Jubian v Clark; Clark v Jubian

The jurisdiction of the Appeal Panel

1. There is no dispute that the decision of the Tribunal from which the parties seek to appeal is an "internally appealable decision" to the Appeal Panel: see subs 27(1) and 80(1) of the Civil and Administrative Tribunal Act 2013.
2. Subsection 80(2)(b) of Civil and Administrative Tribunal Act 2013 provides that an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
3. Where leave is sought from a decision of the Consumer and Commercial Division of the Tribunal, the Appeal Panel's power to grant leave is set out in clause 12 of Schedule 4 of the Civil and Administrative Tribunal Act. That clause relevantly provides as follows: "12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)."

Matter in issue and material before the Appeal Panel

1. The matters in issue in the builder's appeal are as follows: 1. has the builder raised a question of law in his grounds of appeal? or 2. in the alternative, whether leave to appeal should be granted in the event the builder establishes he has suffered a substantial miscarriage of justice?
2. The matters in issue in the homeowners' appeal are: 1. should time be extended within which the homeowners are to lodge their appeal? 2. has the appellant raised a question of law in their grounds of appeal? and 3. in the alternative, whether leave to appeal should be granted in the event the builder establishes he has suffered a substantial miscarriage of justice?
3. Each party also sought an order that the other party pay their costs of this appeal. We have not determined this issue. However, we have made orders in the event either party wishes to pursue their application for an order in this regard.
4. The material before the Appeal Panel included the following: 1. a folder containing an agreed bundle of documents, a small folder of agreed supplementary bundle of documents and a small further agreed supplementary bundle of documents; 2. an affidavit of Charles Brannen, sworn on 18 June 2015. In his affidavit, Mr Brannen states the he is the solicitor with the day to day conduct of the builder's appeal. Mr Brannen deposed to communications he made to, or received from the homeowners' solicitor. Attached to the affidavit was a copy of the communications referred to; 3. an affidavit of Dan Maccallum sworn on 16 June 2015. In his affidavit, Mr Maccallum states he is the solicitor for the homeowners in these appeals. Mr Maccallum states that between 5 February and 21 May 2015 he was actively involved in attempting to settle the dispute between the homeowner and the builder; 4. detailed written submission were provided by both parties. With the leave of the Appeal Panel, subsequent to the hearing the homeowners filed written submissions in reply to the submissions filed by the builder in response to their appeal.

The builder's appeal

1. The builder's grounds of appeal, as set out in his Amended Notice of Appeal, can be conveniently categorised as follows: 1. the Tribunal erred in law in failing to determine the builders claim for a set-off for the amount of $1,650 and $2,717 against the homeowners' overpayment claim (the set-off ground). The $1,650 related to that which was due to the builder under the contract at the time of handover and the $2,717 related to fence hire costs incurred by the builder as part of the building work he had undertaken at the homeowners' home; 2. the Tribunal erred in law in declining to make a work order in regard to the homeowners claim for defective work (the work order ground). The appellant argued that the Tribunal erred in finding that the appellant had abandoned the contract with the home owner; and 3. in the alternative to (a) and (b) above, leave to appeal was sought in regard to the set-off ground and the work order ground.
2. In their Reply to Appeal the homeowners contended the builder's set-off ground and work order ground did not raise an error of law. It was submitted that each ground related to related to findings of fact. It was also submitted that the builder had failed to establish that he had suffered a substantial miscarriage of justice warranting an order granting leave to appeal.

The set-off ground

1. We agree the builder's set-off ground does not raise a question of law, but raises questions of fact.
2. The parties did not dispute that the Tribunal had correctly described the nature of the proceedings before it. That description is found at [9] to [13] of the Tribunal's reasons for decision as follows: "THE HOMEOWNERS' CASE 9 Put simply, the homeowners' case falls into two parts. The first is the alleged "overpayment" of money they say they paid to the builder, which they now seek to recoup. 10 The second is the alleged defective work for which they seek damages. 11 … THE BUILDER'S CASE 12 Apart from some concessions dealt with below, the builder disputes that he has been overpaid. 13 In relation to the defective work, some agreement has been reached following the conclave (also dealt with below). Apart from these matters the builder disputes liability."
3. The Tribunal dealt with the homeowners' overpayment claim at [15] to [61] of its reasons for decision. At [16], the Tribunal said: "16 There is no dispute that the homeowners have paid progress claims 1-9 as set out in the Amended Progress Payment Summary (the PP Summary) in evidence and that the Progress Claims 10-14 as set out in the PP Summary have not been paid."
4. After stating that the homeowners bore the onus to establish their claim of overpayment (see at [21]), the Tribunal made a number of remarks about the inadequacy of the evidence relied on by the homeowners in support of their claim. At [33], the Tribunal said: "33 I accept that the homeowners, in paying the builder around $220,215.00 have paid in excess of the total amount required under the contract for PCs [progress claims] 1-9 (being $167,420). The matter, however, cannot be reduced to such a simple mathematical calculation. For example, it is agreed that the builder did not construct the Garage/Studio the subject of PC9 and the home owners have paid $16,610.00 stipulated under the contract for that PC. However, the builder did construct the garages slab, a fact that must be taken into account when assessing any refund or overpayment of P9."
5. The Tribunal then went on to consider the 8 specific items the homeowners alleged they had already paid. The Tribunal only found in favour of the homeowners in respect of one item, namely $15,500.00 for windows and ceiling: see at [44]. That finding we note was made on the basis of a concession made by the builder.
6. We accept, as contended by the builder, that in his closing written submissions to the Tribunal below he had submitted that there should be a set-off of the amounts that were owing to him in regard to the handover payment and the fence hire costs. However, that submission was clearly misconceived given the nature of the homeowners' claim before the Tribunal.
7. As outlined by the Tribunal in its reasons for decision, the homeowners' claim was not a claim against the total contract amount. It was a claim against the invoices the builder had issued to the homeowner for work that had been done as at the time the invoices were issued. These being progress claims 1 to 9. We assume these did not include a claim for the handover payment or the fence hire costs, but what is clear is that the homeowners' overpayment did not include all the progress claims the builder had made or proposed to make.
8. The builder on the other hand had not made an application seeking orders that he be paid the handover payment amount or the fence hire costs. Had he done so, and if that application were successful, there would have been a right to seek final orders in which the amounts found to be owing to him would have been set-off against the amounts found to be owing to the homeowners for the purpose of final orders.
9. Accordingly, we find the builder has failed to establish this ground of appeal.

The work order ground

1. The builder's work order ground relates to the homeowners' defective work claim. This aspect of the homeowners' claim was dealt with at [62] to [130] of the Tribunal's reasons for decision. The Tribunal noted, at [62], that the builder's position was that he "has always been and remains willing to return to rectify any defective work." That is, the builder maintained that he did not "abandon the contract" as alleged by the homeowners and it was the homeowners who had unreasonably refused him access to do that work.
2. The builder has continued to maintain this position and the parties have agreed that the homeowners would not undertake any rectification work pending this appeal.
3. The Tribunal rejected the builder's assertion that he was at all times willing to undertake the rectification work and, at [68], found: "68 I find that in these circumstances it was open to the homeowners to form the view that the builder had abandoned the contract and to thus instigate these proceedings on 14 March 2013. …
4. The reasons for rejecting the assertion are set out at [63] to [67] of the Tribunal's reasons for decision as follows: "63 In finding against the builder on this point I am persuaded by the fact that on 7 March 2013 an officer from the OFT [Office of Fair Trading] issued a rectification order requiring the builder to carry out rectification work by 8 April 2013. Many of the matters the subject of this rectification order were of a substantial nature … 64 Yet the builder was unable to comply with the rectification order. 65 There is no dispute that the builder surrendered his licence on 4 February 2013 and did not regain that licence until 24 April 2013. 66 The builder has subsequently put forward explanations as to his conduct, which relate to his changing his business operations from a sole trader to a company. I am not persuaded that anything turns on this subsequent explanation. 67 What in my view is important is that at the time the rectification order was issued the builder, being the person named as the contractor in the contract, had surrendered the licence number specified in that contract. As a result he was not in a position to comply with the OFT rectification order. Indeed, the OFT officer wrote to the homeowners on 11 March 2013 advising them that as a result of the surrender of the licence the rectification order was of no force."
5. The builder argued the Tribunal erred in making this finding. The errors were described by the builder as follows: 1. the focus on the builder's inability to comply with the work order due to having surrendered his licence was too narrow; 2. the express rejection as irrelevant the builder's reasons for the surrender of his licence; 3. the surrender of the licence was not of itself capable of forming a rational basis to form a view the builder had abandoned the contract; 4. the failure to address or take into account the paucity of the evidence that the builder had refused to rectify any defects; 5. the failure to address or take into account unreasonable refusals of the respondents to allow the builder a reasonable opportunity to rectify the defects; and 6. the failure to take into account the builder's repeated request for the opportunity to rectify the defects.
6. For the reasons set out below, in our view, the above contentions of the builder do not raise any questions of law - they only raise questions of fact.
7. Neither party has questioned the Tribunal's use of the words "abandoned the contract." It would appear that this was terminology that was used by the homeowners in their submissions before the Tribunal below.
8. It is well established that termination of a contact may occur through abandonment or abrogation. The principles which govern when a party has abandoned a contract were recently reiterated by Slattery J, in Ocean Star Resort Pty Ltd v David Hokyoon Kwon [2012] NSWSC 318, at [166] as follows: "[166] Though infrequently applied, the principles that govern when a party has abandoned or abrogated a contract are well-established. Where one party fails in an action for damages for breach of contract, but the other party has not rescinded and time has passed during which neither party took steps to perform the contract, then the parties may be held to have conducted themselves so as to mutually abandon or abrogate the contract: Summers v Commonwealth (1918) 25 CLR 144, per Isaacs J at 152. Whatever the terms of a contract may be, it is possible for the parties to so conduct themselves so as to mutually abandon or abrogate it; where neither party has repudiated or refused to perform a contract, or nothing in the nature of rescission has occurred, one party is not bound to give the other unlimited time to do that which the other has contracted to do: cf De Soysa v De Pless Pol [1912] AC 194 and Summers v Commonwealth (1918) 25 CLR 144, per Isaacs J at 152. A consequence of such abandonment and abrogation is that a deposit payable under the contract is returnable: Summers v Commonwealth (1918) 25 CLR 144 at 153 per Isaacs J. The High Court of Australia applied the same principles in DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1977) 138 CLR 423, at 434. These cases have also been applied more recently in this court: cf Rona v Shimden Pty Ltd [2005] NSWSC 818at [94]-[95] per White J; Gorgas v Soon Ok Hwang [2010] NSWSC 1121 at [45]-[54] per Palmer J and Gittany v McDowell [2009] NSWSC 591 at [56]-[61]."
9. We doubt either party, or the Tribunal had these principles in mind when using the words "abandoned the contract" and we caution against the use of such words where they have a specific legal meaning and are of no application to the matter before the Tribunal.
10. In our view, having regard to the reasons for decision set out above, the Tribunal's reference to the builder having abandoned the contract was a reference to the builder having repudiated the contract when he surrendered his licence on 4 February 2013 and the homeowners having accepted the repudiation by commencing proceedings in the Tribunal on 14 March 2013. That is, the contract was terminated by the homeowners prior to the builder having had his licence re-instated.
11. In our view, such a conclusion was open to the Tribunal on the material before it.
12. As noted in the Tribunal's reasons for decision the parties entered into a written contract, pursuant to the Home Building Act 1989, on 12 February 2012. At the time the builder entered this contract he was the holder of a contractor licence, under s20 of the Home Building Act, and authorised to enter the contract and undertake the residential building work the subject of the contract. A subsequent suspension, cancellation or surrender of his contractor licence would mean that the builder's authority to undertake the work the subject of the contract, or to contract another licence holder to undertake that work would also be suspended or cancelled (see ss 4 and 5 of the Home Building Act). That is, the builder being unlicensed could not perform his obligations under the contract, nor was he able to contract another authorised/licensed builder to do the work on his behalf.
13. The facts in this case were that a dispute arose between the parties sometime in late 2012 and early 2013. In accordance with cl 27 of the contract, the homeowners notified the Office of Fair Trading (OFT) (see also s48C of the Home Building Act). On 7 March 2013, the OFT issued a "rectification order" requiring the builder to carry out rectification work by 8 April 2013. There is no dispute that the OFT had authority to make such an order (see s48E of the Home Building Act).
14. Four days after having made the order, the OFT advised the homeowners that the builder had surrendered his contractor licence and as a consequence was unable to comply with the order. As a consequence, two days later and almost six weeks before the builder had his contractor licence re-instead the homeowners commenced the proceedings before the Tribunal seeking damages in respect of the defective work. In our view, on the basis of this evidence it was open to the Tribunal to find that the homeowners had terminated the contract on the basis of the builder's repudiation.
15. Hence, the Tribunal's findings that nothing turned on the builder's subsequent explanation as to why he had surrendered his licence were not in error.
16. On the basis of its findings, the orders the Tribunal could make were those set out in s48O of the Home Building Act. These relevantly included: "48O Powers of Tribunal (1) In determining a building claim, the Tribunal is empowered to make one or more of the following orders as it considers appropriate: (a) an order that one party to the proceedings pay money to another party or to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person, (b) …, (c) an order that a party to the proceedings: (i) do any specified work … or any obligation arising under this Act or the terms of any agreement, or (ii) … (2) The Tribunal can make an order even if it is not the order that the applicant asked for. (3) …"
17. While the Tribunal had power to make a rectification order under subs 48(1)(c)(i), it was well within its discretion not to do so. Instead it made an order under subs 48O(1)(a), which was open to it on the basis of its findings and material before it.
18. In this regard, we note that s48MA of the Home Building Act did not come into force until after the homeowners had commenced proceedings against the builder. That section requires the Tribunal, in determining a building claim under the Act, to have regard to the "principle that rectification of the defective work by the responsible party is to be a preferred outcome." That is, this was not a principle the Tribunal was required to apply and even if it did apply the result may have nevertheless been the same.
19. Accordingly, we find the builder has not established this ground of appeal.
20. Finally, on the basis of our findings above and the reasons given by the Tribunal in regard to the orders it made, we find the builder has also failed to establish his application for leave to appeal, as he has not established that he has suffered a substantial miscarriage of justice.

The homeowners' appeal

1. As we have noted above, the homeowners require an extension of time within which to lodge their appeal. We have dealt with this below.
2. In their Notice of Appeal the homeowners identified four grounds of appeal. The first three grounds they acknowledged required the leave of the Appeal Panel. The remaining ground, raised in the alternative to the first three grounds, was that the Tribunal failed to give reasons or proper reasons for rejecting their claims which were the subject of the first three grounds of appeal.
3. At the hearing of their appeal, the homeowners did not press the first ground of appeal. Hence their grounds of appeal were as follows: "2. The Tribunal Member was in error in not determining an amount of damages in relation to the wall encroaching onto the adjoining owner's property. 3. The Tribunal member was in error in not determining an amount of damages in relation to the payments made to the builder's nephew. 4. Alternatively, the Tribunal gave no reasons or proper reasons for rejecting the above claims by the Owners."

Extension of time application

1. As we have noted, rule 25(4) of the Civil and Administrative Tribunal Rules prescribes the time within which an internal appeal is to be lodged - that time is within 28 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the latter). In this case, time began to run from 5 January 2015 the day after the homeowners received notification of the Tribunal's decision and reasons for decision.
2. The Tribunal's power to extend time is set out in s 41 of the Civil and Administrative Tribunal Act. That section provides: "(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired."
3. As noted by the Appeal Panel in Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70, at [72], s 41 gives the Tribunal an unfettered discretion to extend time. However, that discretion must be exercised judicially and having regard, among other things, to s 36 of the Act and the need "to facilitate the just, quick and cheap resolution of the real issue in the proceedings".
4. At [73] and [74], the Appeal Panel went on to say: "73 The discretion to extend time is given for the sole purpose of enabling the Tribunal, in this case the Appeal Panel, to do justice between the parties. In order to determine whether the rules will work an injustice, it is appropriate to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time. It is also appropriate to consider the prospects of the appellant succeeding in any application for leave to appeal and on the appeal itself. In order to justify the Appeal Panel extending the time, there must be some material upon which the Appeal Panel can exercise its discretion. See Nanschild v Pratt [2011] NSWCA 85 at [38]; Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2] and the authorities referred to there; and also Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16] and Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. 74 Time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings and to achieve finality in litigation. For these reasons, time limits should generally be strictly enforced unless the interests of justice require that an extension be granted."
5. In Jackson v Land and Housing Corporation [2014] NSWCATAP 22 at [22], the Appeal Panel set out the relevant considerations in deciding whether to grant an extension of time in which to lodge a Notice of Appeal. In summary, these included: 1. the length of the delay; 2. the reason for the delay; 3. the appellant's prospects of success, that is usually whether the appellant has a fairly arguable case; and 4. the extent of any prejudice suffered by the Respondent to the appeal.
6. As we have noted, the homeowner's appeal was lodged almost four months out of time. Furthermore, it was lodged some three months after the builder had lodged his appeal. In our view this is a considerable period of delay.
7. The reasons for the delay are set out in the affidavit of the homeowner's solicitor, Mr Dan Maccallum. It was his evidence that between 5 February and 21 May 2015 he was actively involved in attempting to settle the dispute between the parties and it was not until 21 May 2015, when settlement negotiations had been exhausted that the homeowners lodged their appeal.
8. In his affidavit, Mr Charles Brannen, the builder's solicitor set out in some detail the exchanges of correspondence between himself and Mr Maccallum. Mr Brannen also attached copies of the correspondence to his affidavit. In this regard we note the following: 1. on 21 January 2015, the homeowners conceded that the "Appeal period is 28 days from 5 January 2015 (i.e. 2 February 2015)"; 2. on 23 January 2015, the homeowners stated their intention to appeal if the builder appealed; 3. on 28 January 2015, the builder wrote to the homeowners noting that regardless of his position the last day within which to lodge an appeal was 2 February 2015 and that he would not consent to an extension of time if the homeowners lodged an appeal outside of this time; 4. on 2 February 2015, the builder lodged his appeal and notified the homeowners of this appeal the following day. A copy of the Notice of Appeal was forward to the homeowners on 5 February 2015; 5. on 12 February 2015, the solicitors for the homeowners filed a Notice of Appearance in the builder's appeal; 6. on 9 April 2015, the builder's solicitor sent an email to the homeowner's solicitor advising them of their client's instructions to seek a timetable at the call-over before the Appeal Panel for the progress of the builder's appeal as the proposed changes by the homeowners to the draft deed had not been agreed to by the builder; 7. 0n 30 April 2015, the homeowner's solicitor wrote to the builder's solicitor to advise that their clients were going to file a cross-appeal the following week. That appeal, was not filed until three weeks later.
9. While the homeowners appeal was lodged late, the hearing of the builder's appeal was not delayed. However, as we have noted appeals should be lodged within the prescribed time and we are not satisfied the homeowners have provided a satisfactory explanation for the delay to warrant an extension of time. We accept there were settlement discussions but this alone is not a basis for delay in lodging an appeal. In this case, even when these appear to have broken down the homeowners continued to delay in lodging their appeal.
10. For the reasons set out below we have found that there is no merit in the homeowners' appeal and application for leave to appeal. Hence, it is appropriate to refuse the homeowner's application for an extension of time to lodge their appeal and their application for leave to appeal.

The merits of the homeowner's appeal and application for leave to appeal

1. As we have noted the homeowners are seeking leave to appeal in respect of two classes of damages determined by the Tribunal and in the alternative they argue that the Tribunal failed to give reasons, or adequate reasons for its determination. It is well established that a failure to give reasons or adequate reasons raises a question of law: see Collins v Urban [2014] NSWCATAP 17 at [47] ff; Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 (Porter), at [32] and John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, at [14].

The encroaching wall

1. The Tribunal's reasons and findings in regard to the wall encroaching onto the adjoining owner's property is found at [75] to [81] of its reasons for decision. There was no dispute between the parties that the wall constructed by the builder encroached onto the adjoining property. Nor was the extent of the encroachment disputed, which was described by the Tribunal at [75] as follows: "75 There is no dispute that this wall encroaches onto the adjoining owner's property from between .035 to .055m and that at the time the homeowners brought this application the then owners of that property were threatening legal action under Encroachment of Buildings Act."
2. The Tribunal's findings are set out at [81] as follows: "81 Although I accept the homeowners' case that under the contract it was the builder's responsibility to ensure construction within their boundaries, in light of the size of the encroachment, the fact that there is no evidence that this is currently posing any threat to the homeowners and the fact that in the event that such a problem does arise, there is a legislative scheme in operation to specifically address the matter, I find it would be unreasonable to make an order for $23,500.00.00 (sic) to have the wall demolished and reconstructed."
3. In their written submissions the homeowners contended that the Tribunal's conclusion "fundamentally misallocates the risk in favour of" the builder, the party in breach. That is, the builder "avoided the consequences for a serious and proven breach on the basis that the neighbours have not yet sought demolition or action under the relevant legislation." The homeowners went on to say: "That, with respect, avoids the issue of compensation for proven breach. The loss suffered is the cost of demolishing the wall and constructing a new wall in the proper place. That should have been the decision reached and would have been in accordance with established authority …"
4. In our view, the homeowners' contentions are misconceived.
5. We understand there was otherwise no dispute about the manner in which the builder had built the actual wall. The only dispute related to the slight encroachment of part of the wall onto the neighbouring property, which was caused by the builder. Hence the only matter in issue was what was the loss and damages, if any, suffered by the homeowners as a result of that encroachment.
6. In support of their claim the homeowners cited a number of authorities including the decision of McDougall J in Bannister & Hunter v Transition Resort Holdings (No 3) [2013] NSWSC 1943 at [302] to [345]. It is instructive to set out the first few paragraphs where His Honour set the principles that apply: "302 The general rule, in relation to a contract for the performance of building work (and in my view, the same general rule applies to a contract for the performance of engineering work), is that where the builder departs substantially from the specifications, the proprietor's damages are not limited to any diminution in value of the building but, rather, are the cost of making the work conform to the specifications (and any consequential losses). That principle is established by the decision of the High Court of Australia in Bellgrove v Eldridge (1954) 90 CLR 613 at, in particular, 617. 303 There is a qualification to the rule: namely, that the work undertaken must be necessary to produce conformity, and that this must be a reasonable course to adopt (Bellgrove at 618). 304 The decision of the House of Lords in Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344 provides an example of application of the qualification of "reasonableness". A swimming pool was to have a maximum depth of 7 feet 6 inches. After the work was completed, the maximum depth was found to be 6 feet 9 inches. There was no adverse effect on the safety, utility, or aesthetic quality of the pool, or otherwise on the proprietor's property. 305 The House of Lords concluded that the expense of reinstatement, to achieve the specified depth, would be out of all proportion to the benefit to be obtained. Thus, their Lordships said, the plaintiff was entitled to recover only any diminution in value of the property. On the facts of that case, the proprietor recovered in effect nominal damages.
7. In the case of the homeowners' claim, the Tribunal noted at [77] that the previously threatened legal action had been dissolved and there was no evidence to contradict the builder's case that the new neighbours had constructed a new wall against the homeowners' wall and had not sought damages as a contingency for legal action under the Encroachment of Buildings Act 1922.
8. At [76] the Tribunal found that the homeowners' contention that the Encroachment of Buildings Act had no effect on the encroachment defect was disingenuous. The Tribunal was also critical of the homeowners in failing to assist the Tribunal in regard to this issue. That is, the homeowners failed to address it on the relevant provisions of that Act and what their liability was, if any.
9. We note that subs 3(1) of the Encroachment of Buildings Act makes provision for the encroaching owner or the adjacent owner to make an application to the Land and Environment Court in respect of an "encroachment". We make no finding as to whether the homeowner's wall is or is not an encroachment under that Act. However, we do note that the Court is given wide powers in regard to relief for an "encroachment" as defined under that Act, including refusing to grant relief and removing the encroachment. These powers are also found in s 3 of that Act, which is in the following terms: 3 Encroachments (1) Either an adjacent owner or an encroaching owner may apply to the Court for relief under this Act in respect of any encroachment. (2) On the application the Court may make such orders as it may deem just with respect to: (a) the payment of compensation to the adjacent owner, (b) the conveyance transfer or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest therein or any easement right or privilege in relation thereto, (c) the removal of the encroachment. (3) The Court may grant or refuse the relief or any part thereof as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider amongst other matters: (a) the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be, (b) the situation and value of the subject land, and the nature and extent of the encroachment, (c) the character of the encroaching building, and the purposes for which it may be used, (d) the loss and damage which has been or will be incurred by the adjacent owner, (e) the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment, (f) the circumstances in which the encroachment was made. (4) The Court may refer to any registered land surveyor (within the meaning of the Surveying and Spatial Information Act 2002), or to any registered valuer (within the meaning of the Valuers Act 2003), any question involved in proceedings on the application. (5) This section applies to encroachments made either before or after the commencement of this Act."
10. On the basis of the abovementioned principles set out in Bannister & Hunter, the provisions of the Encroachment of Buildings Act and the material before the Tribunal, in our view, the Tribunal's finding that it would be unreasonable to make an order that the builder pay the homeowners $23,000 to have the wall demolished and reconstructed, was clearly open to it.
11. On the basis of our findings and the reasons given by the Tribunal in regard to the encroachment, we find that the homeowners have also failed to establish their alternative ground of appeal that the Tribunal failed to give adequate reasons for the finding it made in this regard. In this regard the Tribunal set out the evidence and the basis on which it reached its conclusion.

Payment to builder's nephew

1. The Tribunal dealt with this aspect of the homeowners' claim at [48] to [53] of its reasons for decision. At [53], the Tribunal made a finding disallowing the homeowners' claim.
2. At [48] and [49], the Tribunal noted that the homeowners' claimed that the $5,700 they paid to Mr Khoury, the builder's nephew, should count towards the amount they had paid the builder. The builder on the other hand said that the money paid to Mr Khoury was paid under a separate contact to the one between himself and the homeowners.
3. At [50] to [52], the Tribunal said: "50 The builder was cross-examined as to his current contact with his nephew Mr Khoury and confirmed that he knows his whereabouts and has his current telephone number. From this I am asked to draw the inference that the builder chose not to call Mr Khoury as it would not assist his case. 51 While I agree that such an inference may be drawn, it must be remembered that the homeowners bear the onus and they too could have chosen to summons Mr Khoury to appear. 52 What is more, the homeowners have provided no proof of payment and indeed what that payment related to. It is particularly perplexing that the homeowners, who chose to engage a number of experts produced no evidence to verify that the work the homeowners allege was done by Mr Khoury, fell within the scope of the contract and as such the payment made to him was, in effect, a payment made to the builder for contract works."
4. In their written submissions, the homeowners contended that the Tribunal erred in overlooking the evidence of Ms Loneragan as to what she had paid Mr Khoury and that there was no doubt that the onus lay on the builder to call Mr Khoury. The homeowners went on to argue that the Tribunal erred in failing to draw an inference, in accordance with Jones v Dunkel (1959) 101 CLR 298, that Mr Khoury's evidence would not assist the builder's case.
5. In support of their contention the homeowners referred to the recent decision of Black J in In the matter of Jo & Jo Developments Pty Ltd (Subject to a Deed of Company Arrangement) [2014] NSWSC 1444 at [11]. Again, it is useful to recite what was said by His Honour in that decision: "11 … [Messrs] Albarran and Pleash did not lead evidence from Mr Albarran in the proceedings, although Mr Pleash's evidence was that Mr Albarran was the lead appointee (T233). Where a party would be expected to, but does not, call a witness who could give evidence on a relevant matter, and the failure to call that evidence is unexplained, an inference may in appropriate circumstances be drawn that the uncalled evidence would not have assisted the party's case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [63]-[64] per Heydon, Crennan and Bell JJ; MSPR Pty Ltd v Advanced Braking Technology Ltd [2013] NSWCA 416 at [53] per Macfarlan JA (with whom Ward and Gleeson JJA agreed). …"
6. Later in that paragraph, His Honour noted that the rule in Jones v Dunkel did not mean that a failure to call certain evidence did not lead to a "discounting of the other evidence actually called." His Honour also said an inference that the uncalled evidence would not have assisted the party's case is not the same as an inference that a party's evidence would have harmed that case.
7. Once again, we are of the view that the homeowners' contentions are misconceived.
8. As noted by the Tribunal, the onus was on the homeowners to establish their claim. In their written submissions the homeowners reiterated their contentions before the Tribunal below; namely the work undertaken by Mr Khoury was primarily work they had contracted the builder to do. They went on to refer to the evidence of Ms Loneragan that was before the Tribunal. This evidence consisted of two statements made by Ms Loneragan on 7 June 2013, 3 October 2013 and 11 July 2014, a copy of which was before the Appeal Panel. Ms Loneragan's statement of 7 June and 3 October 2013 make no mention of payments to Mr Khoury. And that which is contained in Ms Loneragan's statement of 11 July 2014 is that contained in her "Summary of Over/Double Payments to Builder" at the end of her statement. That summary relevantly states: "6 All timber work by nephew (George Khoury) - $5,700.00 (being $3,700.00 + $1,900.00) - this was double billed by Tony Jubian (Amended Tender Form states included all architraves, windows and door installation."
9. Ms Loneragan did not attach to her statement any direct evidence to support this assertion and in our view, the Tribunal was correct in finding that the onus remained on the homeowners to establish this aspect of their claim in light of the builder having disputed what had been asserted in Ms Loneragan's summary.
10. Accordingly, there was no onus on the builder to call Mr Khoury as he had not made any claim in regard to the work that had been undertaken by him. Hence, there was no basis on which a Jones v Dunkel inference could be drawn against the builder.
11. On the basis of our findings, we also find that the homeowners have failed to establish their alternative ground of appeal that the Tribunal failed to give adequate reasons for the finding it made in regard to disallowing this aspect of their claim.

Conclusions

1. For the reasons set out above, we have found that: 1. the builder has failed to establish the Tribunal erred in law, or that he has suffered a substantial miscarriage of justice in the findings the Tribunal made. Accordingly, the appropriate order in regard to the builder's appeal (AP 15/05271) is to dismiss his appeal and his Application for leave to appeal; and 2. the homeowners' appeal and application for leave to appeal lacks merit and on this basis their application for an extension of time should be refused. Accordingly, the appropriate order is to refuse the homeowners' application to extend time within which to lodge their appeal (AP 15/348663).
2. Finally, as we have noted each party has made an application for costs in this appeal. As no submissions have been received in this regard it is appropriate to make orders for the filing and serving of written submissions in the event the parties wish to press their application for costs. Orders can also be made for written submissions in reply and the matter can be determined on the papers in accordance with subs 50(2) of the Civil and Administrative Tribunal Act.

Orders 1. The appeal and application for leave to appeal of Mr Jubian (file no AP 15/05271) are dismissed. 2. The application of Mr Clark and Ms Loneragan (file no AP 15/348663) to extend time within which to lodge their appeal and application for leave to appeal are refused. 3. The appeal and application for leave to appeal of Mr Clark and Ms Loneragan (file no AP 15/348663) are otherwise dismissed. 4. Orders of the Tribunal made on 30 January 2015 are confirmed. 5. In the event either party presses their application for costs of the appeal, an application and supporting submissions are to be filed within 14 days of the publication of this decision; any submissions in reply are to be filed within 14 days thereafter and, subject to the parties' submissions, the costs decision will be made on the papers pursuant to subs 50(2) of the Civil and Administrative Tribunal Act 2013.

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: 02 March 2016