J & E Miller (Builder) Pty Ltd v Awad

Carbery v Warringah Rugby Club Ltd [2021] NSWCATAP 153

Collins v Urban [2014] NSWCATAP 17

Culleton v Tonks [2025] NSWCATAP 129

Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138

Galdona v Peacock [2017] NSWCATAP 64

Gokani-Robins Pty Ltd v The Owners - Strata Plan No 77109 [2025] NSWCATAP 107

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23

Leung v Alexakis [2018] NSWCATAP 11

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231

Pholi v Wearne [2014] NSWCATAP 78

Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112

Re Minister for Immigration & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1

Stead v State Government Insurance Commission (1986) 161 CLR 141

Taylor Construction Group Pty Ltd v The Owners - Strata Plan No 92888 [2020] NSWCATAP 163

The Owners - Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Wainohu v New South Wales (2011) 243 CLR 181

Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113

1. This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal (Tribunal) of 6 February 2025 in application 2024/00216266 (Primary Decision).
2. By application filed 11 June 2024, the respondent (Homeowner) sought an order "to have both showers waterproofing repaired and, the damage to the safety and structural integrity resulted from the water damage of the house restored".
3. The Homeowner alleged that the appellant (Builder) had breached warranties contained in the Home Building Act 1989 (NSW) (HB Act) resulting in major defects in its building work. The Builder submitted that the Homeowner's claim was out of time.
4. The Tribunal determined otherwise, and went on to order the Builder to pay the Homeowner $91,001.00.
5. On appeal, the Builder submits that the Tribunal erred on a number of bases, and seeks orders that the orders of the Tribunal be set aside, and costs.
6. For the following reasons, we have decided to dismiss the appeal.

1. The Builder filed a Notice of Appeal on 6 March 2025 (which was within the time limits prescribed for internal appeals) and an Amended Notice of Appeal on 9 April 2025.
2. At the appeal hearing, Mr Edwards, counsel for the Builder, indicated that the Notice of Appeal could be disregarded and that the Builder relied on its Amended Notice of Appeal. That document sets out the following grounds of appeal.
3. 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.
4. 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.
5. Ground 3 was that the Tribunal failed in its construction and application of the Building Code of Australia (BCA) and AS 3740.
6. Ground 4 of the of appeal was that the Builder was denied procedural fairness by the Tribunal.
7. Ground 5 of the appeal was that "the Tribunal failed in its application" of s 48MA of the HB Act.

1. The Homeowner filed his Reply to Appeal on 17 April 2025, that is, after the Amended Notice of Appeal was filed.
2. The Homeowner commences the Reply to Appeal by stating that he opposes the appeal, that leave to appeal is required and that leave may only be granted if the Appeal Panel is satisfied that the appellant may have suffered a miscarriage of justice because:

(1) the decision was not fair and equitable; or

(2) the decision was against the weight of evidence; or

(3) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. The Homeowner also states that the Builder must demonstrate something more than that the Tribunal was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: Collins v Urban [2014] NSWCATAP 17 (Collins) at [84].
2. The Homeowner states that leave should be refused and the appeal dismissed as there is no evidence that the Builder may have suffered a miscarriage of justice as a result of the Decision not being fair and equitable, or having been made against the weight of evidence, or in light of any new significant evidence.
3. In respect of any ground of appeal where leave to appeal is not required, the Homeowner states that the appeal should be dismissed as:

(1) the grounds of appeal do not give rise to any error of fact or law;

(2) the matter was not conducted or decided in a way that deprived the Builder of any chance that was fairly open of achieving a better outcome than occurred;

(3) the Builder will not be able to demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact; and

(4) the Tribunal permissibly weighed the evidence and came to a conclusion that was open on the evidence.

1. The Reply to Appeal then goes on to address the substance of each of the five grounds of appeal.
2. The Reply to Appeal concludes with the Homeowner stating that the appeal should be dismissed and the Builder ordered to pay his costs.

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [13], the Appeal Panel set out a non-exhaustive list of possible questions of law giving rise to an appeal as of right:

(1) whether there has been a failure to provide proper reasons;

(2) whether the Tribunal identified the wrong issue or asked the wrong question;

(3) whether a wrong principle of law had been applied;

(4) whether there was a failure to afford procedural fairness;

(5) whether the Tribunal failed to take into account relevant (that is, mandatory) considerations;

(6) whether the Tribunal took into account an irrelevant consideration;

(7) whether there was no evidence to support a finding of fact;

(8) whether the decision was so unreasonable that no reasonable decision-maker would make it.

1. These matters were clarified and expanded by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) where the Appeal Panel stated (references omitted):

"32 To the above list [referring to the list in Prendergast extracted above] might be added the following (some of which are nuanced aspects of the categories in Prendergast):

(1) Whether the Tribunal drew inferences that were not available from the facts as found (an extension of item 7 [of Prendergast]) ...

(2) Whether the construction of a statute or contract arrived at by the Tribunal at first instance was wrong in some identified way: ...

(3) Whether the Tribunal's decision was vitiated by bias, or a reasonable apprehension of bias, relates to and intersects with the fair hearing rule, and may encompass or be related to the procedural fairness question: ...

(4) Whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice, that is, procedural unfairness. Alternatively, it may also constitute a constructive failure to exercise jurisdiction: ...

(5) Whether the facts as found necessarily satisfied the statute or necessarily did not: ...

..."

1. The Appeal Panel then observed at [33] that, "plainly", the categories (that is, of questions of law) are not closed.

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(1) the decision of the Tribunal under appeal was not fair and equitable; or

(2) the decision of the Tribunal under appeal was against the weight of evidence; or

(3) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) that:

"Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed..."

1. Even if an appellant establishes that the appellant may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [31]- [32].

1. Before considering the grounds of appeal, it is appropriate to briefly summarise the structure and content of the Primary Decision.
2. After a short introduction (at [1] and [2]), at [3]-[4], under the heading "Are the proceedings out of time?", the Tribunal:
   • sets out agreed facts that were not in issue (at [3]); and
   • the relevant legislation, being s 18E of the HB Act (at [4]).
3. In relation to the agreed facts that were not in issue, there was one significant typographical error in [3] of the Primary Decision. When raised by us at the appeal hearing, the parties agreed that that fact should in fact read as follows (the correction appearing in bold):

(1) the parties entered into a contract dated 18 June 2016.

(2) practical completion was reached on 16 April 2018.

(3) the final payment was made on 16 April 2018, and handover took place on that day.

(4) the occupation certificate was issued on 18 June 2018.

(5) these proceedings were filed on 11 June 2024.

1. At [5], the Tribunal states that in order to determine whether the claim is in time, the Tribunal must determine:

(1) are the defects complained of defects in a major element of the building?

(2) do the defects cause, or are they likely to cause, the inability to inhabit or use the building (or part of the building) for its intended purpose, or the destruction of the building or any part of the building, or a threat of collapse of the building or any part of the building?

(3) when did the applicant become aware of the breach of warranty?

(4) when ought the applicant reasonably to have become aware of the breach of warranty?

1. At [6], the Tribunal stated that if the claim is in time, the issues are:

(1) what is required to rectify the breach, and at what cost?

(2) should the Tribunal make a work order or a money order?

1. At [7]-[9], the Tribunal then summarises the expert evidence before it, the Tribunal preferring the evidence of the Homeowner's expert Mr Michael Waddell of Broadscope Building Consultants over that of the Builder's expert Mr John Stevenson of J S Building Inspections. The Tribunal stated:

"7 Both parties relied upon expert evidence. The [Homeowner's] expert Michael Waddell adopted the Tribunal's code of conduct. His qualifications and experience qualify him to give expert evidence. He reports leaking from the main bathroom, causing damage to the floor, and leaking from the laundry, ensuite and powder room, resulting in high moisture readings at the threshold of each room. He observed that the fall on all of the floors was less than 1:100. In each case, he concluded that there had been a major failure to comply with the statutory warranties, on the basis that there are defects in the waterproofing, which is, by definition, a major element of the building. He noted some damage and concluded that the defect has caused or is likely to cause destruction of part of the building.

8 The [Builder's] expert John Stevenson did not refer to the Tribunal's code of conduct but stated that he had read the Uniform Civil Procedure Rules and agreed to be bound by them. He noted that the shower screens in all three bathrooms had been sealed on both inside and out. He carried out a flood test in the main bathroom and observed that water ran out under the shower screen bottom sill when the water levels passed the floor channels of the shower screen. He relied upon a plumber's report prepared for the applicant's insurer. That plumber found evidence of a leaking mixer tap seal. Mr Stevenson concluded that the damage observed to the main bathroom subfloor had been occurring over many years and opined that if it had been acted on it would not exist or be as extensive. He said that in his opinion the major area of damage was caused by the leaking mixer tap, and the fact that the shower screens had been sealed inside and out. Overall, he stated that 'the damage to this property is caused by the client's negligence in maintenance upkeep of their property'.

9 Mr Stevenson agreed that the falls on the floors were less than 1:100 but said that as water did not pool on the floors, the performance standards had been met."

"10 I prefer the evidence of the [Homeowner's] expert. If the waterproof membrane was intact, water collecting on the floor (because the shower sills had been sealed inside and out) should not have penetrated under the membrane such as to cause damage to the subfloor. If the waterproofing systems are operating properly, water should not be escaping the rooms to cause high moisture readings outside the wet areas. It is a fact that the falls on all of the tiled areas do not come close to meeting the 1:100 standard, and it cannot be said that the areas are meeting the performance standards if water is escaping from the rooms into adjoining areas."

1. The Tribunal then stated at [11] that it was satisfied that there were defects in the waterproofing system, and that those defects were causing or are likely to cause destruction of part of the building. The Tribunal found that those defects were major defects for the purpose of the proceedings.
2. At [12] and [13], the Tribunal then considered whether or not the Homeowner's application had been brought in time, stating:

"When did the applicant become aware of the breach of warranty?

12 The applicant says that he became aware of the damage to the floor a few months before he lodged his insurance claim. The insurance claim was lodged in about May 2024. I accept the applicant's evidence, and find that he became aware of the breach in early 2024.

When ought the applicant reasonably to have become aware of the breach?

13 The respondent submitted that the applicant ought to have become aware of the breach much earlier, as both experts agreed that the leaking would have been occurring over a lengthy period of time. I do not accept this submission. There is no evidence that the pest inspector or any other person inspecting the house detected the issue. The applicant had a plumber address a leak in the pipework. The leak under the bathroom was visible only once the carpet was lifted, or from under the subfloor.

14 I am not satisfied that the applicant ought to have become aware of the breach at an earlier time such as to disqualify the claim.

15 I find that the claim is brought within time as:

(1) the warranty period ended on 15 April 2024, being 6 years after the completion of the work, and

(2) the applicant only became aware of the breach in the last 6 months of the warranty period, and

(3) the claim was made within 6 months of the end of the warranty period."

1. Having found that the proceedings had been commenced in time, at [16]-[30], under the hearing "What is required to remedy the breach, and at what cost?", the Tribunal then finds items 1, 2, 3 and 4 of the Scott Schedule to be established.
2. At [31]-[32], under the hearing "Work order or money order?", the Tribunal gave brief reasons why it decided to make a money order, ordering the Builder to pay the Homeowner $91,001.00.
3. Finally, the Tribunal set a timetable for submissions on costs.

1. We had the benefit of pre-appeal hearing submissions filed by:
   • the Builder on 8 May 2025;
   • the Homeowner on 19 May 2025; and
   • by the Builder in reply on 2 June 2025.
2. Those written submissions were amplified by the parties' counsel during the course of the appeal hearing.

1. Ground 1 of the appeal 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. The Builder's central point was that while both parties relied on expert evidence, the Tribunal fell into error by failing to "reconcile" the opposing expert opinions, and failed to provide adequate reasons for preferring the opinion of the Homeowner's Mr Wardell over that of the Builder's Mr Stevenson.
2. The Amended Notice of Appeal then states that the Tribunal failed to make express or clear findings regarding:

(1) whether water ingress occurred due to defective waterproofing or due to maintenance/user fault given:

(a) the certified waterproofing inspection in which no defects in the installation of waterproofing membrane or detailing at the door jamb were identified;

(b) the insurer's plumbers report findings after a flood test to the shower which supported the appellant's expert;

(2) whether the readings from moisture meters indicated current or historical leakage;

(3) how the water ingress was considered a "major defect" under s 18E(4) of the HB Act in the absence of sufficient evidence; and

(4) the relative reliability of competing expert methodologies ("e.g. digital spirit levels, flood testing").

1. At the appeal hearing, the Builder indicated that what we have described in [43] as a submission could be considered as a separate ground of appeal (namely Ground 1A). However, as the Builder did not in fact argue this as a separate ground of appeal, we consider the better course is simply to regard these comments as a submission, or particulars, of the claim that the Tribunal failed to give adequate reasons for its decision.

1. The Builder submits that the Tribunal stated that it preferred the evidence of the Homeowner's expert, "without reconciling" Mr Stevenson's evidence that the damage was long-standing and caused by a lack of maintenance. The Builder submits that simply stating a preference without addressing Mr Steveson's contrary findings fails the standard of procedural transparency required under Wainohu v New South Wales (2011) 243 CLR 181 (Wainohu).
2. Earlier in the submissions the Builder had stated:

"A failure to give reasons is a breach of the judicial process because it prevents the parties from knowing the basis upon which the decision was made and undermines the possibility of a successful appeal. Wainohu v NSW (2011) 243 CLR 181 at [44]."

1. That passage does not appear in Wainohu, either at [44], or elsewhere.
2. However, in Wainohu at [55], French CJ and Keifel J stated that (footnotes omitted):

"The duty upon judges to give reasons for their decisions has often been linked to the availability of rights of appeal against those decisions. A wider rationale, foreshadowed in the passage quoted from [Broom's Constitutional Law], can be derived from the nature of the judicial function. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd, Mahoney JA, after referring to the importance of reasons for decision to the effective exercise of appeal rights, said:

But, in my opinion, the requirement that reasons be given should not be limited to cases where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process.

The proposition that the provision of reasons for decision is an aspect of the judicial function has been supported by other decisions of the Supreme Courts of New South Wales, Victoria and Queensland."

1. In oral submissions at the appeal hearing, the Builder also submitted that the Tribunal failed to deal with various passages in Mr Stevenson's report where he had stated:
   • the damage observed during the inspection "has taken place over a period of years and not just in the last few months" (report at [1.02]);
   • in relation to the main bathroom, "the length of time this tap has leaked would be a major contribute [sic - contributor?] to the damage of the flooring below" (report at [2.01]);
   • in relation to the subfloor damage, "the damage caused under the floor has taken several years to cause this much damage" (report at [2.012]).
2. The Builder also submitted that Mr Stevenson concluded that:[1]

"The damage which has been observed in our opinion has been occurring over a period of years. And if it had been acted on the damage would not exist or be as extensive. In our opinion this is neglect in the client's duty of care to maintain their home."

(emphasis added)

1. The Homeowner submits that the Builder's contentions should be rejected. The Homeowner submits that the Primary Decision adequately indicated why the Tribunal made its decision and, contrary to the Builder's submission, the Tribunal did not simply state a preference for Mr Waddell's expert evidence without giving reasons.
2. After referring to New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr), the Homeowner submits:
   • the standard of decision writing is not one of perfection (Orr at [66]);
   • the function of an appellate body "is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard" (Orr at [66]);
   • the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court (Orr at [70]);
   • the reasons ought not to be inspected with a fine tooth comb attuned to identifying error and there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips (Orr at [77]);
   • whilst the reasons must set out the reasoning process that led the Tribunal to the conclusions it made (NCAT Act, s 62(3)), that requirement is satisfied if the basis of the decision is made apparent (Orr at [74]; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 (Tatmar) at 386);
   • "[t]his does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made" (Orr at [74]);
   • where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint (Orr at [70]; Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46]).
3. Applying those principles, the Homeowner submits that the reasons for decision were adequate, given that at [7] of the reasons the Tribunal provided a summary of Mr Waddell's evidence, and in [8] and [9], a summary of Mr Stevenson's evidence.

(1) the Homeowner's reliance on Orr to excuse the Tribunal's failure to engage with conflicting expert evidence is misplaced, and that "tolerance for language in reasons" does not extend to omission of substantive reasoning;

(2) the Tribunal's single-paragraph justification for preferring Mr Waddell's evidence fails to address the materially conflicting expert opinion of Mr Stevenson, who provided findings of long-term, visible damage;

(3) the Tribunal's failure to engage with this evidence falls below the standard required under Wainohu.

1. An appeal based on whether or not the Tribunal gave proper reasons for decision raises a question of law and leave to appeal is not required: Prendergast at [13](1).
2. The appellant raises three principal matters in support of this ground of appeal, being that the Tribunal failed to:

(1) provide proper reasons underpinning the key findings of fact necessary to extend the time limitation under s 18E(1)(e) of the HB Act;

(2) make express or clear factual findings regarding those matters set out in [43] above;

(3) "reconcile" the competing reports of the two experts.

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

1. 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.
2. 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.

The Tribunal failed to make express or clear factual findings regarding those matters set out in [43] above

1. The Homeowner has correctly referred to the relevant principles of Orr, which have been applied on many occasions by the Appeal Panel: including in, for example, Carbery v Warringah Rugby Club Ltd [2021] NSWCATAP 153 and the recent decision of Gokani-Robins Pty Ltd v The Owners - Strata Plan No 77109 [2025] NSWCATAP 107.
2. Our role is to determine not the optimal level of detail required in reasons for a decision, but rather the minimum acceptable standard (Orr at [66]), bearing in mind the Tribunal's obligations under s 62(3) of the NCAT Act to set out:
   • the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
   • the Tribunal's understanding of the applicable law, and
   • the reasoning processes that led the Tribunal to the conclusions it made.
3. As we have noted above, in Orr at [74] the Court of Appeal referred to Tatmar, noting that:

"In Tatmar at 386, Mahoney JA (as he then was) observed in the context of the obligation to give reasons for a discretionary judgment that it was not necessary for a judge:

'who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemi[s]e, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: ...

But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.'"

(emphasis added)

1. 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]).
2. Again, while a question of law has been raised, we see no error by the Tribunal.

The Tribunal's failure to "reconcile" the competing reports of the two experts.

1. The Tribunal's conclusion for accepting the views of the Homeowner's expert Mr Waddell over those of the Builder's Mr Stevenson appear in [10] of the Primary Decision, following consideration of the matters set out in [7], [8] and [9].
2. We accept the following matters.
3. First, as we set out at [49] and [50], Mr Stevenson stated on a number of occasions in his report that the damage he observed had taken place "over a period of" or "over several years".
4. Secondly, the Tribunal failed to deal with those and other similar passages of Mr Stevenson's report.
5. Thirdly, the transcript records the following exchange between Mr Waddell and the Senior Member constituting the Tribunal:

"WADDELL: [2] ... I would agree with the other expert that this issue of water escaping from the bathroom, has happened over a long period of time.

...

So as I just said, I agree that this is typically the sort of damage you would see over a long period of time. It's located beneath the membrane. There's nothing moving until six months ago. Nothing obvious to the eye, to a lay person and that I say that it's likely that it's the membrane detailing where the water bars meet the wall, it's likely and yes.

SENIOR MEMBER:[3] All right. So when, just so that I understand, when you said you agree that there's been water escaping over a long period.

WADDELL: Yes.

SENIOR MEMBER: You're not saying the membrane has failed in the last six months.

WADDELL No, no, I ...

SENIOR MEMBER Do you think that the detailing has been wrong from the outset?

WADDELL Correct? Yes."

(emphasis added)

1. The Senior Member then sought Mr Stevenson's views on the issue, on which she then asks Mr Waddell to comment. Mr Waddell states:[4]

"I think it's a defect that has been there for a very long time."

(emphasis added)

1. The Senior Member then asked Mr Stevenson if there was anything he wanted to say in response. Mr Stevenson said:

"So it's not just a little drip where its on the floor. And if that's been leaking for quite some time then that's the cause of the damage underneath the floor."

(emphasis added)

1. Fourthly, the Tribunal appeared to accept during the Tribunal hearing that this was the case.
2. 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.
3. And, in any event, leave would have been required and leave to appeal was not sought.
4. For all these reasons we would dismiss the appeal is so far as it relates to Ground 1.

1. Ground 2 of the appeal 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.

1. The Builder submits that the Tribunal failed to properly apply the objective standard under s 18E(1)(f) of the HB Act, and instead applied a subjective standard.
2. The Builder notes that the Homeowner did not submit any lay evidence prior to the hearing, that the Tribunal examined the Homeowner at the start of the hearing which was interrupted by both the Homeowner's expert and his daughter in relation to what the Builder describes as "a key evidentiary issue under s 18E(1)".
3. After setting out extracts of the Homeowner's oral evidence at the hearing, the Builder submits that the Tribunal erred by not properly determining whether a reasonable person in the Homeowner's position ought to have been aware earlier as required under s 18E(1)(f).
4. The Builder submits that, as Mr Stevenson's report and oral evidence supported the inference that the damage had been developing over several years, and the Tribunal rejected this expert opinion, therefore the Tribunal erred in law by applying only a subjective awareness test and not considering the second limb of the test set out in The Owners - Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66 (Raysons).

1. The Homeowner submits that there was no such error as claimed, and that the Tribunal turned its mind to the second limb of s 18E(1)(f), relying on the Primary Decision at [13] and [14].

(1) the Homeowner incorrectly claims the Tribunal considered both limbs of s 18E(1);

(2) the Tribunal's findings merely assert that the Homeowner was unaware of the breach, without analysing whether a reasonable person in his position ought to have been aware earlier;

(3) Mr Stevenson's evidence of progressive and visible damage was ignored; and

(4) the Tribunal's approach fails the standard set out in Raysons at [54].

1. This ground of appeal in part overlaps with Ground 1. To the extent that the Builder is submitting that the reasons are inadequate ("the Tribunal's findings merely assert that ..."), the appeal is dismissed.
2. 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 18(1)(f) of the HB Act. As the Appeal Panel noted in Culleton v Tonks [2025] NSWCATAP 129 at [17], the constructive failure to exercise jurisdiction by failing to respond to substantial, clearly articulated arguments based on established facts raises a question of law: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [6], [20]-[22]; Cusumano at [32](4).
3. Section 18E relevantly 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 ...,

(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.

1. In Raysons, Leeming JA, sitting at first instance the Common Law Division stated at [54]:

"...the concept of a breach of warranty "becoming apparent" resonates with other concepts applicable where limitation periods are extended, such as a plaintiff being "unaware" of various matters for the purposes of ss 60F and 60I of the Limitation Act 1969 (NSW). However, it is defined for present purposes in s 18E(1)(f), in a manner which is quite compressed and warrants careful unpacking. 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;

(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."

1. 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".
2. For these reasons we would dismiss the appeal is so far as it relates to Ground 2.

1. In this ground the Builder submits that the Tribunal erred in its interpretation and application of AS 3740 and the Building Code of Australia (BCA).
2. In the Amended Notice of Appeal, the Builder submits that the Tribunal did so by:

(1) failing to definitively determine which version of the BCA and AS 3740 applied after significant dispute between the experts regarding the meaning and enforceability of the BCA;

(2) misconstruing the mandatory effect of Appendix D (fall requirements) of AS 3740, which was incorporated by reference into the BCA 2016;

(3) giving insufficient weight to the explicit requirements of s 3.8.1.2 of the BCA (requiring compliance with AS 3740);

(4) "[failing to determine] whether the 1:100 fall ratio was mandatory or advisory".

1. These claims are developed in the Builder's written submissions.

(1) during the Tribunal hearing, the Homeowner's expert applied the current standard rather than the applicable standard at the time of construction in 2018, and the Tribunal erred in law by failing to determine whether the relevant standard in force at the time of construction had been properly applied and tested. The Builder submits that the Tribunal instead treated the "1:100 fall ratio as prescriptive, binding minimum", an approach it submits is inconsistent with "the approach mandated under section 18B" of the HB Act which focuses on performance and fitness for purpose;

(2) while the 1:100 gradient is referenced in the guidance notes and appended tables, it is not a strict prescriptive requirement but rather an indicative measure of acceptable performance, and the failure to achieve this gradient does not, of itself, establish a breach of statutory warranty unless the performance standard - being effective drainage without ponding or escape - is not achieved;

(3) in treating the deviation from the gradient standard as conclusive evidence of defectiveness, the Tribunal failed to ask the critical statutory question under ss 18B(1)(a), (b), and (c) of the HB Act namely, whether the work was done:

(a) in a proper and workmanlike manner:

(b) in accordance with the law, and

(c) so that the dwelling is reasonably fit for occupation and use.

1. As to treating the fall ratio as prescriptive, the Homeowner submits that this proposition should be rejected for two reasons.
2. First, the 1:100 ratio is a mandatory requirement for bathrooms and therefore the Tribunal below did not err insofar as it treated the 1:100 ratio "as a prescriptive requirement". The relevant requirement can be found in section 3.3 of AS 3740, which provides that:

"3.3 FALLS IN FLOOR FINISHES

Where required, falls in floor finishes shall allow all surface water to drain without ponding except for residual water remaining due to surface tension.

For general bathroom floor area, the minimum fall to the waste shall be 1:100."

(emphasis added)

1. The Homeowner submits that the language of that provision is "plainly prescriptive", and that it follows that the Tribunal below did not err insofar as it treated the 1:100 ratio as a prescriptive requirement.
2. Secondly, and in any event, even if Mr Stevenson's interpretation is correct that "the BCA/AS 3740 applicable in 2016-2018 provided performance-based criteria rather than prescriptive compliance", the Tribunal turned its mind to the submission about the performance-based standard at [10] of the Primary Decision which states:

"It is a fact that the falls on all of the tiled areas do not come close to meeting the 1:100 standard, and it cannot be said that the areas meeting the performance standards if water is escaping from the rooms into adjoining areas."

1. Therefore, the Homeowner submits that, in other words, the Tribunal found, as a matter of fact, that the performance standard was not met in this case. As the Builder has not sought to challenge that finding of fact in the appeal, there is no error of law.

1. In brief submissions in reply, the Builder submits that the Tribunal erred in finding a breach based solely on gradient deviation, without assessing whether the actual waterproofing performance standards were met.

1. In Taylor Construction Group Pty Ltd v The Owners - Strata Plan No 92888 [2020] NSWCATAP 163, the Appeal Panel stated at [90]:

"...In our view, the BCA is not to be construed as if it were a statute. In Owners Corporation v Lu Simon Builders Pty Ltd at [35] the Victorian Civil and Administrative Tribunal adopted a submission made on behalf of the building surveyor that:

The Tribunal is tasked with construing various provisions of the BCA and it must do so as an exercise of statutory interpretation. The task is complicated because the instrument which is to be interpreted and given the force of regulations, is not drafted in the form of legislation or regulations, or by those experienced in the act of legislative drafting. ... However, the task of interpreting the provisions of the BCA is a matter for the Tribunal and not predicated upon the opinion of experts. The text, context and purpose of the provision to be interpreted ought to be taken into account in the ordinary [way], whilst recognising that what is to be interpreted is a technical document not drafted in the same way as Acts of Parliament and is to be applied by those in the construction industry on a daily basis, and not ordinarily by lawyers. ... in undertaking that task, the Tribunal will be aided by reference to dictionaries and technical dictionaries."

1. We accept that construing the BCA, and by extension AS 3640, raises a question of law.
2. But we see no error by the Tribunal. As the Homeowner submits, the language of section 3.3 of AS 3740 ("the minimum fall to the waste shall be 1:100") is "plainly prescriptive", and that it follows that the Tribunal below did not err insofar as it treated the 1:100 ratio as a prescriptive requirement.
3. We further accept that the Tribunal found, as a matter of fact, that the performance standard was not met in this case. To the extent that the Builder seeks to challenge that finding of fact in the appeal, there being no question of law, leave to appeal is required. Leave was not sought and, in any event, to the extent that the appeal raises errors other than questions of law, we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
4. For all these reasons we would dismiss the appeal is so far as it relates to Ground 3.

1. Ground 4 is that the Tribunal denied the Builder procedural fairness.
2. In the Amended Notice of Appeal, the Builder submits that the Tribunal failed to give the Builder procedural fairness by:

(1) failing "to clearly explain to the self-represented parties who bore the burden of proof on the statute of limitation issue, the alleged defects (particularly the waterproofing vs maintenance issue) and the cost/scope of rectification";

(2) suggesting conclusions about the source of water ingress and performance standard breaches before fully hearing from both experts;

(3) referring to the claim being "in time" prior to final submissions;

(4) permitting "prompting and help by the Homeowner's expert during the Homeowner's". This submission is incomplete in the original, but presumably the Builder meant to refer to Homeowner's oral evidence at the Tribunal hearing.

(1) the Tribunal erred as the limitation question depended upon when the Homeowner became aware or ought to have reasonably become aware of the alleged defect, which is an issue of fact as well as law under s 18E(1)(f) of the HB Act;

(2) the Tribunal then dismissed the relevance of expert evidence to the limitation issue, potentially "sidelining" evidence from Mr Stevenson suggesting the damage had been evident for a long time, relevant to when a reasonable person might have discovered the breach;

(3) a failure to afford procedural fairness will invalidate a decision if the denial deprived a party of the possibility of a different result: Stead v State Government Insurance Commission (1986) 161 CLR 141 (Stead) at 145-146;

(4) fairness in litigation requires not only a fair hearing but also a fair opportunity to present or meet a case: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon Risk).

1. We pause to note that we do not consider that either Stead or Aon Risk are authority for the propositions stated.

1. As to the submission that the conduct of the Tribunal potentially sidelined evidence from Mr Stevenson, the Homeowner submits:

(1) the transcript passages relied on by the Builder take the statements made by the Tribunal out of context; and

(2) the Tribunal was correct to observe that the question of whether or not the application was "out of time" was not a matter for expert evidence;

(3) the Tribunal has a wide discretion as to the manner in which it conducts proceedings: NCAT Act, s 38(1);

(4) the proposition that the Tribunal prevented Mr Stevenson from addressing the Tribunal should be rejected as a matter of fact; and

(5) a denial of procedural fairness must work a practical injustice on the appellant in order for a Court (here the Appeal Panel) to exercise its discretion to grant relief: Re Minister for Immigration & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [38]. If the denial of procedural fairness would not have made a difference in the outcome of the proceedings, relief will not be granted: Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 at [58].

1. As to the Builder's submission that the Tribunal permitted others to prompt Mr Awad, the Homeowner submits 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. Further, any prompting that did occur prior to the Tribunal's intervention made no difference to the outcome of the proceedings.

1. The Builder raises no additional matters of substance in its reply submissions.

1. A claim of a denial of procedural fairness raises a question of law: Prendergast at [13](4).
2. There are four matters relied on by the Builder for this ground of appeal, which are set out above.
3. The first matter is that the Tribunal failed to clearly explain "to the self-represented parties who bore the burden of proof on the statute of limitation issue, the alleged defects (particularly the waterproofing vs maintenance issue) and the cost/scope of rectification".
4. We find this "rolled up" pleading to be confusing. It appears the Builder is submitting that the Tribunal failed in some way in its obligations to explain to a self-represented litigant the procedure in the Tribunal hearing and the relevant principles of law that the Tribunal was bound to apply.
5. It is not correct for the Builder to describe itself as "self-represented". It was represented at the hearing by its Operations Manager Mr Russell and Mr Miller, a director. We assume that what the Builder means is that it was not represented by a legal practitioner.
6. The party who should be complaining about a failure to have the burden of proof explained to it is the Homeowner. The Builder bore no onus to prove anything. Thus, the Homeowner had to prove that he was within time in bringing his claim, that there were major defects and the cost of rectification of those defects.
7. We consider this argument is misconceived.
8. As to second, third and fourth matters set out in [105], we find each to be completely unsupported by the evidence, and a mischaracterisation of what actually occurred during the hearing.
9. We dismiss the appeal in relation to Ground 4.

1. Ground 5 of the appeal was that Tribunal failed in its application of s 48MA of the HB Act.
2. In the Amended Notice of Appeal, the Builder submits that the Tribunal erred:

(1) when the "applicant/respondent"[5] "applied" and gave evidence preferring a work order;

(2) in accepting the Builder's refusal to perform rectification works without considering whether that refusal was reasonable;

(3) in accepting inconvenience to the Builder (due to workload) as a sufficient reason to deny a work order;

(4) in awarding damages that were unreasonable for excessive scope of rectification works not included in the Homeowner's application.

1. These matters were developed in the Builder's written submissions.

(1) despite the Homeowner expressing a willingness for a work order, the Tribunal accepted the Builder's refusal based on workload without assessing its reasonableness;

(2) the Homeowner indicated a willingness to consider a rectification order if subject to a time limit. However, the Tribunal rejected this in favour of a money order without fully exploring the reasonableness of the Builder's stated inability to perform the work;

(3) section 48MA requires that rectification by the Builder be the preferred outcome;

(4) the failure to test the appellant's refusal under that framework constitutes legal error;

(5) section 48MA expresses a clear legislative intention that rectification by the responsible builder is the preferred outcome unless it is not practicable;

(6) the Tribunal therefore erred by not testing the practicability of the Builder's performance and instead defaulted to a monetary award which contravenes s 48MA.

1. The Homeowner submits that there was no error made by the Tribunal. He submits that contrary to the builder's submissions, s 48MA merely requires the Tribunal to have regard to the principle that rectification of the defective work by a builder is the preferred outcome, and that the Tribunal did so.
2. The Homeowner submits that "[p]lainly" the Tribunal had regard to the s 48MA principle.

1. In brief submissions in reply, the Builder submits that the Homeowner's submission that the Tribunal need only "have regard to" the principle set out in s 48MA:

"... ignores the requirement to meaningfully test practicability. The Tribunal did not do so, constituting legal error as confirmed in Galdona v Peacock [2017] NSWCATAP 64 at [60]- [65]."

1. We see no substance in the Builder's submissions.
2. Section 48MA of the HB Act provides:

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.

1. As the Appeal Panel noted in Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 at [43], s 48MA is directed towards the remedy or "outcome" to be provided by the court or tribunal where a claimant establishes the responsible party has carried out defective residential building work or specialist work. In this sense, it is not properly described as a "presumption". Rather, it is a remedy to be "preferred" to other forms of order which the Tribunal might make. The section does not mandate that a work order must be made in all cases (at [44]).
2. Section 48MA was also considered by the Appeal Panel in Leung v Alexakis [2018] NSWCATAP 11 (Leung). In Leung at [139] the Appeal Panel said:

"Rather, there was a discretion the Tribunal was required to exercise as to whether or not to make an order for compensation, an order in the nature of a work order or some other order as permitted by s 48O(1). In this regard, s 48O(2) provides the Tribunal can make a work order even if not asked for by the applicant who makes a claim for defective residential building work. In doing so, s 48MA requires the Tribunal "to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome". Section 48MA is not, in terms, mandatory. Rather, it is a factor to be taken account of in the exercise of a discretion about what orders should be made to resolve a building claim."

1. The Builder referred to Galdona v Peacock [2017] NSWCATAP 64. In that decision, the Appeal Panel found at [50] that the Tribunal erred in law by failing to have regard to s 48MA in awarding compensation in favour of the respondent when he determined his building claim which involved an allegation of defective residential building work.
2. However, the Appeal Panel noted at [65] that s 48MA only required the Tribunal Member to have regard to the principle that that rectification of the defective work by the appellants was the preferred outcome; s 48MA did not make the preferred outcome the mandatory outcome.
3. We accept that the Tribunal did not refer to s 48MA, in terms, in the Primary Decision. But this may be inferred by the heading before [31] and [32] of the Primary Decision, "Work order or money order?", a matter underscored at lines 334 to 336 of the transcript where the Senior Member says to the Homeowner:

"Under the Home Building Act, I have to consider, as a preferred option, giving the [B]uilder the opportunity to rectify the work if I find it to be defective."

1. Clearly, the Tribunal was referring to s 48MA of the HB Act. Equally clearly, in the Primary Decision, the Tribunal had regard to s 48MA.
2. We dismiss the appeal in relation to Ground 5.

1. For the above reasons, each ground of appeal is rejected and the appeal is dismissed.

1. As the relevant costs rule is found in r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW), our preliminary view is that the Builder should pay the Homeowner's costs of the appeal as agreed or as assessed, costs following the event.
2. However, we have not reached a concluded view as we have not heard from the parties.
3. Either party opposing such an order should file and serve submissions (and if necessary evidence) within 14 days. The other party may reply within a further 14 days.
4. Submissions are to be limited to 5 pages.
5. We propose to deal with costs "on the papers" and without a hearing. Any party opposing that course should address that issue in their submissions. The parties' attention is drawn to the Appeal Panel decision of Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113, where the Appeal Panel stated at [85]:

"[i]t is the experience of the Appeal Panel that costs decisions in the Consumer and Commercial Division and on appeal (unless dealt with at the time of the hearing) are routinely considered "on the papers", and without a hearing. The parties were given an opportunity to provide written submissions and did so. They can be presumed to have included all relevant issues in their written submissions."

(1) The appeal is dismissed.

(2) Any party opposing an order that the appellant pay the respondent's costs as agreed or as assessed is to file and serve submissions (and if necessary evidence) on or before 13 August 2025.

(3) The other party may reply on or before 27 August 2025.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.