Kay v 3D Design & Build Pty Ltd

Scope and nature of appeal

1. The decision under appeal is an "internally reviewable decision": ss 4, 32(4) of the CAT Act. A party may appeal an internally reviewable decision on any question of law or with the leave of the Appeal Panel on any other ground: s 80(2)(b) of the CAT Act.
2. Appeals on any other grounds from decisions made in the Consumer and Commercial Division are governed by Sch 4, cl 12 of the CAT Act. 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).
3. Section 81 of the CAT Act sets out the orders that may be made on appeal: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal.

Background

1. On 12 June 2014, the respondent filed an application pursuant to the HB Act (HB 14/32008) seeking an order, amongst others, that the appellant pay $22,240 representing the unpaid balance of the contract sum the respondent claimed was due to it pursuant to a contract dated 11 February 2013.
2. The appellant filed a cross-application (HB 14/33898) claiming the amount of $187,667 in respect of building defects and incomplete work. The appellant claimed that the respondent had breached the warranties implied into the building contract by operation of s 18B of the HB Act.
3. Directions were made for the preparation of both applications for hearing and on 30 January 2015, the Tribunal heard and determined both applications.
4. In its Reasons for Decision for the orders made on 30 January 2015, the Tribunal noted (at [10]) that the issues for determination in the applications were as follows: a. Has there been defective works sufficient to breach the warranties implied in to the building contract by s 18B of the Act?; b. Is there a proper basis for the Applicant to have the balance of the outstanding moneys under the building contract, if there are defective works and it undertakes rectification of all such defects?; and c. Is the Respondent entitled to damages for consequential economic loss?
5. We note that in the Reasons for Decision the Tribunal referred to the builder (the respondent in these proceedings) as "the Applicant" and the owner (the appellant in these proceedings) as "the Respondent", even though both parties had an application before the Tribunal.
6. The appellant submitted that the respondent had undertaken defective work and that rectification work was required. She provided evidence in support of that claim.
7. According to the Reasons for Decision, the parties agreed that the most fair and equitable resolution of the dispute as to the defects was for the respondent to agree to rectify the defective work in accordance with expert evidence produced by the appellant. The respondent accepted that the appellant's evidence established what was required to rectify the defective work.
8. This led to the parties consenting to a work order, the details of which were set out in orders 5 and 6. On the basis of the work order, the money order in favour of the respondent in the respondent's proceedings and consequential orders to give effect to the work and money order were made. The Tribunal's orders are set out in full in [19] below.
9. The Tribunal dismissed the appellant's remaining claim, namely a claim for consequential economic loss she claimed to have incurred.
10. The following documents formed part of the evidence before the Tribunal:

• A report dated 11 March 2014 prepared by Illawarra Building Appraisal Services setting out defects to be rectified ('March 2014 IBAS report').
• The rectification order dated 12 May 2014 made pursuant to s 48E of the HB Act by a building inspector of the Department of Fair Trading ('Rectification Order'). The Rectification Order records the building inspector's satisfaction that the building work was incomplete and the residential building work was defective.
• A report dated 26 September 2014 by GP Design Pty Ltd ('GP Design Report') that set out a further schedule of defects.

1. The orders made by the Tribunal on 30 January 2015 were as follows: 1. By Determination of member, on 30 January 2015 the hearing was adjourned to a date to be fixed by the Registrar. 2. By consent, Amber Kay 31 Somerville Street BULLI NSW 2516 Australia to pay 3D Design & Build Pty Ltd 15 Belgenny Avenue CAMDEN NSW 2570 Australia the sum of $22240.00 on or before 01-Apr-2015, being the amount of the Respondent's claim in proceeding HB 14/32008. Reasons: - $22,240.00 The balance due under the Building Contract dated 11 February 2013 the subject of the claim in proceeding HB 14/32008. 3. By consent, order 2 is stayed pending the carrying out and taking into effect of the work orders made by orders 5 & 6 below. 4. Upon the Respondent filing with the Registrar a certificate from the Department of Fair Trading, which records the satisfactory completion of all rectification works required by orders 5 & 6 below, the stay of order 2 shall thereupon be dissolved (but in any event not before 1 April 2015), and the Registrar shall provide to the Respondent a money order for the sum of $22,240.00. 5. By consent, the Tribunal orders that the respondent(s): 3D Design & Build Pty Ltd 15 Belgenny Avenue CAMDEN NSW 2570 Australia is to cause the undertaking of the following work in a proper and workmanlike manner on or before 31-Mar-2015. Details of Work order: Undertake and carry into effect, taking all necessary steps and retaining any and all sub-contractors as may be required to give effect to the works, the schedule of rectification works contained within paragraphs 5.1.1 - 5.1.7 inclusive of the report of GP Design Pty Ltd dated 26 September 2014, which is contained within Ex.2, Tab 46 of the materials received in evidence before the Tribunal on 30 January 2015. Additionally, 6. By consent, the Tribunal orders that the respondent(s): 3D Design & Build Pty Ltd 15 Belgenny Avenue CAMDEN NSW 2570 Australia is to cause the undertaking of the following work in a proper and workmanlike manner on or before 31-Mar-2015. Details of Work order: Undertake and carry into effect (taking all necessary steps and retaining any and all sub-contractors as may be required to give effect to the works) the schedule of rectification works contained within the Rectification Order made by the Department of Fair Trading dated 12 May 2014, which is contained within Ex. 1, Green divider, Tab 3 of the material received in evidence before the Tribunal on 30 January 2015. 7. Amber Kay shall allow 3D Design & Build Pty Ltd reasonable access to the premises for the purpose only of carrying out an inspection for the purposes of carrying out orders 5 & 6 above. On such occasion, 3D Design & Build Pty Ltd and Amber Kay (or their representative), may be accompanied by a building consultant or other expert witness. Such access to occur on or before 15 February 2015. 8. The applications in proceedings HB 14/ 32008 and HB 14/33898 are otherwise dismissed. 9. No order for costs.
2. Order 4 made on 30 January 2015 was subsequently amended, purportedly pursuant to s 63 of the CAT Act, so that it read as follows: 4. Upon the Respondent filing with the Registrar a certificate from the Department of Fair Trading, or such other Private Certifying Authority as may be retained for the purpose, and which records the satisfactory completion of all rectification works required by orders 5 & 6 below, the say of order 2 shall thereupon be dissolved (but in any event not before 1 April 2015), and the Registrar shall provide to the Respondent a money order for the sum of $22,240.00.

Proceedings before the Appeal Panel

1. At a call over on 15 July 2015, a differently constituted Appeal Panel stayed the operation of the orders made on 15 June 2015 until 6 August 2015 and listed the appeal for a further call over and for a hearing of the stay application on the same date.
2. At the call over on 6 August 2015, leave was given to Mr Stephen Keays to represent the appellant and to Mr Steven Pohl (the director of the respondent) to represent the respondent. Mr Keays and Mr Pohl are not legal practitioners. Although not made explicit in the written record of the directions, leave was presumably granted pursuant to s 45(1)(b)(i) of the CAT Act.
3. On the same date, directions were made for the filing and serving of the reply to appeal and any further written arguments and material to be relied on by the parties. The appeal was listed for hearing on 14 September 2015.
4. An order was also made that by a specified time, the respondent was to repay to the appellant the amount of $5076.84, which the respondent had recovered from the appellant after the lifting of the stay.
5. The hearing of the appeal commenced on 14 September 2015. Pursuant to s 37(1) of the CAT Act, the Tribunal may, where it considers it appropriate, use (or require parties to proceedings to use) any one or more resolution processes. The parties spent much of the hearing time on 14 September 2015 discussing a possible resolution of their dispute. This occurred with the assistance of a Tribunal member who did not form part of the Appeal Panel, but who has expertise in home building matters.
6. The parties, with the assistance of the Tribunal member, formulated Heads of Agreement. With the consent of the parties, the appeal was adjourned to a date to be fixed in order to enable the parties to address the matters dealt with in the Heads of Agreement.
7. Unfortunately, this attempt to resolve the matters that formed the basis of the appeal was not successful. On being informed of this, the hearing of the appeal was re-listed and resumed on 19 November 2015. At the conclusion of that hearing the Appeal Panel reserved its decision.

Notice of Appeal

1. The appellant filed a Notice of Appeal, submissions in support of the appeal, and submissions in reply to the respondent's submissions. As part of this material, the appellant provided copies of evidence relied on by the parties before the Tribunal at first instance. This included the Tyrrells Report. It also included the final version (dated 2 July 2015) of the draft IBAS Report, which as previously noted was not in evidence before the Tribunal.
2. While the appellant identified a number of grounds of appeal, she did not expressly identify any of the grounds as raising a question of law. The appellant also provided submissions in support of leave to appeal being granted in accordance with sch 4, cl 12 of the CAT Act.
3. The grounds of appeal may be summarised as follows.
4. The appellant asserted that she was denied natural justice because the Tribunal: 1. Accepted the Tyrrells Report provided by the respondent at the commencement of the hearing on 15 June 2015. The appellant requested time to review and respond to this documentation but this request was refused; 2. Would not accept or read a report that the appellant wished to rely on (the draft IBAS Report) to support her claim that the work carried out by the respondent had not been completed properly; and 3. Made a final decision on 15 June 2015 when that hearing was listed as a directions hearing.
5. The appellant asserted that the decision of the Tribunal on 15 June 2015 to revoke order 3 made on 30 January 2015 (that is, the stay order) was wrong because the Tribunal was incorrect in finding that the conditions set out in order 4 made on 30 January 2015 had been satisfied. The error arose because: 1. The author of the Tyrrells Report was not a qualified private certifying inspector. Nor was any other certification provided from any other private certifying authority or the Department of Fair Trading as required by order 4 made on 30 January 2015 (as amended); 2. The Tyrrells Report was not signed and is not a valid document; 3. The Tyrrells Report was not prepared in accordance with the requirements set out in NCAT Procedural Direction 3 for Expert Witnesses in that it did not include the author's reasons for each opinion expressed; 4. The Tyrrells Report incorrectly stated that the work as per the contractual agreement between the parties was completed. The appellant listed examples of what she described as items that had not been installed or completed as per the contractual agreement; 5. The Tyrrells Report states that it has only been carried out in respect to the scope of the rectification order made by NSW Fair Trading, referred to in order 6 made on 30 January 2015. The Tyrrells Report did not address the requirement in order 5 made on 30 January 2015 that the rectification works were to also be carried out in accordance with a report of GP Design Pty Ltd. Given this, order 4 made on 30 January 2015 was not complied with.
6. The final ground of appeal is that statements made on behalf of the respondent during the course of the hearing on 15 June 2015, namely that the scope of the contract had been 99.5% completed and only minor work was left outstanding, were false and misleading and enforcement action should be taken against the respondent pursuant to s 71 of the CAT Act.
7. The appellant sought leave to appeal from the decision of the Tribunal below on the following bases: 1. the decision of the Tribunal was not fair and equitable as: 1. The decision requires the appellant to pay for items that have not been supplied under the contract with the consequence that the appellant would have to pay twice for all outstanding items under the contract to ensure completion; 2. The appellant had no opportunity and no time to respond to new evidence, that is, the Tyrrell's report that was submitted in the directions hearing on 15 June 2015. 1. The decision of the Tribunal was against the weight of the evidence because: 1. The respondent did not provide satisfactory evidence that the works were completed as outlined in the appellant's Notice of Appeal, the GP Design report dated 25 June 2015 and the IBAS Report dated 2 July 2015 as well as compliance for the provision of an Occupation Certificate; 2. There was no certificate from the 'Department of Fair Trading' or a 'Private Certifying Authority' filed by the respondent pursuant to order 4 made on 30 January 2015; 3. The respondent gave the Tribunal member and the appellant a copy of the Tyrrells report in the hearing on 15 June 2015; and 4. Significant new evidence has arisen comprising of the IBAS Report and the GP Design report. The appellant was not aware that she needed them at the directions hearing on 15 June 2015 and it was not possible to challenge the any of the respondent's submissions based on the Tyrrells Report until after it was presented on 15 June 2015.

Reply to appeal

1. The respondent filed a Reply to Appeal on 24 August 2015 that included a 71-page attachment. The respondent agreed with the decision of the Tribunal, describing it as accurate and fair. The attachment to the Reply to Appeal contained a detailed response to each of the grounds of appeal.
2. On 8 September 2015 the respondent filed a further document containing his curriculum vitae and weather statistics for the Wollongong area in April 2015.

Appellant's submissions in relation to procedural fairness ground

1. The appellant contended that she was denied natural justice on a number of grounds concerning the manner in which the hearing on 15 June 2015 proceeded.
2. It is not in dispute that the respondent submitted the Tyrrells Report to the Tribunal, and provided the appellant with a copy, at the commencement of the hearing on 15 June 2015. The applicant contended that although she requested time to review and respond to the Tyrrells Report, this request was denied by the Tribunal member and that the failure of the Tribunal to allow sufficient time to review that evidence amounted to a denial of natural justice. The Appeal Panel understood the appellant's primary contention to be that had she been given sufficient time to consider the report and respond to it, she would have been in a position to challenge the contents of the report. The appellant submits that there are significant errors in the report and had she had the chance to review the report and explain this to the Tribunal member, the Tribunal would not have been satisfied that the conditions set out in order 4 made on 30 January 2015 (as amended) had been met and the stay made in order 3 would not have been lifted.
3. The errors, as the Appeal Panel understood the appellant's case, included the following:

• The Tyrrells Report deals only with issues of compliance with the Rectification Order made by NSW Fair Trading on 12 May 2014. The report did not make any reference to the rectification works set out in the GP Design Report as required by order 5 made on 30 January 2015;
• The Tyrrells Report was not prepared by a 'Private Certifying Authority' or the 'Department of Fair Trading' as required by order 4 made on 30 January 2015;
• The Tyrrells Report states that only the 'majority of items listed on [the Rectification Order] are satisfactorily completed, rectified and repaired'. This does not satisfy order made on 30 January 2015 which requires 'satisfactory completion of all rectification works required by orders 5 and 6…' [Emphasis added.]

1. The appellant contended that she was not given the opportunity to submit into evidence the draft IBAS Report, which she wished to rely on to show that the rectification work had not been properly completed.
2. The appellant also contended that the she was denied natural justice because the hearing on 15 June 2015 was listed as a directions hearing but a final decision was made on that date.

Respondent's submissions in relation to procedural fairness ground

1. The respondent acknowledged that he provided the Tyrrells Report to the Tribunal member and the appellant at the hearing in accordance with the orders made on 30 January 2015 (as amended). The respondent submitted that he did not know that the report should have been provided earlier and no directions were made to this effect. In the respondent's view, the Tribunal member was able to establish from the Tyrrells Report that the required works had indeed been completed.
2. In his written reply to the appeal, the respondent also contended that the works detailed in the GP Design report, as set out in order 5 made on 30 January 2015, had been completed. However, in oral submissions the respondent acknowledged that the Tyrrells Report does not address the rectification works set out in the GP Design report. The respondent could not explain why this was so. According to his oral submission, he had provided Tyrrells with all relevant material including the orders made by the Tribunal on 30 January 2015.
3. In relation to the qualifications of the author of the Tyrrells Report, the respondent contended that he sought the relevant certification from Tyrrells on advice from the Office of Fair Trading that it was an acceptable inspection authority.
4. In relation to that aspect of the Tyrrells Report dealing with completion of the rectification works, the respondent contended that the Tyrrells Report confirms that the rectification works had been completed with the exception of certain listed items. In relation to these items, the respondent submitted that these were matters for which responsibility lay with the appellant.
5. Consideration of procedural fairness appeal ground
6. Section 38(2) of the CAT Act states: The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. [Emphasis added.]
7. Section 38(5)(c) of the CAT Act states: The Tribunal is to take such measures as are reasonably practicable... to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
8. The obligation of the Tribunal to accord procedural fairness was considered by the Appeal Panel in Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41 as follows: 59 Rather, the issue is whether the appellant, in the perhaps unusual circumstances of this matter, was denied an opportunity to be heard. 60 We have already noted the terms of ss 38(2) and (5) of the Act. 61 Our attention was drawn to the statement of Giles JA in Brennan v New South Wales Land and Housing Corporation; New South Wales Land and Housing Corporation v Brennan [2011] NSWCA 298; (2011) 83 NSWLR 23 at [63] that: ...in principle, the requirements of procedural fairness are identified as a matter of law depending upon the institutional setting in which decision-making is to operate, the relevant statutory scheme, the subject matter of the decision and, as part of that analysis, the seriousness of the potential consequences of an adverse decision. 62 This Tribunal stated in Chan Cuong Su v Public Guardian [2014] NSWCATAP 32 at [14]: the Tribunal is bound to accord procedural fairness (or 'natural justice') to parties to its proceedings, and, in addition to persons whose interests, rights or legitimate expectations are affected: see, generally, Hess v Public Guardian [2005] NSWADTAP 43 at [20] ff. The duty derives from the common law, and is reinforced by s 38(2) and (5) of the NCAT Act. 63 The existence of this obligation was not disputed in this matter. The issue is what was required in order to meet the obligation. What is 'a reasonable opportunity to be heard' will, of course, vary from case to case. In part that is because, as Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]: Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
9. A denial of procedural fairness is a question of law: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]; John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)]. Accordingly, if a denial of procedural fairness is established, the appellant has a right to appeal and leave to appeal is not required: s 8(2)(a), CAT Act.
10. In determining whether the appellant was denied procedural fairness, the practical question for the Appeal Panel is whether the appellant had an opportunity to meet the case against her. It is acknowledged that there may be circumstances where the late filing of evidence does not lead to a breach of procedural fairness such as where the late evidence does not come as a surprise to the other party, or the other party is otherwise able to deal with it: Ayoub v CPT Corp Pty Ltd [2015] NSWCATAP 259 at [32]. This is not, however, such a case.
11. The Appeal Panel accepts the appellant's submission that the Tribunal's reliance on the Tyrrells Report at the hearing conducted on 15 June 2015, without providing the appellant a reasonable opportunity to consider the content of that report and respond to it, amounted to a denial of procedural fairness. It meant that the appellant did not have a reasonable opportunity to be heard about the contents of the document. This document was critical to the Tribunal's determination of whether the stay should be lifted and therefore to the question of whether the appellant was required to pay the balance of the contract sum.
12. Furthermore, we consider that determining whether the condition precedent for lifting the stay had been met at a directions hearing, when that issue was contested and no directions had been made for the filing and service of evidence prior to the hearing, also constitutes a denial of procedural fairness in the circumstances of this case.
13. As was also noted in Kline: [66] A notice of appeal asserting denial of procedural fairness, or of the entitlement to 'a reasonable opportunity to be heard' under s 38 raises questions of law within the meaning of s 80(2)(b) of the Act. [67] Breach of either obligation (and here there has been breach of both) ordinarily means that there has been an erroneous decision which should, under s 81 of the Act, be set aside or quashed, with the appeal allowed, save in rare circumstances, such as where the breach would have made no difference to the outcome of the case: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at [28]; Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at [40]-[44].
14. Accordingly, while we are satisfied that the appellant has established that she was denied procedural fairness, it is also necessary to consider whether the outcome of the case would have been the same, had there been no denial of procedural fairness.
15. As outlined previously, the appellant asserts that there are a number of errors contained in the Tyrrells Report. We agree with the appellant, at least to the extent of our findings in [70]-[71] below. These were matters that the appellant may have ventilated if she had been provided with an adequate opportunity to consider the report and respond to it. She may also have ventilated whether the rectification work that had been carried out had been undertaken with due care and skill. Findings about such matters had the potential to make a difference to the outcome of the case. An order for rehearing is therefore appropriate.

Determination of the appeal

1. As noted above, order 4 made on 30 January 2015 established the condition to be met before the stay on order 2 could be revoked. Order 4, as it was subsequently amended, required the respondent to file "a certificate from the Department of Fair Trading, or such other Private Certifying Authority as may be retained for the purpose" recording "the satisfactory completion of all rectification works".
2. The material before us demonstrates that the amendment to order 4 was made because the respondent had advised the Tribunal after 30 January 2015 that NSW Fair Trading - we note that there is no such entity as "the Department of Fair Trading" - could not undertake certification of the rectification works.
3. However, the Tribunal amending order 4 to permit certification by a "Private Certifying Authority" did not clarify the position, as there is no evidence that such an entity exists. Further, the use of the term was likely to be confusing given the existence of principal certifying authorities who are appointed to certify building work and subdivision work under s 109E of the Environmental Planning and Assessment Act 1973 (NSW). If, when amending order 4, the Tribunal Member meant to require the provision of a report prepared by a building consultant such as the consultant who prepared the Tyrrells Report, then that should have been made clear in the order.
4. In any event, as submitted by the appellant and conceded by the respondent during the hearing, the Tyrrells Report did not address all of the rectification work required by orders 5 and 6. Rather, the report indicated that most - but significantly not all - of the work required under order 6 (that is the NSW Fair Trading Rectification Order) had been undertaken. It failed to address the work required by order 5; that is, the carrying out of the schedule of rectification works contained within paragraphs 5.1.1 - 5.1.7 of the report of GP Design Pty Ltd.
5. We are therefore not satisfied that the condition precedent for the lifting of the stay order had been met when the Tribunal lifted the stay on 15 June 2015. We have also concluded that, given the wording of order 4 in relation to the certification requirement, the respondent may never have been able to meet that condition precedent, even if it had in fact undertaken all of the rectification work required by orders 5 and 6 made on 30 January 2016.
6. In these circumstances, disposing of this appeal by merely reimposing the stay order made on 30 January 2015 would not work justice between the parties. It would place the parties in a position of stalemate and such an outcome is not consistent with the Tribunal's obligation under s 36(1) of the CAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
7. We have therefore concluded that the entirety of the decision made in the respondent's proceedings should be quashed and those proceedings should be remitted to the Tribunal to be reheard. This will allow the Tribunal to determine what payment, if any, the respondent is entitled to as a result of undertaking work either in compliance with the Tribunal's orders or prior to the orders being made. It will also give the appellant the opportunity to provide evidence to the Tribunal in relation to this issue.
8. While the appellant appealed against the order made in the respondent's proceedings that required her to pay money to the respondent, she did not appeal the work order made on 30 January 2015 in her proceedings. Given that that order was made by consent, it would have been surprising had she done so. However, the appellant's position is that the respondent has not complied with the work order and that she should therefore not have to pay the respondent any of the money she was ordered to pay in the respondent's proceedings.
9. As was explained to the parties during the hearing, if the appellant seeks damages in the form of rectification costs or completion costs, that is an outcome which cannot be achieved by this appeal. Rather, the appellant's remedy lies in a renewal application pursuant to sch 4, cl 8 of the CAT Act, which relevantly provides: 8 Renewal of proceedings in respect of certain Division decisions (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. (4) When proceedings have been renewed in accordance with this clause, the Tribunal: (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order. …
10. The applicant has not yet filed a renewal application. However, it remains open to her to do so. A renewal application will allow all relevant issues in relation to compliance with the work order made on 30 January 2015 to be fully ventilated and considered in conjunction with the builder's application for payment of money.
11. As the work order was made on 30 January 2015, the time limit for filing an application specified in cl 8(2) has expired. However, under s 41 of the CAT Act the Tribunal has power to extend time to make the application. We recommend that the Tribunal favourably consider extending time if the appellant files a renewal application expeditiously in order to facilitate resolution of all issues in dispute between the parties in a manner consistent with the guiding principle set out in s 36(1) of the Act.
12. For these reasons we make the orders which appear below.
13. As we have determined that the respondent's application should be remitted for rehearing because the appellant was denied procedural fairness, we have not found it necessary to consider the appellant's other grounds of appeal.
14. In addition, as we have set aside the money order made in favour of the respondent, the respondent is not entitled to retain any monies recovered as a result of enforcement of the money order after the lifting of the stay on 15 June 2015. We have accordingly ordered the respondent to refund to the appellant any monies so recovered.

Orders 1. The appeal is allowed. 2. The decision made in proceedings HB 14/32008, including the money order made on 30 January 2015, is quashed. 3. The whole of proceedings HB 14/32008 is remitted to the Consumer and Commercial Division, to be heard by a differently constituted Tribunal, in conjunction with any renewal application filed by the appellant. 4. The respondent is to immediately pay to the appellant any sum recovered from the appellant as a consequence of the lifting of the stay order on 15 June 2015.

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 March 2016