Javam v Al-Amin

Summary of the Decision under Appeal

1. The Homeowners tendered before the Tribunal a quantity of documents which had been filed in the District Court proceedings. The Builder objected to the receipt of that material and sought a ruling from the Tribunal that those documents be excluded [17].
2. The Tribunal was not satisfied that the documents ought to be excluded [18]. The Tribunal pointed out that this evidence was only relevant to the calculation of damages on the alternative basis put forward by the Homeowners. That basis was described in [70] of the Decision and was essentially a claim by the Homeowners to recover damages equivalent to the cost to rectify and complete the building works as opposed to the Homeowners' primary claim, namely a claim for a refund of monies paid over to the Builder.
3. The Decision records the Homeowners' claim to have validly terminated the contract by a Notice of Termination dated 21 June 2018, which purported to justify termination on two grounds. The first was that the Homeowners were entitled to do so under clause 27 of the contract because the Builder was in substantial breach and had failed to remedy breaches of contract notified by the Homeowners in a Breach Notice dated 4 June 2018 [21]. The second ground was that the Builder had repudiated his obligations under the contract which the Homeowners had accepted, and on that basis had terminated the contract under "their common law rights" [21]. In response, the Builder submitted that the Homeowners' conduct in purporting to terminate the contract was repudiatory but, as the Builder had not taken any steps to accept the Homeowners' repudiatory conduct the contract remained on foot.
4. In the Decision clause 27 of the contract is set out. It provides that if a party is in substantial breach, the other party may give the party in breach a written notice stating details of the breach, and that if the breach is not remedied within 10 working days, then the party is entitled to end the contract by giving a further notice to that effect. The breach notice was dated 4 June 2018 and its terms are set out in [28] of the Decision. It listed a number of matters which the Builder had allegedly failed to perform.
5. At [30], the Tribunal found that it was satisfied that by 1 June 2018 the Builder was, within the meaning of clause 27, in substantial breach "because of the inordinate delay in his progressing the building works throughout the period from February to May 2018 and his failure to pay Mr Cutcher and that the Homeowners validly issued a Breach Notice to the Builder and subsequently validly terminated the contract based on the matters raised in that breach notice."
6. At [31], the Tribunal stated that it was satisfied from the evidence that during March and April 2018, the Builder "became unwilling to address or provide a solution to the "variation 2 stair design issue arising from the architectural drawings and engineering drawings" which the Tribunal found were the responsibility of the Builder to organise. The Tribunal found that the Builder demonstrated by an email dated 17 March 2018 to Mr Cutcher that he did not regard the problem with architectural drawings as his problem.
7. The Tribunal found at [33], that Mr Cutcher had requested the Builder to prepare construction plans and documents and to resolve any construction issue arising out of the earlier architectural drawings. The Tribunal found that the contract provided that construction documentation was the responsibility of the Builder and the Builder was responsible for resolving the construction issues which had arisen in relation to variation 2 and the stair set out. The Tribunal found that the email of 17 March 2018 demonstrated that the Builder "was refusing or at least delaying in his obligation to resolve and determine the variation 2 issue as required by clause 2.10.3 and 2.10.4 of the addendum".
8. The Tribunal was satisfied, based upon the correspondence between the parties, that any delay in the building works was not the fault of the Homeowners [36].
9. The Tribunal was satisfied that after the appointment of Mr Cutcher, the Builder failed to perform any substantial works. The Tribunal found that the contract, as varied by the addendum, required practical completion to occur by no later than 31 October 2018 "yet from the evidence, by June 2018, the only work that had been completed was the construction of the concrete slab… and completion of the steel beams and the timber frame (which Hills Shire Council subsequently required to be demolished…)": [40]. At [43], the Tribunal found that it was satisfied that the Builder had failed to progress the works, and in particular the plans that were his responsibility.
10. The Tribunal found that it could not be satisfied that there was certification of the slab or that the slab was inspected by the private certifying authority [44].
11. At [45] and [46], the Tribunal found that the Builder had refused to pay the architect the Builder's share of the architect's fee as recorded in an invoice of 29 March 2018. Mr Cutcher then suspended his services. The Tribunal found that on 13 April 2018 Mr Cutcher allowed the Builder a two-week extension to pay his invoice. On 1 May Mr Cutcher issued an invoice for his work in April 2018, and on 9 May he initiated an adjudication application under the Security of Payments Act for his outstanding fees. By email of 10 May 2018, the Builder requested a payment plan of $500 per month due to cash flow issues. Subsequently Mr Cutcher resigned his role as architect on the basis that the adjudication had compromised his impartiality to continue to act. At [50], the Tribunal rejected the Builder's contention that the architect had acted outside the parameters of his role under the addendum and found that the architect had proceeded in accordance with the addendum at all times.
12. In respect of the Builder's contention that the preparation of a 3D model by the architect was outside the scope of his work under the addendum, the Tribunal rejected that contention. The Tribunal found that the preparation of a model was not an unreasonable way to attempt to resolve the dispute between the parties [51].
13. At [55], the Tribunal found that the failure of the Builder to progress the works and pay Mr Cutcher's invoices created an inordinate delay by the Builder and amounted to a substantial breach of the contract.
14. In respect of the Termination Notice sent by the Homeowners to the Builder and dated 21 June 2018, the Tribunal found that the Notice "implicitly" was a termination notice in writing under clause 27.3. [58]. The Tribunal went on to find that the Builder by not progressing the works and failing to pay Mr Cutcher and refusing to remedy those breaches repudiated the contract [59].
15. At [61], the Tribunal found that the Builder's conduct between February to June 2018, was such as to amount to a refusal to be bound by the contract and in particular the addendum.
16. At [66], the Tribunal found that it was satisfied that the Homeowners were entitled to a refund of the monies paid on the basis that they have received no material benefit for the payments they made to the Builder. The Tribunal referred to the timber frame and steel beams that had been constructed in 2015 which the Tribunal stated had to be dismantled and demolished and that what remained at the property was a concrete slab. The Tribunal found that there was no supporting evidence in relation to the existence of inspections certification beyond the assertions of the Builder [68]. At [69] the Tribunal stated that it was satisfied from correspondence from the local council that the Homeowners will need to demolish the slab or take other steps in relation to satisfying compliance.

Notice of Appeal and Reply to Appeal

1. The Builder filed a Notice of Appeal received by the Tribunal on 7 February 2020 and the Homeowners filed a Reply dated 20 February 2002. Subsequently written submissions were filed and served by the parties and at the hearing the parties made oral submissions in support of and elaborating upon their written submissions. In the following paragraphs we will refer to the substance of those submissions.

Builder's Grounds of Appeal and Submissions in Support of the Appeal

1. The grounds of appeal identify 10 grounds as follows: 1. Ground 1: the Tribunal erred in finding that the Builder failed to progress the works "without no evidence to its finding". 2. Ground 2: there was a failure to afford procedural fairness in failing to allow the Builder to cross-examine the witnesses. 3. Ground 3: there was a failure to afford procedural fairness in allowing the Builder a proper and adequate opportunity to test the evidence of the Owner that was prepared for the District Court proceedings. 4. Ground 4: the Tribunal erred in failing to take into account the effect of clause 30 of the contract. 5. Ground 5: the Tribunal erred in finding that the architect acted within his role under the addendum. 6. Ground 6: the Tribunal erred in finding that the Builder was in substantial breach of the addendum. 7. Ground 7: the Tribunal erred in finding that the Homeowners validly terminated the contract when there was no evidence of breach. 8. Ground 8: the Tribunal erred in implying that the Owner's alleged termination notice was implicitly made under clause 27.3 9. Ground 9: the Tribunal erred in concluding the slab was of no value, with no evidence for its finding. 10. Ground 10: the Tribunal erred in failing to give sufficient reasons for its decision.
2. The Builder's submissions do not follow precisely the grounds of appeal identified above and the submissions in reply are in part an elaboration upon the submissions in chief. At the risk of some repetition, we will summarise the effect of the Builder's submissions in the following paragraphs.

Ground 1: the Tribunal erred in determining that the Builder failed to progress the works

1. There was evidence through Mr Cutcher that the parties had agreed to a 30 day extension to the completion dates in the addendum. The approved Project Plan provided for a commencement date of 1 April 2018 and an estimated completion date of 8 December 2018. In addition, the contract provided for liquidated damages in the case of delay. Despite the apparent weight, the Tribunal attributed to the failure of the Builder to keep up with the Project Plan, the architect only approved the Project Plan on the basis of its suitability for monitoring the progress of the works for completion by the due date and the architect had not reviewed the activities or durations listed in the plan: see the evidence of Mr Cutcher recorded at page 341 of the appeal book.
2. The Builder in fact took a number of steps to progress the works. These included preparation of the Project Plan, attending numerous meetings with the Homeowners and architect, erecting a builder sign, providing a proposed solution to variation 2 and subsequently seeking the appointment of another architect to continue with the addendum.
3. The Builder submitted that there was no evidence to support the Tribunal's finding that the Builder failed to progress the works or evidenced an intention to no longer be bound by the contract. In the so-called submissions in reply the Builder identified evidence which he asserts to be contrary to the Tribunal's finding that the Builder had failed to progress the works. The Builder's submission is that the findings of the Tribunal were not reasonably open on the evidence before the Tribunal. In particular, the Builder submits that: 1. the Builder provided a solution to Variation 2: see Mr Cutcher's email of 19 March 2018 (appeal book 1200). We interpose that in our view that email does not explicitly record that the Builder proposed a solution. 2. The Homeowners rejected the variation and insisted that the plans be followed. The architect later determined that this was not possible. The Builder did not refuse to address Variation 2, rather, the architect took it upon himself to attempt to resolve the design. 3. The Homeowners' own expert evidence indicated that the slab had been inspected and that the engineer had advised that he was satisfied that the work was performed in accordance with the drawing. 4. Mr Cutcher acted outside his role and acknowledged that he had done so - see his email of 19 March 2018 (appeal book 1199).
4. The Builder contended that it follows that the Tribunal erred in law in making findings which were not supported by evidence. In addition, the Builder's "steps were limited to what could be completed under the addendum". The architect identified that the resolution of Variation 2 was necessary prior to any further works commencing (AB 897).
5. The Builder submitted that he provided a solution to Variation 2 at the first meeting (relying upon AB 1200). Instead of determining Variation 2, the architect attempted to develop a solution which was acceptable to the Homeowners despite the addendum setting out otherwise. The Builder was unable to take any further steps until Variation 2 was resolved. The Homeowners agreed to a solution on 25 April 2018. The Tribunal did not make a finding in respect of any failure of the Builder to progress Variation 2. In coming to its conclusion of inordinate delay the Tribunal overlooked the fact that the parties had agreed that the completion date would be December 2018, namely an additional period of five weeks. That is significant.

Ground 2: no evidence to support finding of fact

1. This concerns the finding of fact that the development of the model did not go beyond the scope of the work of the architect as contained in the addendum and that the Builder was obliged to, and subsequently failed to. pay the architect's fees.
2. The Builder submitted that the findings of the Tribunal in this respect, constituted an error of law as there was no evidence to support such a finding. With respect to Variation 2, the Builder submitted that the addendum provided that the architect's role was to make a determination in accordance with clauses 2.10.3 and 2.10.4 and not to "assist the parties to resolve Variation 2". The Builder submitted that the architect acted outside his role by not making a determination as required by the addendum and in the development of a "solution/model" which did not fall within the architect's role. As a result, the Builder was prevented from progressing the work until the architect determined Variation 2 and this was confirmed by the architect in his email of 17 March 2018 (AB 1170). Once the Homeowners confirmed their acceptance of the solution at 25 April 2018, the Builder took steps to enquire with the certifier if the plan is needed to be submitted to Council. The architect did not determine Variation 2 in accordance with the addendum and instead deferred to the Homeowners. Thus, the Builder was entirely dependent on the Homeowners' acceptance of any solutions, before he could progress the works, contrary to the conditions of the addendum.
3. The Builder further contended that was not open to the Tribunal to find that the Builder failed to pay the architect's fees. The architect's invoices were not in evidence and nor was the adjudication application or decision in respect of his fees. The Builder's submissions acknowledge that the architect suspended his role under the addendum from 28 March 2018 following a claim for payment of his services, including production of the model. The architect attended a meeting on 13 April 2018 advising that his role under the contract was suspended.

Ground 3: no evidence to support finding of fact that the Builder was in substantial breach with respect to delay and the failure to pay the architect's fees

1. The Builder's submission was that the findings of fact under this ground were made without evidence to support them or alternatively were made against the weight of evidence. In support the Builder referred to and relies upon the submissions made with respect to ground 1. With respect to the alleged failure to pay the architect's fees, the Builder relies upon the submissions referred to under Ground 2. The Builder also submitted that attempts were made by him to seek the appointment of another architect in order to progress the project.
2. Further, the Builder submitted that the Tribunal did not consider the meaning of the term "substantial breach", failed to consider the question of substantial breach and failed to provide proper reasons. The Builder relied upon the decision of an Appeal Panel in the Dimitropoulos v Capital Constructions Pty Ltd; Capital Constructions Pty Ltd v Dimitropoulos [2018] NSWCATAP 100. In that decision the Appeal Panel stated that it is necessary to determine the meaning of the expression "substantial breach" consistent with the intention of the parties as expressed in the contract and as objectively determined.

Ground 4: failure to take into account relevant considerations, namely the effect of clause 30 of the contract

1. In summary, clause 30 of the contract (which is headed "Effect of the Owner ending the Contract") provides that if the owner ends the contract under clause 27, the owner must complete the building works and keep records of the cost incurred. It further provides that the owner must take all reasonable steps to minimise the cost of completing the building works and provides a mechanism by which the owner may claim from the Builder the difference between the cost incurred by the owner (if they are more than the unpaid balance of the contract price) between the amount the owner would have had to pay the Builder and the costs incurred by the owner. In reverse, if the costs incurred by the owner are less than the unpaid balance of the contract price, the owner must pay the difference.

Ground 5: no evidence to support finding of fact that the architect acted within his role under the addendum

1. This ground overlaps with Ground 2 above and the Builder made the same submissions.

Ground 6: identification of wrong issue/ wrong question asked/ applied on principle of law/ failure to provide reasons in respect to whether the Builder repudiated the contract, whether the Homeowners validly terminated the contract at common law

1. The Builder submitted that in finding that the Builder repudiated the contract, the Tribunal failed to consider whether the repudiation was based upon renunciation. If so, it required consideration of whether the conduct of one party was such as to convey to a reasonable person in the situation of the other party renunciation either of the contract as a whole, or of a fundamental obligation (see Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 at [44]. Alternatively, the Tribunal failed to consider whether the repudiation was based on any breach of contract which justifies termination and that required consideration of whether the breaches were breaches of essential terms.
2. The Tribunal found that the Builder's repudiation was limited to not progressing the works and failing to pay Mr Cutcher, and refusing to remedy the breaches as provided in [59] of the Decision.
3. The Tribunal found that the termination notice was implicitly made under the contract. The Builder submitted that there was no evidence to support such a finding. Here, the Decision failed to address the question of whether the alleged breaches were breaches of essential terms. Further, the term "substantial breach" relates to termination accordance with clause 27 of the contract. This is to be distinguished from a breach of an essential term. The Builder submitted that the breach notice dated 4 June 2018 specifically stated that it was made pursuant to clause 27 of the contract but the termination was based on the repudiation of the contract. The effect was that the Homeowners had elected to terminate at common law. In finding that the contract had been terminated at common law, there was no consideration as to whether the repudiation was based upon renunciation. In turn there was no consideration as to whether the Builder's conduct was such as to convey to a reasonable person in the situation of the other party renunciation of either of the contract as a whole or of a fundamental obligation under it (see Koompahtoo).
4. The Builder submitted that the failure to address these questions amounts to an error of law in the finding that the Builder repudiated the contract.
5. Additionally, the Builder submitted that the Homeowners affirmed the contract by issuing the notice of breach and in doing so the owner decided not to treat the contract as repudiated at common law. The Builder referred to the decision in Dimitropoulos at [67] which referred to a party electing to exercise a contractual right and thus affirm a contract, which election may be inconsistent with the common law right to discharge the contract immediately.
6. The Builder submitted that the Homeowners' breach notice dated 4 June 2018 constituted an election to continue with the contract reserving the right to terminate in accordance with clause 27.3. However, the breach notice was a positive act of affirmation which precluded the Homeowners from relying on the previous repudiatory conduct to terminate the contract at common law.
7. The Builder further contended as follows: after the issue and receipt of the breach notice the Builder requested the nomination of a fresh architect in accordance with the addendum. The architect subsequently resigned and the Builder took steps to remedy the breaches set out by the Homeowners. The failure to pay the architect (who had resigned) had no effect on the parties carrying out their obligations under the contract or addendum. There was no entitlement under the contract for the provision of certification until payment of the final progress claim: see clause 21.7 of the contract. The Builder submitted that he took steps to enquire whether the plans with respect to Variation 2 needed to be submitted only to the certifiers or whether they needed the approval of the local council. The Builder conducted himself in a way that was consistent with his obligations and took steps to progress the works, and that, in the circumstances, the Homeowners' affirmation of the contract precluded them from relying on the previous repudiation to terminate the contract at common law.

Ground 7: no evidence to support finding of fact/identification of wrong issue/wrong question asked with respect to the Homeowners' alleged termination notice was implicitly made under clause 27.3

1. At [58] of the Decision the Tribunal found that the termination was made under clause 27 of the contract. The Builder's case on appeal is that there was no evidence to support that finding. Further, the decision found that the Builder had refused to remedy the breaches. The Decision failed to state how the Builder had so refused.

Ground 8: no evidence to support finding of fact/wrong principle of law applied with respect to conclusion that the slab was of no value

1. The Tribunal found that the Homeowners had received no benefit from the works undertaken by the Builder. The Builder said that this was contrary to the Homeowners' own expert evidence which indicated that the slab had been inspected and the engineer had advised that he was satisfied that the work was performed in accordance with the drawing. The issue of certification of the slab was quantified by the experts in the joint expert report as is being worth $1,000. It is clear that the slab portion of the work was to the value of 30% of the original contract price and should be considered a substantial part of the work expected under the contract. The Builder's case is that the Tribunal was in error to find that there had been a total failure of consideration and he relied on Baltic Shipping Co v Dillon [1993] 176 CLR 344 where it was held that if incomplete performance results in the innocent party receiving and retaining any substantial part of the benefit expected under the contract there will not be a total failure of consideration. The Builder also relied upon Mann v Paterson Constructions Pty Ltd [2019] HCA 32 where the court stated that where under a construction contract which is divided into stages and at the point of termination some stages have been completed such that progress payments have accrued due in respect of those stages there will be no total failure of consideration in respect of those stages. Here, the contract was to be completed in stages which included the floor slab stage. This stage did not include certification until payment of the final progress claim (see clause 21.7 of the contract). The Builder submitted that as the Homeowners have received the benefit of that stage, it cannot be their contention that there was a total failure of consideration. Further, with respect to the lack of certification, the Builder submitted that he was not obliged to provide certification until a later date. The evidence indicated that the slab had been inspected and that a certificate was forthcoming.

Procedural fairness Grounds

1. The Builder also submitted that there had been a failure to provide procedural fairness. This had occurred in accepting the expert witness reports exhibited in the statutory declaration of one of the Respondents, in not providing an opportunity for the experts to be cross-examined and in not allowing the Builder to cross-examine the Homeowners who had provided the Statutory Declaration. Additionally, the Builder submitted that during the Builder's cross-examination of one of the respondents there was significant intervention from the Tribunal Member which was described as "unnecessary and constantly stopped the cross-examination". We have been provided with the transcript and the submissions identify the alleged places of the intervention. The Builder submits that there was a consequential failure to provide a proper opportunity to cross-examine the Homeowners.

The Homeowners' Submissions (in which we outline the Homeowner's submissions in response to those of the Builder)

Ground 1: The Tribunal erred in determining that the Builder failed to progress the works.

1. The Builder's contention that the finding at [30] of the Decision is not supported by evidence appears to raise a question of law. A decision can be set aside where a decision-maker makes a finding without probative evidence to support it, or has drawn an inference which was not open on the primary facts. However, if the particular finding or inference of fact is reasonably open on the evidence before the Tribunal, no error of law has occurred and no review can occur on that basis: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 320. In the Homeowner's submission there was ample evidence from which it was reasonably open for the Tribunal to make its finding at [30] that the Builder had failed to progress the work. The Tribunal outlined that evidence in detail in paragraphs [31]-[55] of the Decision. The key reasons that the Tribunal relied upon to support the finding were:

• During March and April 2018, the Builder became unwilling to address or provide a solution to Variation 2 even though he was contractually obliged to do so under clause 2.10 of the addendum and schedule 4 of the contract regarding the Builder's responsibility for the preparation and approval of the building plans and specifications.
• The Homeowners did not (as the Builder contended for in the Tribunal below) refuse to cooperate in relation to Variation 2 nor cause any delay. The Builder did not challenge this finding made in paragraphs [35]-[36] of the Decision.
• In May 2018, the Builder after initially refusing to address Variation 2, rebadged architectural drawings to submit to Hills Shire Council without the original architect's approval, which the Homeowners raised concerns about: see [37]-[38] of the Decision. The Builder did not challenge this finding.
• By June 2018, the only work that had been done was the construction of the concrete slab (which was not certified) and the steel beams and timber frame (which had to be dismantled as directed by the Council). The Builder did not produce any evidence that the slab or timber frame were inspected and certified despite his obligation to do so under a schedule for the contract.
• In breach of clause 3.1.4(h) the Builder failed and refused to pay Mr Cutcher's fees.

1. Accordingly, there can be no error of law based upon "no evidence" as there was evidence from which it was reasonably open to support the factual findings or inferences. Once it is established that there is other evidence from which it was reasonably open for the Tribunal to find that there was substantial breach because of the Builder's inordinate delay in progressing the building works, ground 1 must fail.
2. There was evidence from which it was reasonably open for the Tribunal to find that the Builder had failed to perform any substantial work and that by June 2018 had in substance only completed an uncertified concrete slab and steel beams and timber frame. And accordingly the Tribunal's finding at [40] is not one in respect of which there was no evidence. In any event, the Homeowners submitted that the steps taken by the Builder which the Builder contended were taken to progress the building works are insignificant in the context of the extent of the building work that he was required to perform. As such they are incapable of disturbing the finding made by the Tribunal as articulated in [40] of the Decision.
3. The Builder appears to focus his challenge to that finding on the architect's approval of a project plan which extended the completion date from 31 October 2018 to 8 December 2018. Whether the completion date was 31 October or 8 December that is not a fact of such significance as to undermine the Tribunal's finding at [40]. In light of the Tribunal's extensive reasons as outlined in [31]-[55] of the Decision, the Tribunal's finding at [40] is not affected by any error over the completion date. The substance of the Tribunal's finding at [40] is that the Builder failed to progress the works by June 2018 as evidenced by the Builder's failure to resolve Variation 2, failure to pay the architect and the Builder's attempt to offload his contractual responsibilities regarding Variation 2 onto the Homeowners and the architect. The Tribunal would have made that finding, regardless of its likely error as to the completion date.
4. In respect of the Builder's contention that the findings in [42] of the Decision were not supported by any evidence, the Homeowners submit that the evidence is clear that the Builder did not in substance perform any building works set out in the project plan approved by Mr Cutcher on 12 March 2018. Clause 2.9 of the addendum obliged the Builder to perform the building works in accordance with the project plan. The evidence supports the Tribunal's finding at [59] of the Decision that by the time the Homeowners had issued the termination notice on 21 June 2018 the Builder had repudiated his obligations under the contract and the addendum.
5. The Builder's submission concerning the presence of the liquidated damages clause does not advance ground 1. Clause 32 of the contract does not preclude the Homeowners from terminating the contract by reason of the Builder's repudiation of contractual obligations.
6. Accordingly in the absence of any error of law and in circumstances where there is ample evidence to support the Tribunal's findings in [30], [40], [42] and [59] of the Decision, Ground 1 of the Amended Notice of Appeal has no merit and should be rejected.

Ground 2: No evidence to support finding of fact that the development of the model did not go beyond the scope of the architect's work and that the Builder was obliged to pay the architect's fees

1. This ground is hopelessly wide and fails to explain why the Tribunal erred either in determining that the architect did not exceed his role or in finding that the Builder was obliged to pay the architect's fees. Clause 3.1.4(a) of the addendum gave the architect broad-ranging powers to resolve disputes and clause 3.1.4 (b) of the addendum empowered the architect to approve or reject variations. There is no basis to disturb the Tribunal's finding that the architect's development of the model was not an unreasonable way to resolve any dispute over the stairs and Variation 2. Such conduct was consistent with the architect's role. There was no evidence to support the Builder's contention that the architect devised a solution to Variation 2 that was contrary to the "agreed parameters of the addendum".
2. The Builder had an obligation under clause 3.1.4(h) of the addendum to pay the architect's fees and the Builder's submissions failed to explain how or why the Tribunal erred in finding that the Builder was to pay the architect's fees.
3. Ground 2 should be rejected.

Ground 3: No evidence to support finding of fact that the Builder was in substantial breach with respect to delay in paying the architect's fees

1. To the extent that Ground 3 relies upon the Tribunal's reference to the completion date of 31 October 2018 under the addendum as opposed to 8 December 2018 under the Project Plan dated 12 March 2018, the Homeowners repeat their earlier submission and say that the question of the completion date was not material in the Tribunal's ultimate finding of delay and substantial breach.
2. To the extent that this ground asserts that the Tribunal failed to take into account evidence to the contrary, the Builder does not identify the contrary evidence .
3. To the extent that Ground 3 relates to the role of the architect and the non-payment of his fees, the Homeowners repeat their earlier submissions and say that the architect acted within his role and was entitled to be paid his fees. The Builder's failure to pay the architect's fees triggered the resignation of the architect. This failure, combined with the Builder's failure to perform any building work of substance from February to June 2018 resulted in the Homeowners terminating the contract by reason of the Builder's repudiation of his contractual obligations under the contract and the addendum.
4. The Builder refers to the decision in to Dimitropoulos v Capital Constructions but does not elaborate upon the significance of that decision.
5. Ground 3 should be rejected.

Ground 4: Failure to take into account the effect of clause 30 of the contract

1. The judgment of Basten JA in Torbey Investments Incorporated Pty Ltd v Ferrara [2017] NSWCA 9 at [47]-[50] accords with the proposition that clause 30 does not remove any general contractual entitlement to terminate for repudiation or to recover the cost of completion of the building work. Ground 4 should be rejected.

Ground 5: No evidence to support the finding that the architect acted within his role under the addendum

1. The Homeowners' submissions referred to above have already dealt with this contention. Further, the Builder has failed to explain in his submissions how or why the architect is said to have not acted within his role or how or why the architect's role was confined to acting in accordance with clauses 2.10.3 and 2.10.4 of the addendum. Whilst those two clauses dealt with the Variation 2 and the architect's determination in relation to that issue, the architect's role under the addendum was more expansive than the Builder contends. The architect's role was set out in clause 3.1.4.1 of the addendum and extended to resolving, as an independent expert, all disputes and differences between the parties.
2. This ground should be rejected.

Ground 6: Identification of wrong issue/ wrong question asked/ applied on principle of law/ failure to provide reasons in respect of whether the Builder repudiated the contract, whether the Homeowners validly terminated the contract at common law

1. The Homeowners submitted that the termination notice dated 21 June 2018 identified acts and omissions of the Builder which amounted to a repudiation of the contract and justified termination. By issuing the termination notice the Homeowners left the Builder in no doubt that they were terminating the contract at common law on the basis of accepting the Builder's repudiation of his obligations under the contract, the details of which were set out in significant detail in the termination notice.
2. In respect of the Builder's contention that the Tribunal incorrectly found that the Homeowners impliedly terminated the contract under clause 27 of the contract the Homeowners submitted: 1. The grounds for terminating a contract at common law and terminating a contract under a contractual clause are not mutually exclusive. They operate concurrently: Holland v Wiltshire [1954] 19 CLR 409; Shevill v Builders Licensing Board (1982) 149 CLR 620. A breach of an essential term can manifest an unwillingness or inability to perform and, thus, constitute repudiation: Tanaka v Tokyo Network Computing Pty Ltd [2003] NSW SC 1114 at [24]. 2. The Builder's substantial breaches set out in the breach notice dated 4 June 2018 were found by the Tribunal to be repudiatory acts of the Builder. The breach notice clearly stated that it was made pursuant to clause 27.3 of the contract and identified the relevant breaches as clause 27.3 required. The termination notice referred to the breach notice and terminated the contract by reason of the Builder's unremedied breaches set out in the breach notice and by reason of the Builder's repudiation of the contract. 3. Clause 27.4 of the contract does not stipulate any specific wording to govern precisely how the Homeowners should terminate the contract.
3. Even if the termination notice did not amount to a termination under clause 27 the termination notice was a termination at common law on the basis of the Builder's repudiation of obligations under the contract. The Builder's contention that the Tribunal incorrectly found an implied termination under clause 27 does not refute the Tribunal's finding that termination occurred at common law.
4. In relation to the Builder's submission that the Homeowners affirmed the contract by issuing the breach notice of 4 June 2018 and thus were precluded from relying upon any repudiatory conduct that occurred prior to the notice of default, such a contention runs counter to authority of the High Court. The Homeowners' submissions referred to the judgment in Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 per Wilson J. In that case it was held that sending a notice to complete does not necessarily amount to an affirmation of the contract or an election to abandon the right to terminate. In the present case, the Homeowners submitted that when they issued the breach notice rather than electing to continue with the contract and the addendum or terminating the contract the Builder was required to remedy the substantial breaches set out in the breach notice, and the Homeowners reserved their right to terminate in the event that the breaches were not remedied.
5. However, even if the breach notice does amount to an affirmation of the contract it is clear from High Court and Court of Appeal of New South Wales decisions that the innocent party is not precluded from terminating the contract at common law if the party in breach continues to repudiate its obligations after being required by notice to perform them: Holland v Wiltshire 90 CLR 409 at 420]421 and Galafassi v Kelly [2014] NSWCA 190 at [79] to [84]. Here, after being served with the breach notice the Builder continued to repudiate his obligations by failing to remedy the breaches in the breach notice, continuing to suspend the building works, continuing to fail to pay the architect's fees, continuing to fail to perform obligations to prepare building drawings and plans under schedule 4 of the contract and continuing to fail to resolve Variation 2 after the Homeowners had indicated that they were willing to proceed with the "third option" regarding Variation 2. In addition, the Builder did not perform any building work on the site. The Homeowners contend that by this conduct the Builder conveyed little interest in fulfilling his contractual obligations and his conduct evinced an unwillingness or inability to render substantial performance of the contract. In the circumstances, the Homeowners did not lose their entitlement to accept the Builder's continuing repudiatory conduct and terminate the contract as they did by the termination notice dated 21 June 2018.
6. Accordingly Ground 6 should be rejected.

Ground 7: Tribunal erred in implying that the Homeowners' alleged termination notice was implicitly made under clause 27.3 with no evidence to support implication

1. The Homeowners submitted that their submissions concerning Ground 6 answer the Builder's submissions in support of Ground 7.

Ground 8: Tribunal erred in concluding the slab was of no value with no evidence to support its finding in implying that the slab had no value as it was not yet certified

1. The Homeowners submitted that what they received fell far short of substantial performance of the building works particularly having regard to what remained on the building site, namely an uncertified and non-compliant slab when they issued the termination notice. In addition, there was a frame that had to be dismantled. No building works of substance occurred following the addendum and the Homeowners did not receive anywhere near a substantial part of the benefit expected under the contract and the addendum. This ground should be rejected.

Homeowners' Further Submissions

1. As indicated , the Builder's submissions in reply were in part an elaboration upon submissions made in chief. As a consequence, the Homeowners filed a further set of submissions in response and what follows is a summary of those submissions together with the submissions made orally by the Homeowners' counsel at the hearing. The Homeowners submitted that the transcript reveals that the Builder's legal representative had spent two hours approximately cross-examining one of the Homeowners on the first day of the hearing and another hour on the second day. The Builder's representative spent approximately two hours in cross-examining Mr Cutcher. The Builder's representative had ample opportunity to cross-examine the Homeowners' witnesses. With respect to the expert, Mr Drakakis, there is no evidence that the Homeowners requested Mr Drakakis for cross-examination. In any event, his evidence was contained in a report dated 14 November 2017 and no building works of substance were performed after that date.
2. The Builder has broadened the basis for Grounds 1, 2, 3 and 5 by submitting that if those grounds are not based upon an error of law (being that there was no evidence to support the Tribunal's findings) the Tribunal's findings were against the weight of the evidence. The contention that a finding is against the weight of evidence does not deal with or give rise to an error of law, but may be a ground in respect of which leave is required. However, the Builder's submissions do not address how these findings of fact were unreasonably arrived at or clearly mistaken. The Builder must demonstrate that the Tribunal's findings were more than arguably wrong or that there was a bona fide issue of fact: see Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [55] and BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19]-[20].
3. The Builder's submissions draw attention to evidence which it is said demonstrates that the Tribunal's findings were contrary to the material in that evidence. The Homeowners submitted that that approach ignores other evidence and that the totality of the relevant email correspondence, together with Mr Cutcher's minutes of meetings held in February, March and April 2018 and his Statutory Declaration, demonstrate evidence in support of the Tribunal's findings of delay, non-payment of architect's fees, repudiation and termination.
4. The Homeowners submitted that the Tribunal's findings of the Builder's delay and repudiation were reasonably open on the evidence when considered as a whole and in the appropriate context.
5. In respect of Ground 8 (which concerns the slab and piers) the Homeowners submitted that the Builder's submission that the contract was divisible because it provided for the work to be done in stages was a point not advanced previously in the appeal or in the hearing below. The Homeowners submitted that the Builder's reliance upon the judgment in Mann v Paterson Constructions Pty Ltd [2019] HCA 32 is misplaced because that case concerned a builder's right to recovery in respect of completed stages which are said to be limited to the amount due under the contract while the right to recovery in respect of uncompleted stages is restricted to restitution for work and labour done in respect of those stages or breach of contract. Here, the Builder's submission refers to a builder's right of recovery under a staged construction contract, rather than (as in the present case) the Builder's right to recover money paid where the basis of the payment has failed. The Homeowners submitted that in the present case the very purpose for the payment of $446,513.65 namely for the construction of a residence failed to materialise, because the Builder performed no work under the contract after the joint report dated 14 November 2017 despite the Builder preparing a project plan approved by the architect. The Homeowners submitted, contrary to the Builder's submissions, that the value of the Builder's performance (as evidenced by the ultimate state of the slab and piers after the contract was discharged) compared to the contractual promise to construct a residence in accordance with the contract and the addendum was so insubstantial as to represent a total failure of consideration.
6. The Homeowners further submitted that, even if one assumes in favour of the Builder's reliance upon Mann v Paterson Constructions that the contract and addendum is divisible, the first stage remained substantially incomplete and is rendered nugatory (because Hills Shire Council has suggested to the Homeowners that the slab, piers and stormwater may need to be removed and reconstructed) and the framework and steel beams in the second stage have had to be dismantled. The remaining four stages have not been performed at all.
7. The Homeowners submitted that the Builder's submissions misrepresent the value of the slab. The slab represented one of the components to be constructed under the first stage of the contract. The slab remained uncertified and there was evidence that the structural engineer failed to provide to Hills Shire Council a signed slab plan. The architect requested from the Builder structural certification of the footings and slab on two occasions before any building work could recommence. The Builder did not provide any structural certification of the slab.

Consideration

1. Appeals from decisions made in the Consumer & Commercial Division of the Tribunal are regulated by the Civil & Administrative Tribunal Act (NCAT Act) in two places: 1. Section 80 of the NCAT Act provides that an appeal lies as of right on any question of law. 2. Clause 12 of Schedule 4 of the NCAT Act provides that leave to appeal may be granted only if the Appeal Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision under appeal was not fair and equitable or was against the weight of evidence or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. In this appeal, the Builder's grounds rely upon assertions of errors of law and upon the assertion that certain findings of the Tribunal were made against the weight of evidence.
3. The errors of law relied upon by the Builder in this case are: 1. a failure to provide proper reasons; 2. the failure to afford procedural fairness; 3. that there was no evidence to support certain findings of fact. We will deal more directly with each of these suggested errors of law in the context of dealing with each of the grounds of appeal.
4. Insofar as the grounds of appeal rely upon the provisions of clause 12 of schedule 4, the Builder has not persuaded us that there has been any substantial miscarriage of justice. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel of the Tribunal set out the principles relevant to clause 12 for the granting of leave. At [84] of Collins v Urban the general principles were summarised as follows: 1. In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bone fide challenge to an issue of fact. 2. Ordinarily, it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or matters of administration or policy which might have general application or an injustice which is reasonably clear, or a factual error that was unreasonably arrived at and clearly mistaken or the Tribunal having gone about the fact-finding process in such an unorthodox manner that it was likely to produce an unfair result so that it would be in the interests of justice for to be reviewed.
5. We are not satisfied that the grounds of appeal raise any matters that would fall within the criteria mentioned above derived from the principles set out in Collins v Urban.
6. In the following paragraphs we deal with each of the grounds of appeal and in doing so explain the reasoning behind our decision that this appeal should be dismissed with an order for costs in favour of the Homeowners.

Ground 1

1. The Builder's submissions accept the proposition that finding a solution to Variation 2 was critical to progressing the works. The Tribunal found that during March and April 2018 the Builder became unwilling to address or provide a solution to Variation 2. A critical piece of evidence was the Builder's email of 17 March 2018 to the architect in which the Builder stated that he would "rather stay away from the problems until you resolve the issue" (AB 1180). In our view, the Tribunal was entitled to the finding it made at [33] that the Builder was "refusing or at least delaying" in his obligations to resolve Variation 2 as he was obliged to do so by virtue of clauses 2.10.3 and 2.10.4 of the addendum. The Builder placed some reliance upon Mr Cutcher's email of 19 March 2018 (AB 1200). That email merely confirms that the Builder discussed with Mr Cutcher the "Variation 2 problem". The email also says that the builder "made no attempt to suggest a solution".
2. At [43] the Tribunal stated that it was satisfied that the Builder had failed to progress the works and in particular the project plans. The Tribunal also found that the Builder failed to pay Mr Cutcher his fee and that that had "created an inordinate delay by the Builder [55].
3. In our view, the Homeowners' submission is correct in stating that Ground 1, based, as it is, on the allegation that there was no evidence to support the Tribunal's findings must fail. This is because there was ample evidence in our view from which it was reasonably open for the Tribunal to conclude, as it did, that the Builder was responsible for inordinate delay in progressing the works. The Homeowners' submissions summarised earlier in this decision refer to such evidence - see paragraph 49 of this decision.
4. The Builder's submissions refer to evidence that suggested that the completion date was extended from 31 October 2018 to 8 December 2018, a fact which the Builder says was overlooked by the Tribunal. We agree with the Homeowners that that possible oversight by the Tribunal is not a matter which impugns the reasoning of the Tribunal. As the Homeowners' submissions state, the Tribunal found that the Builder had by June 2018 failed to progress the works, had failed to undertake the Builder's contractual responsibilities regarding Variation 12 and had failed to pay the architect. These matters existed whether or not the Tribunal was mistaken about the completion date.
5. In our view, the failure of the Builder to pay the architect's fees leading to his resignation was significant because, as the addendum reveals, the architect was given significant power to break any impasse between the parties by having the authority to resolve disputes.
6. In short, Ground 1 fails because of the presence of ample evidence in support of the Tribunal's findings. Our view is consistent with and follows the decision in Australian Broadcasting Commission v Bond to the effect that a decision can be set aside where the decision-maker makes a finding without probative evidence to support it or has drawn an inference which is not open on the primary facts. However, if the particular finding or inference of fact is reasonably open on the evidence before the Tribunal, no error of law has occurred and no review can occur on that basis.

Ground 2

1. This concerns the Builder's contention that there was no evidence to support the Tribunal's finding of fact that the development of the model by the architect was not unreasonable and was not beyond the scope of the work of the architect. This ground involves a consideration of the obligations of the architect under the addendum. Clause 3.1.4 of the addendum gives to the architect a power to resolve "all disputes and difference". These powers include matters concerning Variation 2 which is dealt with in clauses 2.10.3 and 2.10.4. Clause 2.10.3 refers to the possibility of the architect determining that the works to be performed will not ensure or result in the structural integrity of the works. The Builder's contention is that the architect built a model and that that fell outside the architect's role. The Tribunal found that the development of the model was not outside the scope of the work [51]. We do not agree with the Builder's contention and our view is the same as that expressed in the Decision. We do not see how the development of a model would necessarily be outside the scope of authority to resolve all disputes and differences.
2. The Builder sought to make an issue out of the architect's email of 19 March 2018 (AB 926) in which the architect wrote "I have gone beyond my role by my detailed review of the stair set out but I wanted to test my suspicion that the stairwell is too small." It seems clear on its face that the architect's intention in preparing the model was to facilitate resolution of a dispute or difference. The reference to going beyond "my role" appears not to relate to the preparation of the model, but to the detailed review. In any event, the architect's own view as to the limit of his authority may be inaccurate. We are of the view that the architect's work revealed in the email of 19 March does not demonstrate that the architect went beyond his authority.
3. Accordingly, we do not accept the Builder's contention that the Builder was not obliged to pay the architect's fees. There is, in our view, ample evidence before the Tribunal to enable it to have concluded (as it did) that the architect's fee was payable by the Builder (as to the Builder's share), that it was not paid and that as a consequence, the architect resigned.
4. In our view, this ground identifies no error of law and is to be rejected.

Ground 3

1. This ground concerns the contention that there was no evidence to support the finding of fact that the Builder was in substantial breach with respect to delay and the failure to pay the architect's fees. This ground overlaps with and covers the same issues as in Grounds 1 and 2. For the same reasons that lead us to reject Grounds 1 and 2 we also reject Ground 3.
2. The Builder also took issue with the Tribunal's finding that the Builder's failure amounted to a substantial breach of the contract without considering the meaning of substantial breach. In particular the Builder's submission relied upon a decision of an Appeal Panel in Dimitropoulos v Capital Constructions Pty Ltd.
3. In our view the Tribunal did give adequate reasons for its finding that the Builder was in substantial breach. The reasons were foreshadowed in [30] of the Decision where the Tribunal found the Builder to be in substantial breach because of the "inordinate delay" in progressing the works from February until May 2018 and failure to pay Mr Cutcher. The paragraphs that follow make more detailed findings concerning that delay and the failure to pay Mr Cutcher.
4. In Dimitropoulos v Capital Constructions Pty Ltd, the Tribunal explained the authorities concerning the meaning of the term "substantial breach" where it is used in a building contract but is not defined. The authorities referred to in Dimitropoulos refer to the need of the court or tribunal to identify the terms breached and to then evaluate the breaches by considering their nature and consequences. A substantial breach is one that is not trivial or inconsequential. Here the term "substantial breach" was used in clause 27 to refer to breaches which, if identified in a prior notice of breach, may entitle the party giving the notice to end the contract by further notice if, after the elapse of 10 working days, the identified breaches are not remedied.
5. It is clear from the Decision that the Tribunal found the delay in progressing the works was due to the Builder and not to the Homeowners [36] and that that failure and the failure to pay Mr Cutcher amounted to a substantial breach [55]. In coming to that view and relying upon Dimitropoulos the Tribunal found that only breaches contained in the notice of breach can be relied upon to end the contract [26]. It is clear that the Tribunal considered the breaches attributed to the Builder as significant in the sense that they were breaches which were identified in the breach notice [28], were not remedied by the Builder [29] and that they had involved inordinate delay[30]. The Tribunal's analysis was consistent with the authorities referred to in Dimitropoulos.
6. In our view, there were findings of fact sufficient to support the finding that the Builder was in substantial breach with respect to delay and the failure to pay the architect's fees. Accordingly this ground is rejected.

Ground 4

1. This concerns the alleged failure of the Tribunal to take into account a relevant consideration, namely the effect of clause 30 of the contract. That clause provides that if the Homeowners end the contract under clause 27, the Homeowners must complete the works and then follows a mechanism for the Builder to pay compensation to the Homeowners if the Homeowners' ultimate costs are more than the contract price, and for the Homeowner to pay the Builder the amount of the difference if the Homeowners costs are less than the contract price. We agree with the Homeowners' submissions that clause 30 has no role to play if the contract is terminated under a general contractual entitlement: see the judgment of Basten JA in Torbey Investments Incorporated Pty Ltd v Ferrara [2017] NSWCA 9 at [47]-[50] where it was held that clause 30 does not remove any general contractual entitlement to terminate for repudiation or to recover the costs of completion of the building works. Here, the Tribunal found that the contract had been repudiated by the Builder [59] and that the Homeowners had "validly terminated" the contract [61]. Accordingly, clause 30 did not impact upon the Homeowners' entitlements following termination for the Builder's repudiation. Ground 4 is rejected.

Ground 5

1. This ground concerns the finding that the architect acted within his role under the addendum. We have already discussed this ground in substance in our consideration of ground 2. In short, the Tribunal's decision does not display any error of law in its consideration of the extent of the architect's authority under the addendum and no leave ground has been established.

Ground 6

1. This ground concerns the Builder's submission that the Tribunal erred when considering whether the Builder had repudiated the contract and whether the Homeowners had validly terminated the contract at common law. We do not agree with the Builder's submission that, in finding that the Builder had repudiated the contract, the Tribunal failed to consider whether the repudiation was based upon renunciation. The Tribunal found that the termination notice validly terminated the contract because of the Builder not progressing the works and failing to pay Mr Cutcher and refusing to remedy those breaches [59]. It is evident from those findings that the Tribunal was correctly applying the approach identified in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd. In other words the issue was whether the Builder's conduct was such as to convey to a reasonable person in the situation of the Homeowners' renunciation of either part of the contract as a whole or as a fundamental obligation. At [61] the Tribunal found that the Builder's conduct was such as to amount to refusal to be bound by the contract and in particular the addendum. In our view that finding is consistent with the principles enunciated in Koompahtoo.
2. We also reject the Builder's submission that by issuing the breach notice the Homeowners had elected to affirm the contract and had thereby made an election to continue with the contract. We agree with the Homeowners' submission that the issue of the breach notice does not constitute an affirmation of the contract. This view is consistent with the High Court judgment in Perri v Coolangatta Investments Pty Ltd and, in any event, the Homeowners were not precluded by the issue of the breach notice from subsequently terminating the contract by reason of the Builder's repudiatory conduct continuing after being required to perform by the breach notice: see Holland v Wiltshire which is relied upon by the Homeowners submissions with which we agree.
3. Ground 6 is rejected.

Ground 7

1. This ground concerns the finding that the termination notice was implicitly made under clause 27.3 of the contract. We are of the opinion that our reasoning with respect to the rejection of Ground 6 also applies to Ground 7.

Ground 8

1. This ground concerns the submission that the Tribunal erred in concluding that the slab was of no value. At [69] of the Decision, the Tribunal found that there was correspondence from the Council to the effect that the slab will need to be demolished or "at the very least other steps taken in relation to satisfying compliance". In addition, the Tribunal in the same paragraph has inferred that the Builder would have been unable to produce certification as to the slab being compliant (it being open to the Builder to provide such certification) and the Tribunal further inferred that the Council would not issue an occupation certificate. The Builder has not pointed to contradicting evidence and the submissions made do not in our view address the findings made by the Tribunal at first instance. For example, the Builder submits that the experts in their joint report had quantified the cost of obtaining certification as being in the order of $1,000. However, there was no submission, supported by persuasive evidence, that the slab was compliant and therefore certifiable.
2. The Builder's reference to the High Court decision in Mann v Paterson Constructions is in our view unpersuasive because the principles relied upon by the Builder in that case concerned stages in a building contract which had been completed. Here, there was a finding of a total failure of consideration.
3. The Builder's submissions included reliance upon a statement made by one of the experts in a report (see AB 547) that the expert had spoken to an engineer, Mr Ranji, who is reported by the expert as having advised that he had inspected foundational material including the concrete slab and that he was satisfied that the work had been performed in accordance with the drawings. The expert then states that " I have therefore assumed that the Engineer will provide the relevant certification". This evidence does not detract from the inference drawn by the Tribunal which is recorded in [69] to the effect that it was open to the Builder to provide certification and that, as he had not done so, the Tribunal was satisfied that without it the Council will not issue an occupation certificate.

Procedural Fairness Ground

1. The Builder submits that there was a failure to provide procedural fairness in a number of respects. First, it is submitted that the Tribunal should not have accepted into evidence the expert witness reports. However, there is nothing in the Decision which suggest that any reliance was placed upon those reports. Similarly, it is said that there was no opportunity for the experts to be cross-examined. For the same reason, namely that their evidence does not appear to be relevant to the findings made by the Tribunal, this submission has no merit. In any event there is no evidence that they were required for cross examination. A third complaint made by the Builder was that the Tribunal failed to allow the Appellant's representative to sufficiently cross-examine one of the Homeowners. At the end of the cross-examination the representative for the Builder stated that he did not "have anything further" (AB 0115) indicating in our view that he was of the opinion that his cross-examination had been adequately completed. Similarly, at the conclusion of the cross-examination of Mr Cutcher, the representative for the Builder did not give any indication that he desired to cross-examine Mr Cutcher further or that his attempts to that point had been thwarted to any degree, (AB 0160).
2. In our view the assertions that the Builder suffered procedural unfairness are not made out. The Builder's representative drew our attention to a portion of the transcript (AB 69) in which the representative for the Builder protested at being hurried during the course of cross-examining one of the Homeowners. That statement was in response to a suggestion from the member that she expected to have the cross examination concluded within what appears to be the next hour. It also appears from the transcript that the cross-examination of the Homeowner continued for some considerable time after that exchange. Indeed at AB115 the cross examination concludes with the Builder's representative stating that he was " happy" and had no further questions.

Conclusion

1. For the reasons given above, all grounds of appeal are rejected and accordingly, the appeal should be dismissed. An order to that effect will be made.

Costs

1. Costs in relation to the proceedings under appeal are to be determined by reference to clauses 38 and 38A of the Civil & Administrative Tribunal Rules 2014 (the Rules), which provide relevantly that the Tribunal may award costs even in the absence of special circumstances warranting such an award if the amount claimed or in dispute is more than $30,000 ( as is the case in these proceedings). Clause 38A provides that the regime applicable at first instance (in this case the application of rule 38) applies to costs of the appeal.
2. Nothing has been raised in the parties' submissions which would suggest that anything other than the usual costs order should prevail in circumstances where the appeal is to be dismissed. Accordingly, we propose to make an order that costs of the appeal will be payable by the Builder.
3. The Appeal Panel makes the following orders: 1. Appeal dismissed. 2. The Appellant is to pay to the Respondent the Respondents' costs of the appeal in an amount as agreed or as assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2020