Goncalves v Bora Developments Pty Ltd; Bora Developments Pty Ltd v Goncalves

Procedural history of the Appeals

1. Both parties have appealed against the decision made by the primary member. The owner has appealed: 1. the orders made against her; and 2. with respect to the amount the builder was ordered to pay her. The builder, on the other hand, supported those orders but appealed against: 1. the primary member's assessment of its quantum meruit claim; and 2. the order that it release the occupation certificate to the owner.
2. At a directions hearing with respect to the appeals held on 27 June 2019 the Appeal Panel, constituted by Principal Member Harrowell, by consent, made orders staying the operation of some of the orders made by the primary member. Those orders were: 1. Order (1) made 20 May 2019 in application HB 18/13808 is stayed on terms Ms Goncalves pays to the Tribunal the sum of $5000.00 by 5 July 2019 to be held for the purpose of meeting any entitlement of Bora Developments to interest on the awarded amount and/or satisfaction of the primary award, such sum to be held by the Registrar until further orders. 2. Order 2 made in Application HB 18/16404 is stayed in so far as it relates the release of the Occupation Certificate.
3. As required, the owner has paid the sum of $5,000 to the Tribunal which sum is held in trust by the Tribunal.
4. The appeals were listed for hearing before us on 27 August 2019 when the owner represented herself, and Mr M Klooster of Counsel represented the builder.
5. During the hearing Mr Klooster alerted us to the fact the High Court had reserved its decision in a case (Mann v Patterson Constructions Pty Ltd) concerning how damages should be assessed on a quantum meruit basis following the termination of a building contract. Specifically, the High Court was considering whether those damages should be limited to the amount owing under the contract. As will become apparent, this mirrors one of the issues raised before us. We sought the parties views as to whether we should await the High Court's decision before determining their respective appeals. This was opposed by the owner who was anxious for an early decision.
6. At the end of that appeal hearing we reserved our decision.
7. On 9 October 2019, while we were still considering our decision, the High Court judgment in Mann v Paterson Constructions Pty Ltd [2019] HCA 32 was published. In our view, that decision directly impacted on an issue we were required to address in the builder's appeal: the assessment of the sum recoverable by the builder on a quantum meruit basis.
8. As a result on 16 October 2019 we sought written submissions from the parties as to how the judgment in Mann v Paterson Constructions Pty Ltd impacted on the issues to be determined. Both parties have since filed written submissions. Those submissions closed on 19 November 2019.

Applicable legal principles

1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) states: "Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."
2. Clause 12 of Schedule 4 to CATA states with respect to decisions made in the CCD that: 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).
3. In the present appeals both parties rely on errors of law. The owner also sought leave to appeal on the ground that the decision was not fair and equitable and was against the weight of the evidence. The builder sought leave to appeal on the ground that the decision was not fair and equitable.
4. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration. This includes not making a finding on an element or central issue that is required to be made out in order to claim an entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179. These categories of errors of law that give rise to an appeal as of right are not exhaustive.
5. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel said that the following are specifically included: 1. whether the Tribunal provided adequate reasons, which explain the Tribunal's findings of fact and how the Tribunal's ultimate conclusion is based on those findings of fact and relevant legal principle; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
6. The Appeal Panel stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to look at the grounds of appeal 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 at [12].
7. The Appeal Panel in Stephanis v Oneview Construction Pty Limited [2019] NSWCATAP 218 reviewed the authorities with respect to the adequacy of reasons for decision. The Appeal Panel wrote, at 56 - 58: 56. In Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 (Resource Pacific Pty Ltd), Basten JA stated with Beazley JA agreeing: When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality. 57. In Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 McColl JA, with whom Ipp JA and Bryson AJA agreed, identified the principles relevant to the issue of adequacy of reasons. Those observations were summarised as follows in Moussa Enterprises Pty Ltd v Stanford [2015] NSWCATAP 99 at [30]: (1) The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice. (2) The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. (3) While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties. (4) The reasons must do justice to the issues posed by the parties' cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted. (5) Because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. 58. In Hernady v Raccani [2016] NSWCATAP 67 at [44] the Appeal Panel further considered the authorities concerning the extent of the requirement to give reasons for decision noting that: (1) the content and detail of the reasons for decisions to be provided will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision - Wainohu v New South Wales (2011) 243 CLR 181 at [56]; (2) the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46]; (3) not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]."
8. In Barrett v Commissioner of Police, NSW Police Force [2015] NSWCATAP 68 the Appeal Panel said: 97. It is well accepted that reasons for decision need not be highly detailed. For a recent account of the relevant principles see: Assadourian v Roads and Maritime Services (GD) [2013] NSWADTAP 46 at [41]- [45]; and Keith v Gal [2013] NSWCA 339 esp per Gleeson JA. 98. In the context of the present appeal, we draw attention to the following observations by Gleeson JA at 116 [B]ald conclusionary statements should be eschewed. As stated by Ipp JA in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [28]: 'It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: 'I believe Mr X but not Mr Y and judgment follows accordingly'. That is not the way in which our legal system operates.' 117 Thus, it is essential to expose the reasoning on a point critical to the contest between the parties. This proposition reflects one of the three fundamental elements to a statement of reasons identified by Meagher JA in Beale v GIO [Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430] at 443-444: "Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well."
9. In Akhtar v Chowdhury [2019] NSWCATAP 243, an Appeal Panel decision published in October 2019, the Appeal Panel considered the recent decision of the Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 which, among other things, concerned the adequacy of reasons in proceedings in the CCD under the Residential Tenancies Act 2010 (NSW). As is the case here, in Akhtar the decision of the Court of Appeal in Orr had been published while that Appeal Panel's decision was reserved. The Appeal Panel wrote, at [84]: In light of the fact that the statement of relevant principles identified by the Court of Appeal was by reference to established authority at the time when the appeal in this matter was heard, it is convenient to refer to the decision on that issue. The parties to this appeal did not make substantive submissions in respect of the relevant principles to be considered upon assessment of the adequacy of the Tribunal's reasons. The relevant principles assembled by the Court of Appeal in Orr not having altered from the date of hearing we have not invited the parties to make any further submissions on the issue.
10. For the same reasons we think it appropriate to refer to the decision in Orr insofar as relates to the adequacy of reasons, despite the fact that (unlike the decision in Mann v Patterson Constructions Pty Ltd) we have not sought submissions regarding it. In doing so, we note that the Court of Appeal raised but did not resolve the issue of whether any statutory or other duty arose to give reasons in circumstances where a statutory entitlement to request written reasons had not been exercised. In the present case we think that given the nature of the litigation, the significant amounts involved, and the factual and legal complexity of the proceedings, that the Tribunal was under a clear legal duty to give reasons.
11. In Orr Bell P, with whom Ward JA and McCallum JA agreed (on the adequacy of reasons question), said at [67] to [77]: "67. Whilst all decision makers, be they judges or tribunal members, should aspire to high quality decision making, an integral part of which is the formulation of clear reasons for decision (as Gleeson CJ explained extra-judicially in "Judicial Accountability" (1995) The Judicial Review 117 at 122), as Basten JA said in Resource Pacific at [48], "[t]ransparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality." His Honour's identification of separate parameters of quantity and quality is, with respect, a useful one. 68. In terms of the former parameter, the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] per French CJ and Kiefel J (Wainohu). Thus even superior courts are not required to give reasons for every interlocutory decision: Wainohu at [56], [98], Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [42]; Lodhi v Attorney General (NSW) [2013] NSWCA 433; 241 A Crim R 477 at [29]; R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269 at [27]) and other aspects of decision making such as findings on pure credibility or matters that necessarily call for estimation or impression may require less or only allow for limited reasoning to be exposed: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 but cf. Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], Pollard at [65] and see the discussion in Resource Pacific at [48]−[58]. 69. An important question which is raised by the present case concerns the detail of reasons required of NCAT for a discretionary decision, particularly bearing in mind that there is no right of appeal from the Tribunal's decision other than on a question of law (although a broader appeal may be permitted with leave of the Appeal Panel): see [30] above. 70. As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court. 71. That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. 72. Whilst s 62(3) provides a useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed. 73. In this context, in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1995] QCA 187; [1996] 2 Qd R 462 at 477; [1995] QCA 187, Fitzgerald P said of the Queensland Retail Shop Leases Tribunal, adapting the language of Samuels JA in the unreported decision of this Court in Strbak v Newton (Court of Appeal (NSW), Samuels JA, 18 July 1989, unrep) (Strbak), cited in Xuereb v Viola (1988) 18 NSWLR 453 at 469, that, while such a tribunal: "might not be required to 'submit the material before [it] to the most meticulous analysis and carry into [the reasons for its decisions] a detailed exposition of every aspect of the evidence and the arguments ...' or '... incorporate an extended intellectual dissertation upon the chain of reasoning ...', at least 'a basic explanation of the fundamental reasons which led the [Tribunal] to [its] conclusion ...' is necessary". It should be noted that Samuels JA in Strbak had been describing the duty of a District Court judge to give reasons as opposed to that of a tribunal member. 74. In Tatmar at 386, Mahoney JA (as he then was) observed in the context of the obligation to give reasons for a discretionary judgment that it was not necessary for a judge: "who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to item[s], for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O'Hara v Evans (Court of Appeal, 23rd September, 1976, unreported; Colacicco v Colacicco (Court of Appeal, 15th March, 1977, unreported). ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824 at 826. But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it." 75. To like effect, in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46], Basten JA said: "Generally, the concept of 'reasons' requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. (A different question arises if mandatory considerations have not been identified.)" (emphasis added) 76. What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context: Pozzolanic at 287. 77. These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; [1988] FCA 446; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291."
12. With respect to the "no evidence" ground, an appellant must identify that there is no, or substantially inadequate, evidence to support a "critical" or an "ultimate" fact in order to constitute a jurisdictional error (a form of error of law): AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348, [2016] NSWCA 229 at [81]; Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263, [2001] FCA 865 at [52]-[56].
13. 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].
14. Legal unreasonableness can be concluded if the Panel comes to the view that no reasonable tribunal could have reached the primary decision on the material before it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 364 [68]). A failure to properly exercise a statutory discretion may be legally unreasonable if, upon the facts, the result is unreasonable or plainly unjust: Li (2013) 249 CLR 332 at 367 [76]).
15. In circumstances where an appellant is not legally represented it is appropriate for the Tribunal to look at the grounds of appeal 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 at [12]. As to appeals by self-represented litigants, in Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel explained at [13]: 13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, 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.
16. With respect to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, 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.
17. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.
18. Even if the appellant establishes that he or she may have suffered a substantial miscarriage of justice within clause 12 of Sch 4 to the CATA, the Appeal Panel has a discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]) The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Panel's consideration of whether or not to exercise that discretion.

The appealed decision

1. In his reasons for decision (the reasons) the primary member first set out the context in which the dispute arose by way of introduction: 1. On 14 November 2016, a home building contract (Contract) in the sum of $706,135.00 inclusive of GST was entered into between Bianca Goncalves (Owner) and Bora Developments Pty Limited (Builder) for construction of a new dual or duplex dwelling at … (Property). 2. Construction work commenced on or about 23 January 2017 and proceeded through till about 20 December 2017. The Builder issued a Notice of Practical Completion in accordance with clause 21 of the Contract on 14 December 2017 nominating the estimated date for Practical Completion to be 20 December 2017. 3. On 25 January 2018 the Owner took possession of the Property and issued to the Builder a document entitled "Notice of Breach of Contract and Ending of Contract" dated 25 January 2018. 4. In HB 18/13808 the Builder, which has been paid $545,796.10, seeks payment of an outstanding sum of $160,338.90 under the Contract. The Builder also alleges that the Contract was unlawfully terminated by the Owner but that the Builder elected to accept that conduct on or about 6 February 2018 as repudiating the Contract. 5. On 7 March 2018 the Builder filed HB 18/13808 in the Tribunal seeking payment of monies due under the Contract. On 9 April 2018 the Owner filed application HB 18/16404 in the Tribunal seeking damages for alleged defective and/or incomplete construction work and for liquidated damages under the Contract.
2. The parties agreed that the date referred to in paragraph 1 of the reasons is incorrect and that the contract is dated 4 November 2016.
3. The primary member then found that the Tribunal had jurisdiction to hear and determine those claims as building claims under s 48A of the Home Building Act 1989 (NSW) (the HBA). At paragraphs 8 to 32 the Tribunal discussed and identified certain elements and terms of the contract between the parties. It was in the form of a NSW Residential Building Contract for New Dwellings, showed a contract price of $706,135.00, and was dated 4 November 2016. The Tribunal (at 32) found that the following documents "also appear to be" contract documents: 1. HIA General Housing Specification - NSW; 2. Bora Developments Home Specification; and 3. letter from Kate Kerr of Bora Developments dated 15 August 2016.
4. At paragraphs 33 to 36 the primary member then referred to parties' points of claim and points of defence (but not to their contents) and at paragraphs 37 and 38 listed the evidence relied on by the owner and the builder at hearing.
5. The Tribunal went on to consider a number of issues which required determination in order to resolve the competing claims before the Tribunal. In summary it found that: 1. Work commenced on 23 January 2017 - paragraph 2 and 54; 2. On 14 December 2017 the builder issued a Notice of Practical Completion under clause 21 of the contract nominating 20 December 2017 as the date for Practical Completion - paragraphs 2, 23 and 24; 3. As a matter of fact Practical Completion was achieved by the builder on 20 December 2017 - paragraphs 58 and 60 to 63; 4. The Notice of Breach of Contract and Ending of Contract given to a representative of the builder by the owner on 23 January 2018 did not comply with clause 27 of the contract "Ending the contract - Breach" because: 1. clause 27 requires a two-step process "giving notice of a substantial breach, then allowing the other party 10 working days to remedy the breach, then giving a further written notice to the effect that the contract has ended…" - paragraphs 47 to 49; and 2. the owner did not give two notices but "attempted to cover these two steps in one notice and for that reason alone the Notice fail[ed] to fulfil its purpose to end the Contract" - paragraphs 49; 1. A number of the substantial breaches relied on by the owner in the notice of 23 January 2019 were not 'substantial breaches under the contract' on their face, or did not withstand the weight of analysis. The primary member instanced and determined adversely to the owner issues raised by the her concerning: 1. the absence of HOWI insurance which problem had been remedied shortly before 25 January 2018 (paragraphs 42, 50 -52); 2. the amount of time the building works had taken (paragraph 54); and 3. whether or not the works had reached Practical Completion under the contract (paragraph 55); 1. The owner "took possession of the property without the Builder's consent, refused access to the Builder to complete any building works and refused to pay the Builder the outstanding progress claims of $160,338.90" - paragraph 56; 2. The owner's "unlawful termination of the contract" constituted a repudiation of the contract which the builder accepted - paragraph 56; 3. The outstanding progress claims under the contract were $160,338.90 - paragraph 57; 4. With respect to termination the Tribunal summarised its conclusions thus, at paragraph 59 (see also paragraph 74) - 59 The Tribunal therefore finds that the Owner unlawfully terminated or ended the Contract by serving the Notice on the Builder on or about 25 January 2018. The Notice was not a breach notice and it did not comply with clause 27 of the Contract. In these circumstances the Owner is prima facie liable to the Builder in the outstanding sum of $160,338.90 subject to the further issues that the Tribunal considers below. 1. Having decided the termination issue the Tribunal then turned its attention to the highly contentious area of whether the on-site detention works (OSD) and associated stormwater drainage for the residences were included in the contracted works. It determined that the OSD works did not form part of the scope of works contracted for, accepting evidence from the builder relating to the owner's subsequent agreement to pay for those works on a cost plus basis as being determinative of the issue. The Tribunal disallowed the owner's claim for the cost of the OSD and associated stormwater works on the basis that they did not form part of the scope of works under the contract - paragraphs 90-98; 2. The primary member held, among other things, that the amount owing under the contract did not place a ceiling on the amount of builder's quantum meruit claim. The contract price, while not the best evidence, was some evidence of the value of the work done. The builder was entitled to recover the fair and reasonable value of the work performed. The value of the work done by the builder in constructing the residence was, on a quantum meruit basis, $874,007.00. This significantly exceeded the contract price of $706,135.00 inclusive of GST - paragraphs 72 to 82; 3. In this case the contract was for a fixed price and the works were "relatively straightforward." The works were nearly 95% complete and 80% of the invoices had been paid. In those circumstances, the Tribunal declined to, "reconstitute the bargain by an expert's calculation of value in the expectation that a more just and equitable outcome would be achieved." It found that the builder was entitled to recover on a quantum meruit the balance owing under the contract - paragraphs 83 to 84; 4. The owner's claim for cost of rainwater tanks as specified "in the stormwater plans of MSL which were provided to the Builder on or about 29 November 2016" failed, because they were provided after the contract date and did not form part of the contracted works". The builder had complied with its contractual obligation "to supply and install a "rainwater tank and pump as per BASIX" - paragraphs 99 to 105; 5. The owner's claim for loss of rental due to delays failed because- 1. The owner had "unlawfully terminated the contract" and "denied the builder access" thereafter; 2. It was unclear how a delay of 34 weeks from 10 October 2017 could be claimed; 3. The contract contained a liquidated damages claim providing for damages for delay of $1.00 per day; and 4. There was no evidence that "these rental losses were in the reasonable contemplation of the parties at the time that the Contract was entered into." 1. The primary member dismissed the owner's claim for a refund of GST paid to the builder in circumstances where she was precluded from claiming an input tax credit. It was agreed that the builder, was not registered for GST, but that the GST had been paid to the ATO by the builder "in its capacity as trustee for the Bora Development Unit Trust," a company associated with the builder. The Tribunal found that: 1. There was no evidence that the builder was informed that the owner was relying on being able to claim tax credits before the contract was entered into; 2. The owner had failed to identify her cause of action; 3. There was an issue about the amount of GST paid as some invoices remained unpaid; and 4. It was not persuaded that it had jurisdiction to, or should make an order; 1. Finally, the Tribunal dismissed three claims for refunds made by the owner, but disputed by the builder. They were not addressed in the owner's written submissions but were the subject of evidence and submissions by the builder. The primary member accepted that evidence and those submissions and dismissed the owner's claims - paragraph 116 to 121.

Approach to the Appeals

1. We will deal with each of the major issues raised in the appeal separately. In doing so we will address the issues as they arose, sequentially, rather than in the order they were addressed by the primary member in his reasons. For reasons which will become apparent we think that the Tribunal should have determined the issues in this case sequentially: first construing the contract in the light of the evidence and then considering the course of events in the order they occurred.

The scope of works

1. A significant issue in dispute between the parties was the scope of the building works: specifically whether the OSD and stormwater works which (on the owner's contention includes the rainwater tanks shown in the engineering approved plans for the works dated 11 August 2016) were included in the work contracted for, or was to be the subject of a subsequent cost plus contract agreed to be made after commencement of work under the contract.
2. The builder maintained the OSD and stormwater works were not within the scope of works under the contract, and was additional work.
3. The Tribunal wrote: 90 The Owner contends that the construction of the OSD formed part of the Contract works. They do this in the following way. 91 Schedule 4 of the Contract describes the building works as: "Construct 2 x two-storey residential dwellings. The building works are described in detail in the plans and specifications." 92 The plans and specifications are not described in the Contract but in a Schedule of Works which forms an annexure to the Contract. This sets out what are described as "Home Specifications" for Unit 1 and Unit 2. Each specification contains the following: "Lay Stormwater as per plan to pick up all downpipes and overflow from tank, includes pick up points for agricultural drains … on the right hand side included Rainwater tank and pump as per Basix on the right included" 93 In the notes at the end of the "Home Specifications" the following is included: "Any additional requirements required by Local Council or approving authority to submitted plans will be charged to the owner." 94 The Owner submits that the obligation to "lay stormwater as per plan to pick up all downpipes and overflow from tank" included any drainage work incorporated in the plans supplied to the Builder prior to the execution of the Contract on 14 November 2016. 95 The Builder contents (sic) that the Tender and Contract did not include any obligation to undertake works in relation to the OSD tank and that any such work would have been carried out under a variation and outside the Contract. 96 The Builder contends that whilst Condition 7 of the Development Consent dated 20 September 2016 provided for an on-site stormwater detention facility, the stormwater plans had at that stage not been prepared and it was for this reason the Development Consent provided for the OSD requirements to be reflected on the Construction Certificate plan. The Builder further contends that following a meeting between the Owner and Kate Kerr of the Builder on 14 October 2016, the parties agreed to exclude any stormwater and engineering from the Tender and to deal with it subsequently by way of variation. The Builder submits that this is confirmed in its revised Tender dated 20 October 2016. 97 While the submissions for the Owner attempt to rely on a legal interpretation of the Contract and of the Home Specifications outlined above to include the OSD in the Contract price, emails annexed to Exhibit KK-3 of the witness statement in reply of Kate Margaret Kerr for the Builder show (at pp 43-7 inclusive) that in mid-2017 the Owner in email exchanges with the Builder accepted that the OSD wasn't included in the Contract price, a separate cost plus contract needed to be drawn up as the payment terms would be different and would not be covered by a variation clause in the existing Contract, and would therefore incur a margin of 20%. In particular, an email dated 10 July 2017 from the Owner to the Builder acknowledges that the OSD would be priced on a "cost price plus basis". If the price of the OSD was included in the Contract price, it's unclear why exchanges in these terms with the Owner would have occurred. 98 For these reasons, the Tribunal finds that the OSD was not included in the Contract price and that therefore the Owner's claim in the Joint Scott Schedule for this item is disallowed.
4. The owner relied on the fact that the engineering approved plans for the works dated 11 August 2016, which were provided to the builder before the contract date and which were in evidence before the Tribunal, clearly show the OSD and stormwater works in dispute. The owner also relied on an email from the builder acknowledging receipt of the engineering plans. That email is dated 7 October 2016, nearly a month before the contract date.
5. As such, she argued, the OSD and stormwater works formed part of the scope of works contracted for. She also pointed to the development consent from Wollongong City Council, dated 26 September 2016, which was before the Tribunal and required and specified a series of requirements for the OSD.
6. The owner argued that the Tribunal had failed to consider or discuss this evidence in its decision. She said that the evidence pointed to the OSD and stormwater works being part of the scope of works, specified in the approved plans provided to the builder before the contract was executed, and not an additional requirement of council imposed over and above those in the approved plans. She said that the primary member's failure to discuss or weigh this evidence in his reasons meant they were inadequate.
7. The owner also took issue with the primary member's reliance on her subsequent conduct in agreeing to pay on a "cost plus" basis for the OSD and stormwater works, after the building works under the contract had commenced. She argued that as the builder was in the middle of construction, and was refusing to do the OSD and stormwater works under the contract, she had no choice but to agree if she wanted to the works completed.
8. She said that member's conclusions with respect OSD and stormwater works were against the weight of the evidence before him, not fair and equitable, and that as a result she had suffered a miscarriage of justice.
9. In its written submissions the builder submitted that the owner had not demonstrated how the primary members decision with respect to the OSD and stormwater works was erroneous.
10. We think it important to note that the primary member did understand the owner's argument that the OSD and stormwater works were "incorporated in the plans supplied to the Builder prior to the execution of the Contract.
11. However, the Tribunal did not evaluate the owner's argument in determining whether the storm water and OSD works were included in the scope of works contracted for. Rather than considering the question of construction of the contract and of the scope of works raised by the owner, the Tribunal relied on evidence of her subsequent conduct to find that the subsequent conduct confirmed the scope of works propounded by the builder.
12. In considering this appeal we identified the Tribunal's reliance on the owner's subsequent conduct in agreeing to pay for the OSD and stormwater works as constituting a possible error of law by the Tribunal. In the course of the hearing we drew the issue of the use of subsequent conduct in the interpretation of contracts to the attention of counsel for the builder. He agreed that this was generally impermissible.
13. As a general rule evidence of subsequent conduct (i.e. conduct occurring after the contract in writing has been entered into) cannot be used to construe the terms of a contract: Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68; at 78 per Griffith CJ; FC; Cox v Goldcrest Developments (NSW) Pty Ltd (2000) 50 NSWLR 76; at 78 per Young J; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales(1982) 149 CLR 337; 41 ALR 367. This is known as the parol evidence rule, which is a rule of construction of contracts.
14. In Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; at 347-8; 41 ALR 367; Mason J (with whom Stephen and Wilson JJ agreed) explained at 371 that: The broad purpose of the parol evidence rule is to exclude extrinsic evidence (except as to surrounding circumstances), including direct statements of intention (except in cases of latent ambiguity) and antecedent negotiations, to subtract from, add to, vary or contradict the language of a written instrument (Goss v Lord Nugent (1833) 5 B & Ad 58 at 64-5 ; 110 ER 713 at 716 ). Although the traditional expositions of the rule did not in terms deny resort to extrinsic evidence for the purpose of interpreting the written instrument, it has often been regarded as prohibiting the use of extrinsic evidence for this purpose. No doubt this was due to the theory which came to prevail in English legal thinking in the first half of this century that the words of a contract are ordinarily to be given their plain and ordinary meaning. Recourse to extrinsic evidence is then superfluous. At best it confirms what has been definitely established by other means; at worst it tends ineffectively to modify what has been so established. On the other hand, it has frequently been acknowledged that there is more to the construction of the words of written instruments than merely assigning to them their plain and ordinary meaning - see, for example, the remarks of Knox CJ in Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 69. This has led to a recognition that evidence of surrounding circumstances is admissible in aid of the construction of a contract. So Lord Wilberforce in Schuler L A G v Wickman Machine Tool Sales Ltd [1973] 2 All ER 39 at 53; [1974] AC 235 at 261, was able to state the broad thrust of the rule in this way: "The general rule is that extrinsic evidence is not admissible for the construction of a written contract; the parties' intentions must be ascertained, on legal principles of construction, from the words they have used. It is one and the same principle which excludes evidence of statements, or actions, during negotiations, at the time of the contract, or subsequent to the contract, any of which to the lay mind might at first sight seem to be proper to receive." His Lordship noted that evidence of surrounding circumstances is an exception to the rule, but he had no occasion to discuss its scope for there it was not, as it is here, a critical question. … The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable …unless they were known to both parties…
15. In BH Australia Constructions Pty Ltd v Kapeller [2019] NSWSC 1086 per Leeming JA (BH Australia) the central question was whether the evidence of subsequent conduct could be used to identify parties to a written building contract, where there was ambiguity regarding the identity of the contracting builder. In the course of an extensive review of the authorities Leeming JA noted that the parol evidence rule "only applies to contracts that are wholly in writing": Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; 261 ALR 382 at [90(3)]. Where contracts are wholly in writing as, as was the case in BH Australia and is the case here, evidence of post contractual conduct cannot be used when determining the intention of the parties. Rather, the task is one of interpretation of the written contract itself.
16. There is one acknowledged exception to the general rule about the inadmissibility of evidence of subsequent conduct, namely post contractual admissions. In Australian Energy Limited v Lennard Oil NL [1986] 2 Qd R 216, a case before the Full Court of the Supreme Court of Queensland, Thomas J (with whom Andrew CJ agreed) said that with respect to subsequent admissions (at 237) that: … I fail to see why a party may not be held to such an admission if he makes it with sufficient clarity and deliberation. The difficulty in the present case is to identify whether the above conduct supplies credible admissions of the terms of the contract or merely Lennard's belief as to what it meant. If it is evidence of the latter kind it may not be used as an aid to construction (L. Schuler A. G. v. Wickman Machine Tools Sales Limited [1974] A.C. 235) The relevant distinction is between proof of the terms of a contract and proof of its meaning. In his judgment Connolly J, who reached the same conclusion as Thomas J, said (at 230): I have reached this conclusion without placing any reliance on the admission by Lennard at various points in the exhibits of the interest retained by A.E.L. They are all post-contractual and the fact that I have been able to reach the same conclusion as McPherson J. without regard to them, makes it unnecessary for me to consider whether the principle laid down in L. Schuler A. G. v. Wickham Machine Tools Sales Ltd. [1974] A.C. 235 extends so as to exclude from consideration admissions by one party to a contract of its continued operation when this really depends upon the proper construction of the contract itself.
17. In Johnston v Brightstars Holding Company Pty Ltd [2014] NSWCA 150 Basten JA explained, at [120]-[121] "There are difficulties attending the use of post-contractual statements to construe the terms of a contract. It is an accepted principle that anything which the parties said or did after a contract was made cannot be used 'as an aid in the construction of' the contract: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570 at [35] (Gummow, Hayne and Kiefel JJ), referring to the statement of Lord Reid in James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 at 603. That principle derives from the 'objective' theory of contract, which provides that the legal obligations of the parties to the contract do not depend upon their subjective beliefs but upon the view of the reasonable bystander informed as to the surrounding context and circumstances, which in practice means the view of the court based on the evidence before it ... On the other hand, where it provides evidence of facts, the assertion of which is against the interests of one party, it may be admissible as an admission by that party. However, to the extent that the evidence reveals an opinion as to a question of law rather than fact, the admission may be irrelevant or valueless. ... Alternatively, the evidence may establish contextual facts in existence at the time the contract was executed."
18. In the present case the primary member used the owner's subsequent conduct in agreeing to pay for the OSD and stormwater works on a cost plus basis, to determine that those works were not within the scope of works under the written contract. In doing so, he did not avert to the parol evidence rule, or consider whether the evidence of the owner's subsequent conduct was admissible in the construction of the contract, and, if so, how. He did not consider whether the owner's subsequent conduct constituted an admission and was therefore admissible in the construction of the contract. He did not consider how the subsequent conduct related to what the contract actually said.
19. We are satisfied that the primary members use of the owner's subsequent conduct to determine the scope of works under the written contract without reference to the parol evidence rule was an error of law. As a consequence he failed to construe the contract according to its terms in the light of the evidence concerning the circumstances surrounding its formation: this is also an error of law.
20. As we are satisfied that there is an error of law with respect to the Tribunal's determination of the scope of works under the contract, there is no need to consider the owner's application for leave to appeal in this regard.

Commencement of the Building Works

1. There was a dispute between the parties as to when the building works commenced. The determination of this question in favour of either party would affect the assessment of the owner's claim that the works were delayed, and that the time taken to complete the works had substantially exceeded the 39 weeks provided for in clause 6 of the contract.
2. The builder denied delay. The owner asserted a series of delays.
3. Clause 12 of the General Conditions of Contract provided: 12.1 The builder is to commence the building works within 20 working days after the day that: (a) the builder receives all necessary building permits and planning approvals for the building works to commence; or (b) the owner satisfies all of the requirements of Clause 4, whichever is later. 12.2 The building period commences on the date the builder starts performing the building works on the site.
4. Among the evidence relied on by the owner in support of her contention that the building works commenced before Christmas 2016 was an invoice from the builder to the owner with respect to the sewer peg out and construction of the sewage concrete encasement at the property. The invoice is dated 14 December 2016. The owner also relied on an email from the builder timed at 11:45 am on 23 December 2016 which said: Thankyou for your payment for encasement works. As encasement work needed to be done first and was only completed last week there was no time left for us to start anything this side of Christmas. Excavation work will commence week beginning 16-01-17.…
5. In her evidence to the Tribunal the owner stated, at paragraph 11 of her first statement, that this work had been done in the week before the invoice. In submissions on appeal, she also relied on an invoice showing the sewage peg out had been done on the date of the contract.
6. These invoices and emails were all in evidence before the primary member.
7. The Tribunal found at paragraph 2 of the reasons for decision that: Construction work commenced on or about 23 January 2017 and proceeded through till about 20 December 2017…
8. At paragraph 54 the Tribunal noted that the owner said that the building works commenced "on or about 12 December 2016". The decision continued: …It is not reasonable to expect that building works would commence 4 days after the execution of the Contract. The Builder in its submissions claims that construction work did not commence at the Property until 23 January 2017 (paragraph 13).
9. It is to be noted that the Tribunal did not indicate what evidence the builder relied on to support the submission that building work commenced on 23 January 2017.
10. The builder supported the conclusions reached by the Tribunal.
11. In submission, on appeal, the owner argued that the Tribunal had not properly considered the evidence regarding commencement and had not applied the provision of clause 12.2 of the general conditions of contract when determining when the building works commenced.
12. Clause 12 provides a clear mechanism for determining when the building works commenced. The Tribunal did not consider those provisions when determining that the building works commenced on 23 January 2017. Instead, the primary member decided when the works commenced on the basis of what was considered to be "reasonable". The question of when the work ought reasonably to have commenced was not the proper method for determining a commencement date. Clause 12.2 clearly provided that the commencement date was when the builder started performing the building works.
13. By failing to find when the work actually started, and instead asking when the work reasonably should have commenced, the Tribunal asked itself the wrong question. This is an error of law.
14. Further, the Tribunal failed to consider the substantial evidence relied on by the owner in support of her contention that the building works commenced when the sewage peg out and sewage encasement works were laid. The Tribunal was clearly aware of that evidence, but disregarded it. It did not explain why it chose to reject what on its face is weighty evidence, or explain or discuss what evidence supported the builder's submission that the building works commenced on 23 January 2017. Instead, the Tribunal determined that it was, "not reasonable to expect the building works to commence within 4 days" of the contract, but did not explain why this was so.
15. In our view, due to the issues outlined above, the members reasons for decision with respect to the date of commencement of the works are inadequate. This too is an error of law.
16. Given that we are satisfied that there are a number of errors of law with respect to the Tribunal's determination of the commencement date of the building works, there is no need to consider the owner's application for leave to appeal in this regard.

Practical Completion

1. Another central issue in dispute before the Tribunal was when the building works reached practical completion.
2. Clause 1 of the general conditions of contract contains a number of relevant definitions: 'practical completion' means when the building works are complete except for minor omissions and defects that do not prevent the building works from being reasonably capable of being used for their usual purpose; 'building works' means the building works to be carried out, completed and handed over to the owner in accordance with this contract as shown in the contract documents and includes variations.
3. Clause 21 contains provisions with respect to practical completion. It says: 21.1 The builder must give the owner a notice of practical completion at least 5 working days prior to practical completion being reached. 21.2 The notice of practical completion is to: (a) stale the builder's assessment of the date of practical completion; (b) state the date and time for the owner to meet the builder on the site to carry out an inspection of the building works; and (c) have attached the builder's final progress claim. 21.3 The owner must meet the builder on the site for the inspection at the date and time stated by the builder in the notice of practical completion or at a date and time otherwise agreed with the builder and either: (a) pay the amount of the final progress claim; or (b) if the owner believes that the building works have not reached practical completion give the builder a written notice detailing anything to be done to reach practical completion. 21.4 If the owner pays the amount of the final progress claim under sub-clause 21.3(a) the date of practical completion stated in the notice of practical completion is deemed to be the date of practical completion. 21.5 If the owner gives the builder a notice under sub-clause 21.3(b) of work to be completed: (a) the builder must carry out any work required for practical completion and give the owner a further notice of practical completion; (b) if the builder does not agree that there is any further work to be carried out to reach practical completion the builder: (i) must give the owner written notice rejecting the owner's notice. In this case, such a notice will also serve as notice of the matters in dispute for the purposes of Clause 35; (ii) is not obliged to carry out any further work on the site while the dispute remains unresolved. 21.6 If the owner does not pay the amount of the final progress claim under sub-clause 21.3(a) or give the builder a notice under sub-clause 21.3(b); (a) the amount of the final progress claim is deemed to be a debt due and owing from the owner to the builder; (b) the date of practical completion stated in the notice of practical completion is deemed to be the date of practical completion; and (c) the owner acknowledges the building works have reached practical completion. 21.7 On the owner paying the final progress claim, the builder must give the keys, certificates, warranty documentation and other documents pertaining to the building works to the owner.
4. The builder relied on an undated Notice of Practical Completion (the notice) given by the builder to the owner. The builder's evidence was that this had been given to the owner on 14 December 2017. It assessed the date of practical completion to be 20 December 2017.
5. The owner's evidence was that the notice was received by email on 19 December 2017 at 1:27pm. A copy of that email was among the materials before the Tribunal. The owner asserted that the notice had not been given at least 5 days before practical completion and had been served incorrectly by email, as opposed to one the three methods set out in clause 23 of the contract with respect to notices.
6. There was no dispute that the owner and representatives of the builder conducted an inspection of the building works on 15 December 2017. The owner denied this was an inspection following receipt of the notice.
7. By an email timed at 9:03am on 19 December 2017 the owner wrote to the builder noting incomplete and unfinished works. Among other things that email included the following passages: Your email dated 6 December stated you expected to finalise works by the following Friday 15 December in reference to the Date of Completion. However when I was asked to attend the site on Friday morning I witnessed that various works were incomplete. … Please advise as to a date of actual Practical Completion so that I can do a walk through of a completed build and have an opportunity to arrange to have the property inspected. … As the OSD is a requirement by Wollongong Council I expect it to be completed in order to receive the Occupation Certificate. I fail to see how an Interim Certificate would be granted by Council being that the OSD forms part of the Conditions of Consent. It was estimated by Dave that the OSD work should take approximately 3 days. Please advise as to when the OSD work will be carried out. I have still not received the amended Warranties, nor have I received correspondence from iCare HBCF Insurance. Please advise as to whether the amended Warranties have been re-issued or advise progress.
8. An email from the builder to the owner timed at 1:27pm on 19 December 2019 responded to one of the owner's queries regarding incomplete works and advised, among other things, that: … I have attached the notice of practical completion and final progress payment for your records.
9. With respect to the OSD works that email from the builder said: To my knowledge I did not receive any return correspondence from my emails dated 10.07.17 confirming you wished to proceed. As such contracts have not been drawn up as yet to complete this on a cost plus basis. Should you with to proceed as per email, please reply by way of return email and I will prepare the paperwork. This work can be undertaken in the new year and will take approx. 4-5 weeks to complete the required works. We will be in a position to issue an interim certificate once our contract works have been completed at handover.
10. With respect to insurance compliant with s 92 of the Home Building Act 1989 (NSW) (theHBA), which the owner still had not received certificates for, the builder wrote: Amended policy has not been issued as yet as we are still trying to negotiate with the underwriter to issue without your written consent as previously requested and discussed with Tim from BEA (our broker). I will update you on progress this afternoon once Tim speaks with HBCF again in an attempt to resolve.
11. The next day, 20 December 2017, the date for practical completion nominated by the builder, at 3:20 pm the owner emailed the builder noting that she still had not received the insurance certificates. At 3:49 pm the builder replied, by email, saying the insurer was now in a position to issue certificates and would like to speak with the owner.
12. On that day the builder took a large number of photographs of the building works (copies of which are before us) which it said demonstrated that practical completion had been achieved.
13. In dealing with this issue the Tribunal wrote: Was Practical Completion achieved? 60 The Owner asserted that Practical Completion was not achieved, that the processes necessary to bring about Practical Completion had not been completed and that therefore the Owner was entitled to terminate. There are some problems with these assertions. What is meant by the term 'practical completion' in a building contract' is commonly misunderstood. It means broadly that the all building work is complete or all but completed in accordance with the contract and the house is reasonably fit for occupation. In this instance, it is defined in clause 1 of the Contract as outlined in paragraph 22 above. 61 The tribunal finds that, as a matter of fact, practical completion was achieved by the Builder under the Contract on or about 20 December 2017 as a result of the Builder's notice issued to the Owner on 14 December 2017. The Tribunal considers this to be so for a number of reasons. 62 A bundle of approximately 76 photographs which were taken by Ms Kerr on or about 20 December 2017 and which were annexed to her fourth statement in reply dated 15 August 2018 suggest that practical completion as defined in the Contract had indeed been achieved and that the duplex was reasonably fit for occupation. 63 When these photographs were put in front of the Owner in cross-examination as evidence of this fact, she appeared unaware of the existence of these photographs or of the date on which they were taken and appeared surprised at the advanced state of completion of the construction works at the Property on that date. The Tribunal considers that the number and detail of these photographs of all aspects of the Property support the Builder's assertion that Practical Completion had in fact occurred on or about 20 December 2017 as the Builder asserts.
14. 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.
15. On appeal, the builder supported the Tribunal's conclusions.
16. 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.
17. 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.
18. 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.

Termination of the contract

1. Among the disputes in contest before the Tribunal were issues concerning whether or not the contract had been lawfully terminated by either party, whether termination took place under the contract or at common law, and whether those attempts at termination were successful or not.
2. The owner maintained that she had terminated the contract at common law by accepting the builder's repudiation of the contract as evinced by the builder's conduct, including: 1. its refusal to complete the contract in accordance with the scope of works included in the contract: specifically by its refusal to construct the OSD and stormwater works in accordance with the contract; 2. excessive delays in completing the works, which the owner maintained had not reached practical completion; 3. the builder's failure to provide verification of insurance in compliance with s 92 of the HBA.
3. In submissions to the Tribunal the owner's solicitor argued that she had lawfully terminated the building contract at common law by accepting the builder's repudiatory conduct and giving the builder a "Notice of Breach of Contract and Ending of Contract" on 25 January 2018 (the breach notice). That notice read: I, the owner of .. hereby give notice of ending our contract based on Bora Developments (The Builder) significantly breaching contract and additional to the following: Copies of the Warranty insurance Certificates were not received at the commencement of the build. The builder continued to demand monies throughout the build when valid Warranty Insurance Certificates were not in place. Warranty Insurance Certificates were received 18 January 2018. The duration of the Building works has significantly exceeded 39 weeks in commencing 8 November 2016. As at this date 25 January 2018 practical completion has not been reached. The builder did not give notice of extra work, ask or receive permission to do extra work The builder is hindering inspection of the property by the owner by not allowing access to inspect in order to complete. Extra work has exceeded 5% of the contract price. The builder states the build is complete and ready for handover however is refusing to do works that are inclusive and in accordance with the plans and specifications on contract. The builder has been advised of breaches in contract however state "We don't believe we are in breech" Significant time has been given to the Builder to rectify breaches in contract and reach practical completion.
4. The owner had earlier sent the builder: 1. an email on 10 October 2017 regarding "Warranty Insurance certificates" in which among other things she had written: You are currently in breach of contract as they [the certificates] do not match. 1. an email dated 4 December 2017 in which insurance certificates were again the main topic. This email included the following paragraph: I look forward to receiving new policies this week with the view to complete [sic] the build and be in the process of being issued an occupation certificate by the end of the month.
5. The builder's position was that the owner had unlawfully purported to terminate the contract, but had not complied with the requirements of clause 27 when doing so. She had also not demonstrated any substantial breach that would allow her to bring the contract to an end under clause 27. The builder said it had accepted the owner's unlawful termination as a repudiation of the contract and had informed her in writing that it accepted the repudiation and that the contract was at an end.
6. Before us the owner submitted that the Tribunal had failed to consider whether her emails of 10 October 2017 and 4 December 2017, together with the breach notice, satisfied the notice requirements of clause 27 of the contract: meaning that she had also terminated the contract in accordance with that provision.
7. Clause 27 of the contract is concerned with breach of contract and termination it provides: "27.1 A substantial breach of this contract by the builder includes but is not limited to if the builder: (a) has its licence cancelled; (b) suspends the carrying out of the building works other than under clause 25. 27.2 Substantial breach of this contract by the owner includes but is not limited to if the owner: (a) fails to pay any amount by the due date; (b) fails to give evidence of ability to pay as requested; (c) fails to establish and maintain a security account if requested; (d) interferes with or obstructs the progress of the building work; (e) fails to give or interferes with the Builder's possession of the site; (f) fails to give an instruction or direction required within the time specified. 27.3 If a party is in substantial breach of this contract the other party may give the party in breach a written notice stating: (a) details of the breach; and (b) that if the breach is not remedied within 10 working days, that party is entitled to end this contract. 27.4 If 10 working days have passed since the notice of default is given and the breach is not remedied then the party giving the notice of default may end this contract by giving a further written notice to that effect. 27.5 All notices to be given under this Clause must be given by registered post or personally."
8. Clause 27 needs to be read in the light of clause 40.2 which provides: This contract may be terminated in circumstances provided by common law. This does not limit the circumstances in which the contract may be terminated.
9. In the owner's final written submissions to the primary member, her solicitor pressed the issue of termination at common law. With respect to termination for breach under clause 27 of the contract there was no submission that the emails of 10 October and 4 December 2017 somehow constituted a notice of breach under clause 27.3. Paragraph 68 of the submissions said: The homeowners notice of 25 January 2018 did not comply with the notice requirements of clause 27 of the contract and, consequently, termination may not have been effective with the terms of the contract: Erikson v Whalley (1971) I NSWLR 397.
10. We think it clear that it was not put to the Tribunal that the owner had validly terminated the contract for breach under clause 27 of the contract. In those circumstances, the owner cannot now appeal on the basis that the primary member did not consider an argument that was not put to him at the hearing, when she was legally represented.
11. Although they are lengthy we think it worthwhile setting out the reasons of the primary member with respect to termination in some detail. First, at paragraphs, 25 to 27, the Tribunal set out provisions of the contract relating to termination, namely clause 27 and clause 30 which is headed 'Effect of the Owner Ending the Contract'.
12. The Tribunal did not refer to clause 40.2 with respect to common law termination at all.
13. Then at paragraphs 42 to 56 the Tribunal wrote: 42 In her first Statement (BG1), the Owner provides a running chronology of events from the time the Contract was executed on or about 4 November 2016 until the Termination Notice dated 25 January 2018 was served upon the Builder (paragraphs 4-37 of BG1). In this period a number of issues arose which concerned the Owner including: (1) the Builder was not registered for GST since a cancellation in 2010 (paragraph 5); (2) the Owner did not receive copies of the Home Owner Warranty Insurance (HOWI) for the property upon signing the Contract on or about 4 November 2016 (paragraph 6); (3) on 10 October 2017 after repeatedly asking for evidence of the HOWI, the Owner received a copy dated 19 December 2016 in the name of CK Building Pty Limited with Licence No. 249295C which did not match the builder in the Contract; (4) on 10 October 2017 the Owner had a detailed conversation with Kate Kerr of the Builder (paragraph 22); (5) on 28 November 2017 the Owner received an email from the Builder asking her to sign a document in order to have the insurer issue new or varied HOWI for the Property (paragraph 26); (6) there was a further delay by the Builder or its insurer and concern by the Owner in signing the document. That delay extended from 28 November 2017 until about 20 December 2017 (paragraphs 26-31); and (7) on 21 December 2017 a certificate issued in respect of HOWI policy no. HBCF… dated 21 December 2017 for the Builder but there appeared to be minor errors in the certificate which was reissued for the specific addresses … on 15 January 2018 by the insurer (paragraph 32). 43 In the meantime and during the construction period, the Owner had continued to pay tax invoices issued by the Builder in respect of progress payments for work done to that time under the Contract and the Builder continued construction work at the Property. 44 There were other issues raised by the Owner relating to the performance of the Contract by the Builder. One issue arose as to whether stormwater drains and plans were included in the Contract, and later there was an issue about whether the Builder was registered for GST and ultimately whether the GST incurred on the Contract had been paid to the Australian Taxation Office or should be remitted to the Owner. 45 Broadly speaking, the Tribunal has some sympathy for a homeowner entering a complex building contract for the building of a dual residence in regional New South Wales. Builders, who may be more acclimatised to the cut and thrust of home building matters, including the inevitable imprecision in quotes, subcontractors, timing, delays and variations, can sometimes appear unsympathetic to the queries of a homeowner who may be undertaking such a project for the first time. 46 Clearly, as was the case in this instance, issues around the failure of the Builder to be registered for GST and the issuing of HOWI late and in an incorrect form can cause alarm to a homeowner. Also, the delay in completing what was a significant project on time - within 39 weeks - also weighed heavily upon the Owner although common building practice may suggest that this is the modern norm and not the exception. 47 However for the Owner to be able to end or terminate the Contract required either: (1) Pursuant to clause 27.1(b) of the Contract, for the Builder to suspend the carrying out of the building works other than under clause 25, or (2) pursuant to clause 27.3 of the Contract, for the Owner to give the Builder a notice that it is in 'substantial breach' of the Contract with a written notice stating details of the breach (27.3(a)), and a written notice stating that if the breach is not remedied within 10 working days then the party is entitled to end the Contract (27.3(b)) by issuing a further written notice. 48 A copy of the purported "Notice of Breach of Contract and Ending of Contract" dated 25 January 2018 is Annexure AQ to BG1 (Notice). It was given to a representative of the Builder at the Property on 25 January 2018 (BG1, paragraph 37). It is unclear whether the Owner obtained legal advice prior to the issuing of this Notice but it is apparent, even on a superficial analysis, that this Notice does not comply with the relevant provisions of clause 27 of the Contract. 49 The Tribunal finds this to be so for a number of reasons. First, it is a two-step process in giving notice of a substantial breach, then allowing the other party 10 working days to remedy the breach, then giving a further written notice to the effect that the contract has ended in accordance with clause 27.4 of the Contract. The Owner attempted to cover these two steps in one notice and for that reason alone the Notice fails to fulfil its purpose to end the Contract - simply because the Builder was not afforded an opportunity to remedy the 'substantial breach' as permitted by the Contract. Secondly, a number of the matters recited in the 10 bullet points in the Notice are not 'substantial breaches' under the Contract. 50 Take, for instance, the late issuance of HOWI by the Builder which occupies the first three bullet points of 'substantial breach' in the Notice. 51 It is clear law that s. 94(3) of the HBA provides: "(3) Residential building work that is uninsured work at the time the work is done ceases to be uninsured for the purposes of this section if the required contract of insurance for the worker is subsequently obtained." 52 At the time the Notice was issued by the Owner any outstanding concerns about HOWI either when the Contract was signed or during the course of construction in 2017 had been resolved by the issuing of HOWI in the correct form or on about 21 December 2017: see Antonio & Marianna Di Racov Dion Cominos [2015] NSWCATCD75 at paragraph 41. 53 The following substantial breaches were also included in the Notice but an analysis of some of them does not bear scrutiny: "The builder continued to demand monies throughout the build when valid Warranty Insurance Certificates were not in place" (bullet point #2) or "The duration of the Building works has significantly exceeded 39 weeks in commencing 8 November 2016. As at this date 25 January 2018 practical completion has not been reached" (bullet point #4) or The builder has been advised of breaches in contract however state 'We don't believe we are in breech' (sic)" (bullet point #9). or "Significant time has been given to the Builder to rectify breaches in contract and reach practical completion" (bullet point #10). 54 Bullet point #4 is contradicted by the evidence of the Owner which states that building works commenced on the Property on or about 12 December 2016 (BG1 - paragraph 11). It is not reasonable to expect that building works would commence 4 days after the execution of the Contract. The Builder in its submissions claims that construction work did not commence at the Property until 23 January 2017 (paragraph 13). And in any case there was a liquidated damage claim in the Contract to compensate the Owner for delay - clause 19. Against this background, it is difficult to understand how the delay particularised at bullet point #4 of the Notice could be a 'substantial breach' of the Contract. 55 Bullet point #10 was contained in the Notice notwithstanding that the Builder had given Notice of Practical Completion to the Owner over a month previously. Each of the bullet points were addressed persuasively and in detail in paragraph 31 of the Builder's Outline of Submissions as well as in the oral submissions of the Builder on the second day of the hearing. 56 The Builder by a letter from its solicitor dated 6 February 2018 to the Owner disputed the Owner's right to give the Notice but accepted the unlawful termination of the Contract by the Owner. In those circumstances and at law, the 'innocent' party (in this instance, the Builder) can elect either to specifically enforce the Contract, or accept the unlawful repudiation or termination of the Contract and seek damages. In this instance, the Builder accepted the unlawful termination or repudiation of the Contract and sought damages. On and after 25 January 2018 the Owner also took possession of the property without the Builder's consent, refused access to the Builder to complete any building works and refused to pay the Builder the outstanding progress claims of $160,338.90. These factors were all seen by the Builder to be unlawful conduct of the Owner which nevertheless supported its decision to accept the Owner's unlawful repudiation of the Contract.
14. It is apparent that at no time did the primary member expressly consider whether or not the owner had validly terminated the contract at common law. In Kennedy v Collings Construction Co Pty Ltd (1989) 7 BCL 25 at 39 the Court explained: The question then is whether the [builder] had repudiated the contract. By that is meant the evincing of an intention not to be bound. That may take the form of straight-out refusal to perform the contract, or may be found if the party shows that he intends to fulfil the contract only in a manner substantially inconsistent with his obligations … or only if, or as and when, it suits him. See also the discussion in Cremean et al, Brooking on Building Contracts, 5ed (2013) at 12.5.
15. The primary member did, however, consider each of the points raised by the owner in the breach notice. He considered whether they amounted to substantial breaches for the purpose of clause 27 of the contract. He found that they did not. He did not turn his attention to whether they, individually or collectively, constituted repudiatory conduct by the builder. Given that owner was relying on common law termination, and that the outcome of that submission was central to the success of the owner's case, the failure to have regard to the argument is a failure to have regard to a material issue and is an error of law.
16. Additionally, if the Tribunal had not reached the conclusions it did with respect: 1. the scope of works to be performed under the contract; 2. the date of commencement of the building work; and 3. whether the building work had reached practical completion; we think it self-evident that the owner's case with respect to the builder's conduct constituting repudiatory conduct would have been stronger than that considered by the primary member, and might have led to a different conclusion.
17. Because we have found that the conclusions reached by the Tribunal with respect to each of those three matters is affected by error of law, we think its conclusion with respect to termination cannot stand. The matter will have to be determined again in the light of a proper consideration of the scope of the contract, the commencement of works, causes of delay and whether or not practical completion ever occurred, etc.
18. If some or all of the owner's contentions are accepted on rehearing the entitlements of both the owner and the builder are likely to be substantially different to those found by the Tribunal. This will require a full reconsideration of damages by the Tribunal. This is not something we are able to undertake on appeal given the need for further findings of fact.
19. As a consequence, we have chosen not to further discuss the issues raised by the owner with respect to her claim for damages, save loss of income.

The owners claim for loss of rental income

1. At paragraph 107 of the decision the Tribunal considered the owner's claim for loss of rental income as a result of delays in construction. The primary member said: The Owner has claimed a loss of rental income at the rate of $1,750.00 per week for 34 weeks totalling $59,500.00. This claim must fail for a several reasons. First, the Owner has unlawfully terminated the Contract from which these losses purportedly arise on or around 25 January 2018 and has denied the Builder access to the Property thereafter to complete the construction works under the Contract. It is unclear in these circumstances how it can claim damages for the period of 34 weeks from 10 October 2017. Secondly, these losses are consequential losses and contradict, or fall outside, the liquidated damages clause in the Contract which provided for liquidated damages of $1.00 per day after 1 October 2017 for the number of days that completion was delayed. There is no evidence that these rental losses were in the reasonable contemplation of the parties at the time that the Contract was entered into.
2. In submissions the owner directed our attention to evidence before the Tribunal which she said demonstrated that the builder was well aware that the duplex was an investment property.
3. Clause 32 of the contract is concerned with liquidated damages. It provides: 32.1 If the building works do not reach practical completion by the end of the building period the owner is entitled to liquidated damages in the sum specified in Item 11 of Schedule1 for each working day after the end of the building period to an including the earlier of: (a) the date of practical completion; (b) the date the contract is ended; or (c) the date the owner takes possession of the site or any part of the site.
4. The amount specified in Item 11 of Schedule 1 is $1.00 per day.
5. We can see no error in the Tribunal's reasoning with respect to the owner's claims for loss due to delay being limited to damages recoverable under the liquidated damages clause. This is so irrespective of the builder's knowledge that the duplex development was an investment. By agreeing to the liquidated damages provision of the contract the owner agreed to accept $1.00 a day as damage for delay in lieu of the usual damages for breach of contract.
6. The owner has not directed us to any authority which points to the primary member's conclusion with respect to the liquidated damages clause being wrong, in error, unjust, against the weight of evidence or not fair and equitable.
7. On remittal the Tribunal will have to reassess the owner's entitlement to liquidated damages in the light of its findings.

The amount recovered on quantum meruit claim

1. The builder appealed the amount it recovered on its quantum meruit claim, which the Tribunal assessed, at paragraph 85 of its reasons, as "the balance unpaid to the Builder under the Contract [$160,338.90], subject to any defects and variations alleged by the Owner." This was substantially less that the figure claimed by the builder of $235,860.33 inclusive of GST, which it said represented the fair value of the unpaid work.
2. The Tribunal explained: 72. It is well established law that the right of a builder to sue on quantum meruit following an unlawful repudiation of the building contract has been part of the common law of Australia for more than a century. 73 It is supported by decisions of intermediate Courts of Appeal in the three east coast states: Sopov v Kane Constructions Pty Limited [2009] VSCA 141; Iezzi Constructions Pty Limited v Watkins Pacific (Qld) Pty Limited [1995] 2Qd R 350; and Renard Constructions (ME) Pty Limited v Minister for Public Works (1992) 26 NSWLR 234.
3. Given that we have already indicated that the issues concerning whether or not the owner wrongfully repudiated the building contract will be remitted for rehearing, it follows that the builder's entitlement to recover on a quantum meruit will have to be redetermined in the light of the findings on rehearing concerning practical completion and the termination issues.
4. The builder's appeal however, addressed errors in the assessment of damages on a quantum meruit basis by the Tribunal.
5. The Tribunal had before it uncontested evidence from a quantity surveyor that the total value of the building works done by the builder was $874,007.00 inclusive of GST. This was so despite the fact that the total contract price was $706,135.00 inclusive of GST. The owner had made payments under the contract totalling $638,146.20. The owner sought to recover on a quantum meruit the difference between the value of the work done as assessed in the quantity surveyor's evidence, and the amount paid by the owner: that difference was $235,860.33 inclusive of GST.
6. At paragraphs 80 to 85 of its decision the Tribunal wrote: 80 There was a significant and material discussion on the last day of the Tribunal hearing as to why the Builder should be entitled to claim an amount significantly greater than the balance of the Contract price (less any defects) in response to the Owner's unlawful termination of the Contract. … 81 There were also some significant principles of law which must be considered before determining which quantification of damages is, on all the facts of this case, the appropriate one. The principles can perhaps be summarised as follows: (1) The Builder's remedy in the circumstances is not only to sue on the Contract; (2) The Contract price does not place a ceiling on any quantum meruit claim, but it may provide a guide to the reasonableness of the quantum meruit claim; (3) The Contract price agreed on at the time of entry into the Contract is evidence - and no more - of the parties at that time as to the value of the work to be performed; (4) The proper approach to assessment of a quantum meruit claim is to ascertain the fair and reasonable value of the work performed; (5) It would be 'extremely anomalous' if the defaulting party could invoke the Contract (which it has repudiated) to impose a ceiling on the amounts recoverable by the Builder in a quantum meruit claim; and (6) The Contract price is not the best evidence of the value of the benefit conferred, but it is still some evidence of it. 82 The cases upon which quantum meruit have been permitted or followed - the three appellant court cases referred to in paragraph 73 above - all relate to a building contract of a significant undertaking, such as an industrial building or major infrastructure. In some cases - particularly Renard - the actual work done had significantly departed from the scope of work or expected work under the contract. That is not the case here. 83 Also, in many cases in the Tribunal, a quantum meruit claim is made where the contract is unenforceable due to the failure of a party to comply with various provisions of the HBA. These provisions may often be in relation to the failure of a party to obtain a building contract in writing - s. 10(1)(b) of the HBA - where quantum meruit is then the only remedy. Again, that is not the case here. 84 In this instance, the parties agreed to a Contract which was a fixed price contract for construction of a duplex residence. The scope of the works was relatively straightforward and commoditised and the Contract price was, the Tribunal suspects, within a fairly narrow range of pricing that other builders may have met. In the circumstances, particularly when practical completion had been reached, the building work was over 95% complete and almost 80% of the invoices issued by the Builder to the Owner paid, it would seem less preferable for the Tribunal to abandon that advanced stage of accounting and reconstitute the bargain by an expert's calculation of value in the expectation that a more outcome would be achieved. It won't. 85 For these reasons, the Tribunal considers the appropriate calculation of the Builder's losses and of any quantum meruit claim by the Builder for the unlawful termination of the Contract is in the balance unpaid to the Builder under the Contract, subject to any defects and variations alleged by the Owner.
7. Shortly put, the builder argued that while the Tribunal had correctly stated the law with respect to assessment of damages recoverable on a quantum meruit (as the law then stood) in paragraph 81 of its decision, it had not applied that law when making its assessment. Rather, the Tribunal had chosen, in the light of the late stage at which the contract was terminated, to hold the parties to the contract, rather than allowing the builder to recover the fair and reasonable value of the work done. By referring to the achievement of a just and equitable outcome, the builder submitted, the Tribunal had failed to apply the applicable law and to provide adequate reasons for decision: both errors of law.
8. Since hearing before us the High Court of Australia has published its judgment in Mann v Paterson Constructions Pty Ltd [2019] HCA 32, in which the Court considered the law with respect to the assessment of damages on a quantum meruit claim. While there is no simple majority emerging from the various judgments in that case, it is authority for the proposition that the amount owing under a building contract constitutes a ceiling on the amount recoverable by a builder in a quantum meruit claim relating to work performed under a contract.
9. As already noted we invited the parties to make submissions on the impact of the decision in Mann v Paterson Constructions Pty Ltd on our deliberations. Both parties did so. In submissions that builder pressed its appeal points but acknowledged that they were no longer material given the High Court's decision that the contract price constitutes a ceiling on a quantum meruit claim. The builder submitted that we should make the decision afresh or remit it for rehearing in accordance with the principles in Mann v Paterson Constructions Pty Ltd. As already indicated, as we are not in a position to determine all the issues requiring resolution, including this one, we will remit the matter for rehearing.

The order that the builder provide the occupation certificate

1. At paragraph 122 of its decision the Tribunal said: … The Builder should also release the Occupation Certificate and all locks, keys and remote access devices to the Property to the Owner forthwith.
2. The builder appeals that part of the Tribunal's decision which requires it to release occupation certificates to the owner, saying that: 1. the owner did not seek an order for the provision of occupation certificates by the builder, 2. the builder was never under a contractual obligation to do provide the owner with occupation certificates; and 3. the Tribunal failed to provide any reasons for this aspect of its decision its decision.
3. The owner supported the decision made by the Tribunal, although she did tell the Appeal Panel that she was well on the way towards obtaining occupation certificates by other means.
4. Clause 22 of the general conditions of contract provides: 22.1 The builder is not required to obtain any certificate of occupancy or final inspection certificate relating to the building works.
5. The builder conceded that it was obliged to provide the owner with a variety of certificates and verifications of the work from the certifiers, which are necessary to obtain occupation certificates. However, the builder submitted that the Tribunal erred by ordering it to obtain occupation certificates.
6. On appeal the owner asserted that there was evidence before the Tribunal that pointed to the builder consistently leading her to believe that it would provide occupation certificates. She submitted that the builder's conduct in this regard had been misleading and deceptive. In response, the builder correctly objected that this was not a matter that had been agitated before the Tribunal.
7. In our view clause 22 of the contract is clear. The builder is not required to obtain occupation certificates.
8. By ordering the builder to do so the Tribunal imposed an obligation on the builder which was specifically stated not be an obligation of the builder under the contract. In so doing, the Tribunal failed to have regard to the contract which, in the circumstances, was an error of law. Further, the Tribunal did not disclose on what basis it made the order.
9. The builder's appeal insofar as it relates to occupation certificates is allowed.

Costs

1. The owner appeals against the order that she pay the builder's costs of its application to the Tribunal on HB18/13808. That was the builder's claim for damages of $235,860.33 inclusive of GST on a quantum meruit, which resulted in an order in the builder's favour for $185,522.55.
2. Neither party has made submissions as to what now should happen with respect to the costs order. We will seek submissions form the parties on both the costs of the appeal and the costs of the original proceedings. We are tentatively of the view that the builder should pay the owner's costs of the appeal and that the costs order below should be set aside on the basis that the costs below should be costs in the cause.

Outcome of the appeal

1. We think it appropriate that the owner's appeal be allowed, the decisions of the Tribunal be set aside, and the matter remitted for rehearing before a differently constituted Tribunal with such further evidence as the Tribunal, by leave, allows.
2. With respect to the builder's appeal we think the appeal should be allowed insofar it relates to: 1. the builder's entitlement to damages (if any) whether for breach of contract or on a quantum meruit; and 2. the order that the builder release occupation certificates to the owner.
3. The builder's claim for to damages whether for breach of contract or on a quantum meruit should be remitted for rehearing before the differently constituted Tribunal with such further evidence as the Tribunal, by leave, allows.
4. The $5,000 paid into trust by Ms Goncalves should remain in trust pending the final determination of these proceedings.
5. With respect to costs: 1. any application for costs together with supporting submissions should be filed and served within 21 days of publication of this decision; and 2. any submission in reply should be filed and served within a further 21 days.

Orders

1. On AP19/277713 the Tribunal makes the following orders: 1. Appeal allowed. 2. The decision of the Tribunal is set aside, and the matter is remitted for rehearing before a differently constituted Tribunal with such further evidence as the Tribunal, by leave, allows. 3. Any application for costs (including the costs of the original proceedings) together with supporting submissions should be filed and served within 21 days of publication of this decision; and 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
2. On AP AP19/28235 the Tribunal makes the following orders: 1. Appeal allowed 2. The decision of the Tribunal is set aside, and the matter is remitted for rehearing before a differently constituted Tribunal with such further evidence as the Tribunal, by leave, allows. 3. The $5,000 paid into trust Mr Ms Goncalves will remain in trust pending the final determination of these proceedings. 4. Any application for costs together with supporting submissions should be filed and served within 21 days of publication of this decision; and 5. Any submission in reply should be filed and served within a further 21 days. 6. 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: 20 January 2020