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B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187

Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150; 72 NSWLR 44

Brenmar Building Co v University of Newcastle (NSWCA unrep, 12 December 1977)

Brown v The Repatriation Commission (1985) 7 FCR 302

Chapman v Taylor [2004] NSWCA 456; (2005) Aust Contract Rep 90-205

Crook v Consumer, Trader and Tenancy Tribunal of New South Wales [2003] NSWCA 370; 59 NSWLR 300

Custom Credit Corporation Ltd v Commercial Tribunal of New South Wales (1993) 32 NSWLR 489

Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102

Dobell v Blue Haven Pools & Spas Pty Ltd [2009] NSWCA 77

Douglas v New South Wales Land and Housing Corporation [2008] NSWCA 315

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088

GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256

Grygiel v Baine [2005] NSWCA 218

Health Care Complaints Commission v Karalasingham [2007] NSWCA 267

HIA Insurance Services Pty Ltd v Kostas [2008] NSWCA 297

Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312

The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; 50 CLR 228

Kostas v HIA Insurance Services Pty Ltd [2005] NSWCTTT 345

Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; 166 CLR 623

Maconachie v Kullenberg [2005] NSWCA 294

McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55; 221 CLR 646

Merchant Service Guild of Australasia v Newcastle and Hunter River Steamship Co Ltd (No 1) (1913) 16 CLR 591

Mine Subsidence Board v Vervoon [2008] NSWCA 280

Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Council [2009] NSWCA 138

Obieta v Consumer, Trader and Tenancy Tribunal (NSW) [2009] NSWCA 220

Ruhamah Property Co Ltd v Federal Commissioner of Taxation [1928] HCA 22; 41 CLR 148

Scicluna v New South Wales Land and Housing Corporation [2008] NSWCA 277

Seltsam Pty Ltd v McNeill [2006] NSWCA 158; 4 DDCR 1

Smith v Collings Homes Pty Ltd [2004] NSWCA 75

Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; 167 CLR 45

Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230

TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (1988) 82 ALR 175

Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439

XCO Pty Ltd v Commissioner of Taxation (Cth) [1971] HCA 37; 124 CLR 343

PARTIES: HIA Insurance Services Pty Ltd Trading as Home Owners Warranty – Appellant

Peter Kostas – First Respondent

Christine Kostas – Second Respondent

Consumer, Trader and Tenancy Tribunal – Third Respondent

FILE NUMBER(S): CA 40816/07

COUNSEL: M S Jacobs QC/F R Clark – Appellant

D F Jackson QC/R J Carruthers – First and Second Respondents

SOLICITORS: Mills Oakley Lawyers – Appellant

Pryor Tzannes & Wallis – First and Second Respondents

IV Knight, Crown Solicitor – Third Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 30049/05

LOWER COURT JUDICIAL OFFICER: Rothman J

LOWER COURT DATE OF DECISION: 30 October 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Kostas v HIA Insurance Services Pty Ltd [2007] NSWSC 315

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL CA 40816/07

SC 30049/05

SPIGELMAN CJ

ALLSOP P

BASTEN JA

16 September 2009

HIA INSURANCE SERVICES PTY LTD t/as HOME OWNERS WARRANTY v Peter KOSTAS & ANOR

Headnote

On 5 August 1999 the respondents ("the owners") engaged Sydney Construction Co Pty Ltd to undertake substantial renovations of their home. By June 2000 disputes had arisen in relation to variations of the contract, indecision on the part of the owners as to materials, and allegations of defective building work. On 29 June 2000 the owners sought to terminate the contract and, a week later, made a claim on the appellant ("HIA"), as the insurer responsible for the builder's work. Following refusal of the claim, on 12 September 2000 the owners commenced proceedings against HIA and the builder in the Consumer, Trader and Tenancy Tribunal ("the Tribunal").

After proceedings were discontinued against the builder and continued between HIA and the owners on the issue of whether there had been a lawful termination of the contract, the Tribunal held that the owners had repudiated the contract with the builder. The owners commenced proceedings in the Common Law Division pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the CTTT Act"), but also invoking the judicial review jurisdiction of the Court under s 69 of the Supreme Court Act 1970 (NSW). Rothman J set aside the decision of the Tribunal on the basis that a number of its decisions with respect to questions of law had been made in error. His Honour made a declaration that the termination of the contract by the owners had been "lawful and effective" and remitted the matter to the Tribunal for the hearing and determination of any remaining issue. HIA appealed to this Court against his Honour's characterisation of the issues before him as properly invoking the right of statutory appeal under the CTTT Act.

The issues for determination on appeal were:

(i) whether an interlocutory decision of the Tribunal with respect to a matter of law is capable of constituting the subject matter of an appeal under s 67;

(ii) whether a decision "with respect to a matter of law" includes a decision with respect to a question of mixed fact and law;

(iii) whether an appellate court, once having established an erroneous decision with respect to a matter of law, is entitled to determine any other question of fact or law or mixed fact and law in order to make appropriate orders disposing of an appeal under s 67;

(iv) the extent to which a trial judge or Tribunal must have expressly identified questions for decisions with respect to a matter of law, and

(v) whether the primary judge, on appeal, had identified decisions made by the Tribunal with respect to matters of law.

The Court held, allowing the appeal:

In relation to (i)

(per Basten JA, Spigelman CJ and Allsop P agreeing):

1. The language of the statute indicates that the right of appeal was not intended to be restricted to final orders, disposing of the proceedings before the Tribunal: [1], [24], [97]–[104]. Custom Credit Corporation Ltd v Commercial Tribunal of New South Wales (1993) 32 NSWLR 489; Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312; Chapman v Taylor [2004] NSWCA 456; (2005) Aust Contract Rep ¶90-205; Grygiel v Baine [2005] NSWCA 218; Maconachie v Kullenberg [2005] NSWCA 294; Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150; 72 NSWLR 44, referred to.

In relation to (ii)

(per Spigelman CJ and Basten JA, Allsop P agreeing):

2. The words "with respect to" are to be construed as limiting the scope of a statutory appeal under s 67 of the CTTT Act so as to exclude a decision with respect to a matter of fact. Accordingly, in the case of a decision that incorporates a mixture of fact and law, it is necessary to separately identify a legal aspect of that decision in order to bring an appeal: [9]–[17], [24], [107]–[110]. XCO Pty Ltd v Commissioner of Taxation (Cth) [1971] HCA 37; 124 CLR 343; Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; 167 CLR 45, referred to.

In relation to (iii)

(per Spigelman CJ and Basten JA, Allsop P agreeing)

3. An appellate court, whether by virtue of the operation of s 75A of the Supreme Court Act or otherwise, is not entitled to exercise a jurisdiction which, in permitting a reconsideration of factual issues, travels beyond the specific matter which was the subject of an appeal, namely the decision with respect to a matter of law: [18]–[22], [24], [111]–[128]. Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439; Crook v Consumer, Trader and Tenancy Tribunal of New South Wales [2003] NSWCA 370; 59 NSWLR 300; Smith v Collings Homes Pty Ltd [2004] NSWCA 75; Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312; Grygiel v Baine [2005] NSWCA 218; Maconachie v Kullenberg [2005] NSWCA 294; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256; Scicluna v New South Wales Land and Housing Corporation [2008] NSWCA 277; Douglas v New South Wales Land and Housing Corporation [2008] NSWCA 315; Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Council [2009] NSWCA 138; Obieta v Consumer, Trader and Tenancy Tribunal (NSW) [2009] NSWCA 220, referred to.

In relation to (iv)

(per Spigelman CJ and Basten JA):

4. Decisions made impliedly, or which necessarily formed part of the decision-making process, may constitute the subject matter of an appeal under s 67 of the CTTT Act, even if the Tribunal's reasons were silent, only if it is demonstrated that the issue was disputed between the parties, and was in fact either resolved by the Tribunal, or treated as irrelevant: [129]–[131]. Merchant Service Guild of Australasia v Newcastle and Hunter River Steamship Co Ltd (No 1) (1913) 16 CLR 591; The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; 50 CLR 228; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; Smith v Collings Homes Pty Ltd [2004] NSWCA 75, referred to.

(per Allsop P):

5. It is necessary to examine the context of the Tribunal's reasoning and decision-making process in order to determine whether an implicit decision of the Tribunal can constitute one with respect to a matter of law. A decision may be made on a question with respect to a matter of law, even if the parties did not raise the issue: [26].

In relation to (v)

(per Basten JA, Spigelman CJ and Allsop P agreeing):

6. The decisions of the Tribunal identified by the primary judge did not constitute decisions with respect to matters of law. Accordingly, the errors asserted on the part of the Tribunal were not capable of invoking the appellate jurisdiction of the Supreme Court under s 67 of the CTTT Act: [1], [24], [132]–[159]. Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, cited.

(per Basten JA, Spigelman CJ agreeing):

7. Whilst a factual finding made in the absence of supporting material will involve an error of law and thus support judicial review, it does not form a basis for a statutory appeal under s 67 of the CTTT Act: [1], [137].

(per Allsop P):

8. A finding of fact made in the absence of supporting evidence may or may not amount to or involve a decision on a question with respect to a matter of law, depending on the context of that aspect of the Tribunal's reasoning and approach: [27].

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL CA 40816/07

SC 30049/05

SPIGELMAN CJ

ALLSOP P

BASTEN JA

16 September 2009

HIA INSURANCE SERVICES PTY LTD t/as HOME OWNERS WARRANTY v Peter KOSTAS & ANOR

Judgment

1 SPIGELMAN CJ: I have had the advantage of reading the judgment of Basten JA in draft. I gratefully adopt his Honour’s outline of the facts and issues and of the legislation and relevant case law. Subject to the following observations, I agree with his Honour’s reasons.

2 As Basten JA indicates, the preponderance of authority in this Court is adverse to the propositions advanced by the respondents in their Notice of Contention. I do not repeat the extracts collected by his Honour. I wish to outline the textual and contextual considerations which support that line of authority.

3 The first step is to identify the subject matter of the appeal for which s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (“the CTTT Act”) provides. That subject matter is found in s 67(1) which refers to an “appeal … against the decision”. The use of the definite article indicates that the “decision” is that outlined earlier in the subsection in the clause “decides a question with respect to a matter of law”, being the “decision” about which the party to the proceedings is dissatisfied.

4 The jurisdiction conferred upon the Supreme Court, now the District Court, was to ‘decide’ the very same question as the Tribunal had ‘decided’. That is made clear by s 67(3) which sets out the powers that the Court may exercise “[a]fter deciding the question the subject of such an appeal”.

5 As Basten JA indicates, it is significant that s 66 and s 67 are in parallel terms. Section 66 provides for the Tribunal to refer a matter in the very same circumstances as an appeal may be brought under s 67. The “question” that can be referred is “a question … with respect to a matter of law”, being a “question” which has ‘arisen’ in the proceedings. (See s 66(2) and (3).)

6 The scope of the concept of “a matter of law” is expressly extended by the provision found in both s 66(5) and s 67(8) that “[a] reference … to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal”. These subsections extend the subject matter of the appeal to include a fact finding exercise with respect to jurisdictional facts. In this respect, the position is equated to that which would arise in the exercise of the supervisory jurisdiction preserved by s 65(2) and (3)(a). However, this extension does not arise in the present case.

7 The subject matter of the appeal is, accordingly, a decision of a specified character that must in fact be a ‘decision’. However, as Basten JA indicates, the statute has been interpreted to extend to an implicit decision.

8 Furthermore, what has been ‘decided’ has to answer the description of “a question”. As the parallel provision in the referral power indicates in s 66(2), the “question” must have ‘arisen’ in the course of proceedings before the Tribunal.

9. The final and most significant aspect of s 67(1) is the use of the words “with respect to”. As Basten JA indicates these words are capable of having a wide connotation. They do not, however, necessarily have such a connotation.

10. The Consumer, Trader and Tenancy Tribunal replaced the pre-existing Fair Trading Tribunal and the Residential Tribunal. It has a diverse range of functions, as its very title suggests, pursuant to legislation with respect to consumer credit, fair trading, home building, residential tenancies, strata schemes, retirement villages, motor dealers, travel agents, etc.

11. By s 8(3) of the CTTT Act, one of the matters to which the Minister is to have regard when determining the qualifications and skills for a person to be appointed as a member of the Tribunal is whether that person has relevant expertise in one or more areas of the Tribunal’s jurisdiction. It is noteworthy that members of the Tribunal, other than the Chairperson, do not have to have any legal qualifications.

12. The parallel provisions for referral of questions and for appeal, found in s 66 and s 67, serve one of the of the CTTT Act’s objects, stated in s 3(d): “to ensure the quality and consistency of the Tribunal’s decision-making”.

13. The interpretation of s 67 must also take into account s 3(c) which provides that one of the objects of the Act is: “to enable proceedings to be determined in an informal, expeditious and inexpensive manner”. This is of significance because the broader the scope of an appeal the less likely that the proceedings will be “expeditious and inexpensive”.

14. The legislative scheme recognises that Tribunal members may have no legal qualifications and provides for an appeal to a court, now the District Court, with respect to legal questions that have been the subject of a “decision”. Nevertheless, fact finding, including the drawing of inferences from primary facts, as well as the formation of any evaluative judgment for which a particular legislative scheme may call, was intended to remain the exclusive preserve of the Tribunal.

15. All facts necessary to decide the question of law must either expressly or implicitly have been found by the Tribunal, which must also have drawn any necessary inference. In this respect, the Court on appeal may need to distinguish inferences from implications. An implication is “included in what is expressed”, whereas an inference is “something additional to the statements”. (Merchant Service Guild of Australasia v Newcastle and Hunter River Steamship Co Ltd (No 1) (1913) 16 CLR 591 at 624.)

16. In the present context, the words “with respect to” are, in my opinion, words of limitation, rather than words indicating that the requisite relationship was intended to be wide ranging. The limitation was intended to make it clear that no appeal lies with respect to a matter of fact.

17. Consistently with this interpretation, in the case of a decision that incorporates a mixture of fact and law, it is necessary to separately identify a legal aspect of that decision in order to either make a reference under s 66 or to lodge an appeal under s 67.

18. Furthermore, it is not consistent with the above analysis to adopt the respondents’ submission that in some manner s 67(3)(a) entitles the Court on appeal to exercise a jurisdiction which travels beyond the specific matter which was the subject of appeal, namely the decision on a question with respect to a matter of law.

19. There is no analogous power in s 66(3), when the matter comes before the Court on referral. The power in s 67(3)(a) is intended to ensure the expeditious disposal of proceedings when the Court on appeal answers the question, the subject of the appeal, in a manner different to the Tribunal and the substituted answer would, as a matter of law, have required the Tribunal to make a particular order if it had answered the question correctly at the time of the Tribunal’s decision.

20. The contrast between s 67(3) and s 66(3), together with the use of mandatory terminology, identifying the order that “should have been made by the Tribunal” reinforces the conclusion that the subject matter of the appeal is the “matter of law” itself and not other matters connected to that matter. The primacy intended to be given to the Tribunal as the finder of fact and the maker of any evaluative judgment requires the jurisdiction provision in s 67(1) and the provision conferring power in s 67(3) to be understood as a single coherent and congruent scheme.

21. The above analysis is specific to the statute under consideration. A number of the cases to which reference was made in submissions concerned other legislative schemes which employed similar language, such as “on a question of law” or “involving a question of law”, etc. Decisions on other legislative schemes must be used with care. The context will be of significance particularly when loose terminology, such as “with respect to”, has been employed.

22. As indicated above, the composition of the Tribunal is a relevant consideration. The above analysis may be different in the case of an appeal from a judicial decision-maker. Furthermore, the specific powers that are conferred upon the Court, should it uphold an appeal, will often be a significant indicator of the scope of the appeal.

23. I agree with the orders proposed by Basten JA.

24. ALLSOP P: I have had the advantage of reading the reasons of Basten JA and the observations of the Chief Justice in draft. I agree with the orders proposed by Basten JA. Subject to the following qualifications I agree with the reasons of Basten JA. I also agree with the observations of the Chief Justice.

25. The first qualification is that I would prefer not to express a view as to the comparative likelihood of a decision on a question with respect to a matter of law being found in an interlocutory or final decision.

26. The second qualification is that the extent to which a decision on a question with respect to a matter of law is, and can be seen to be, implicit in a decision on the reasoning process of the Tribunal is not amenable to convenient definition. For instance, whether or not a finding is “underpinned” by a legal question or whether an issue was in dispute, and the significance of the answers to such questions will often only be able to be illuminated with clarity by examination of the context and decision in question. For example, it would be possible for a decision to be made on a question with respect to a matter of law, even if the parties did not raise the issue. The lack of proffering of the issue by the parties may lead to other complaints, but it would not necessarily mean that a decision on a question with respect to a matter of law did not exist.

27. The third qualification, which is related to the second, is that the question whether a “no evidence” ground falls within the expression “a decision on a question with respect to a question of law” may depend upon the circumstances. A finding of fact made in the absence of supporting evidence is an error of law. This will usually support judicial review proceedings to the extent that an error of law is a ground for such review. Such a finding may or may not amount to or involve “a decision on a question with respect to a matter of law”. Whether it does or not may depend upon the context of that aspect of the Tribunal’s reasoning and approach.

28. BASTEN JA: INDEX Paragraph No (1) Introduction 29

(2) Issues before primary judge 36

(3) Relevant contractual provisions 43

(4) Factual background 51

(5) Reasoning of Tribunal 65

(6) Legal basis of appeal to Supreme Court

(a) general 83

(b) appeal against interlocutory decisions 95

(c) scope of subject matter of appeal 105

(7) Identifying decisions with respect to matters of law 129

(8) Consideration of decisions identified by the primary judge

(a) clause 27 of the contract was not relevant to the dispute 132

(b) there was some (or any) evidence of claims for extension of time 136

(c) the evidence of Mr Rappoport did not support lawful termination by the owners 142

(d) whether the notices of 4 May and 12 May 2000 given by the owners were ineffective and contrary to the requirements of the contract 147

(e) whether there was evidence inconsistent with the occurrence of a suspension of work without reasonable cause by the builder 154

(f) whether there was evidence inconsistent with the evidence of Mr Rappoport that the builder had failed to proceed diligently 158

(9) Conclusions 160

(1) Introduction

29. On 5 August 1999 the respondents (hereafter “the owners”) engaged a builder to undertake substantial renovations on their home. The builder was Sydney Construction Co Pty Ltd, of which the principal was Mr Turrisi. By June 2000 substantial disputes had arisen in relation to contract variations, indecision on the part of the owners as to materials and allegations of defective building work. On 29 June 2000 the owners sought to terminate the contract and, a week later, made a claim on the appellant (“HIA”), as the insurer responsible for the builder’s work.

30. The insurance claim, not having been dealt with within 45 days, was deemed to have been refused and, on 12 September 2000 the owners commenced proceedings against HIA and the builder in the Consumer, Trader and Tenancy Tribunal (“the Tribunal”).

31. For some four years, the proceedings in the Tribunal progressed through various stages, including an unsuccessful mediation and an unsuccessful attempt to obtain agreement amongst the experts. On 9 November 2004 the Tribunal made orders which involved the proceedings being discontinued against the builder and proceeding between HIA and the owners on the issue of whether there had been a lawful termination of the contract.

32. The Tribunal is established under the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (“the CTTT Act”). The objects of the Act include that of enabling proceedings to be determined “in an informal, expeditious and inexpensive manner”: s 3(c). Whether that object was fully realised in the present case may be doubted. On 25 May 2005 the Tribunal held that the owners had repudiated the contract with the builder: Kostas v HIA Insurance Services Pty Ltd [2005] NSWCTTT 345. On 22 July 2005, the owners commenced proceedings in the Common Law Division pursuant to s 67 of the CTTT Act, but also invoking the judicial review jurisdiction of the Court under s 69 of the Supreme Court Act 1970 (NSW). Correctly, for the purposes of the judicial review proceedings, the Tribunal was joined as a party both in this Court and in the Court below: Dobell v Blue Haven Pools & Spas Pty Ltd [2009] NSWCA 77, at [19].

33. For the purpose of the judicial review proceedings, the summons alleged that the owners had been deprived of procedural fairness, though the complaint was not particularised. With respect to the statutory appeal, a schedule to the summons identified some 21 separate grounds of appeal. Little (if any) attempt was made to comply with the requirements of the CTTT Act, limiting appeals to a decision of the Tribunal “with respect to a matter of law”: CTTT Act, s 67(1).

34. The summons was heard by Rothman J over three days in June 2006. Judgment was delivered on 30 October 2007: Kostas v HIA Insurance Services Pty Ltd [2007] NSWSC 315. His Honour set aside the decision of the Tribunal made on 25 May 2005 and made a declaration that the termination of the contract by the owners on 29 June 2000 was “lawful and effective”. The matter was remitted to the Tribunal to hear and determine any remaining issue.

35. The procedural difficulties did not diminish when the matter was brought to this Court. The notice of appeal appeared to identify more than 50 errors on the part of the primary judge. However, on 14 August 2008, an amended notice of appeal was filed reducing the grounds to 19, although some included a number of succinctly identified sub-grounds.

(2) Issues before primary judge

36. Noting the nature of the proceedings in the Supreme Court, his Honour stated that the summons sought “the quashing of the Tribunal findings and the substitution of findings to the opposite effect” or alternatively remittal to the Tribunal: at [30]. His Honour noted that HIA had challenged the jurisdiction of the Court to hear an appeal from an interlocutory decision, claimed that the findings of the Tribunal were effectively beyond challenge, that there had been no denial of natural justice and that if there were such, it caused no injustice or detriment to the owners: at [31]. His Honour continued at [32]: “In order to determine these issues it is necessary for the Court to examine all of the evidence before the Tribunal during every stage of the proceedings below, the agreement between the parties effected on 8 and 9 November 2004, the evidence to which the Tribunal could properly pay regard, the construction of the Contract and whether, on the basis of the material to which the Tribunal could have regard and otherwise, there was, as a matter of law, a valid termination of the Contract and, if so, whether the Tribunal has erred in law.”

37. Whether it was correct to identify the matter for consideration by the Court in such a broad manner may be doubted; what is unfortunate is that it was not until the concluding paragraphs of the judgment that his Honour attempted to identify the questions of law decided by the Tribunal from which an appeal lay: at [160]. Because, as will be noted below, that was the extent of the subject matter of the appeal before the Court, it is convenient to set out the questions so identified, although the terms in which they were formulated will require some further explanation: “(i) The clauses of the Contract relevant to the dispute did not include Clause 27; (ii) There was some (or any) evidence of claims for extension of time; (iii) The uncontroverted and uncontested evidence of Mr Paul Rappoport did not support a lawful termination of the Contract by Mr and Mrs Kostas; (iv) The notice[s] [given] by Mr and Mrs Kostas on 4 May and 12 May 2000 were ineffective in law and contrary to the requirements of the Contract; (v) There was evidence inconsistent with the occurrence of a suspension of work without reasonable cause by Sydney Construction; (vi) There was evidence inconsistent with the uncontested and uncontroverted evidence of Mr Paul Rappoport that Sydney Construction had failed to proceed diligently with the work.”

38. His Honour identified a further question of law, namely “whether the conduct of Mr and/or Mrs Kostas was unlawful, in that it was inconsistent with their rights under common law and/or inconsistent with the Contract”: [164]. That question may have been intended to be a separate or different question, but arguably was merely the logical conclusion to the answers given to the questions raised at [160]. Thus, his Honour continued at [165]: “The errors of law occurred in determining that question by: incorrectly construing the Contract (the failure to pay regard in Clause 24 to ‘suspension’ and ‘proceeding diligently’); in determining the relevant clauses of the Contract and failing to have regard to all relevant matters (Clause 27); and, in determining the necessary facts [relevant?] to such a question in the total absence of evidence supporting those findings.”

39. The question of procedural fairness was raised with respect to reliance apparently placed by the Tribunal on the affidavit of the principal of the building company, Mr Turrisi. His Honour found it unnecessary to determine that question: at [166].

40. His Honour also discussed findings with respect to the credibility of Mr and Mrs Kostas. However, in his conclusions he found it unnecessary to determine whether any erroneous decision on a question of law was raised by that discussion. (Although Mrs Kostas has been a party to all the proceedings, Mr Kostas was the only owner identified as a party to the contract.)

41. Under the heading “Conclusion” his Honour stated at [170]: “There are a number of decisions of the Tribunal with respect to questions of law where the Tribunal is in error. Correction of those decisions requires the following findings:

(i) The Contract was due to be completed on or before 1 July 2000;

(ii) No extension of time beyond 1 July 2000 had been effected;

(iii) There were, as at 4 May 2000, 12 May 2000 and 21 May 2000, works for which payment had been made, but that had not been completed and/or were defective;

(iv) Sydney Construction had suspended works without reasonable cause;

(v) Sydney Construction had not, as at 4 May 2000, 12 May 2000 and 21 May 2000, proceeded diligently with the work;

(vi) The notice[s] of 4 May 2000, 12 May 2000 and 16 May 2000 were effective and valid notices under Clause 24 of the Contract relating to failure to proceed diligently with the work and to the suspension of work without reasonable cause;

(vii) The notice of 21 June 2000 did not waive non-compliance and required an undertaking the effect of which was that Sydney Construction would remedy the defective work and proceed diligently with the works.”

42. The background to the “decisions” identified at [160] and the “findings” at [170] requires further explanation, first by reference to the provision of the contract and, secondly, by reference to the facts.

(3) Relevant contractual provisions

43. The contractual framework within which the issues arose included a number of elements. The key provision for the purposes of the specific issue determined by the Tribunal (the purported termination by the owners) was cl 24 of the contract, which identified the circumstances in which the owners were entitled to terminate the contract. A similar right was conferred on the builder (referred to in the contract as “the contractor”) by cl 25.

44. Clause 24, so far as it dealt with termination due to the fault of the contractor, was in the following terms: “If the contractor: ¶ is unable or unwilling to complete the work or abandons the work; ¶ suspends the work before completion without reasonable cause; ¶ … if the contractor is a company, goes into liquidation or receivership; ¶ fails to proceed diligently with the work; ¶ fails to remedy defective work or remove faulty or unsuitable materials which substantially affect the work; or ¶ without reasonable cause fails to comply with an order or direction of a public authority with respect to defective or incomplete work, which would substantially affect the quality and/or progress of the work,

the owner may, if such default can be remedied, notify the contractor in writing that unless the default is remedied within 10 working days or such longer period as specified, the owner will end the contract.

If the contractor does not comply with the owners request within the time allowed, or if the default cannot be remedied, the owner may end this contract by giving written notice to that effect to the contractor.

…

If the reasonable cost of completion of the work exceeds that which would have been otherwise due under the contract the difference will be a debt payable by the contractor to the owner. Should the reasonable cost of completion be less than otherwise due under the contract the difference will be a debt payable to the contractor.

Until completion of the work the contractor will not be entitled to any further payment under this contract. However, nothing contained in this clause may take away any right the contractor may have to payment under the dispute resolution procedure in Clause 26.

…

A notice required under this Clause must be given in accordance with Clause 27.”

45. Clause 25 was in similar form, entitling the contractor to give a notice to the owner seeking to have a default remedied within 10 days, including for failure to pay a progress payment due under the contract and failure to perform any work or supply any materials “which prevents the Contractor from continuing with the work under the Contract or otherwise obstructs the Contractor from performing the work”. As with cl 24, a notice under cl 25 “must be given” in accordance with cl 27.

46. Clause 27 provided: “If the contract requires or permits a party to give a notice, consent, or other communication in writing to the other part it must be given by either [sic]:

¶ handing it to the other party; or

¶ leaving it with a person, apparently over the age of 16, at the party’s business or residential address; or

¶ certified mail to the last known address of the other party; or

¶ facsimile transmission to the last known facsimile number of the other party.

A notice which is not handed to the other party is taken to have been received 3 working days after being posted, or the following day if left or transmitted by facsimile.”

47. Clause 23 provided for circumstances in which the contractor was entitled to suspend the work. So far as relevant it read: “If the owner, without reasonable and substantial cause: … ¶ fails to pay a progress payment or any other amount due to the contractor within the time allowed; … ¶ fails to perform any work or supply materials as specified in Clause 15 which prevents the contractor from continuing with the work under the contract; …

the contractor may without prejudice to any other rights under the contract, suspend the work by giving written notice to the owner in accordance with Clause 27 (Giving of notices) specifying the reason.

If the owner remedies the default, the contractor must recommence the work within 10 working days unless the contractor has ended the contract under Clause 25.”

48. The original contract price was $330,000, with progress payments to be made in six stages: cl 11. There was provision for variation, either at the request of the owner or of the contractor: cl 12. To be contractually effective, any notice of variation was to be provided by the contractor to the owner and signed and dated by both parties, to constitute acceptance. A progress payment was required to be paid by the owners when a particular stage of the work had been completed and was “free of apparent defects”.

49. Clause 4 of the contract provided for the date on which work must commence and cl 5 provided that the contractor must diligently proceed and complete the work within 30 weeks of the commencement date. Clause 6 provided for extensions of time in the following circumstances: “If the work is delayed by:

¶ inclement weather or conditions resulting from inclement weather,

…

¶ any act or omission of the owner;

…

¶ the unavailability of materials necessary for the continuation of the work, unless due to the fault of the contractor;

¶ a variation to the work;

¶ suspension of the work by a contractor under Clause 23; or

¶ any other matter, cause or thing beyond the control of the contractor,

the contractor will be entitled to a reasonable extension of time to complete the work. Both the contractor and owner must take all reasonable steps to minimise any delay to the work.

If the contractor wishes to claim an extension of time, the contractor must notify the owner in writing of the cause and estimated length of the delay within 10 working days of the occurrence of the event or, in the case of a variation, from the date of agreement to the variation.

If the owner does not, within a further 10 working days, notify the contractor in writing that the extension of time sought is unreasonable, the completion date for the contract will be extended by the period notified to the owner.

If the owner gives the contractor written notice disputing the extension of time claimed, and no agreement can be reached on the time to be allowed, the dispute must be dealt with in accordance with the dispute resolution procedure (Clause 26).”

50. The contract also provided for the handling of disputes. If either party considered that a dispute had arisen in relation to any matter covered by the contract, “that person must give to the other party written notice of the items of dispute”: cl 26. If the dispute were not resolved by negotiation or mediation, either party “may give written notice to the other party advising that they intend to resolve the matter through” the appropriate tribunal or court. The final paragraph of cl 26 stated: “Even if a dispute has arisen the parties must, unless acting in accordance with an express provision of this contract, continue to perform their obligations under the contract so that the work is completed satisfactorily within the agreed time.”

(4) Factual background

51. Contrary to the views of the trial judge, it is not necessary, nor appropriate, to examine all of the evidence before the Tribunal.

52. In broad terms the matters for determination by the Tribunal required it to address the following issues: (a) had there been variations to the contract in March and May 2000? (b) had there been extensions of time to complete the works in March and May 2000? (c) were any progress payments unpaid? (d) if so, was the failure to pay “without reasonable and substantial cause”? (e) were the owners, in June 2000, entitled to terminate the contract under cl 24? (f) had either party repudiated the contract, as at 21 June 2000?

53. On 28 April 2000 the owners received two documents from the builder. One was a request for variations to the contract and the other a claim for progress payment 5. On 1 May 2000, the owners refused to agree to the variations, either because they did not consider them true variations to the contract, or because the amounts claimed were excessive. In response to the progress payment claim, they advised the builder that “before payment is due the following works must be completed”, followed by a list of 43 items.

54. The letter from the owners of 1 May was followed by a letter from their solicitors dated 4 May 2000, stating in part: “We are instructed that you have:

55. been unable and unwilling to complete the works that are the subject of the building contract;

56. suspended work previously without reasonable cause; and

57. failed to proceed diligently with the work.

Unless the breaches of the Home Building Contract dated 5 August 1999 are remedied by you within 10 working days our clients will end that contract in accordance with clause 24 of the contract.”

55. The letter of 4 May repeated the statement in the earlier letter to the effect that progress payment 5 was not due because some 42 items of work had not been completed. It further referred to the three variations sought on 28 April and stated their clients’ instructions that the variations were “due to your fault and our clients are therefore not liable for the cost of those variations”. A copy of the letter was sent to HIA.

56. In respect of the listed items, the Tribunal noted in its reasons at [16]: “The cross-examination of Mr Kostas, apart from its effect on his credibility, shows that of the 42 items on the list, only some 8 would fall into the category of work to be attended to by the Builder under the contract. The cross-examination also shows that within a few days 5 of these items had been attended to. Further progress was by then conditional upon the supply by the Owners of windows and other items leading to lock-up, as well as the air-conditioning.”

57. On 4 May 2000, the builder responded to the owners’ solicitors stating in part: “We confirm that due to the constant indecisive changes, variations to contract, postponed material deliveries from your clients, works are constantly delayed. This is Evident in the amount of approved extension of time claimed by our company (in access [sic] of 20 weeks). A further claim of extension of time has been placed in order of 10 weeks to a set back with the selection and supply of aluminum [sic] windows by your client.

In reference to your claims mentioned in you’re [sic] correspondence; ‘failed to proceed diligently with the work’; Sydney Construction Company has performed all works and responsibilities in the best of its ability to full fill [sic] the agreed contractual duty. Constant hindrance imposed on subcontractors by your clients caused Sydney Construction Company, to suspend works for one complete week to initiate a new site policy.”

58. There was then a response in relation to each of the 42 items listed in the owners’ letter, noting that the progress payment had been reduced from $60,000 to $36,500 by the exclusion of windows and external render, which were to be completed by the owners. The letter further noted that the variations had been signed and approved by the owners before commencement of the works. On the basis of a failure to pay a progress payment, the letter threatened a suspension of work from 8 May 2000.

59. On 10 May, the builder’s solicitors wrote to the owners’ solicitors stating that they had advised their client that it was entitled to suspend forthwith the work for failure of the owners to pay for the variations and on account of their failure to “perform work and supply materials which has prevented our client from continuing the work under the Contract”. The letter sought payment by 12 noon on 12 May 2000 in order to avoid suspension of the work pursuant to cl 23. By letter dated 12 May 2000, the owners’ solicitors raised a number of matters in respect of which there were clearly disputes between the parties. The letter concluded: “In so far as the 42 items identified in our letter dated 4 May 2000 have not been completed, remedied or rectified, that notice is continuing.

In addition to those issues, we hereby give SCC [the builder] notice that it has failed to rectify defective works undertaken and is required to do so now.

Unless those breaches of the Home Building Contract dated 5 August 1999 are remedied by SCC within 10 working days of the notice, Kostas will end that contract in accordance with clause 24 of the contract.”

60. The Tribunal noted the failure to provide details of the additional defective works referred to in the penultimate paragraph of the letter of 12 May, concluded that details were required and found that the notice of 12 May was “not a valid notice”: at [18].

61. On 16 May 2000, the builder’s solicitors set out in detail their client’s position in relation to the matters in dispute, including progress claim 5. They stated at par 1.2 that they had reviewed the definition of work contemplated by stage 5 and advised their client that “apart from completion of the fixout joinery, all other work referred to in your correspondence is either not within the scope of the works or comes within stage 6”. The request for payment was withdrawn and was to be made “as soon as the fixout has been completed”. The letter asserted that work continued to be undertaken, even though the owners had failed to make payments in accordance with the agreement and that the extensions of time requested meant that it was significantly ahead of schedule: par 4.1.

62. The owners’ solicitors appear to have sent a further letter dated 16 May 2000, referred to by the Tribunal at [19], parts at least of which were set out by the primary judge at [53]. It does not appear to have been before this Court.

63. On 22 May 2000 the owners wrote directly to the builder noting that wooden doors and door jams would be delivered on site on that day, “ready for installation on Tuesday 23/05/00”. The letter noted that all cement rendering had been completed and that ceramic tiles would be delivered on 24 May 2000. A complaint was made that columns had been delivered on 2 May and had still not been installed and that a time schedule had not been provided, despite numerous requests, one being required immediately “so that all materials supplied by the owners can be supplied when required”.

64. There appears to have been further correspondence between the parties which is not before this Court and, according to the manner in which the matter was dealt with in the Tribunal, was not material. On 29 June 2000 the owners’ solicitors wrote to the builder’s solicitors terminating the contract in accordance with cl 24. It was that notice which the Tribunal held to be ineffective because the entitlement to give such notice was conditional upon an earlier notice having been given, if the default could be remedied, requiring that the default be remedied within 10 working days. The notices relied upon as having that effect were the letters of 4 May and 12 May, each of which had been held by the Tribunal not to have constituted a valid notice for the purposes of cl 24.

(5) Reasoning of Tribunal

65. In determining whether the owners had validly terminated the contract, the first issue addressed by the Tribunal was the date for completion. The significance of this issue was indirect: the completion date was important with respect to an argument that the builder had repudiated by virtue of its dilatory conduct (discussed at [26]) and to the asserted unwillingness or inability of the builder to complete the works within the specified period: see [19] and [27].

66. The Tribunal referred to two claims for extensions of time, being those made on 31 March and 23 May 2000. Prior to those extensions, the anticipated finishing date had been identified as 15 July 2000 in a request for an extension of time dated 24 January 2000 and bearing the builder’s signature and the owners’ signatures. The period claimed, as initialled by both parties, was reduced from 14 weeks to 12 weeks, so that the anticipated completion date was arguably 1 July, rather than 15 July. However, the first contested claim, being that of 31 March 2000, somewhat ambiguously sought allowance for a total of 87 working days (15 weeks), but identified only 17 days and noted an anticipated finishing date of 1 August 2000. The 17 days identified involved two periods of five days delay in relation to particular items, together with seven days for wet weather. The claim was signed by the builder, but not by the owner.

67. The second contested claim for an extension of time, dated 23 May 2000, was even less clear. It claimed a period of 16 weeks extension, with an anticipated finishing date of 13 September 2000. Four different bases were given for the claimed delays. The first involved nine “rain days”, seven of which occurred in March and five of which were included in the earlier claim. The second basis involved backfill of sewer trenches and was quantified at three days. The third basis involved a variation with respect to guttering and structural steel, said to have been discussed at a site meeting on 9 February 2000 and involving 10 working days. It appeared to duplicate, at least for five days, one of the items identified in the 31 March extension claim. The fourth basis of claim concerned delays caused by the owners’ selection of windows and was calculated as a period of 12 working weeks (60 days). Whether there was any overlap or double counting was unclear.

68. One feature of the claim of 23 May 2000 was that it carried a signature of neither the builder nor the owner.

69. The Tribunal noted that the owners denied that they had been served with those claims for extension of time, as asserted by the builder. The Tribunal considered the evidence of Mr Kostas in that respect to be unsatisfactory, accepted the statement of the builder that claims had been sent to the owners and concluded that they had been received. Accordingly, it concluded that the builder had notified the owners in writing of the relevant claims, for the purposes of cl 6 of the contract and that, the owners not having notified the builder in writing that the extension sought was unreasonable, the completion date for the contract was extended for the period notified to the owners, pursuant to the automatic operation of cl 6.

70. With respect to the notice served on 4 May 2000, the Tribunal noted that the general complaints of inability or unwillingness to complete the works, suspension of the work “previously” without reasonable cause and failure to proceed diligently, were not made good, for the reasons given at [14]: “The contract had already run well beyond the time originally contemplated, but that time had been extended by consent. I consider that the consent of the Owners in January 2000 waives any complaint which could have been made about prior delays. What delays had occurred since then which could justify a Notice, at the date the contract had 4 months to run?”

71. Although expressed in the terms of a rhetorical question, it was clearly intended to be answered in the negative. His Honour treated the right to terminate on such grounds as equivalent to a general law right based on an inference of repudiation and referred to a passage in the judgment of Brennan J in Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; 166 CLR 623 at 643 which, including references to other authorities also noted by the Tribunal, read as follows: “Delay will amount to repudiation if the defaulting party ‘evinces an intention no longer to be bound by the contract ... or shows that he intends to fulfil the contract only in a manner substantially inconsistent with his obligations and not in any other way’: Shevill v Builders Licensing Board (1982) 149 CLR 620 at 625-626; Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at 33, 40. If the inference to be drawn from the circumstances is that the defaulting party intends to perform an essential promise after some minor delay, repudiation cannot be inferred; but if the inference is that the defaulting party intends so to delay performance that the promisee will be substantially deprived of the benefit of the promise, repudiation can be inferred. The inference is not lightly drawn: Progressive Mailing House Pty Ltd v Tabali Pty Ltd , at 32.”

72. No complaint is made about this statement of legal principle.

73. The Tribunal also considered the separate complaint as to the 42 items which had not been completed. It provided an assessment of the factual situation, namely that five of the items were attended to within a few days, leaving only three outstanding, as noted at [56] above. It continued at [17]: “The position therefore is that as at the date of the first notice, the contract still had 4 months or so to run, and major progress with the works was dependent upon action by the Owners. The Builder was on site attending to the matters complained of which were within his responsibility. To pick up the words of Brennan J, I consider that it should be said that the inference to be drawn here is that after a minor delay, the Builder intended to proceed with its essential promises.”

74. The Tribunal then turned to the letter of 12 May 2000 and in particular the terms identified at [59] above. In addition to the 42 items identified in the earlier letter, reference was made to additional issues involving defective work which had not been rectified. The Tribunal dealt with the failure to provide details at [18] in the following terms: “How can the Builder attend to the notice? The only reasonable conclusion from the notice is that the Owners were of the opinion that there were some defective works in addition to those they had previously enumerated. What were those works? How was the Builder to attend to them?”

75. The Tribunal then referred to submissions for the owners which either did not deal with those “vital questions” or relied upon authority concerned with a notice with respect to failure to proceed diligently. The Tribunal continued: “Lack of diligence is a general concept, not capable of particularisation. Defective works are so capable. Where there is an allegation of defective work, then I consider that an owner is required to give details of the defects alleged in a notice so that the Builder can attend to them. Accordingly, I find that the notice of 12 May was not a valid notice.”

76. The Tribunal noted that the owners may well have formed a similar view in relation to the notice of 12 May, because they gave a further notice dated 16 May 2000: at [19].

77. The significance of the letter of 16 May for present purposes is unclear. Although it was referred to by the primary judge (for example at [124]) it was only in passing, and no finding was based upon it. The substance of the letter as set out by the primary judge at [53] concerned “variation 11”, which was claimed to be part of the original contract, and claimed that the action taken by the builder in removing certain works that fell within the terms of the variation, constituted further evidence that the builder was “unable and unwilling to complete works which are the subject of the building contract”. The Tribunal concluded that it was “unable to draw the conclusion that [the actions of the builder] evidence an inability or unwillingness to complete”: at [19].

78. There being no challenge to that finding (and arguably, as discussed below, no challenge would have been available) no further consideration of it is required.

79. As noted above at [64], the Tribunal concluded that the notice of 29 June 2000, purporting to terminate the contract for failure to rectify defaults, was not effective, because there had been no relevant failure to rectify identified defective work and the more general assertions of unwillingness or inability to perform and failure to proceed diligently with the work, had not been made good.

80. It appears that the owners had also claimed repudiation on a more general basis, other than by reliance upon cl 24 of the contract. The Tribunal identified the relevant issues in the following terms: “26. Had the Builder by its conduct repudiated the contract? As I have found above, there were at most some 3 items requiring rectification by the time that the ‘notice’ of 4 May was received by the Builder. There is no other evidence of a refusal to rectify; the contract had 4 months still to run and there is no evidence upon which I could find that there was insufficient time to attend to the outstanding items in that period. Accordingly, I do not accept the submissions on their behalf that there was a refusal to rectify from which I should conclude that there was repudiation.

81. It is then submitted that the Builder refused to complete the works. Consideration of this issue must start from the position that by agreed variations and by the failure to dispute the claims for extension of time, the contract had been extended to the end of September. What evidence is there of inaction by the Builder in May and June 2000 from which an inference of refusal to complete could be drawn?”

82. The Tribunal then set out the claims of both parties that the other was responsible for the delays and inactivity in May and June 2000. It dealt with the matter on the basis that, as the owners were “asserting that they are entitled to the benefits of the insurance policy, …. [they] are required to prove that the Builder was in breach”: at [31]. There is no challenge to that legal proposition. The Tribunal concluded that the owners “have not proven a case that the Builder, from its own fault, failed to achieve lock up by 29 June 2000”: at [31]. The Tribunal then dismissed a claim that, by not being on site, the builder had “abandoned the works”. Whilst acknowledging that the evidence was unsatisfactory, the Tribunal concluded that the documents annexed to Mr Kostas’ affidavit “show real attempts by the Builder to have the Owners attend to the matters outstanding on their part to enable the builder to proceed”: at [32]. The Tribunal rejected the owners’ assertion that “by its conduct the Builder repudiated the contract”: at [33].

83. In the concluding paragraphs of the reasons, the Tribunal accepted the submission on behalf of the appellant that the owners’ conduct in serving “an ill-founded notice of termination is itself repudiatory”: at [34]-[37].

(6) Legal basis of appeal to Supreme Court

(a) general

83. A survey of statutory appeal provisions, restricted in some way to legal error, suggests that they fall within three broad categories. The categories can be identified by reference to different forms of statutory language, although there are more variations than the categorisation would suggest.

84. The first and broadest category of appeal arises where the right of appeal is given from a decision that “involves a question of law”, being language which permits “the whole case, and not merely the question of law” to be the subject of the appeal: see Brown v The Repatriation Commission (1985) 7 FCR 302 at 303 (referring to Ruhamah Property Co Ltd v Federal Commissioner of Taxation [1928] HCA 22; 41 CLR 148 and subsequent authorities).

85. The second category is exemplified by provisions which permit an appeal “on a question of law from a decision of” a tribunal. In such cases, it is the appeal which must be on a question of law, that question being not merely a qualifying condition to ground an appeal but the sole subject matter of the appeal, to which the ambit of the appeal is confined: Brown v The Repatriation Commission at 304; TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (1988) 82 ALR 175 at 178.

86. The third and narrowest category is one restricted to “a decision of a Tribunal on a question of law”, in which case it is not sufficient to identify some legal error attending the judgment or order of the Tribunal; rather it is necessary to identify a decision by the Tribunal on a question of law, that decision constituting the subject matter of the appeal.

87. This taxonomy, and the statutory provisions and case law supporting it, was explained by this Court in B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 at [47]-[70] (Allsop P, Giles JA agreeing); Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [58]-[59].

88. When the present proceedings were commenced in the Common Law Division in 2005, s 67 of the CTTT Act relevantly provided: “ 67 Appeal against decision of Tribunal with respect to matter of law (1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the Supreme Court against the decision. … (3) After deciding the question the subject of such an appeal, the Supreme Court may, unless it affirms the decision of the Tribunal on the question: (a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or (b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal.

(4) If such a rehearing is held, the Tribunal is not to proceed in a manner, or make an order or a decision, that is inconsistent with the decision of the Supreme Court remitted to the Tribunal.

…

(7) If a rehearing is held, fresh evidence, or evidence in addition to or in substitution for the evidence on which the original decision was made, may be given on the rehearing.

(8) A reference in this section to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal.”

89. In terms of the tripartite taxonomy outlined above, HIA contended that this provision fell within the third and most restricted category of appeal, namely one where the subject matter of the appeal is limited to the decision of the Tribunal on a question of law. However, the provision illustrates the semantic variations on that theme. Thus the question which the Tribunal decides is not simply a question “of law”, nor is it a decision “on” a question of law; rather, what is decided is a question “with respect to a matter of law”.

90. This semantic variation was relied upon by the owners as extending to include a question of mixed fact and law or, in the alternative, if the question were limited to a question of law, to allow the Supreme Court, once error of law is established, “to determine any other question of fact or of law or mixed of fact and law as in its opinion would enable it to make orders under s 67(3)(a)” of the CTTT Act. These matters of construction were raised by way of notice of contention. The second alternative sought to rely not merely upon the language of sub-s (1), identifying the subject matter of the appeal, but also on inferences which might be drawn from sub-s (3), identifying the orders which may be made by the Court.

91. At an interlocutory stage in this Court, HIA sought to strike out the notice of contention. Bell JA declined to do that: see HIA Insurance Services Pty Ltd v Kostas [2008] NSWCA 297. Her Honour noted at [12]: “The contention in par 2 is that once error of law is established, the Court has power to open up questions of fact and law that are connected to the error to enable it to make orders in the proceedings that ought to have been made by the Tribunal. Mr Jackson acknowledged that the contention is contrary to statements in Kalokerinos and Bahadori . He submits that the point was not necessary to the decision in either case. He noted that in Scicluna … Hodgson JA’s agreement with the judgment of Basten JA did not extend to the discussion of the power conferred by s 67(3) in pars [20]–[34]. Mr Jackson seeks to argue that s 75A(4), (6) and (10) of the [ Supreme Court Act ] confers power on the Court to make findings of fact in an appropriate case once error of law is demonstrated and that for the reasons explained by Spigelman CJ in Thaina Town (On Goulburn) Pty Ltd v Sydney City Council [2007] NSWCA 300; 156 LGERA 150 at 174–176 it is desirable that the Court have power to dispose of issues or the whole case in circumstances in which it is expedient to do so. The contention is that absent very clear statutory language s 75A should not be restricted by implication unless such restriction is necessary.”

92. In this Court, senior counsel for the owners accepted that they would have difficulty in succeeding on the first contention: CA Tcpt, 29/06/09, p 35(25). In relation to the second contention, reference was made to s 75A of the Supreme Court Act, but it was touched on only lightly: Tcpt, pp 35-36.

93. Having adopted, as the proper construction of s 67, the third category referred to above as a primary basis of appeal, HIA contended that the primary judge had failed correctly to identify decisions actually made by the Tribunal with respect to matters of law and, in addition, had categorised as law questions which were either questions of fact or at best mixed fact and law but, in either event, not within the scope of the statutory appeal.

94. HIA also raised a separate issue, namely that the decision or decisions of the Tribunal relied upon were interlocutory decisions and did not fall within the intended scope of s 67(1). It is convenient to start with the last matter which may, if correct, provide a sufficient basis to uphold the appeal.

(b) appeal against interlocutory decisions

95. HIA argued, both as a matter of principle and on the basis of authority dealing with similar provisions in other legislation, that no appeal lay under s 67(1) in relation to interlocutory decisions. It therefore followed that no appeal lay from a determination by the Tribunal of a separate question, which resulted in no final order disposing of the proceedings. Quantification of the appropriate amount remained outstanding.

96. In addressing this issue, the primary focus must be upon the language of the statute. Nevertheless, in construing the statute, the appellant called in aid the remarks of Kirby P in Custom Credit Corporation Ltd v Commercial Tribunal of New South Wales (1993) 32 NSWLR 489 at 497B, dealing with a precursor to s 67, where his Honour stated that he was “mindful of the policy considerations which would restrain a construction of the word ‘decision’ in s 20(5) [of the Commercial Tribunal Act 1984 (NSW)] as affording an appeal as of right at an interlocutory stage of proceedings, thereby allowing interference and delay in proceedings before the Tribunal”. The appellant also referred to similar remarks of Meagher JA at 499E-F.

97. One factor which may provide support for the appellant’s contention is that s 67, unlike some analogous provisions, contains no requirement that a party seek leave with respect to interlocutory decisions. The inclusion of a leave requirement with respect to interlocutory decisions, demonstrates beyond contradiction that such decisions fall within the term “decision” in the operative provision. (Such a requirement provides a statutory basis for the Supreme Court (and now the District Court) to control the potential delay and expense caused by inappropriate interlocutory appeals.) While such express recognition of interlocutory appeals may determine the construction of a particular provision, its absence will have limited weight.

98. There are other positive features of s 67 which suggest that it was not intended to be restricted to final orders, disposing of the proceedings before the Tribunal. First, the reference in sub-s (1) to the Tribunal deciding a question “in respect of any proceedings” is apt to cover decisions which do not finally dispose of the proceedings. Further, the opening words of s 67(1) formulate an hypothetical situation, namely where the Tribunal decides a question “in respect of any proceedings”. That language is inconsistent with an intention to limit such decisions to final and operative decisions. Had such a limitation been intended, one might have expected the provision to commence, “If, in determining any proceedings, …”. Other formulations might be envisaged having a similar, or clearer effect.

99. Secondly, the fact that the subject matter of the appeal is a decision on a question with respect to a matter of law militates against the limitation of such decisions to final and operative orders. It is unlikely that a final order will be a decision on a question with respect to a matter of law; it is far more likely that such decisions will form the underlying basis of such orders and may arise at any stage of the proceedings.

100. In Custom Credit Corporation reference was made to the fact that s 20 of the Commercial Tribunal Act permitted not only an appeal, but also a referral to the Supreme Court of a question with respect to a matter of law. There was no doubt from the terms of s 20(4) of the Commercial Tribunal Act that such a referral could take place in the course of the proceedings and thus in relation to a question which would not constitute the final order or decision of the Tribunal. The equivalent provision in the CTTT Act is s 66, which read as follows a the relevant time: “ 66 Referral of questions of law to Supreme Court … (2) If, in any proceedings, a question arises with respect to a matter of law, the Tribunal may decide the question or may refer it to the Supreme Court for decision. (3) If a question with respect to a matter of law is referred to the Supreme Court by the Tribunal: (a) the Tribunal is not to make an order or decision to which the question is relevant until the Supreme Court has decided the question, and (b) on deciding the question, the Supreme Court is to remit its decision to the Tribunal, and (c) the Tribunal is not to proceed in a manner, or make an order or a decision, that is inconsistent with the decision of the Supreme Court.”

101. Section 66 expressly envisages that a question with respect to a matter of law may arise in the course of proceedings and allows the Tribunal either to decide the question or to refer it to the Supreme Court. If the decision constituting an answer to the question could only be the final decision of the Tribunal disposing of the proceedings, the terms of sub-s (3) would be entirely inapposite. Given that the decision will provide an answer to “a question with respect to a matter of law”, being the same language as that used in s 67(1), it is appropriate to read the two sections as complementary. It follows that a decision under s 67, which may be the subject of appeal, may and often will be an interlocutory decision.

102. If it be necessary for the Court to be satisfied that a particular decision materially affects a final order, it is clear that the decision of the Tribunal under appeal in the present case is clearly of that nature. It is, in that sense, similar to a determination of liability in a personal injury case, where damages have not been determined. It is not necessary for present purposes to determine whether s 67 would permit an appeal in respect of a decision with respect to a matter of law which does not directly affect the outcome of the case. An example of such a decision arose in Custom Credit Corporation, where the appellant had challenged the power of the Tribunal to appoint a lawyer to assist the Tribunal.

103. The authorities also support the conclusion that s 67 applies to any decision of a question with respect to a matter of law which affects the ultimate outcome: see Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [39]-[53] (Bryson JA, Santow JA agreeing); Grygiel v Baine [2005] NSWCA 218 at [26]-[29]; Maconachie v Kullenberg [2005] NSWCA 294 at [59]; Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150; 72 NSWLR 44 at [18]-[26] (Tobias JA, Campbell JA agreeing). Although the point was not contested, Chapman v Taylor [2004] NSWCA 456; (2005) Aust Contract Rep ¶90-205 also concerned the determination of a separate question. HIA sought to distinguish these cases on the basis that any comment with respect to interlocutory decisions in each was obiter or, if that were not the case, they should not be followed. These submissions should be rejected. Although in Bahadori relief was granted in exercise of the Court’s judicial review jurisdiction, thus rendering it unnecessary to determine the scope of the statutory appeal, the reasons given as to the scope of the appeal in other cases were not obiter, although the issue may not have been fully argued: see [2] (Giles JA). Nevertheless, any reading of the decisions referred to above, including the authorities discussed therein, requiring that the subject matter of the appeal be limited to a decision of the Tribunal with respect to a matter of law demonstrate, in the circumstances in which the definition is applied, that it was not the final order or decision of the Tribunal which had to be with respect to a matter of law. As already noted, a final order will routinely involve the application of legal principle to facts as found and is thus not a decision purely with respect to a matter of law.

104. This conclusion renders meaningful the common exhortation in the case law that an appellant identify with a degree of precision the decision with respect to a matter of law which is sought to be challenged on the appeal: see, eg, Kalokerinos at [58]; Scicluna v New South Wales Land and Housing Corporation [2008] NSWCA 277; 72 NSWLR 674 at [3]; see also McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55; 221 CLR 646 at [18] and [20].

(c) scope of subject matter of appeal

105. It is convenient to deal next with the owners’ contention that the subject matter of the appeal is not limited to a question of law, but includes a question of mixed fact and law or, if it be necessary to identify a question of law, that once error is established the Court is entitled to determine any other question of fact or law or mixed fact and law to enable it to make appropriate orders under s 67(3)(a) of the CTTT Act.

106. As may be gleaned from the preceding discussion, both contentions are inconsistent with the approach adopted in earlier case law. Nevertheless, it is appropriate to address the contention first as a matter of statutory construction.

107. The argument for the owners was that there must be a distinction between the act of the Tribunal which “decides a question of law” and that which “decides a question with respect to a matter of law”. The additional words, it was contended, should not be treated as mere verbiage; the latter formulation, adopted in s 67(1), must be wider than the former. The primary judge at [156] (though not deciding their effect) stated: “’With respect to’ are similar words to ‘in respect of’, which have the widest possible meaning of any words used to convey some connection or relation between two subject matters: see State GIO v Crittenden (1996) 117 CLR 412 at 416; Technical Products Pty Ltd v SGIO (Qld) (1989) 167 CLR 45 at 47, 51.”

108. It might be more accurate to describe the words “with respect to” as being capable of having “a very wide meaning”, adopting the terminology of Brennan, Deane and Gaudron JJ in Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; 167 CLR 45 at 47. They are words of connection and must identify “some discernible and rational link” between two elements: ibid. More importantly, such words “have a chameleon-like quality in that they commonly reflect the context in which they appear”: ibid. More precisely, they “take their colour from the context in which they are found”: Technical Products at 51 (Dawson J).

109. The owners contended that the statutory phrase was closer in meaning to the phrase “involving a question of law” than it was to the phrase “on a question of law”. As they correctly noted, the former phrase, which is to be found in earlier versions of the Income Tax Assessment Act 1936 (Cth), s 196, has been held to mean that, “if some question of law be involved, the whole decision of the Board, and not merely the question of law, is open to review”: XCO Pty Ltd v Commissioner of Taxation (Cth) [1971] HCA 37; 124 CLR 343 at 348 (Gibbs J). This, in the taxonomy noted above, fell within the first category of appeals. To fail to adopt such a construction would, the owners submitted, give no work to the words “with respect to”.

110. These submissions should not be accepted. First, the words “with respect to” must in any event have some work to do, as they are the only words of connection used in s 67(1): the question is to identify the nature of the connection. Secondly, the real issue is to determine whether the subject matter of the appeal is any decision which “involves” a matter of law, or is limited to that matter of law. If the reference to a decision of the Tribunal were indeed a reference to its final and operative decision, there might be good reason to adopt the broader approach. However, the approach which seeks to isolate and identify the matter of law as an interlocutory issue, or a step on the way to a final resolution of the dispute, suggests that the latter (narrower) construction is to be preferred.

111. Finally, the respondents seek to derive support for the broader construction from the language of s 67(3)(a) of the CTTT Act, dealing with the powers of the Court on such an appeal. Except where the Court affirms the decision of the Tribunal, it is empowered to “make such order in relation to proceedings in which the question arose as, in its opinion, should have been made by the Tribunal”. That language relates the order to the proceedings, rather than to the question or the decision itself. That is to be compared with the situation where a question is referred to the Supreme Court in which case the Court is required, “on deciding the question”, to remit its decision to the Tribunal.

112. The language of s 67(3)(a) being potentially broader than might be suggested if the subject matter of the appeal were limited to deciding the matter of law, a different construction is available. However, the subject matter of a referral is the same as the subject matter of an appeal where, instead of referring the question, the Tribunal decides it. The differential powers conferred on the Court in respect of the alternative procedures may thus be seen to reflect a view that a referral will occur before the Tribunal makes an order, whereas an appeal will arise after the Tribunal has made an order. Thus the intent of s 67(3)(a) is that the Court may substitute its order for that made by the Tribunal. That would explain why the language of that provision refers to “such order”, rather than “such decision”. However, once it is accepted that the subject matter of the appeal is a “decision”, and not necessarily a final order, the argument in favour of construing the scope of the appeal by reference to the powers conferred on the Court in determining the appeal loses much of its force. If each provision is read as a whole and in its context, it is evident that the distinction between the forms of relief reflects the different circumstances of an appeal and a referral, rather than a difference in the subject matter of each. Accordingly, the forms of relief will not govern the construction of the subject matter.

113. It follows that the owners’ contention should be rejected and the construction of s 67(1) requires that the subject matter of the appeal be limited to the “matter of law”. Not only is that the preferable approach as a matter of construction, but it is that which has been uniformly adopted in the decisions of this Court with respect to s 67. The first reference appears to have been in Crook v Consumer, Trader and Tenancy Tribunal of New South Wales [2003] NSWCA 370; 59 NSWLR 300 where, at [4] Sheller JA noted that the parties accepted that s 67(1) merely “limited appeals to Tribunal decisions on question with respect to matters of law”. The case involved both the construction of a statutory provision and consideration of whether, on the evidence before the Tribunal, it was open to the Tribunal to reach a particular conclusion. The Court held that it was not: at [40]. There was no discussion as to the precise scope of the subject matter of the appeal permitted by s 67(1).

114. Greater attention was given to the operation of s 67 in Smith v Collings Homes Pty Ltd [2004] NSWCA 75. The challenge in that case was brought both by way of statutory appeal and by way of judicial review. After referring to s 67(1), Mason P stated: “23 This provision does not state that the appellate jurisdiction is engaged merely because the appeal involves a question of law or an assertion of error of law on the Tribunal's part. It seems to me that it is much narrower, although it is ultimately unnecessary to express concluded views on the matter. …

25 Apart from the very language of the sub-section, it is to be observed that the very presence of s 65, which provides for judicial review if there is excess of jurisdiction or denial of procedural fairness, provides additional support for a narrower, literal reading of s 67.”

115. Handley JA and Campbell J agreed with Mason P, Handley JA stating: 60 … I will only add some brief remarks about the scope of s 67(1) of the CTTT Act. This provides for a more restricted right of appeal on the question of law for the Supreme Court than is ordinarily provided for in the State statutes. It is arguable that the right of appeal extends to legal decisions where such a decision was necessarily made by the Tribunal but is not apparent on the face of its decision. 61 It does seem clear, on any view, that the section prevents a new point of law being taken for the first time on appeal. It is not necessary for this Court to extend the right of appeal under section 67(1) in this case.”

116. Reference has been made to Kalokerinos above at [103]. That case involved an application to strike out a notice of appeal as incompetent. It required a consideration of the limitations imposed on the right of appeal by s 67. Bryson JA addressed the terms of the section and the earlier authorities in detail at [39]-[57]. With respect to the point of statutory construction, his Honour stated: “39 Limited rights of appeal are sometimes conferred in legislation which refers to ‘a point of law’ or ‘a question of law.’ The words of subs 67(1) are not in one of these familiar forms, and raise for consideration the possibility that when the legislation refers to the Tribunal ‘[deciding] a question with respect to a matter of law,’ the subsection might be intended to refer to deciding a question which is in some way wider than or different to simply deciding the matter of law, such as a question of the kind referred to (not at all clearly) as a question of mixed fact and law, in which decision is required on the application of a legal test or a standard to the facts under consideration; the facts as well as the law must be decided, in the process of deciding what result is produced by their interaction. 40 The terms of subs 67(1) and particularly the words ‘with respect to’ in their context seem to me to be capable of bearing a meaning in which the decision which may be appealed against is a decision specific to a matter of law. However they also seem to be capable of or at least to raise for consideration whether they bear another meaning in which the decision is one in which a question of law is involved, but the decision is or may be a decision on some wider matter than the question of law itself. In the first reading the words ‘a question with respect to’ make the relation between the decision and the question of law specific; in the second reading the longer expression including these words is employed to indicate some penumbrum of meaning wider than the question of law itself. 41 The limitation of the subject matter of appeal is recognised in the opening words of subs (3) – ‘After deciding the question the subject of such an appeal …’; and subs (3) goes on to state what the Court may then do – affirm the decision of the Tribunal on the question, make such order as should have been made or to remit its decision on the question to the Tribunal and order a rehearing. In my opinion s 67 makes a careful delimitation of what the Supreme Court may do. The Supreme Court may only deal with a decision on a question with respect to a matter of law which is appealed against, and subs 67(3)(a) does not have the effect of making an appeal against such a decision a gateway into a wider review and correction of the proceedings in the Tribunal. In careful language s 67 authorises the Supreme Court to decide the question the subject of the appeal; it does not seem to me to be consistent with the provisions of s 67 overall and the careful language which it uses in delimiting and conferring power to interpret subs 67(3)(a) as by implication greatly widening what may be the subject of an appeal. Subsection 67(3) speaks of what the Supreme Court may do after deciding the question the subject of an appeal, and confers no authority to go on to decide any other question.”

117. Bryson JA also referred to s 75A of the Supreme Court Act (at [7]): “Subsection 75A(5) of the Supreme Court Act 1970 provides that appeals to the Court shall be by way of rehearing. Subsection 75A(4) provides that ‘This section has effect subject to any Act’, and for that reason an appeal from the Tribunal is subject to s 67 of the CTTT Act, which has the effect of limiting the grounds on which the Common Law Division could consider the appeal.”

118. The operation of s 75A, in the context of statutory appeals limited in some way to legal issues was identified as a matter unnecessary for decision in the circumstances, in Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at [38], by Gleeson CJ, Gummow and Callinan JJ. The possibility that s 75A might have some operation, sub-s (4) notwithstanding, was noted by Spigelman CJ in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230 at [95]. His Honour expressed the view that a limitation on the powers conferred by s 75A, although the section “has effect subject to any Act” would only be satisfied “by clear statutory provision to that effect”: at [97]. Further, it was “not appropriate to restrict s 75A by implication from a statute, unless the implication is necessary”: at [99]. Again, however, neither the correctness nor the application of that test needed to be decided: at [101].

119. In B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, the Court noted that the analysis of s 75A was “not part of the ratio of Thaina Town”: at [75] (Allsop P, Giles JA and I agreeing); see also at [142]-[143]; see also my judgment in GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256 at [99]-[102] (Bell JA and Young CJ in Eq agreeing).

120. There is no basis for thinking that s 75A has the effect of converting a statutory appeal limited in some manner to questions of law into a rehearing involving the reconsideration of factual issues: cf Seltsam Pty Ltd v McNeill [2006] NSWCA 158; 4 DDCR 1 at [10] (Bryson JA, Handley and Tobias JJA agreeing). What may remain an undetermined question is the extent to which the powers conferred on the Court, once error of law has been identified, permit orders which should have been made by the court or tribunal from which the appeal is brought. Even in that limited context, there is no support for the proposition that this Court should engage in a fact-finding exercise of its own, rather than making such order as it thinks appropriate, on the basis of facts agreed or fully found: see Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Council [2009] NSWCA 138 at [76] (Ipp JA) and [164]-[168] (Tobias JA); see also at [209]. It may well be that the powers of the Court in respect of a statutory appeal are broader than those available in the exercise of judicial review, but the extent to which they may be broader does not arise in the present case.

121. It may be seen that the matters raised in argument in the present case faithfully reflect the issues addressed by Bryson JA (with whom Santow JA agreed) in Kalokerinos. His Honour came to a conclusion consistent with that reached above, as a matter of construction. After considering prior authorities, both in relation to s 20(5) of the Commercial Tribunal Act and s 67 itself, his Honour concluded at [56]: “On the occasions known to me where Judges of the Supreme Court and the Court of Appeal have made observations on subs 67(1) they have consistently treated the right of appeal as confined to a question of law, and have not treated the words of the subsection as giving any wider right of appeal.”

122. The consistency of the authorities noted by Bryson JA continued in Chapman v Taylor (above at [103]) (Hodgson JA, Beazley and Tobias JJA agreeing). The question which the Tribunal had considered and which was the subject of the statutory appeal was whether a contract has been frustrated. Hodgson JA noted the submission that this was a question of mixed law and fact and “therefore could not be the subject of appeal under s 67 of the CTTT Act, which was confined to a pure question of law”: at [20]. It does not appear the contrary was argued. After referring to the matters raised, his Honour concluded at [33]: “Accordingly, in my opinion, to establish an error of law by the Senior Member, it was necessary to show that he applied a wrong principle of law. That could be shown either from what he said, or because the ultimate result, associated with the facts that he expressly or impliedly found, indicates that he must have applied the wrong principle of law.”

123. Grygiel v Baine [2005] NSWCA 218 has also been referred to above. Relevantly for present purposes, the Court followed Kalokerinos and Smith v Collings Homes. Maconachie v Kullenberg [2005] NSWCA 294 falls within the same line of authority. Bahadori, also referred to above, considered a number of the cases already discussed, together with the analysis of s 90 of the Medical Practice Act 1992 (NSW) which is in similar form to s 67, in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [14]. In Bahadori at [26], Tobias JA concluded: “What is clear from this line of authority is that on an appeal to the Supreme Court under s 67 of the [ Consumer, Trader and Tenancy ] Tribunal Act , the claimant is confined to the facts that have been agreed or expressly or impliedly found by the Tribunal and that the Court has no remit to find facts for itself.”

124. His Honour expanded on that statement at [33]: “As I have already observed, it is clear that an appeal under s 67(1) is confined to matters of law with the consequence that it is not open to the Supreme Court on any such appeal to make any findings of fact not agreed or expressly or inferentially made by the Tribunal or to substitute findings of fact for those made by the Tribunal. This is so even though such findings may be relevant to and determinative of the issue that is before the Tribunal and in respect of which error of law is alleged.”

125. In Scicluna (above at [104]), I said at [3] (in a paragraph with which Hodgson JA agreed): “Authority in this Court has consistently held that it is not necessary for the matter of law to be separately identified by the Tribunal and expressly addressed as such: it is sufficient that the decision of the Tribunal requires the identification and determination of a question with respect to a relevant matter of law and that error is alleged with respect to that aspect of the decision...”

126. At [42], Campbell JA (with whom Hodgson JA also agreed), following Bahadori and Kalokerinos stated: “The right of appeal extends to a situation where a matter of law had to be decided in order to dispose of the proceedings, whether or not it was expressly referred to in the decision…”

127. The final case in this line of authority is Douglas v New South Wales Land and Housing Corporation [2008] NSWCA 315, in which Tobias JA (with whom Bell JA and Gyles AJA agreed) again applied principles stated in Grygiel and Bahadori. Although it takes the matter no further, for completeness reference may be made to the decision in Obieta v Consumer, Trader and Tenancy Tribunal (NSW) [2009] NSWCA 220, where it was said at [6]: “Section 67 of the CTTT Act provides a right of statutory appeal from a decision of the Tribunal with respect to a matter of law. As this Court has noted in a number of recent judgments, both in relation to the CTTT Act and in relation to other similar provisions, the subject matter of such an appeal is a decision of the Tribunal on a matter of law; it is not sufficient that there may have been some error of law, such as procedural unfairness, in the manner in which the Tribunal determined the case before it: see Scicluna …; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2009] NSWCA 55.”

128. On the basis of the foregoing, the construction of s 67(1) preferred above is seen to be in accordance with each of the relevant authorities in this Court. Further, the arguments identified by the owners as leading to a contrary view were considered and rejected at an early stage in the line, namely in Kalokerinos. No leave was sought to challenge the correctness of these authorities and the argument presented was constrained.

(7) Identifying decisions with respect to matters of law

129. It will appear from the identification by the primary judge of the erroneous decisions of the Tribunal, together with the brief outline above of the Tribunal’s reasons, that in most, if not all of the cases identified by his Honour the Tribunal did not expressly identify as a question for decision with respect to a matter of law, the decisions identified by the primary judge. That gives rise to an issue as to the correct approach for a court seeking to identify decisions with respect to matters of law not expressly so identified by the Tribunal. The authorities confirm that an appeal under s 67 can encompass decisions which were impliedly made, or necessarily formed part of the decision-making process. However, as noted by Handley JA in Smith v Collings Homes, “the section prevents a new point of law being taken for the first time on appeal”: at [61]. In other words, it is not sufficient that a particular finding be underpinned by a legal principle; for there to have been a decision of the Tribunal in respect of that principle, there must have been an issue in dispute between the parties requiring resolution by the Tribunal.

130. With respect to matters as to which the Tribunal’s reasons were silent, it will be necessary for an appellant to demonstrate that there was such an issue in dispute. Once that has been demonstrated, a further question arises, namely whether the Tribunal did in fact resolve the dispute, whether it treated the disputed matter as irrelevant or whether it simply overlooked the issue. If the Tribunal overlooked the issue, there may have been a failure to accord procedural fairness or a constructive failure to exercise jurisdiction: see eg, The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; 50 CLR 228 at 242-3 (Rich, Dixon and McTiernan JJ); Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ) and [81]-[88] (Kirby J). Such error may invalidate the decision, but may not constitute a decision of the Tribunal. To find an implied decision in such circumstances is to subvert the statutory limits of the appeal and elide the distinction between categories two and three in the taxonomy suggested above. There have been cases in which the distinction between categories two and three has been ignored by this Court, but in none is there any indication that the point was raised.

131. There remains a question as to whether it is appropriate to imply in given circumstances that a particular dispute has been resolved by the Tribunal, sub silentio, because a decision expressly made necessarily involved the resolution of that disputed issue. Such a conclusion will be a matter to be established by an appellant seeking to invoke its statutory right of appeal.

(8) Consideration of decisions identified by the primary judge

(a) clause 27 of the contract was not relevant to the dispute

132. Clause 27 of the contract provided mechanisms for giving notice. They included handing a notice to the other party, sending it by facsimile or sending it by certified mail. There was undoubtedly a factual dispute as to whether the claims for extension of time had been made, as asserted by the builder. As noted above, there was evidence from the builder that he had made claims on 31 March and 23 May 2000. In its reasons, the Tribunal stated at [9]: “The Owners deny service of those extensions of time. The Builder says that they were served in the manner set out in the contract ….”

133. HIA took this Court to written submissions provided by the owners to the Tribunal on 8 December 2004 which dealt with the question of claims for extension of time at paragraphs 16-26. The submissions noted that, despite the specification on the extension granted on 24 January 2000 of a completion date of 15 July 2000, the correct date was actually 30 June. They stated that this was a convenient “starting point” for assessing whether or not the builder had delayed in completing the works. They identified the primary position of the owners as that the builder had “unlawfully suspended the works”: par 18. The submissions then noted the assertions by HIA that the builder had applied for extensions on 31 March and 23 May 2000, leading to an extended completion date of the end of September 2000. In relation to the first claim (of 31 March 2000), they submitted that there was no evidence that the document was sent, nor that it was received, nor was there any acknowledgment of receipt. Duplication in the claim of 23 May 2000 was said to lead to the inference that the earlier claim had not been sent. In relation to the latter claim, it was again submitted that there was no evidence that the document was sent and that the owners’ evidence that it was not received should be accepted. In short, there was no submission that engaged the requirements of cl 27.

134. In earlier submissions of 15 October 2003, in response to the builder’s submissions (the builder then being a party to the proceedings), the owners disputed ever receiving the claims of 31 March and 23 May, but then submitted that because they were not signed by them they did not comply with certain provisions of the Home Building Act 1989 (NSW). Again, no reference was made to cl 27 of the contract.

135. The owners now argue that cl 27 arose because of his Honour’s statement that the claims were served “in the manner set out in the contract”. That submission implied that his Honour was conscious of the fact that there was express provision in the contract governing the manner of giving notices. However, the fact that no submission was made in respect of the operation of that clause meant that there was no question of law raised for determination by the Tribunal as to its construction. Alternatively, in the language adopted by the primary judge, that reference was inconsistent with the proposition that the Tribunal had decided a question with respect to a matter of law, namely that cl 27 was not “relevant” to the dispute before the Tribunal. No such question arose for appellate review.

(b) there was some (or any) evidence of claims for extension of time

136. No doubt the formulation of the question was designed to identify a matter of law. However, the Tribunal had made a finding of fact that the claims were sent and received. Assuming that the builder (or HIA) bore the onus of proof in respect of that issue, it would not have been sufficient to allege factual error, in the sense that the finding was against the weight of the evidence or was not the correct conclusion to be drawn from the evidence. Error of law would be established only if the owners could demonstrate that there was no material capable of supporting such an inference.

137. There is something highly artificial in suggesting that the Tribunal would ask itself whether there was evidence “capable of” supporting a particular factual conclusion, as opposed to whether the assertion should be accepted. The preferable view is that while a “no evidence” ground may support judicial review, it does not form a basis for a statutory appeal under s 67(1).

138. If that approach be wrong, the proper conclusion is, nevertheless, that the ground was not made out if the affidavit of the builder’s principal (Mr Turrisi) had been available to the Tribunal. Even if it were not, the two documents which constituted the claims for extension of time were before the Tribunal, by agreement of the parties. They were the subject of evidence given by Mr Kostas. It would have been entirely artificial to have material before the Tribunal (tendered by consent) which could have no relevance to the outcome of the proceedings. In any event, it is clear from the Tribunal’s reasons that the Senior Member treated the evidence of Mr Turrisi as being before him. On that basis, judicial review based on an absence of any supporting material would fail.

139. The primary judge accepted that the Tribunal had regard to the evidence of Mr Turrisi: at [74]. Somewhat inconsistently, his Honour also stated that the Tribunal “does not expressly state any … reliance” on the affidavit of Mr Turrisi: at [88]. Further, and again inconsistently with the suggestion that there was no evidence to support the relevant finding, his Honour further stated at [91]: “One may therefore infer, as was submitted by the HIA Insurance and Sydney Construction to the Tribunal, that each claim was sent to Mr and Mrs Kostas. Without any other evidence, such an inference would arise from the existence of each of the letters.”

140. The discussion in the judgment then diverted to the question of whether there was compliance with cl 27. His Honour concluded that there was “no evidence or material suggesting compliance with Clause 27 of the Contract”: at [99]. This finding, however, ran together two separate complaints and elided the distinction which his Honour later drew at [160] in relation to the relevant questions of law. Once it is concluded that compliance with cl 27 was not an issue in the proceedings, the “no evidence” ground fails in its terms.

141. It follows that the first two questions, which relate to the claims for extension of time, did not, either separately or together, invoke the appellate jurisdiction of the Court. The Tribunal’s findings in that respect stood. The primary judge’s further conclusions in several respects assumed that they had been overturned and different factual findings substituted.

(c) the evidence of Mr Rappoport did not support lawful termination by the owners

142. The question, which is set out in full at [37] above was expressed in loaded terms. It referred to the “uncontroverted and uncontested evidence” of Mr Rappoport. It was also formulated in terms as to whether the evidence would “support” a finding in favour of the owners of lawful termination.

143. This attempt to formulate a question with respect to a matter of law is misconceived in a number of respects. First, there was no challenge to the approach adopted by the Tribunal in imposing a burden of proof on the owners with respect to a finding of lawful termination. The fact that there was evidence to support such a finding was, by itself, insufficient to give rise to any question of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156E (Glass JA, Samuels JA agreeing).

144. The evidence of Mr Rappoport was apparently contained in an affidavit of 23 December 2003, filed in the Tribunal the following day. The primary judge recorded that it was admitted and read without objection: at [127].

145. To what extent it was relied upon by the owners in support of repudiation is unclear. Only three pages of the affidavit (which was at least 19 pages long) were included in the materials before this Court. Part of the affidavit so disclosed constituted a justification or explanation of comments made in an earlier report and part a reply to reports of other experts, which were also not before this Court.

146. It may perhaps be inferred that Mr Rappoport’s affidavit was tendered partly in support of the claims for defective work identified in the owners’ letter of 4 May 2000. If so, it was incorrect to say that the evidence was unchallenged or, more colourfully, “unassailable”: Judgment at [128]. It was disputed by the builder in correspondence to which reference has already been made. However Mr Rappoport’s affidavit is characterised, it was a matter for the Tribunal as to whether it accepted his evidence or not. That required no decision with respect to a matter of law.

(d) whether the notices of 4 May and 12 May 2000 given by the owners were ineffective and contrary to the requirements of the contract

147. On any view, this was not self-evidently a question with respect to a matter of law. If there were an issue as to the circumstances in which such a notice could be given under the contract, a matter of law may have been involved. On the bases upon which the Tribunal dealt with the notices, the questions raised appear to have been largely, if not entirely, questions of fact. There appears to have been little dispute as to the proper construction of cl 24 of the contract, which identified the circumstances in which the owner was entitled to give a notice, which might lead to a further notice terminating the contract. One possible question of law may have been whether it was correct to find, as the Tribunal did, that an allegation of defective work needed to be particularised, so as to permit the builder an opportunity to rectify the work. No specific question in those terms was identified and determined by the primary judge.

148. The primary judge referred to the notice of 4 May 2000 at [47] and [101], but only to identify its contents. At [101]-[106], his Honour expressed views as the facts and the findings which could be supported by the evidence. With respect to the 42 items of defective work, his Honour noted the conclusion reached by the Tribunal that only three items had not been attended to within the 10 day period following 4 May 2000. He noted that there was “no finding as to whether or not the unattended items of work ‘substantially affects the work’ as required by Clause 24 of the Contract”: at [105]. His Honour then noted the Tribunal’s assessment of the factual circumstances, based on its view with respect to the extensions of time. That appears to have influenced to a significant extent, both the Tribunal’s view and his Honour’s view of the facts: see [151] below. The challenge to the Tribunal’s conclusion with respect to the claim for extension of time did not, as noted above, give rise to appellate review; his Honour’s views of the facts were irrelevant.

149. His Honour concluded at [106]: “Further there is simply no evidence that was before the Tribunal on which it could have come to a view that as at 4 May 2000 Sydney Construction was attending to the items listed or any of them.”

150. As already noted, it was for the owners to satisfy the Tribunal that they were entitled to terminate the contract because the notice they had given was valid and had not been complied with within the 10 working days permitted by cl 24. It was further a matter for the owners to satisfy the Tribunal that the relevant defective work substantially affected the contract work. Disagreement with the inferences drawn from the material before the Tribunal does not assist in establishing, with appropriate precision, a decision of the Tribunal with respect to a matter of law.

151. Under the heading “Letter of 12 May 2000”, the primary judge noted at [112]: “Fundamental to the finding on both law and fact on the issue raised by the Notice of 4 May 2000 is the finding, without evidence, that the Contract still had 4 months or so to run. It did not.”

152. The comment “without evidence” was presumably a portmanteau description of his Honour’s conclusions with respect to the validity or existence of claims for extensions of time. That matter has already been dealt with. The Tribunal’s finding, treated as fundamental but erroneous, was not to be held erroneous for the purposes of the statutory appeal, for reasons given above at [132]-[141]. His Honour then noted that the Tribunal had found the notice of 12 May to be insufficient because of a failure to provide particulars of the defective work requiring remedy: at [113]-[114]. His Honour said that an issue had been addressed in the Tribunal as to whether the defective work needed to be particularised, reference being made to the decision of this Court in Brenmar Building Co v University of Newcastle (NSWCA unrep, 12 December 1977). His Honour concluded that “ Brenmar is authority for the sufficiency of the notice … of unwillingness or inability to complete the works, unreasonable suspension of the works and failure to proceed diligently. In those respects the notices were good”: at [119]. His Honour continued at [120]: “However, I agree with the Tribunal that to the extent that a party requires another party to remedy defective work, it is necessary, subject to any contrary implication [indication?] in the Contract itself, to particularise the work that is said to be defective.”

153. It is difficult to discern any different view being expressed by the Tribunal at [18] of its reasons. Accordingly, an issue which may have arisen with respect to a matter of law was not determined erroneously. If there were some question as to whether a notice which was partly good and partly bad was effective, no such issue was addressed by the Tribunal or by the primary judge.

(e) whether there was evidence inconsistent with the occurrence of a suspension of work without reasonable cause by the builder

154. The somewhat awkward formulation of this “decision” flowed from the attempt to reformulate a factual finding as a matter of law. On the basis that the burden lay on the owners to establish the preconditions to their asserted right of termination, the question was misconceived. It assumed that the Tribunal accepted evidence that work had been suspended by the builder without reasonable cause and asked if there were any evidence to the contrary which would justify failure on the part of the Tribunal to be satisfied that such a suspension had occurred. The Tribunal was not, in fact, satisfied that the builder had suspended the works. As a matter of law, it was not required to be so satisfied. The attempt to formulate a question with respect to a matter of law in these terms must fail.

155. The owners’ letter of 4 May 2000 complained that the builder had “suspended work previously without reasonable cause”. At [170(iv)] his Honour made a finding that the builder had suspended works without reasonable cause, although the date on which that occurred is not specified. However at [144(v)] his Honour claimed, on the basis of previous discussion, that: “Uncontested and uncontroverted evidence established that there had been for a period a suspension of works by Sydney Construction for non-payment of the progress payment for Stage 5.”

156. The builder submitted progress claim 5 on 28 April 2000, which was a Friday. The finding must have been based upon inactivity on Monday-Wednesday, May 1-3. There was no reference in the letter of 4 May to a suspension of work during those days, nor is it clear what material the primary judge based his “finding” upon.

157. There could have been a matter of law with respect to the construction of the phrase “suspends the work before completion without reasonable cause” in cl 24 of the contract. There was, however, no reference to any such legal dispute in the Tribunal’s reasons or in the judgment of the primary judge. What was clearly in dispute were the circumstances surrounding the adequacy of the work undertaken, the fulfilment by each party of its obligations under the contract, the builder’s entitlement to payment of progress claim 5 (later withdrawn) and the right of the builder to remove material from the site pending resolution of the dispute. All of these were matters of fact to be determined by the Tribunal. In relation to the question of suspension, however, it is not possible to identify in his Honour’s judgment any question with respect to a matter of law which was held to be in dispute between the parties.

(f) whether there was evidence inconsistent with the evidence of Mr Rappoport that the builder had failed to proceed diligently

158. Again, the formulation of the question is misconceived. It is based on the premise that the Tribunal was required to accept Mr Rappoport’s views if there was no inconsistent evidence. That was not the case.

159. Otherwise, the question whether the builder was proceeding “diligently with the work”, for the purposes of cl 24 required an evaluative judgment and was essentially a matter of fact for the Tribunal. Once again, the assessment turned largely on a question as to how long the contract had to run, as to which the primary judge had formed his own views, namely that the date for completion was 30 June 2000, rather than a date late in September.

(9) Conclusions

160. As noted above, the schedule to the summons invoked numerous grounds of appeal, although they tended to confuse matters of law and fact. They made no real attempt to identify decisions of the Tribunal with respect to matters of law. In this regard, his Honour was not provided with assistance of the kind which is necessary in such cases. It may also be that his Honour’s view that he was required to examine the procedural history in the Tribunal and all the relevant evidence, was explicable based on the way the case was run. Nevertheless, his Honour’s own attempt to identify questions of law decided by the Tribunal from which an appeal could lie failed.

161. The fact that no notice of contention was filed with respect to matters identified in the schedule to the summons, but not addressed by the primary judge, suggests that the case was run in a manner which did not adhere to the formulated grounds of appeal. That, however, is a matter for speculation; no record was made of the argument in the Common Law Division (which extended over three days) and hence no transcript is available.

162. Before Rothman J the owners argued that the decision of the Tribunal should be quashed on the basis of a denial of procedural fairness. His Honour found it unnecessary to decide this issue. In the course of his judgment his Honour did indicate that he thought there had been a denial of procedural fairness, if he found certain facts for which the owners contended before him. However, his Honour did not actually make the factual finding required in order to draw the conclusion.

163. In its submissions in this Court, HIA agitated the issue of whether there had been a denial of procedural fairness. However, the owners did not seek to keep this issue alive in any manner, whether by means of cross-appeal or in its Notice of Contention. If they had done so this Court would have been placed in a difficult position of not having primary facts found, with the probable result that this long delayed case would have had to be remitted. As the owners did not seek to pursue the issue, it does not need to be considered.

164. The following orders should be made: (1) Allow the appeal and set aside the orders and declarations made in the Common Law Division on 30 October 2007.

(2) In lieu thereof,

(a) dismiss the summons filed by the plaintiffs on 22 July 2005;

(b) order the plaintiffs to pay the costs of the first defendant in the Common Law Division.

(3) Order the first and second respondents to pay the appellant’s costs in this Court.

(4) Grant the respondents an indemnity certificate under the Suitors’ Fund Act 1951 (NSW) in respect of the appeal.

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16/02/2010 - Correcting name of appellant by adding "s" to "Services" - Paragraph(s) Citation and judgment heading