J & E Miller (Builder) Pty Ltd v Awad

Category: Principal judgment

Parties: J & E Miller (Builder) Pty Ltd (Plaintiff)
Sameh Awad (Defendant)

Representation: Counsel:
G Edwards (Plaintiff)
F Anwar (Defendant)
Solicitors:
HB Legal (Plaintiff)
Donovan Oates Hannaford (Defendant)

File Number(s): 2025/00327181

JUDGMENT

1. This is an application for leave to appeal from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal: J & E Miller (Builder) Pty Ltd v Awad [2025] NSWCATAP 177 (the Appeal Panel Judgment). In that judgment, the Appeal Panel dismissed an appeal by a builder from a decision of the Consumer and Commercial Division of the Tribunal constituted by Senior Member Ross, delivered on 6 February 2025 (the Primary Decision).

2. By Summons filed on 26 August 2025, the Plaintiff seeks leave to appeal on five grounds. Those grounds are addressed in detail below.

3. As a matter of procedure, I ought note that the matter was initially fixed for hearing on 1 April 2026. My chambers was informed the day before the hearing that, owing to a medical emergency of one of the parties’ legal representatives, the matter was unable to proceed on that day. The parties sensibly requested that, in those circumstances, the matter be determined on the papers on the basis of the detailed written submissions which had been filed. I agreed with this approach.

4. In determining the matter, I have considered the documents contained in the joint court book, which included:

5. Summons Seeking Leave to Appeal filed 26 August 2025;

6. Affidavit of JG McIntyre dated 7 November 2025;

7. Exhibit JGM-1 to the affidavit of JG McIntyre dated 7 November 2025;

8. Affidavit of T Dand dated 25 November 2025;

9. Plaintiff’s written submissions dated 1 March 2026 (PS);

10. Defendant’s written submissions dated 17 March 2026 (DS); and

11. Plaintiff’s written submissions in reply dated 23 March 2026 (PSR).

Background

The Primary Decision

5. The facts that inform the underlying dispute are set forth in the Primary Decision by Senior Member Ross.

6. The applicant at first instance, Mr Awad, is a homeowner who entered into a contract with a builder, J & E Miller (Builder) Pty Ltd, who is the Plaintiff in these proceedings. I shall, without any disrespect, refer to them respectively as the H****omeowner and the B****uilder.

7. The Primary Decision records, at [3], the following facts which were not disputed:

8. the parties entered into a contract dated 18 June 2016;

9. practical completion was reached on 16 April 2018;

10. the final payment was made on 16 April 2018, and handover took place on that day; and

11. the occupation certificate was issued on 18 June 2018.

12. Although the nature of the building defects, as found in the Primary Decision, are not central to the grounds of appeal, I set them out by way of background.

13. The Homeowner, through his expert, contended that his residence suffered from water leaks from the main bathroom, causing damage to the floor, and leaking from the laundry, ensuite and powder room, as well as falls on all of the floors being less than 1:100. These, the Homeowner contended, constituted breaches of the statutory warranties implied into the building contract by s 18B of the H**ome B**uilding A**ct 1989 (NSW) (the HBA). Senior Member Ross preferred the evidence of the Homeowner’s expert and was satisfied that there were defects in the waterproofing system that were causing or likely to cause destruction of part of the building.

14. More pertinent to the issues raised in this application is the question of when the Homeowner became aware of the breach(es) of the statutory warranties. The Homeowner lodged an insurance claim in relation to the damage to his residence in about May 2024 and gave evidence that he became aware of the damage to the floor a few months prior to this. His evidence, that he became aware of the breach in early 2024, was accepted by the Senior Member.

15. Although the Builder submitted, at first instance, that the Homeowner should have become aware of the breach much earlier, this submission was rejected. This was a finding of fact. At [15] of the Primary Decision, Senior Member Ross made findings of fact that:

16. the warranty period ended on 15 April 2024, being six years after the completion of the work;

17. the Homeowner only became aware of the breach in the last six months of the warranty period; and

18. the claim was made within six months of the end of the warranty period.

19. This issue was relevant because of the limitation period within which claims for breach of a statutory warranty can be brought, as provided in s 18E of the HBA, set out at [46] below.

20. Senior Member Ross ultimately held that the Builder was liable to pay the Homeowner the sum of $91,001.

The Appeal Panel Judgment

14. The Builder appealed as of right to the Appeal Panel on five questions of law pursuant to ss 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act). The Amended Notice of Appeal was summarised at Appeal Panel Judgment [9]–[13] as follows:

“[9] Ground 1 was that the Tribunal failed to provide proper reasons underpinning the key findings of fact necessary to extend the time limitation under s 18E(1)(e) of the HB Act.

[10] Ground 2 was that the Tribunal erred in law in its application of ss 18E(1)(e) and (f) of the HB Act by failing to apply the correct legal test and by failing to make necessary findings of fact in circumstances where there was critical and uncontroverted evidence before the Tribunal relevant to the issue of when the breach of warranty ought reasonably to have been discovered by the Homeowners.

[11] Ground 3 was that the Tribunal failed in its construction and application of the Building Code of Australia (BCA) and AS 3740.

[12] Ground 4 of the of appeal was that the Builder was denied procedural fairness by the Tribunal.

[13] Ground 5 of the appeal was that ‘the Tribunal failed in its application’ of s 48MA of the HB Act.”

15. The Appeal Panel (constituted by Senior Member Titterton OAM and Senior Member Goldstein) dismissed the appeal on each ground. The findings of the Appeal Panel relevant to this application are addressed below.

Principles

16. The Builder seeks leave to appeal from the Appeal Panel Judgment pursuant to s 83(1) of the CAT Act. That section relevantly provides as follows:

83 Appeals against appealable decisions

(1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.

…

(3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following—

(a) an order affirming, varying or setting aside the decision of the Tribunal,

(b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.

…

(5) Subject to any interlocutory order made by the court hearing the appeal, an appeal under this section does not affect the operation of the appealable decision of the Tribunal under appeal or prevent the taking of action to implement the decision.

17. Accordingly, an appeal to this Court under s 83(1) is governed by two requirements. First, the Court must grant leave to appeal. Secondly, the appeal must be on “a question of law”.

18. It is well settled that a requirement for leave attracts an obligation on the part of the applicant to establish that there is an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something that is merely arguable: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]–[38] (Basten JA, Tobias AJA agreeing); Pizzolato v Marques [2026] NSWCA 44 at [7] (Bell CJ, Leeming and McHugh JJA agreeing). Those principles are applicable to applications under s 83 of the CAT Act: see, eg, Bazdaric Homes Pty Ltd v Yeh [2026] NSWSC 114 at [14] (Stern JA).

19. What constitutes a question of law is less straightforward. The authorities establish the following propositions:

20. the distinction between what is or is not a question of law is vexed and context dependent. It is not possible to enunciate a clear test of what is, or is not, a question of law for the purposes of s 83: Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [52]–[53] (Leeming JA, Meagher JA and Griffiths AJA agreeing);

21. a question of law does not include a question of mixed fact and law: Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at 49 [60] (Bathurst CJ and Bell P, Johnson, Garling and Lonergan JJ agreeing);

22. an appeal limited to a question of law is not confined to an error of law: Mir Bros Unit Constructions Pty Ltd v Roads & Traffic Authority of New South Wales [2006] NSWCA 314 at [27] (Spigelman CJ, Handley and Tobias JJA agreeing);

23. a matter that is wholly or partly factual is not converted into legal error (or involve a question of law) merely by using the description “erred in law”: Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 at [45] (Chen J);

24. an appeal against an “internal appeal” in the Tribunal is limited to the decision of the Appeal Panel and does not include the decision of the Tribunal at first instance: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 (Bronze Wing) at [10] (Basten JA); and

25. where a further appeal on a question of law lies to a court from an internal “appellate” decision on a question of law made by a tribunal, it may be appropriate to take a pragmatic approach to distinguishing between law and fact, so that the expertise of the Tribunal at first instance and that of the Appeal Panel can be used to best effect: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875 (Ferella) at 878 [5] (Leeming JA), quoting R (Jones) v First-tier Tribunal [2013] 2 AC 48; [2013] UKSC 19 at 57 [16] (Lord Hope of Craighead); see also Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 at [7(2)] (Wright J).

26. It is incumbent on a plaintiff in an appeal under s 83(1) to identify the questions of law said to form the subject matter of the appeal. It is insufficient merely to assert that the Appeal Panel erred in law in various ways: Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13] (Meagher, Payne and White JJA). As Leeming JA observed in Ferella at 878 [6]:

“Obviously, it is not possible, merely by the device of asking whether the tribunal erred in law in doing something or failing to do something, to circumvent the statutory limitation on the scope of the appeal.”

Grounds of appeal

21. The Builder proposes the following five grounds of appeal:

22. Whether the Appeal Panel erred in law by failing to find that the Tribunal at first instance did not provide adequate reasons as required under s 62(3) of the CAT Act, particularly in:

(a) failing to engage with substantial expert evidence to the contrary; (b) failing to explain its preference for one expert over another on key findings of fact; and (c) failing to resolve conflicting expert views on the cause and duration of the alleged waterproofing defects.

2. Whether the Appeal Panel erred in law by failing to identify that the Tribunal constructively failed to exercise jurisdiction in applying s 18E(1)(f) of the HBA, by:

(a) failing to apply the statutory objective test (i.e. when the Homeowner “ought reasonably to have become aware” of the breach); and (b) failing to consider or make findings as to what a reasonable person in the position of the Homeowner would have done upon observing the alleged defect.

3. Whether the Appeal Panel erred in law in upholding the Tribunal’s construction and application of the Building Code of Australia (BCA) and AS 3740, by:

(a) treating the 1:100 fall requirement as a mandatory prescriptive standard rather than part of a performance-based compliance regime under s 18B of the HBA; and (b) failing to consider whether the Tribunal applied the correct version of the BCA and AS 3740 in force at the relevant time.

4. Whether the Appeal Panel erred in law by failing to identify that the Tribunal denied the Builder procedural fairness, including:

(a) making comments indicating pre-judgment of key issues before the close of evidence and submissions; (b) failing to consider relevant portions of the Builder’s expert evidence; and (c) allowing impermissible prompting of evidence and failing to address adequately.

5. Whether the Appeal Panel erred in law by failing to find that the Tribunal misapplied s 48MA of the HBA, in circumstances where:

(a) the Tribunal failed to evaluate the practicability of rectification by the Builder; (b) the Tribunal did not refer to s 48MA in its reasons or apply its terms in substance; and (c) the Tribunal failed to exercise its discretion in accordance with the statutory presumption in favour of rectification.

22. I propose to deal with these grounds in the above order.

Consideration

Leave to appeal

23. The Homeowner opposes a grant of leave on the basis that the grounds of appeal are directed to the application of settled principles to the circumstances of this case and therefore do not raise any point of principle or question of public importance. He also submits that there is no reasonably clear injustice going beyond the merely arguable.

24. The Builder submits that leave should be granted because the proposed appeal concerns whether settled principles were lawfully applied. The Builder also contends that the asserted injustice is not merely arguable but arises from “the Appeal Panel affirming a decision in which the reasoning on central statutory issues was not adequately exposed”.

25. I will return to this question below.

Ground 1

26. Ground 1 contends that the Appeal Panel “erred in law” by failing to make a finding, that is, that the Tribunal at first instance did not provide adequate reasons.

27. This proposed ground of appeal demonstrates the vice in ritualistically deploying the incantation that the Appeal Panel “erred in law” by failing to make a finding but not identifying the error of law. This ground, like a number of others that I will deal with below, seems to approach this application on the basis that the Appeal Panel “erred in law” by failing to make certain findings in the Builder’s favour and appears to be, ultimately, directed towards the conduct of the Tribunal at first instance rather than the Appeal Panel.

28. Whether a decision-maker failed to provide adequate reasons is a question of law. But Ground 1 is directed to the Tribunal’s failure to give adequate reasons at first instance, not any such failure on the part of the Appeal Panel. This Court’s review is limited to the decision of the Appeal Panel: Bronze Wing at [10]. The Builder appears to contend that if the Tribunal made an error, then the Appeal Panel has consequentially made an error by not correcting the Tribunal’s error. That syllogism does not axiomatically equate to the Appeal Panel committing an error of law. As framed, I am not satisfied that Ground 1 identifies with precision the question of law on which an appeal is brought against the Appeal Panel’s decision.

29. Even if it did, however, no error is made out.

30. The Appeal Panel set forth the relevant case law that governed its approach in determining whether the Senior Member at first instance provided adequate reasons. It referred to the principles articulated in Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at 214 [55] (French CJ and Kiefel J) and NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at 595 [66], 596 [73] and 597 [74] (Bell P, Ward JA agreeing).

31. As to the complaint that the Tribunal failed to provide proper reasons underpinning the key findings of fact necessary to extend the time limitation under s 18E(1)(e) of the HBA, the Appeal Panel set out its conclusion at [58]–[59] as follows:

“[58] The Tribunal’s reasons as to why the proceedings were properly commenced, that is within a further 6 months after the end of the warranty period as the breach of warranty became apparent within the last 6 months of the warranty period, can be found in [12] to [15] of the Primary Decision.

[59] While brief, in our view, the Tribunal has referred to the correct statutory test, invoked the correct statutory language, and that its reasons conformed with the expectation to provide reasons that met the minimum acceptable standard: Orr at [66]. Accepting that the Builder has raised a question of law, we see no error.”

32. On whether the Tribunal failed to make clear or express factual findings concerning various matters, the Appeal Panel concluded at [63]–[64] that:

“[63] In our view, the Tribunal is not required to make an explicit finding on each disputed piece of evidence, and that it will be sufficient, if the inference as to what is found is appropriately clear (Tamar at 386), and that the Tribunal is not required to ‘submit the material before [it] to the most meticulous analysis and carry into [the reasons for its decisions] a detailed exposition of every aspect of the evidence and the arguments’ or ‘incorporate an extended intellectual dissertation upon the chain of reasoning’, at least ‘a basic explanation’ of the fundamental reasons which led the Tribunal to its conclusion is necessary (Orr at [73]).

[64] Again, while a question of law has been raised, we see no error by the Tribunal.”

33. Finally, concerning whether the Tribunal failed to “reconcile” the evidence of competing experts, the Appeal Panel concluded at [73] that:

“We accept that the Tribunal did not refer to any of these matters in the Primary Decision. But we do not agree that this demonstrates a failure to give proper or adequate reasons. Those matters may have established that the decision of the Tribunal to prefer the views of Mr Waddell over those of Mr Stevenson was against the weight of the evidence, but that was not argued on appeal. That is to say, views may differ about the correctness of this aspect of the Tribunal’s reasoning, but that does not necessarily mean that the reasons for decision are inadequate.”

34. The Builder, in its written submissions concerning this ground, focused entirely on the Tribunal’s failure to provide proper reasons. There was no analysis of the error alleged to have been committed by the Appeal Panel. As stated above, any proposed appeal is limited to error on the part of the Appeal Panel. To succeed on this ground, it would be necessary for the Builder to address the Appeal Panel’s approach in determining the ground of appeal before it and to establish error in that approach. It has not done so.

35. Ground 1 appears to be founded on nothing more than a contention that because the Appeal Panel did not accept that the Tribunal erred in law that this, of and by itself, constituted an error of law on the part of the Appeal Panel.

36. The Appeal Panel determined the appeal ground before it and concluded that the Tribunal had referred to the correct statutory test, invoked the correct statutory language, and that its reasons met the minimum acceptable standard. True it is that the Appeal Panel recognised that the Tribunal’s reasons were “brief”, but so long as the brevity did not fail to comply with the minimum acceptable standard, the Appeal Panel was able to find, and did find, that there was no error on the part of the Tribunal.

37. I can find no error contended, nor disclosed, in relation to Ground 1.

Ground 2

38. Ground 2 concerns what is alleged to be an error of law “by failing to identify that the Tribunal constructively failed to exercise jurisdiction”. Although curiously expressed, I understand the ground to assert that:

39. the Tribunal constructively failed to exercise its jurisdiction when applying s 18E(1)(f) of the HBA;

40. that failure was occasioned by the Tribunal applying the incorrect test and failing to consider or make findings as to what a reasonable person in the Homeowner’s position would have done on discovering the defect; and

41. because the Appeal Panel did not find that the Tribunal constructively failed to exercise its jurisdiction as the Builder contended, it fell into legal error.

42. The Builder appears to address this ground at PS [22]–[32]. Its submissions in this regard raise a collection of concepts:

43. jurisdictional error caused by a constructive failure to exercise jurisdiction;

44. a failure to properly apply the objective statutory test under s 18E of the HBA; and

45. the absence of adequate reasons, making it “not possible” to determine whether the Tribunal properly exercised its statutory function.

46. Ground 2 appears to have some overlap with Ground 1, but they address different matters.

47. At the outset, in light of the Builder’s invocation of jurisdictional error, it must be recalled that before the Court is a proposed appeal under s 83(1) of the CAT Act. This is not an application for judicial review, and it is not necessary for the Builder to establish jurisdictional error. A jurisdictional error is necessarily an error of law, but not every error of law is a jurisdictional error.

48. In Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165, Basten JA canvassed the principles concerning a constructive failure to exercise jurisdiction. A summary of the principles set forth therein is as follows:

49. a constructive failure to exercise jurisdiction can arise where a judge has not addressed a material part or the whole of a case presented by a party;

50. such a failure can arise where there is a basic misunderstanding of the case brought by an applicant, where the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way; and

51. any form of jurisdictional error which is not a mistaken express refusal to exercise the powers of the court may be described as a constructive failure to exercise jurisdiction.

52. Where, as here, the decision of a tribunal is impugned, it is important to bear in mind that “bodies which are not courts are ordinarily not authorised to decide questions of law wrongly”, such that “a body which is not a court will ordinarily commit jurisdictional error if it misapprehends a statute in a way which is material to its decision”: Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294 at 159 [8] (Leeming JA, Johnson J agreeing).

53. Ground 2 suffers from the same defect as Ground 1, in that it does not specify the question of law in respect of which the Appeal Panel is said to have erred, as opposed to the Tribunal. If the Tribunal applied an incorrect test, and the Appeal Panel applied the same incorrect test in determining the appeal before it, that could constitute an error on the part of the Appeal Panel. But Ground 2 does not so contend.

54. While the Builder submits in this Court that the Tribunal constructively failed to exercise jurisdiction, no such submission appears to have been made in terms to the Appeal Panel. As Basten JA remarked in Bronze Wing at [11], it would be a “rare case in which the Supreme Court would grant leave to appeal on a question of law which had not been raised before the Appeal Panel”. However, at [84] of the Appeal Panel Judgment, the Appeal Panel found that the Builder “appears to be submitting that there was a constructive failure by the Tribunal to exercise its jurisdiction by failing to consider the second limb of the test” set out in s 18E(1)(f) of the HB**A. In those circumstances, I consider this Court could consider that contention on appeal.

55. Section 18E of the HBA provides as follows:

18E Proceedings for breach of warranty

(1) Proceedings for a breach of a statutory warranty must be commenced in accordance with the following provisions—

(a) proceedings must be commenced before the end of the warranty period for the breach,

(b) the warranty period is 6 years for a breach that results in a major defect in residential building work or 2 years in any other case,

(c) the warranty period starts on completion of the work to which it relates (but this does not prevent proceedings from being commenced before completion of the work),

(d) if the work is not completed, the warranty period starts on—

(i) the date the contract is terminated, or

(ii) if the contract is not terminated—the date on which work under the contract ceased, or

(iii) if the contract is not terminated and work under the contract was not commenced—the date of the contract,

(e) if the breach of warranty becomes apparent within the last 6 months of the warranty period, proceedings may be commenced within a further 6 months after the end of the warranty period,

(f) a breach of warranty becomes apparent when any person entitled to the benefit of the warranty first becomes aware (or ought reasonably to have become aware) of the breach.

47. Concerning the legal construction of s 18E(1)(f), the Appeal Panel quoted this Court’s decision in The Owners – Strata Plan 87003 v Raysons Constructions Pty Ltd (2025) 116 NSWLR 535; [2025] NSWSC 66, wherein Leeming JA held at 549 [54] that:

“It involves two limbs. On its face, it asks whether ‘any’ person entitled to the benefit of the warranty has either (i) become aware or (ii) ought reasonably to have become aware of the breach; plainly enough, actual awareness is sufficient to disentitle a plaintiff. But a plaintiff also cannot obtain the benefit of the provision if notwithstanding actual unawareness the plaintiff ought objectively to have been aware. That is to say, there is both a subjective and an objective element to the test, and either will be disentitling. There are three elements in applying the paragraph:

(1) identifying the various persons who may be entitled to the benefit of the warranty;

(2) identifying what is meant, in its application to the particular residential building, by the compressed conclusion of awareness of the breach; and

(3) asking whether in relation to each person entitled to the benefit of the warranty the subjective or objective awareness occurred earlier than the six-month period at the end of the warranty period.”

48. At [87], the Appeal Panel concluded that:

“While views may differ about the adequacy of the Tribunal’s reasons on this issue (and we have already indicated that the reasons meet the minimum acceptable standard), we see no substance in the submission that the Tribunal erred in not considering the test set out in the second limb of s 18E(1)(f). Plainly the Tribunal did so at [13]-[15] of the Primary Decision under the heading ‘When ought the applicant reasonably to have become aware of the breach’.”

49. It is not clear to me what error is said to be disclosed by this conclusion. I consider that it is correct.

50. The Builder also submits, at PS [25], that the Appeal Panel was required to determine whether the Tribunal had “complied with its statutory obligation to provide adequate reasons and properly consider material expert evidence”. As I have set out above, it made that determination.

51. At PS [26], the Builder asserts that in failing to “identify” that the Tribunal had failed to provide legally adequate reasons, the Appeal Panel therefore “failed to identify and correct the jurisdictional error committed by the Tribunal”. I have already addressed Ground 1, and I am satisfied that there was no error on the part of the Appeal Panel in its determination of the adequacy of reasons. It would be inconsistent with that determination to find that there was a constructive failure to exercise jurisdiction occasioned by an inadequacy of reasons.

52. When these matters are taken together, I am not satisfied that Ground 2 would be made out on appeal.

Ground 3

53. Ground 3 contends that the Appeal Panel erred in law in “upholding the Tribunal’s construction and application of the Building Code of Australia and AS 3740”, because it treated the 1:100 fall requirement as a mandatory prescriptive standard rather than part of a performance-based compliance regime under s 18B of the HBA, and because it failed to consider whether the Tribunal applied the correct version of the BCA and AS 3740 in force at the relevant time.

54. This proposed ground does present questions of law on which the Appeal Panel is said to have erred. However, the Builder makes no submissions in respect of this ground in its written submissions. This point was taken by the Homeowner at DS [42]. At PSR [13], the Builder states:

“Ground 3 was not developed as a substantial independent basis for relief in the appellant’s written submissions, and the appellant does not press it as a separate decisive ground in reply. To the extent it remains on foot, the appellant maintains only that the Tribunal’s reasoning treated the 1:100 fall requirement as dispositive without exposing the juridical pathway by which the applicable normative standard was selected … However, the appeal may be determined without separate reliance on Ground 3.”

55. I consider that Ground 3 has effectively been abandoned by the Builder. Insofar as it is suggested that it may remain on foot, the ground falls to be determined by reference to the Builder’s submissions in chief and in reply. Those submissions do not disclose a basis on which the Appeal Panel has erred. This ground fails.

Ground 4

56. Ground 4 also asserts an error of law on the part of the Appeal Panel in failing to “identify” a failure on the part of the Tribunal, being a denial of procedural fairness said to include the making of comments indicating pre-judgment, a failure to consider evidence, and allowing an impermissible “prompting” of evidence. The question of law said to arise from the Appeal Panel Judgment has not been sufficiently particularised.

57. Before the Appeal Panel, Counsel for the Builder abandoned reliance on a contention that the Senior Member had made comments indicating she had prejudged an issue. Concerningly, the Builder apparently sought to revive this argument in its proposed Ground 4 in the Summons filed in this Court. The Builder finally abandoned the point at PSR [16].

Failure to consider evidence

58. The Builder argues that the Tribunal denied it procedural fairness by “failing to consider relevant portions of the Builder’s expert evidence”. Before the Appeal Panel, this argument found form in the sub-ground that the Tribunal “[suggested] conclusions about the source of water ingress and performance standard breaches before fully hearing from both experts”: Appeal Panel Judgment at [105(2)].

59. The Appeal Panel found this argument to be “completely unsupported by the evidence, and a mischaracterisation of what actually occurred during the hearing”: Appeal Panel Judgment at [118]. This conclusion is brief, but the Builder brings no complaint about that. The Builder’s submissions make very little reference to the error said to have been committed by the Appeal Panel in reaching this conclusion. At most, the Builder submits at PS [46]:

“The Appeal Panel was required to determine whether the Tribunal had afforded procedural fairness and properly exercised its jurisdiction according to law. Its failure to identify and correct this denial of procedural fairness constituted an error of law.”

60. The Builder made an argument before the Appeal Panel that Tribunal “[suggested] conclusions about the source of water ingress and performance standard breaches before fully hearing from both experts”. The Appeal Panel rejected that argument because it found it to be unsupported by the evidence and a mischaracterisation of what occurred. The Builder has not asserted the error the Appeal Panel is said to have made in making this determination.

Prompting of witnesses

61. Before the Appeal Panel, the Builder also argued that the Tribunal denied it procedural fairness by “permitting ‘prompting and help by the Homeowner’s expert’” during the Homeowner’s oral evidence: Appeal Panel Judgment at [105(4)]. At the hearing before the Appeal Panel, the Builder expanded this ground to including prompting by the Homeowner’s daughter. By way of context, the hearing in the Tribunal took place by telephone and the Homeowner was not in the hearing room with the Senior Member.

62. The Builder does not take the Court to the portions of the transcript of the Tribunal hearing said to inform this ground, but the Homeowner does. The passage is as follows (Tcpt, 6 November 2024, p 55(112–141)):

“SENIOR MEMBER: All right. So, did you, or were you aware of leaking from any of these areas before then?

MR AWAD: Yeah.

SENIOR MEMBER: When did you first become aware of leaking from these areas?

MR AWAD: From the top floor.

SENIOR MEMBER: The top floor, did you say?

MR AWAD: Sorry?

MR WADDELL: What date, Sameh?

SENIOR MEMBER: When did you become aware of leaking first?

MR AWAD: The middle of February.

SENIOR MEMBER: February.

MR AWAD: Yeah.

SENIOR MEMBER: Of this year?

MR AWAD: Yeah. That’s correct.

SENIOR MEMBER: And how did you become aware?

[Inaudible chatter]

MR AWAD: The floor was lifting from the weight, and it looks like something wrong with the floor.

SENIOR MEMBER: All right. Is there somebody in the background with you prompting you, Mr Awad?

MR AWAD: Yes.

SENIOR MEMBER: Who is that?

MR AWAD: My daughter.

SENIOR MEMBER: Okay. It’s not…

MR AWAD: She can’t help me?

SENIOR MEMBER: She can’t answer the questions for you.

MR AWAD: Okay.

SENIOR MEMBER: If she’s going to give evidence, she would need to give that separately. So if she could just not prompt you and let you answer the questions, please.

MR AWAD: Okay, thank you very much.”

63. Before the Appeal Panel, the Homeowner submitted that “once the Tribunal became aware that others were prompting him, the Tribunal took steps to stop that from occurring and did not, on any view, permit third parties to prompt the Homeowner.”: Appeal Panel Judgment at [109]. As with the failure to consider evidence ground, the Appeal Panel concluded at [118] that the Builder’s contention was “completely unsupported by the evidence, and a mischaracterisation of what actually occurred during the hearing”.

64. In its written submissions in chief on this application, the Builder again contended that the Tribunal permitted the prompting of the Homeowner during his evidence. However, in its written submissions in reply, the Builder performed a volte-face and now accepted that “once the Tribunal became aware that the [Homeowner’s] daughter was prompting him, the Tribunal directed that prompting to cease”: PSR [14]. The Court was invited to conclude that the vice was not that the Tribunal permitted the prompting of the Homeowner’s evidence, but that on the critical issue of when he became aware of the defect, that evidence was prompted by his daughter.

65. The error said to have been committed by the Appeal Panel rises no higher than it “failing to identify and correct” the purported error of the Tribunal.

66. The Appeal Panel considered the Builder’s submission that the Tribunal permitted the prompting of witnesses and rejected it on the basis that it was unsupported by the evidence and a mischaracterisation of what occurred. That conclusion was correct, as the Builder now seems to accept. On no fair reading can it be said that the Tribunal permitted this course. As soon as the Senior Member became aware that there were other people in the room with the Homeowner who were prompting him, she immediately stopped his evidence and warned that such prompting was impermissible.

67. As to the suggestion that the evidence on the limitation issue was prompted by the Homeowner’s daughter, I also reject this submission. By the time the “inaudible chatter” was recorded on the transcript, which I infer is when the Homeowner’s daughter began speaking, the Homeowner had already deposed that, first, he was aware of the leakage and, secondly, that he first became aware of the leakage in the middle of February. That was the evidence that informed when he became aware of the breach, and that evidence was his own.

68. Ground 4 is rejected.

Ground 5

69. Ground 5 contends that the Appeal Panel erred in law by failing to find that the Tribunal misapplied s 48MA of the HBA in allegedly:

70. failing to evaluate the practicality of rectification by the Builder;

71. not referring to s 48MA in its reasons or applying its terms in substance; and

72. failing to exercise its discretion in accordance with the statutory presumption in favour of rectification.

73. The Builder submits that the Tribunal failed to properly apply s 48MA by making a money order without “properly considering whether rectification by the [Builder] was appropriate and practicable, and … without properly engaging with the statutory preference for rectification”: PS [50].

74. Section 48MA of the HBA provides as follows:

48MA Rectification of defective work is preferred outcome in proceedings

A court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the “responsible party”) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome.

72. The Senior Member explicitly referred to this principle at the hearing, where she informed the Homeowner that (Tcpt, 6 November 2024, p 10(334–336)):

“Under the Home Building Act, I have to consider, as a preferred option, giving the builder the opportunity to rectify the work if I find it to be defective.”

73. At [31]–[32] of the Primary Decision, Senior Member Ross addressed the consideration of whether to make a work order or a money order, albeit without explicit reference to s 48MA. The Tribunal noted as follows:

“[31] The [Homeowner] indicated that he was happy to have the [Builder] return to carry out the work. However, the [Builder] gave evidence that it would prefer a money order, because it was unable to guarantee the availability of trades due to its current workload.

[32] In these circumstances the Tribunal will make a money order.”

74. The Senior Member was referring to the following exchange between the Tribunal and the representative for the Builder (Tcpt, 6 November 2024, p 31(1171–1184)):

“SENIOR MEMBER: … [I]f I do accept the applicant’s evidence and the applicant’s scope, are you prepared to undertake that work or would you oppose that? Because there’s no point in me making a work order if you don’t want to do work.

…

MR RUSSELL: I’ve just conferred with my director. So we would prefer a money order. The reason for that Senior Member is just that with the, I guess, the current position of the company and with the current workload that we have with the limited number of trades that are available, it is very hard to actually get the trades to come in to rectify this sort of project. It’s very, very hard. … So for us to try and comply within a time frame would be a lot more difficult. So we’re happy to just follow the Senior Member’s orders. And if there’s a direction that we pay, we’ll just pay the money.”

75. The Builder’s position before the Tribunal was that that it lacked confidence in its ability to marshal trades to undertake rectification work and so did not wish to be ordered to carry out such work. The Builder provided evidence in support of this position and expressed a preference for a money order to be made. In those circumstances, it is not remarkable that the Tribunal did not make a rectification order.

76. What is remarkable is the Builder raising a ground of appeal that seeks to impugn the Appeal Panel for not finding error in a conclusion of the Tribunal that accorded precisely with the Builder’s wishes. The Builder’s position before the Appeal Panel was that, even though it had provided evidence to the Tribunal as to why it did not wish to undertake rectification work, the Tribunal did not fully explore the reasonableness of the Builder’s stated inability to perform the work. The Tribunal was therefore said to have erred in failing to test its preference for a money order, which failure constituted legal error.

77. The Appeal Panel at [129]–[134] considered s 48MA of the HBA by reference to the relevant case law and held that the Tribunal had regard to that provision as required. It is clear to me that the Tribunal specifically considered s 48MA. There is no error in the Appeal Panel’s determination of that ground.

78. Ground 5 was entirely without foundation when raised before the Appeal Panel, let alone when repeated before this Court. After the Tribunal accepted the Builder’s submissions and evidence and made a money order, the Builder complained that the Tribunal should have rejected its submissions and evidence and instead required the Builder to attend the site and undertake rectification work. Raising this ground appears to be an opportunistic attempt by the Builder to withdraw from its original position because it was unhappy with an outcome it had itself invited. In the light of the Builder’s subsequent appeal and application, it seems likely that the Builder asked the Tribunal not to make a rectification order in the hope that no money order would be made either, despite its stated position that “if there’s a direction that we pay, we’ll just pay the money”. Neither the Tribunal nor the Appeal Panel erred in their respective determinations of this issue.

79. Ground 5 is wholly without merit.

Conclusion

80. For the reasons given above, insofar as the Builder seeks leave to appeal on questions of law, the proposed grounds of appeal do not disclose any error on the part of the Appeal Panel, let alone any injustice going beyond the merely arguable. No issue of principle is implicated in this proposed appeal. Nor is there any question of public importance. There is nothing which compels a grant of leave in this case, and it is refused.

81. There is no reason why costs should not follow the event.

82. Accordingly, the Court orders that:

83. Leave to appeal be refused.

84. The Plaintiff pay the Defendant’s costs.

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