
6. In many cases it is obvious that the Tribunal did take such matters into account and did not fail to give them sufficient weight.
7. 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.
8. 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.
9. 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.

Conclusion and Orders

1. For the reasons set out above the application for leave to appeal is refused and the appeal is otherwise dismissed.
2. The Orders of the Appeal Panel are: 1. Leave to appeal is refused; 2. The appeal is otherwise dismissed; 3. Any application for costs of the appeal together with supporting submissions should be filed and served within 21 days of publication of this decision; 4. Any submission in reply should be filed and served within a further 21 days; 5. Costs submissions should address whether the Appeal Panel may decide costs on the papers and dispense with a hearing.

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: 04 August 2021