Kostas & Anor v HIA Insurance Services Pty Ltd trading as Home Owners Warranty & Anor

HEARING DATE(S) : 14 June 2006, 15 June 2006, 21 June 2006

(i) The findings and orders of the Consumer, Trader & Tenancy Tribunal in HB00/79928 between the plaintiffs and HIA Insurance Services Pty Ltd, made 25 May 2005, be quashed and/or set aside;

(ii) The costs orders of the aforesaid Tribunal in the aforementioned matter made on 20 September 2005 be quashed and/or set aside;

(iii) The plaintiffs' termination on 29 June 2000, of the contract of 5 August 1999 between the plaintiffs herein and Sydney Construction, was lawful and effective; DECISION : (iv) The defendant shall pay the plaintiffs' costs of and incidental to these proceedings and the proceedings before the Consumer, Trader & Tenancy Tribunal;

(v) To the extent otherwise entitled, the defendant shall have a certificate under the Suitors' Fund Act 1951 (NSW);

(vi) The matter is otherwise remitted to the aforesaid Tribunal to hear and determine any remaining issue in accordance with these orders and the reasons therefor, and otherwise in accordance with law.

CONTRACT - building contracts - termination of contract - right to terminate - whether repudiatory breach - whether termination notice valid - election - waiver - whether defective work

CONTRACT - construction - variation of contract - extension of time - notice to complete

CATCHWORDS : ADMINISTRATIVE LAW - appeal from CTTT - question of law or fact - "with respect to" an error of law - errors of law - remitted to CTTT

APPEALS - right of appeal - decision - order - judgment

ADMINISTRATIVE LAW - natural justice - whether denial of natural justice - rules of evidence and Tribunals - right to cross-examine

Commonwealth Conciliation and Arbitration Act 1904 (Cth) Conciliation and Arbitration Act 1904-1983 (Cth) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Home Building Act 1989 (NSW) Home Building Regulation 1997 (NSW) Industrial Arbitration Act 1901 (NSW) LEGISLATION CITED : Industrial Arbitration Act 1940 (NSW) Industrial Arbitration Act 1912-1949 (WA) Industrial Relations Act 1988 (Cth) Industrial Relations Act 1996 (NSW) Small Debts Recovery Act 1912 (NSW) Suitors' Fund Act 1951 (NSW) Workplace Relations Act 1996 (Cth)

ABT v Bond (1990) 170 CLR 321 A J Bignell v S G Edenden [2004] NSWSC 27 Annetts v McCann (1990) 170 CLR 596 Australian Gaslight Co v Valuer-General (1940) SR (NSW) 126 Australian Postal Commission v Hayes (1989) 23 FCR 320 Barlow v Orde (1870) L.R. 3 P.C. 164 Brenmar Building Co v University of Newcastle, NSW Court of Appeal, unreported, 12 December 1977, BC7700142 Brooks v The Upjohn Company and Others (1998) 85 FCR 469 Colliery Employees Federation v Northern Colliery Proprietors Association [1904] 3 A.R. (NSW) 182 FEDFA v BHP (1913) 16 CLR 245 Fish v Solution 6 (2006) 225 CLR 180 Gas and Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 Greater Wollongong City Council v Dunn [1973] 1 NSWLR 36 Grygiel v Baine [2005] NSWCA 218 Herald and Weekly Times v Commonwealth (1966) 115 CLR 418 HIA Insurance v Consumer, Trader & Tenancy Tribunal [2004] NSWSC 82 CASES CITED : Hounslow London Borough Council v Twickenham Garden Developments (1971) 1 Ch 233 Hutchinson v RTA [2000] NSWCA 332 Immer (No 145) Pty Ltd v Uniting Church (1993) 182 CLR 26 Jones v Dunkel (1959) 101 CLR 298 Kalokerinos v HIA Insurance [2004] NSWCA 312 Maxwell v Keun [1928] KB 645 Onslow v Inland Revenue Commissioners (1890) 25 QBD 465 Pauling v The Mayor etc Borough of Dover 156 ER 644 Paull v Munday (1975) 11 SASR 346 Peterborough v Wilsthorpe (1883) 12 QBD 1 Project Blue Sky v ABA (1998) 194 CLR 355 R v Ludeke, ex parte COA (1985) 155 CLR 513 Skinner v Naunihal Singh (1913) 40 Indian Appeals 105 State GIO v Crittenden (1996) 117 CLR 412 Stewardson Stubbs & Collett v Bankstown Municipal Council [1965] NSWR 1671 T.A. Miller v Minister for Housing [1968] 1 WLR 992 Technical Products Pty Ltd v SGIO (Qld) (1989) 167 CLR 45 Tropical Traders, Barclay v Messenger (1874) 43 LJ Ch 449

P1: KOSTAS, Peter PARTIES : P2: KOSTAS, Christine D1: HIA Insurance Services Pty Ltd trading as Home Owners Warranty D2: Consumer, Trader & Tenancy Tribunal

P1: Mr F. Corsaro SC COUNSEL : P2: Mr F. Corsaro SC D1: Mr M.S. Jacobs QC, Mr S. A. Kerr D2: -

P1: Mr F. Andreone (Andreones Lawyers) SOLICITORS : P2: Mr F. Andreone (Andreones Lawyers) D1: Mr S. Aroney (Mills Oakley Lawyers) D2: -

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LIST

30049/05 Peter and Christine KOSTAS v HIA INSURANCE SERVICES PTY LTD

JUDGMENT 1 ROTHMAN J: This appeal from the Consumer, Trader & Tenancy Tribunal arises out of a dispute about the building of a home at Blakehurst for the plaintiffs, Peter and Christine Kostas by Sydney Construction Co. There are allegations and counter-allegations of breach of the Contract governing the works; a Contract, dated 5 August 1999, for $330,000 (originally); and those allegations involved HIA Insurance Services Pty Ltd, who, if Mr and Mrs Kostas succeed, are liable to them; and the conduct of the principal of Sydney Construction, Mr Turrisi. 2 The Contract was a "plain English" document the origin of which was a standard form contract published by the Department of Fair Trading. To that standard form was added a page of Special Conditions; the schedule of works (7 July 1989); the accepted quotation from Sydney Construction (30 July 1999); and a number of variations. 3 The Contract was for a substantial renovation of an existing home, and required Mr and Mrs Kostas to provide a majority of the PC and provisional sum items. It, not unusually, required completion of certain stages before progress payments were payable, and the means by which variations to the Contract could be agreed, including extensions of time. 4 Essentially, the dispute between Mr and Mrs Kostas, on the one hand, and HIA Insurance and Sydney Construction, on the other hand, centred on which party, if any, was in breach of the Contract and/or had terminated or repudiated it. The works, being the renovation to be carried out under the Contract, fit the description of "residential building work" within section 3(1) of the Home Building Act 1989 (NSW) and the Act, therefore, governs the operation of the Contract and the relationship between the parties, including the requirement for Sydney Construction to insure the works, which it did with HIA Insurance (see section 92 of the Act). The Proceedings Before The Tribunal 5 Mr and Mrs Kostas brought these matters to the Tribunal on 12 September 2000. After preliminary skirmishes, Mr and Mrs Kostas filed a Second Further Amended Points of Claim on 14 December 2001 to which HIA Insurance filed an Amended Points of Defence on 10 September 2003; and Sydney Construction filed a Further Defence to the Second Further Amended Statement of Claim on 27 October 2003. 6 On 19 June 2002, the Tribunal issued reasons for decision, and consequential orders, on a preliminary question the effect of which was that the Tribunal held that a variation to the Contract was made on 24 March 2000 but that a purported amendment on 16 August 1999 was not effective because it did not comply with the Act. 7 The finding allowed the experts to deal with a common stratum of facts and the matter proceeded to hearing on 20 October 2002 for five days. It was then adjourned and heard on 27 January 2004 at which time the insurance claims were added. The matter came again before the Tribunal on 8 November 2004, the parties then confining the claim to an action against HIA Insurance and, even in that respect, to the issue of whether there had been a lawful termination of the Contract by Mr and Mrs Kostas. 8 The Tribunal reflected that confinement in orders made, by consent, on 9 November 2004 and, on 10 November 2004, the matter proceeded on that basis. The parties (by then confined to Mr and Mrs Kostas and HIA Insurance) filed written submissions (together with any further evidence upon which they sought to rely), the timetable for which concluded on 8 December 2004. The decision was reserved, and judgment issued on 25 May 2005. 9 In its decision of 25 May 2005, the Tribunal determined that Mr and Mrs Kostas had repudiated, and had not lawfully terminated, the Contract. It is alleged that in so deciding, the Tribunal had regard to evidence from Mr Turrisi. Mr and Mrs Kostas submit that such evidence was not before the Tribunal and no notice had been given to them that it would be relied upon by the Tribunal, nor, by definition, had they been given an opportunity to deal with the evidence. Details Of The Proceedings Before Tribunal 10 It is unfortunately necessary to detail the procedural history below, both leading up to 10 November 2004, on 10 November and thereafter. The initial procedure adopted by the Tribunal was (ignoring time limits for present purposes) to require all experts to confer on site and require the parties to file and serve points of claim and affidavits of evidence. 11 Sydney Construction filed and served a defence and cross-claim (9 August 2001) and, a little later, an expert report (23 August 2001). Sometime after that (26 October 2001), Sydney Construction filed and served the affidavit of Mr Turrisi (sworn 23 October 2001). 12 Because of the disputed status of Annexure 'C' (the variation ultimately held to be ineffective) to the affidavit of Mr Turrisi, the conclave of experts was aborted and the preliminary issue arose relating to two variations. Further directions were given and, generally, complied with. Further evidence was filed and served by Mr and Mrs Kostas and a further affidavit (sworn 13 December 2001) of Mr Turrisi was filed and served on 13 December 2001. A further affidavit of Mr Kostas (sworn 13 December 2001) was filed and served. 13 On 20 June 2002, the Tribunal, as earlier stated, decided the preliminary issue. Mr and Mrs Kostas thereafter (between June and December 2002) completed the works and prepared final quantum evidence. On 13 February 2003, Mr and Mrs Kostas applied for the Tribunal proceedings to be relisted and on 17 February 2003 filed and served a further affidavit of Mr Kostas and an expert report of George Zakos dated 18 December 2002. 14 On 28 February 2003, the Tribunal directed Sydney Construction to file and serve further evidence by 4 April 2003. Sydney Construction did not comply with the timetable. The non-compliance necessitated various directions hearings and the vacation of various hearing dates. 15 On 15 August 2003, Sydney Construction served a further affidavit of Mr Turrisi and expert reports. On 29 August 2003, Mr and Mrs Kostas served further affidavits and expert reports, being affidavits of Mr Kostas (sworn 29 August 2003), Mrs Kostas (29 August 2003) and reports of Messrs Zakos (28 August 2003) and Rappoport (29 August 2003). 16 Mediation occurred on 3 September 2003, which Sydney Construction did not attend in person. Further directions were issued that, inter alia, required that the first day of the hearing would deal with the termination issue. 17 In early October 2003, Mr and Mrs Kostas and Sydney Construction served further affidavits and Sydney Construction filed and served submissions on the "termination" point. The affidavits and reports filed by Mr and Mrs Kostas were a further affidavit of Mr Kostas and affidavits of Tony Stojic, Ms Mey Lie Gunara and Catherine Oldenburg. Sydney Construction filed the affidavit of Sam Kawatarani. 18 On 14 October 2003, following further directions of the Tribunal, Mr and Mrs Kostas filed and served an affidavit of Mrs Kostas (14 October 2003) and Mr Imad (Eddie) Kaoutarani (13 October 2003). 19 On 20 October 2003, the matter came on and the hearing was adjourned to allow the member of the Tribunal to read the evidence. The remainder of that day would have been insufficient time to read all of the evidence or even all of the affidavits. A later exchange between the Tribunal and counsel seemed to indicate that the evidence perused was the evidence contained in the affidavits of Mr and Mrs Kostas. On 21 and 22 October 2003, the proceedings consisted of the cross-examination of Mr Kostas, Mr Tony Stojic, Ms Mey Lie Gunara and Mr Imad (Eddie) Kaoutarani. 20 On 23 October 2003, after Sydney Construction amended its defence to raise a mitigation point, the proceedings adjourned and further directions issued. Videotape from police was made available to the parties and the hearing dates in January 2004 were vacated. 21 In March 2004, Scott Schedules (being a spreadsheet summary of alleged faults, costs of rectification, answers and comments) were served and a joint report of the experts ordered by the Tribunal. The Scott Schedules were amended over some months, further hearing dates in July were vacated and further directions issued. 22 Ultimately, the conclave of experts was abandoned and the matter was listed to re-commence on 8 November 2004. On 2 November 2004, Mr and Mrs Kostas served a further affidavit of Mr Kostas (1 November 2004) and of Mr Zakos (2 November 2004). 23 On 8 November 2004, as previously stated, the proceedings were confined both by discontinuing against Sydney Construction and confining the issue, between Mr and Mrs Kostas and HIA Insurance, to whether there had been a lawful termination by Mr and Mrs Kostas. The Proceedings On 10 November 2004 24 On 9 November 2004, the Tribunal issued an order that the hearing be next listed for 10 November 2004 for the purpose of further cross-examination of Mr Peter Kostas and any necessary cross-examination of Mrs Kostas, Mr Imad (Eddie) Kaoutarani, Mr Paul Rappoport, and Mr George Zakos. 25 On 10 November 2004, when the matter came on for hearing there was an exchange between counsel on the course of the proceedings going forward. Counsel for Mr and Mrs Kostas recounted that Mr Kostas was part way through being cross-examined and that, because of the withdrawal of the claims against Sydney Construction (and vice versa) the cross-examination had now ceased. HIA Insurance, who had already cross-examined Mr Kostas, had nothing further to ask. 26 Counsel for Mr and Mrs Kostas also made it clear that the only issue for determination was the issue of the repudiation of the Contract. He then said: "[Counsel for HIA Insurance] and I have dealt with the evidentiary issues which need to fall in order for the determination of the preliminary point. That will largely entail no more than the following things occurring today: my having some short time to confer with Mr Kostas about the evidence that he's given and the conducting of a short re-examination, which will not take very long, in connection with those matters. It will be necessary for us to tender some parts of the evidence, which will be done only on the question of this repudiation issue, which has arisen, and is not to be taken as relevant to quantum. The matter, as I understand it, can then proceed without the cross-examination of the witnesses whose evidence we have indicated we intend to rely on. We will indicate what those pieces of evidence. There are currently on the file, I understand, submissions which were prepared by Ms Clark and Mr Bambagiotti which, more or less, contain the broad battle lines of the repudiation issue. Because they were prepared at a different time, and principally Mr Bambagiotti's submissions are in response to Ms Clark's submissions, [counsel for HIA insurance] is now taking on the burden of the repudiation point, which had formerly been a matter which Ms Clark had taken principally the carriage of. You will recall that the insurer's position in relation to that was essentially to add nothing to what Ms Clark had said. As I understand it, [counsel for HIA Insurance] wants to provide additional focus on the repudiation issue, principally along the lines that Ms Clark has already elaborated on, but, hopefully with a much more narrow and more focused view - and I will do likewise …. The issues, which are the main and fundamental issues on the repudiation point being raised, principally deal with matters that we believe can be dealt with in that way, without the need to trouble you further by dealing with the mass of evidence which has already been served and which has, presumably, when one looks at it, objectively killed many trees …. I am confident, having spoken to [counsel for HIA Insurance], that, depending on the outcome, if we need to go on to the issue of quantum, it will probably be sorted out informally with the experts coming together. At the end of the day, we aren't dealing with a million-dollar case." (Transcript, 10 November 2004, page 235, 236, 237) 27 Counsel for HIA Insurance formally agreed with the process outlined and sought, as the evidence for HIA Insurance, to rely on a "Tender Bundle" (or certain documents therein, to be identified later) that was supplied. 28 He indicated that because Mrs Kostas' evidence was confined to one additional paragraph, he did not seek to cross-examine her. Nor did he seek to cross-examine the other witnesses upon whose evidence Mr and Mrs Kostas now relied. (There was agreement, also, that no Jones v Dunkel point would be taken in relation to Mrs Kostas' other evidence.) Neither party relied upon any further or other evidence. The Supreme Court Proceedings 29 On 22 June 2005, Mr and Mrs Kostas commenced proceedings in this Court, by summons, appealing the decision of the Tribunal of 25 May 2005 under section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). The summons also sought orders in the nature of prerogative relief, certiorari, to the same effect. No issue has been raised as to whether raising each cause of action is an abuse of process or that on any discretionary basis one only of those orders should be allowed. 30 The summons seeks the quashing of the Tribunal findings and the substitution of findings to the opposite effect or, in the alternative, remitter to the Tribunal for determination in accordance with law. 31 HIA Insurance, in answer to the Summons, raises the jurisdiction of this Court to hear and determine the appeal because of the "interlocutory" nature of the decision of the Tribunal. Further, it asserts that any such appeal, or order in the nature of certiorari, would be futile because of the invalidity of the termination. It submits that there was no denial of natural justice, and, in the alternative, that, if there were, it has caused no injustice or detriment to Mr and Mrs Kostas. 32 In order to determine these issues it is necessary for the Court to examine all of the evidence before the Tribunal during every stage of the proceedings below, the agreement between the parties effected on 8 and 9 November 2004, the evidence to which the Tribunal could properly pay regard, the construction of the Contract and whether, on the basis of the material to which the Tribunal could have regard and otherwise, there was, as a matter of law, a valid termination of the Contract and, if so, whether the Tribunal has erred in law. 33 Further, it is submitted by HIA Insurance that the nature of the jurisdiction reposed in the Tribunal and the procedures mandated by the legislature for the exercise of that jurisdiction obviate the need for "evidence" of the kind on the absence of which Mr and Mrs Kostas rely and expunge or limit the rules of procedural fairness. Fundamental to these proceedings is the Contract itself. The Contract And Conduct Under It 34 Clause 24 of the Contract provides to the following effect, namely, if Sydney Construction were: " unable or unwilling to complete the works or abandons the work; [to] suspend the work before completion without reasonable cause; [to] become bankrupt, assigns assets for the benefits of creditors generally, makes a composition or other arrangement with creditors or, if the contractor is a company, goes into liquidation or receivership [to] fail to proceed diligently with the work; [to] fail to remedy defective work or remove faulty or unsuitable materials which substantially affect the work; or without reasonable cause [to] fail to comply with an order or direction of public authority with respect to defective or incomplete work, which would substantially affect the quality and/or progress of the work " then Mr and Mrs Kostas may require, in writing, remedy of the fault within 10 working days. Failing remedy, or if the fault is irremediable, Mr and Mrs Kostas may end the Contract. In such circumstances, Mr and Mrs Kostas may retain any unfixed materials or fittings. (a) Extension Of Time 35 On 24 January 2000, Sydney Construction and Mr and Mrs Kostas agreed to vary the Contract and to extend the date for completion of the Works for a period of 12 weeks until 1 July 2000. (The letter originally claimed 14 weeks to 15 July 2000 but only 12 weeks was agreed.) 36 On 31 March 2000, Sydney Construction allegedly requested a further extension of time by which to complete the works. Mr and Mrs Kostas denied receiving this request. Sydney Construction asserts that a request for a further extension of time was made by letter dated 23 May 2007. 37 Clause 6 of the Contract relevantly states: "If the work is delayed by: any … matter, cause or thing beyond the control of [Sydney Construction] [Sydney Construction] will be entitled to a reasonable extension of time to complete the work. Both [Sydney Construction] and [Mr and Mrs Kostas] must take all reasonable steps to minimise any delay to the work . If [Sydney Construction] wishes to claim an extension of time, [Sydney Construction] must notify [Mr and Mrs Kostas] in writing of the cause and estimated length of the delay within 10 working days of the occurrence of the event or, in the case of a variation, from the date of agreement of the variation . If [Mr and Mrs Kostas] does not, within a further 10 working days, notify [Sydney Construction] in writing that the extension of time sought is unreasonable, the completion date for the contract will be extended by the period notified to [Mr and Mrs Kostas] ." (emphasis added)

38 Under Clause 11 of the Contract, Sydney Construction were entitled to make progress claims after the completion of stipulated and agreed tasks. The first four progress payments, as well as the tasks upon which the payment was contingent, appear to have proceeded without incident. 39 On 28 April 2000 Sydney Construction submitted Progress Claim 5 to Mr and Mrs Kostas. Sydney Construction, to be entitled to the fifth progress payment, had to comply with the schedule in Clause 11 which relevantly read: Stage 5 - Completion of roof Internal/External Render & fixout Joinery $60,000 40 It follows that only after completion of the roof, the internal and external render, and fixout joinery could Sydney Construction claim the $60,000 which represented the fifth progress payment. 41 Sydney Construction initially submitted that the parties had agreed to vary the payment regime in Clause 11 to remove the necessity to complete "fixout joinery" before making the progress claim. Ultimately that claim was withdrawn. Events Leading Up To Termination Of Contract 42 As is not uncommon, extensions of time to complete the works were granted and there is significant correspondence between the parties in relation to the work to be performed, alleged defects in the work, the need for payments to be made, work to be done and coordination of the work, including the provision of materials. There were allegations by Mr and Mrs Kostas that work had not been done and, because Mr and Mrs Kostas were required to supply certain PC items, there were counter-allegations that the non-provision of these items was causing delay. 43 As previously mentioned, the validity of the purported variation to the Contract, of 16 August 1999, was a preliminary question determined by the Tribunal. Sydney Construction alleged that the variation was effected and that the variation moved the completion of the joinery from Stage 5 to Stage 6. Stage 6 involved lock-up and completion of the works. 44 Neither Mr nor Mrs Kostas signed the claimed variation of 16 August 1999 and denied its efficaciousness. The Tribunal upheld their view. In accordance with the Contract, the variation was not effective. There is no appeal against that finding. 45 Nevertheless, the Tribunal did not make that finding until 19 June 2002, and Sydney Construction assumed or took the view that the amendment was effective. As a consequence, at the conclusion of the work in Stage 5, other than the joinery work, a claim was made for the Progress Payment. That claim was made on 28 April 2000. It is undeniable (and not in issue) that if Progress Payment 5 were payable, but not paid within five days of a written claim therefor, Sydney Construction would have been entitled to terminate: see Clauses 25 and 13 of the Contract. 46 Just under one month earlier (31 March 2000), Sydney Construction had purportedly submitted a written request for an extension of time. This extension of time was in issue before the Tribunal, and the evidence of it is an issue in these proceedings. The material before the Tribunal was a copy of a letter, on the letterhead of Sydney Construction, relevantly in the following terms: "Requesting a further extension of time for completion is claimed (sic) for the reasons specified below and in accordance with clause (6) in the contract. Period of time claimed: 15 weeks Anticipated finishing date: 1st August 2000 Reasons:

A. Dates 7th, 8th, 10th, 20th, 21st, 22nd, 23rd, (sic) March 2000 wet weather B. Fascia Gutters delay in cutting duties special colour selection 5 days C. Box Gutter delay for roof tiler 5 days

Total working days 87 days in turn 15 weeks." It purports to be signed on behalf of Sydney Construction and dated "31st 3rd 2000" (sic), but is not signed for the purpose of acknowledgement by Mr or Mrs Kostas, nor is there, it seems, the returned letter that was requested. All other extensions seem to have been counter-signed for acknowledgement purposes and the letter returned to Sydney Construction. 47 I return to the Progress Payment Claim. Mr and Mrs Kostas replied, through their solicitors, by facsimile on 4 May 2000. They denied that Sydney Construction had any entitlement to the Progress Payment for completion of Stage 5. They listed 42 incomplete items and rejected claims for payment for three variations because, it was alleged, they were necessitated through the fault of Sydney Construction. 48 On the same day (4 May 2000), Sydney Construction replied conceding some of the work had not been completed. It complained about delays and obstruction caused by "indecisiveness" and reiterated its claim for Progress Payment 5. Sydney Construction then said: "Owners are in breach of Home Building Contract, Clause 23 where owner fails to play progress payment or any other amount due to the contractor within the time allowed 5 days (sic) (Clause 13). All works will be suspended as from Monday 8th May 2000. Our company will be seeking compensation for damages . . . due to preventable delays and overdue payments." 49 Work did not occur on site on 4 or 5 May 2000 (Thursday and Friday). Between 8 May 2000 (Monday) and 16 May 2000, Sydney Construction removed its sign from the garage door of the construction site and removed work that had already been performed by it. 50 During that time, Mr and Mrs Kostas and Sydney Construction corresponded through solicitors. Following its letter of 4 May 2000, solicitors for Sydney Construction wrote to the solicitors acting for Mr and Mrs Kostas on 10 May 2000 (Wednesday). It referred to and reiterated its letter of 4 May. It asserted a legal right to suspend work and gave notice that unless, inter alia, Progress Payment 5 were made (at least in part), Sydney Construction "shall suspend the work pursuant to Clause 23 of the Agreement and, in due course, terminate the Agreement pursuant to Clause 25". 51 On 12 May 2000, Mr and Mrs Kostas responded to the correspondence of 4 and 10 May 2000. It stressed the non-completion of Stage 5 and responded to the answers to the allegations of other defective work. At page 3 of the letter, the solicitors for Mr and Mrs Kostas wrote: "On 4 May 2000 we gave notice to [Sydney Construction] that it had:

1. been unable and willing (sic) to complete the works that are the subject of the building contract; 2. suspended work previously without reasonable cause; and 3. failed to proceed diligently with the work.

In so far as the 42 items identified in our letter dated 4 May 2000 have not been completed, remedied or rectified, that notice is continuing. In addition to those issues, we hereby give [Sydney Construction] notice that it has failed to rectify defective works undertaken and is required to do so now. Unless those breaches of the Home Building Contract dated 5 August 1999 are remedied by [Sydney Construction] within 10 working days of the notice, Kostas will end of (sic) that contract in accordance with clause 24 of the contract." 52 On 16 May 2000, Sydney Construction's solicitors replied withdrawing the claim for Progress Payment 5 but otherwise continuing the claims for delay and payment for variations. 53 On the same day (16 May 2000), Mr and Mrs Kostas replied. The terms warrant repeating: "We refer to variation 11 submitted by Sydney Construction Company Pty Limited which is a variation to window size basement for glass blocks. That variation included removing bricks, installing concrete lintels and concreting those lintels. Our clients never authorised that variation because they allege it forms part of the overall contract and is not a true variation to the contract. We are instructed that your client, or subcontractors engaged by your client, attended the construction site over the previous weekend to remove certain works that had been carried out in accordance with description of variation 11. We hereby put your client in (sic) further notice that such action further evidences that your client is unable and unwilling to complete works which are the subject of the building contract. Unless that breach of the Home Building Contract dated 5 August 1999 is remedied by your client within 10 working days of this notice, our clients will end the building contract in accordance with clause 24 of the contract. Finally, we have been instructed that your client removed its sign from the garage door of the construction site. We wish to remind your client that removal of the sign does not obviate its contractual responsibility for safety of the site before the contract is lawfully ended." 54 Sydney Construction then sent two other letters one of which seeks a further claim for extension of time. It claimed an extension of 16 weeks to 13 September 2000 including for inclement weather days 7, 8, 10, 20, 21 and 22 March 2000. This letter is inconsistent with acceptance of the claim for 15 weeks to 1 August 2000 because:

(i) it claims for some of the above specified dates in both letters; (ii) the effect of the delay in the work on the box gutter on the completion of roof/roof tiler may also be double-counted; and (iii) 16 weeks' extension from 1 August 2000 (the date to which the purported earlier variation was said to extend) would extend the completion date to 14 November 2000, not 13 September 2000. 55 In other words, the letter of 23 May 2000 is inconsistent with an understanding by Sydney Construction, at that time, that the claim of 31 March 2000 had been effective. The 16 week claim of 23 May 2000 is consistent with an adjusted finishing date previously of 24 May 2000 (i.e. it has been calculated as 16 weeks from the date of the letter, not the previously agreed anticipated completion date). 56 On 21 June 2000, Mr and Mrs Kostas sought confirmation by 5pm 23 June 2000 that all defects notified would be rectified; that the rectification would commence no later than 9am 28 June 2000; that there would be a suspension of works for the purpose of rectification of the works; that proposals of the architect would be accepted; and that Sydney Construction would proceed to complete the works in accordance with the Contract. The letter enclosed the report of architect, Mr Paul Rappoport, of June 2000, which report set out the proposals and details of the defects in work. Failing agreement, Mr and Mrs Kostas would proceed to terminate the Contract on the basis of the expiry of the time limits on rectification already required. 57 On 23 June 2000, Sydney Construction sought an extension of the time limit imposed for response, from 23 June 2000 to 28 June 2000. Mr and Mrs Kostas consented to the deferral of any action for the period requested. On 29 June 2000, having received no further response, Mr and Mrs Kostas terminated the Contract. Insurance Refusal 58 Part 6, Division 2 of the Act sets out the general requirements in relation to the insurance of residential building works. There is no issue before this Court as to the existence, nor the validity, of the aforementioned insurance policy. 59 On 7 July 2000, Mr and Mrs Kostas made an insurance claim with HIA Insurance for indemnity in respect of losses and damages caused by Sydney Construction's breaches of the Contract and breaches of the statutory warranties. Clause 54 of the Home Building Regulation 1997 (NSW) covers refusal of insurance claims in the following terms: "(1) For the purposes of making an appeal against a decision of an insurer, an insurance claim is taken to have been refused if written notice of the insurer's decision is not given to the beneficiary within 45 days of the lodging of the claim with the insurer or within such further time as may be agreed between the beneficiary and the insurer."

60 As the claim was not determined by HIA Insurance within the 45 day time limit stupulated by Clause 54 the claim was deemed to be refused. 61 HIA Insurance's denial of indemnity put the validity of Mr and Mrs Kostas' termination of the Contract in issue. Consequently, whether the termination of Contract was valid is central to the question of whether the insurance claim should have been refused, and central to the decision of the Tribunal now under appeal. The Decision Of The Tribunal 62 After identifying the substantive issue as the validity of the termination, the Tribunal states that the issue "seems to come down to a few factual findings, and the consequences of those findings. These relate", says the Tribunal, "to the preparation by the Owners of lists of works said to be defective and outstanding, letters they sent (or were sent on their behalf), and the responses of the Builder." 63 The Tribunal then refers to the Contract and cites, without repeating, Clause 1, 6, 12, 13, 15 and 24. Clause 1 imposes general conditions on Sydney Construction including that it "will diligently proceed and complete all work … in a good and workmanlike manner" and imposes on Mr and Mrs Kostas a duty to pay the contract price in the manner specified in the Contract. 64 Clause 6 of the Contract deals with extensions of time and allows delays on account, inter alia, of inclement weather, any act or omission of Mr and Mrs Kostas, the unavailability of material, variations, suspension of works by Sydney Construction in accordance with the Contract and requires both parties to take all reasonable steps to minimise any delay. It requires any claim for extension to be notified in writing within 10 working days of the occurrence of the event and objection to the claim to be made within a further 10 working days. 65 Clause 12 of the Contract does not need summarising and deals with variations to the Contract, which are required to be in writing and signed by both parties. Clause 13 relevantly required Mr and Mrs Kostas to pay progress payments within 5 working days. Clause 15 required Mr and Mrs Kostas to carry out diligently any work or supply any materials, described in the Contract. 66 Clause 24 of the Contract has already been recited (see [34] infra) in its relevant detail. None of the clauses were recited or summarised by the Tribunal. 67 Importantly, the Tribunal made it clear that it did not consider Clause 27 of the Contract relevant and, by words of necessary import, did not consider its terms. 68 The provisions of the Contract, in particular Clause 6, require any claim for an extension (and any objection to such claim) to be notified in writing. Its terms, particularly the use of the word "must", make clear that strict compliance with that requirement is necessary. 69 Clause 27 dictates the methods by which notice may be given. It, too, uses the word "must". It is in the following terms: "If the contract requires or permits a party to give a notice, consent, or other communication in writing to the other part (sic) [read, party] it must be given by either: · handing it to the other party; or · leaving it with a person, apparently over the age of 16, at the other party's business or residential address; or · certified mail to the last known address of the other party; or · facsimile transmission to the last known facsimile number of the other party. A notice which is not handed to the other party is taken to have been received 3 working days after being posted, or the following day if left or transmitted by facsimile." I shall return to this matter. 70 The Tribunal considered the evidence of Mr and Mrs Kostas unsatisfactory. Because Mr Kostas insisted that the list of defects was prepared by him, without assistance from a building consultant, yet lacked the knowledge of many of the building terms, the Tribunal considered him generally unreliable and refused to accept any of his evidence, on any issue, if uncorroborated. The Tribunal applied this credit finding to Mrs Kostas. 71 Central to the ultimate finding of the Tribunal was the above credit finding. It results in a further central finding at [11] of the decision where the Tribunal says: "I am satisfied on the evidence that the Builder sent the time claims to the Owners, and I am not satisfied that they did not receive them. I conclude that the notices were validly served and that the Builder's time under the varied contract to complete was extended as Mr Kerr submits. It is not a matter, as Mr Bambagiotti submits, of relying upon the deemed service portion of Clause 6 of the contract. It is a finding of service, despite the evidence of the Owners. There was no notice of dispute, as required by the contract." 72 It is necessary to delve a little further into the evidence. Mr Turrisi swears, in his affidavit of 15 August 2003 (paragraph 64) that he "made a claim for extension of time" on 31 March 2000. He does not specify how that claim was "made" except that the "claim is at page 245 of the bundle". 73 Further, that same affidavit (paragraph 83) attests that on 23 May 2000, Mr Turrisi "sent a letter to the Kostas' claiming an extension of time". HIA Insurance relied upon that letter, also referred to earlier, which is at page 301-302 of the Tender Bundle. 74 HIA Insurance did not expressly rely on the affidavit of Mr Turrisi. It did rely on the Tender Bundle. Further, HIA Insurance relied upon the extensions of time in its submissions to the Tribunal. It seems that the Tribunal had regard to the evidence of Mr Turrisi and, in these proceedings, Mr and Mrs Kostas make complaint about that. 75 Mr Kostas, in his affidavit of 29 August 2003 (paragraph 26) refers to the 23 May extension claim and attests to the fact that he "cannot recall having previously seen or received the letter". As to the extension of 31 March 2000 Mr Kostas gave evidence to the effect that he had not seen it prior to it being used in the proceedings before the Tribunal (affidavit of Mr Kostas of 10 October 2003, paragraph 16). 76 On the basis of the conceded facts, or the findings of primary facts, the Tribunal held:

(i) the date for practical completion under the Contract was extended, by the written notices dated 31 March 2000 and 23 May 2000 to which I have already referred, to September 2000;

(ii) as Sydney Construction was on site at the time, there were no grounds for Mr and Mrs Kostas to serve the notice of 4 May 2000;

(iii) the notice given by Mr and Mrs Kostas on 12 May 2000 was also ineffective because no details of the alleged defects were given;

(iv) the notice given on 16 May 2000 by Mr and Mrs Kostas was ineffectual because Sydney Construction had not been unable or unwilling, at that date, to complete the works. The circumstance that Sydney Construction was removing work already completed did not seem to affect that conclusion;

(v) the notice of 16 May 2000 was defective because of a lack of particularity;

(vi) when Mr and Mrs Kostas wrote seeking confirmation that all notified defects would be rectified, they waived previous notices. More accurately, the Tribunal found they had elected to continue the Contract;

(vii) the 21 June 2000 letter was also defective because it did not refer to the fact that the notice was being given under provisions of the Contract;

(viii) the 29 June 2000 letter was not notice under the Contract because, on the basis of the previous conclusions, there was no prior valid or effective notice to rectify;

(ix) Sydney Construction had not refused to rectify the defects;

(x) if Mr and Mrs Kostas bore the onus of proving that they had supplied the necessary PC and provisional sum items, they had not satisfied that onus;

(xi) if, on the other hand, HIA Insurance bore the onus of showing that necessary items were delaying the work, the evidence established that the windows had not been installed by 29 June 2000;

(xii) Sydney Construction had not abandoned the site; and

(xiii) Mr and Mrs Kostas repudiated the Contract by terminating without proper cause. (The above paraphrases, uncontentiously, the list of findings contained in the written submissions of Mr and Mrs Kostas.) Denial Of Natural Justice 77 At some stage, HIA Insurance submitted that the Tribunal was not bound by the rules of natural justice. This submission, in such absolute terms, was put faintly. Rather, the major thrust of the submission was that, if the rules of procedural fairness were applicable, they did not prevent the Tribunal from relying upon the affidavit of Mr Turrisi. 78 Where the exercise of power of a tribunal (or court) may adversely affect the rights of a party (or enforce them) the rules of procedural fairness apply unless the legislature provides otherwise. The exclusion of the rules of procedural fairness must be effected expressly or by plain words of necessary intendment: Annetts v McCann (1990) 170 CLR 596 at 598 (per Mason CJ, Deane and McHugh JJ). 79 HIA Insurance refers to the provisions of the Consumer, Trader and Tenancy Tribunal Act and, particularly, section 28 and following. Section 28: reposes in the Tribunal the power to determine its own procedure (subsection (1) of section 28); exempts the Tribunal from the rules of evidence and, [subject to the rules of procedural fairness], allows it to inform itself in such manner as it thinks fit (subsection 2); requires the Tribunal to act with appropriate informality and in accordance with "equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms" (subsection 3). 80 Provisions of similar kind (expressed in some respects in identical language) are familiar to any practitioner before tribunals in Australia and elsewhere. The term "equity, good conscience and the substantial merits of the case" is used more often than not to describe the tasks of tribunals that are required to alter the rights of parties and those terms apply the rules of natural justice: see Conciliation and Arbitration Act 1904-1983 (Cth) sections 40 and 41, ibid, 1983-1988, sections 110 and 111; Industrial Relations Act 1988 (Cth) sections 110, 111; Workplace Relations Act 1996 (Cth) sections 110, 111; Industrial Relations Act 1996 (NSW) sections 162, 163; Industrial Arbitration Act 1940 (NSW) section 83; Industrial Arbitration Act 1912-1949 (WA) section 69. 81 The earliest reference to these expressions discovered by the Court was by Henry VIII, later codified in "an act for the recovering of small debts and for the relieving of poor debtors in London" (3 James I C. 15, section 11), which, in 1606, gave similar procedural functions to the Commissioner who constituted Courts of Request or Court of Conscience under the statute. Its first use in this State seems to have been in 1842 (6 Vict. 15) and it was inserted in both the State (Industrial Arbitration Act 1901 (NSW)) and Federal (Commonwealth Conciliation and Arbitration Act 1904 (Cth)) industrial arbitration statutes when first enacted and into statutes dealing with small debt recovery: see Small Debts Recovery Act 1912 (NSW) section 7 and the article by O. Howard Beale at 10 ALJ 349. Whatever else it may connote, it certainly includes the rules of natural justice and procedural fairness: Barlow v Orde (1870) L.R. 3 P.C. 164 per Westbury LJ; Skinner v Naunihal Singh (1913) 40 Indian Appeals 105 at 114, per Shaw LJ. It has been applied in Australia as that which is right and fair, which has included natural justice at least since 1903: Colliery Employees Federation v Northern Colliery Proprietors Association [1904] 3 A.R. (NSW) 182 at 185; Greater Wollongong City Council v Dunn [1973] 1 NSWLR 36 at 42 (per Hutley JA). 82 The Consumer, Trader and Tenancy Tribunal Act (section 28(2) and section 35, which relates to ensuring that all parties have the right to call or give evidence and otherwise present their cases) confirms, rather than excludes, this approach. The Tribunal is bound by the rules of natural justice or, as they are often called, procedural fairness. 83 The rules of procedural fairness are neither immutable nor uniform. They will vary depending on the nature of the tribunal and the context of the proceedings before it. This Tribunal, when determining a matter utilising powers and jurisdiction of this kind, is exercising judicial power, i.e. it is determining existing rights according to law, albeit in a deliberately less formal context. 84 The rules of natural justice have been held, for example, in certain circumstances, not to include a right to cross-examine: T.A. Miller v Minister for Housing [1968] 1 WLR 992 at 995. However, even then it will necessarily include the right of a party to be informed of the evidence adverse to its interests in order to have the opportunity to controvert it. Often, the only practical means of controverting evidence will be to cross-examine: see Australian Postal Commission v Hayes (1989) 23 FCR 320 at 324-327 (per Wilcox J). 85 In the instant proceedings before the Tribunal, at least following the agreement as to procedure on 10 November 2004, it was necessary if HIA Insurance were wanting to rely on the affidavit of Mr Turrisi (or if the Tribunal were so desirous) for Mr and Mrs Kostas to be informed. 86 It is correct that the Tribunal may inform itself as it sees fit. It may, for example, rely on Royal Commission reports or Select Committees or even evidence in previous proceedings [see FEDFA v BHP (1913) 16 CLR 245 at 261 (per Griffith CJ)], but it must at all times give the parties an opportunity of controverting the material, and in the case of Mr Turrisi's affidavit in these proceedings, cross-examining him upon it. In order for Mr and Mrs Kostas to be given such an opportunity, they would have needed to be informed that the affidavit was to be used. They were not. 87 The reliance in this Court by HIA Insurance on the filing of the affidavit is misplaced. The record before the Tribunal discloses an understandable and appropriate level of formality in the receipt into evidence of the affidavit material. Objections to evidence were taken and upheld. Notwithstanding the provisions of the Act dispensing with the rules of evidence, the Tribunal applied many of those rules, presumably because of the attitude of the parties and the matters to be determined. No criticism is made because those rules were applied; and none could be. But the process adopted necessarily involved an understanding that affidavits (and other material), while filed with the Tribunal and perhaps physically read by the Tribunal, were not formally before the Tribunal until admitted and would not, until that time, be utilised by the Tribunal nor relied upon by the parties. Reliance on the affidavit of Mr Turrisi in these circumstances was impermissible. Reliance On Tender Bundle And Extension Of Time 88 Thus far, for the purpose of the discussion of the submissions, it has been assumed that the Tribunal relied upon the affidavit of Mr Turrisi. The Tribunal does not expressly state any such reliance. Mr and Mrs Kostas submit that the evidence must have been relied upon in order for the Tribunal to have come to its conclusion. 89 However, the Tribunal was entitled to rely upon the Tender Bundle on which much of the cross-examination was based and which HIA Insurance tendered at the hearing on 10 November 2004. That Tender Bundle included the claims for extension dated 31 March 2000 (page 245 of the Bundle) and 23 May 2000 (pages 301-302 of the Bundle). 90 Each of those letters is addressed to Mr and Mrs Kostas at the address of the construction site, which was their residence prior to the commencement of the works. There is no suggestion of personal service on either Mr or Mrs Kostas. Further there is no reference to any facsimile number (or the ownership of a facsimile) on either letter (or on any other document) disclosing a facsimile address for Mr or Mrs Kostas. The construction site address is the address of Mr and Mrs Kostas in the Contract. 91 One may therefore infer, as was submitted by the HIA Insurance and Sydney Construction to the Tribunal, that each claim was sent to Mr and Mrs Kostas. Without any other evidence, such an inference would arise from the existence of each of the letters. However, as earlier stated, the content and efficaciousness of the letter of 23 May 2000 is, at least in part, inconsistent with the terms of the letter of 31 March 2000. 92 Contrary to the implication in the Tribunal decision at [11] infra at [72], there is no "deemed service". Moreover, given that service must be effected by fax, personal service or certified mail, and there is no suggestion of personal or fax service, Sydney Construction would have needed to send the letters by certified mail for it to have complied strictly with the terms of Clause 27 of the Contract. 93 If certified mail were used, then there would be in existence a receipt. No receipt is in evidence before the Tribunal. Nor is there a receipt for the certified mail attached to any affidavit of Mr Turrisi (or any one else). The inference must be that any such evidence of mailing, if it exists, does not support the case of HIA Insurance or Sydney Construction: Jones v Dunkel (1959) 101 CLR 298. 94 The issue that next arises is whether strict compliance with the means of service outlined in Clause 27 is required: Project Blue Sky v ABA (1998) 194 CLR 355. I have already referred to the use of the word "must" in the clause, which prima facie suggests strict compliance. There are, it seems, two purposes in Clause 27: first, certainty of delivery (and knowledge by the other party); and secondly, the date from which liability (or response) is calculated. If one party to the Contract did not strictly comply with the terms of the clause, but could otherwise prove actual receipt of the notice or other document, and the date of its receipt, that, it would seem, would be sufficient for service under the Contract i.e. substantial compliance of that kind would satisfy the purpose of the clause or such evidence would prove that personal service had been effected. 95 There is no evidence that either letter was sent by fax, was handed to either Mr or Mrs Kostas, was left with a person over 16 years of age at the address, or was sent by certified mail. Nor is there evidence that either letter was actually received by Mr or Mrs Kostas at any relevant date (i.e. before the Contract had been terminated) or the date of its receipt. (There was evidence, unsurprisingly, that Mr Kostas saw the document when served with the affidavits in the proceedings before the Tribunal.) 96 The mere fact that the Tribunal did not believe Mr Kostas and would not accept his evidence without corroboration does not mean that there is evidence to the opposite effect. In other words, while the Tribunal may have properly (on which I will comment later) taken the view that it would not accept evidence that Mr Kostas did not receive the letters, this would, absent other evidence of compliance with Clause 27, say nothing about receipt of the letters - it would leave the evidence neutral. 97 That this issue was never addressed, or was not adequately addressed, arises from the error in not considering Clause 27 of the Contract as relevant to the decision and misunderstanding either or both: the effect of not believing Mr Kostas on the state of the evidence concerning the receipt of the letter; and the onus of proof. 98 The material (including the Affidavits) filed in the Tribunal and relied upon in these proceedings discloses a contract, in original form, extended by the parties, on or shortly after 24 January 2000, by a period of 12 weeks to 1 July 2000 (Tender Bundle at page 113, as explained in evidence and submissions before the Tribunal). This aside, the evidence is incapable of supporting a finding that any further extension of time was effective. 99 Even if, contrary to the view already expressed, the Tribunal were entitled to rely on the affidavit of Mr Turrisi, it does not suggest personal or fax service; nor does it suggest certified mail was used. There is no evidence or material suggesting compliance with Clause 27 of the Contract. Defective Work And The Notice Of It 100 As earlier stated (paragraphs 45 and following, infra) the parties corresponded concerning the progress payment (in the case of Sydney Construction) together with the Notice of Suspension of Work given by it. I have also referred to the letters sent by Mr and Mrs Kostas, or solicitors on their behalf. 101 As earlier stated, the letter of 4 May 2000 from Mr and Mrs Kostas to Sydney Construction, apart from denying an entitlement to the progress payment already claimed, listed 42 incomplete items and rejected claims for payment for 3 variations. On the same day Sydney Construction replied conceding some of the work had not been completed and giving notice of a suspension from Monday 8 May 2000. 102 The uncontested and uncontradicted evidence (and not subject to cross-examination) was that the builder in fact suspended works for at least some substantive time in May and made little or no progress from that time until the termination of the Contract on 29 June 2000. The uncontroverted evidence of the architect, tradespersons and Mrs Kostas, to this effect, does not depend upon the Tribunal's non-acceptance of the evidence of Mr Kostas. 103 While it is in accordance with the evidence that, as the Tribunal found, the builder was on site during that time, the uncontroverted evidence is that the "work" that was done was the removal of the builder's sign on the garage of the premises and the removal of work done as part of variation 11. There is correspondence during May between Sydney Construction (Mr Turrisi) and the architect (Paul Rappoport) concerning some work that Sydney Construction was required to do. It does not seem to have been performed or completed. 104 The removal of the work in variation 11 is instructive. Payment for variation 11 was one of the payments declined by Mr and Mrs Kostas. The submission put by Sydney Construction (and the evidence before the Tribunal) was that variation 11 was necessary and became part of the Contract. The position of Mr and Mrs Kostas was also that the work done and claimed in variation 11 was part of the Contract. The work, they said, was necessitated by defective work originally carried out by Sydney Construction. Therefore, there was no issue between the parties that the work itemised in variation 11 was a necessary part of the Contract. The only issue between the parties was which of them should bear the cost of that work. As a consequence, the removal of the work that formed part of variation 11 was, as a matter of fact and law, necessarily the reversing of progress of the works. 105 Of the 42 items the learned Tribunal Member found that only 8 of them fell into the category of work to be performed by Sydney Construction. Of those 8 items, the Tribunal found that Sydney Construction was attending to 5. That left 3 items of work to which, on the findings of fact of the Tribunal, Sydney Construction were not attending, notwithstanding the demand of Mr and Mrs Kostas of 4 May 2000. There is no finding as to whether or not the unattended items of work "substantially affects the work" as required by Clause 24 of the Contract. The Tribunal determined that, because there was another 4 months more for the Contract to last (the Tribunal having decided that the extensions of 31 March and 23 May 2000 were effective), it could be said that the items that were not being attended to could have been carried out, within the timeframe of the Contract, by Sydney Construction. 106 Further there is simply no evidence that was before the Tribunal on which it could have come to a view that as at 4 May 2000 Sydney Construction was attending to the items listed or any of them. Nor was there a submission to that effect by HIA Insurance. 107 HIA Insurance submit that the terms of the letter of 4 May 2000, which terms require Sydney Construction to rectify and/or remedy "within 10 days", does not comply with Clause 24 of the Contract because, it is said, the notice "did not give the Builder 10 days as required under Clause 24". 108 Clause 24 of the Contract entitled Mr and Mrs Kostas to notify Sydney Construction that "unless the default is remedied within 10 days or such longer period as specified, [Mr and Mrs Kostas] will end the contract". 109 There are obvious answers to the submission in this Court of HIA Insurance. First, the terms of the letter of 4 May 2000 are relevantly identical to the provisions of the Contract. Secondly, the letter demands remedy within 10 days failing which Mr and Mrs Kostas will end that Contract "in accordance with Clause 24" thereof. If, as is submitted, Clause 24 required 10 days to remedy (rather than remedy within 10 days) then the notice of 4 May 2000 would have required Mr and Mrs Kostas to provide that time. 110 However, Clause 24 allows notice to be given in the terms used. Furthermore, the notice of 4 May 2000, while referring to the 42 listed items on which attention has been focused, makes clear that those items adumbrate incomplete tasks and that Mr and Mrs Kostas also rely on a previous suspension of works by Sydney Construction without reasonable cause and the failure to proceed diligently. Letter Of 12 May 2000 111 The Tribunal determined that the extension of time granted on 24 January 2000 waived any delays up to and including that date. There can be little doubt that a necessary inference of the grant of the extension is that the delays that are included in the extension are, to the extent of the extension, forgiven. It does not mean that, if, in the extended period allowed, the work were still not performed, reliance may not be placed upon the non-performance of the work. 112 Fundamental to the finding on both law and fact on the issue raised by the Notice of 4 May 2000 is the finding, without evidence, that the Contract still had 4 months or so to run. It did not. 113 The Tribunal found that the Notice of 12 May 2000 given by Mr and Mrs Kostas to Sydney Construction was insufficient to be a default notice under the Contract. 114 The insufficiency was the failure to provide particulars of the defective work requiring remedy. The Tribunal held that in order to invoke the right to determine the Contract on the basis of defective work, it was necessary to specify the work that it was said required remedying. 115 The letter of 12 May 2000 reiterated the notice of 4 May 2000, which alleged failure to proceed diligently, previous suspension without reasonable cause and inability or unwillingness to complete the work. The 12 May letter responded in detail to the comments of Sydney Construction on the allegations relating to the 42 items. It was necessary, given that some (albeit far more than three) items were still alleged to be incomplete, for the incomplete work allegation to be repeated in a manner that confined the allegation to that work not, by them, accepted as irrelevant to the claim. This was done. 116 As to the efficaciousness of the allegation of defective work, Mr and Mrs Kostas submit in this Court, and submitted below, that it was unnecessary to specify the defective work and rely on Brenmar Building Co v University of Newcastle, NSW Court of Appeal, unreported, 12 December 1977, BC7700142. 117 The Tribunal distinguished Brenmar on the basis, it seems, that the notice in Brenmar was for a different kind of breach. This distinction is partly correct. Brenmar was a judgment of the Court of Appeal (Hutley, Glass and Samuels JJA) in which notice had been given to a builder under a similar clause on the ground of a failure "to proceed with the Works with reasonable diligence or in a competent manner". 118 The Court in Brenmar, relying on Baron Parke in Pauling v The Mayor etc Borough of Dover 156 ER 644, Megarry J in Hounslow London Borough Council v Twickenham Garden Developments (1971) 1 Ch 233 and Moffitt J in Stewardson Stubbs & Collett v Bankstown Municipal Council [1965] NSWR 1671, held that in alleging "a failure to maintain those standards of building and building organisation which a builder can be expected to have, having taken on the responsibility of the task", such a written allegation was sufficient to put the builder on notice and requires the builder to do the work competently and expeditiously. A failure so to do can, thereafter, be objectively determined. 119 It seems to me that Brenmar is authority for the sufficiency of the notice (given on 4 May 2000 and reiterated on 12 May 2000) of unwillingness or inability to complete the works, unreasonable suspension of the works and failure to proceed diligently. In those respects the notices were good. 120 However, I agree with the Tribunal that to the extent that a party requires another party to remedy defective work, it is necessary, subject to any contrary implication in the Contract itself, to particularise the work that is said to be defective. Conduct after 12 May 2000 121 As already stated, HIA Insurance relied upon a letter entitled "Claim for Extension of Time" dated 23 May 2000. The Tribunal determined that this letter was sent. The Tribunal stated at [11] that it was served in accordance with the Contract, despite taking the view that the relevant clauses of the Contract did not include the clause dealing with service (Clause 27). 122 The Tribunal relied on the letter (and some other material, I assume) to conclude that Mr and Mrs Kostas had caused delays. The first mention by Sydney Construction, in any purported claim for extension, of failures of Mr and Mrs Kostas causing delays was in the letter dated 23 May 2000. The provisions of Clause 6, Extension of Time, relevantly required Sydney Construction to notify Mr and Mrs Kostas of the cause of the delay and its length "within 10 working days of the occurrence of the event". Therefore, if the delay were caused by Mr and Mrs Kostas failing to provide materials, we can infer that the delay to which Sydney Construction was referring, as at 23 May 2000, was 10 days. 123 Further, we can assume, whatever delays Mr and Mrs Kostas caused prior to 13 May 2000, Sydney Construction could not utilise such delays for an extension of time under the Contract. 124 As already stated solicitors for Mr and Mrs Kostas wrote to the solicitors for Sydney Construction on 21 June 2000. They referred to their letters of 4, 12 and 16 May 2000 and the breaches of the Contract therein alleged. A copy of the report of the architect, Paul Rappoport, was enclosed. That report listed 51 separate items falling short of the standards required for work (and specified the standard required). It also lists a further 12 other excessive delay claims or general observations of failures by Sydney Construction. 125 The report concluded that Stage 5 had not been completed, and that "much of the work already carried out under previous claims is now either defective or incomplete". Mr Rappoport summarised his conclusions in the following terms: "1. Water continues to seep into the basement area as a result of the Ag. Pipe not having been completed and signed off as adequate by an engineer in accordance with the Scope of works. 2. The first floor walls do not extend behind the eaves thus exposing the affected rooms to the elements. 3. The windows and door have not been properly flashed and may therefore admit moisture into the interior of the house as a result of water becoming entrapped in the brickwork. Weepholes have not been provided and the flashing is both incorrectly installed and incomplete. 4. Many windows and doors have not been glazed and may therefore permit continued exposure to the elements. 5. There is no evidence that the specified membrane has been installed to the horizontal slabs - both above slabs and below. Failure to have installed these membranes may result in the continued ingress of moisture into the interior long after the finishes have been applied. 6. Lack of adequate surface and roof water drainage provision to the rear patio, the bottom of the driveway where it meets the house, the incompleteness of the downpipe installation, the incorrect design having been applied to the portico roof drainage and potentially inadequate or insufficient drainage to the first floor roof terrace area may result in continued ingress of moisture into the interior of the house long after the finishes have been applied. 7. Parapet flashing and capping not having been provided may result in the ingress of moisture long after finishes have been applied." 126 Mr Rapport recommended as follows: "For the reasons enunciated above, we recommend that until such time that the builder makes good the defects identified in this report and that he proceeds diligently to complete the works so that the interior space of the house is adequately protected from the ingress of moisture, whether via window elements, door elements, horizontal slab elements, roof elements, retaining wall elements, surface water drainage elements or any penetration not properly flashed or protected against the elements, payment for the claimed Stage 5 works should be suspended." 127 An affidavit of Mr Rappoport, sworn 23 December 2003, was filed in the Tribunal on 24 December 2003. It was relied upon in the proceedings on 10 November 2004. It was admitted and read without objection, there was no cross-examination of Mr Rappoport and there was no expert evidence otherwise adduced. The affidavit purports to be expert evidence. At least in proceedings governed by the rules of evidence, there would be issues associated with Mr Rappoport's independence, given that Mr and Mrs Kostas engaged him prior to the commencement of the litigation and to act in their interests. 128 Whatever view one may take of that, the evidence of Mr Rappoport is unassailable and, in fact, unchallenged. As at 21 June 2000, Sydney Construction was on notice of the precise matters that it was said were incomplete, the precise matters said to be defective and the precise manner that it was said Sydney Construction was not proceeding diligently. 129 Further, the Tribunal, on the evidence before it, was required to find those allegations against Sydney Construction proved. Sydney Construction was required, in order to avoid Mr and Mrs Kostas proceeding to terminate the Contract, to confirm, by 5pm 23 June 2000, that it would rectify items 1-57 in the report of Mr Rappoport and it would commence such rectification by 9am 28 June 2000. Sydney Construction was required, also, and amongst other things, to proceed to complete the works according to the Contract as per the requirements of Mr Rappoport. On 23 June 2000, Sydney Construction sought an extension of time before which any action to terminate the Contract would be taken. The extension sought was to 28 June 2000. At the time of that request Mr and Mrs Kostas had not indicated the date on which they would act to terminate. 130 It seems that, quite reasonably, Mr and Mrs Kostas took the request to be for further time by which Sydney Construction could respond to their letter. The deferral was granted and notified by letter also dated 23 June 2000. 131 No response from Sydney Construction was forthcoming and on 29 June 2000, Mr and Mrs Kostas terminated the Contract. 132 HIA Insurance submits that the deferral granted on 23 June 2000 was an election to keep the Contract on foot and/or waived all previous notices. A fair reading of this correspondence makes clear that Mr and Mrs Kostas continued to reserve its right to terminate (and expressly so) previously notified. Both parties relied in this Court on Immer (No 145) Pty Ltd v Uniting Church (1993) 182 CLR 26. On an objective view of the conduct of Mr and Mrs Kostas, it is not open to take the view that they elected not to exercise their contractual right, but simply waived their right to do so before 28 June 2000. 133 In Immer, the High Court said: "[20] This appeal does not turn simply on whether the conduct of Immer, viewed objectively, constituted an election not to exercise its contractual right of rescission. Rather, the question as argued is whether, in the light of Immer's knowledge or lack of knowledge of relevant circumstances, it can be held to have so elected. In Sargent v. A.S.L. Developments Ltd. Stephen J. said:

'The words or conduct ordinarily required to constitute an election must be unequivocal in the sense that it is consistent only with the exercise of one of the two sets of rights and inconsistent with the exercise of the other'.

'A person confronted with a choice between the exercise of alternative and inconsistent rights is not bound to elect at once. He may keep the question open, so long as he does not affirm the contract or continuance of the estate and so long as the delay does not cause prejudice to the other side. An election takes place when the conduct of the party is such that it would be justifiable only if an election had been made one way or the other ( Tropical Traders Ltd. v. Goonan. So, words or conduct which do not constitute the exercise of a right conferred by or under a contract and merely involve a recognition of the contract may not amount to an election to affirm the contract.'"(Emphasis added) Further Brennan J said: "[3] An act amounting to an election must be unequivocal. Where a contract can be terminated at the option of a promisee, the right to terminate is not necessarily lost by the promisee doing any act consistent with the continuance of the contract. If the act is also consistent with the reservation of a right to terminate in certain events, the right to terminate is not lost by the doing of the act. Thus, in Tropical Traders Ltd. v. Goonan a vendor who was entitled under the general law to rescind a contract for the sale of land by reason of the purchaser's failure to complete within the time limited, time being of the essence of the contract, did not lose its right to rescind by giving the purchaser additional time." 134 Immer cites with approval the judgment of Jessel M.R in Tropical Traders, Barclay v Messenger (1874) 43 LJ Ch 449 at 456 in which it was held that "a mere extension of time, and nothing more, is only a waiver to the extent of substituting the extended time for the original time, and not an utter destruction of the essential character of the time". The foregoing comment dealt with an extension of time under a contract making time of the essence. 135 The letter of 23 June 2000 was not an unequivocal act of Mr and Mrs Kostas inconsistent with the exercise of the right to terminate pursuant to their rights under contract and/or arising from prior notices. It was expressly consistent with such rights, provided the rights were exercised not before 28 June 2000. 136 Similarly, the letter of 21 June 2000 was not an election to continue the Contract inconsistent with rights otherwise reposed in Mr and Mrs Kostas. As earlier stated, the prior notices did not terminate the Contract; they gave notice of default and an intention to terminate. The letter of 21 June 2000 stated: "Before proceeding to terminate the contract on the basis of the unremedied breaches, of which notice has already been given, our clients are prepared to give your client one final opportunity to avoid such action." 137 Viewed objectively, the letter unequivocally relies on the right to terminate continuing but, quite reasonably, provided a grace period in which to remedy the defects upon which Mr and Mrs Kostas continued to rely. I will deal later with the submission of HIA Insurance that there has been an election and waiver of rights. Credit of Mr Kostas 138 The Tribunal found Mr and Mrs Kostas to be unreliable in the following passage: "[10] In many respects, the evidence of the Owners was not satisfactory, and at the end of the day, I do not find that they were reliable witnesses. The basis for this turns on the evidence given by Mr Kostas concerning the preparation of the list of defects (so called) attached to the letter of 4 May 2000. Mr Kostas was adamant that that list was prepared without the assistance of a building consultant. He said that he just went around the house and wrote out the list. The relevance of his insistence that that was how the list was prepared is not obvious. What is obvious is that Mr Kostas lacked knowledge of many of the building terms and items included in the list. He could not have prepared the list in the manner he described. Because of the opinion I formed, I am not prepared to accept the Owners as reliable witnesses unless their evidence on the point is corroborated by another witness or other, reliable, materia." 139 There are a number of issues raised obviously by the terms of the above paragraph. A court on appeal ought to interfere (even in circumstances where it is empowered to do so) with a finding on credit only in the rarest of circumstances. 140 However, there are occasions when a court on appeal is required to interfere. There are even circumstances where a wrong finding of credit will be an error of law. 141 The Tribunal's finding on credit is based upon the cross-examination of Mr Kostas in which he says that he and Mrs Kostas prepared the list of 42 incomplete items and did so without the assistance of anyone "with building or engineering qualifications" (Transcript pages 21 and 59-60). 142 While demeanour may often be an unstated factor in the determination of credit, the Tribunal not only does not expressly rely on demeanour but refers to the impossibility of Mr Kostas doing as he said as "the basis" for the credit finding. The difficulty with such an approach is manifest. First, Mr Kostas may simply have forgotten a matter of small, if any, relevance to the ongoing issues. Secondly, Mrs Kostas, who prepared the list with Mr Kostas, may have the knowledge of the building terms. Thirdly, Mrs Kostas did not give that evidence and was not cross-examined, yet the credit finding is made against her. 143 Even if the procedural agreement of 10 November 2004 allowed an assumption that Mrs Kostas' evidence would have been identical to the evidence of Mr Kostas, there is no evidence of the state of knowledge of Mrs Kostas. The finding of unreliability is based on very fragile material and takes no account of the failure to call Mr Turrisi or the irrelevance of this evidence to the issues at trial. I shall return to the issue of credit findings. Right of Appeal

(i) There was no extension of time for completion of the building works beyond 1 July 2000; (ii) There was no evidence before the Tribunal on which it could come to a conclusion that there were extensions beyond 1 July 2000; (iii) Uncontested and uncontroverted evidence established that there were defects in the work of Sydney Construction performed before 4 May 2000; (iv) Uncontested and uncontroverted evidence established that much work of Sydney Construction was, as at 4 May 2000 or shortly thereafter, incomplete, including work within the description of previous stages and for which payment had already been made; (v) Uncontested and uncontroverted evidence established that there had been for a period a suspension of works by Sydney Construction for non-payment of the progress payment for Stage 5; (vi) Uncontested and uncontroverted evidence established that Sydney Construction had failed to proceed diligently with the work; (vii) The notice by Mr and Mrs Kostas, of 4 May 2000, was legally effective and complied with the contract, except to the extent that it alleged defective work without specifying same; (viii) The notice by Mr and Mrs Kostas, of 12 May 2000, was also legally effective to the same extent and complied with the contract; (ix) To the extent that the Tribunal relied on the affidavit of Mr Turrisi, without notice to Mr and Mrs Kostas, and without the opportunity to cross-examine, in the particular circumstances of these proceedings and the agreement between the parties on procedure, Mr and Mrs Kostas were denied procedural fairness; (x) It is unclear to what extent the Tribunal relied on the affidavit of Mr Turrisi; (xi) There is no logical or probative basis disclosed by the Tribunal for the findings of credit against Mr Kostas and even less basis for extending those findings to Mrs Kostas. 145 I do not determine that the mere wrong claim by Sydney Construction for payment of the Stage 5 Progress Payment was repudiatory in the common-law sense, that is, that it evinced, of itself, an intention not to be bound by the Contract or not to perform it. 146 The Consumer, Trader and Tenancy Tribunal Act confines an appeal to this Court by section 67 (1) in the following terms: "67(1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the Supreme Court against the decision." 147 HIA Insurance submits that the appeal is premature because the decision appealed is not final, but interlocutory. It relies on the judgment of Associate Justice Harrison in HIA Insurance v Consumer, Trader & Tenancy Tribunal [2004] NSWSC 82. 148 Further, HIA Insurance submits that the decision sought to be impugned is not an order and is beyond the reach of prerogative relief. It refers to section 65 of the Consumer, Trader and Tenancy Tribunal Act, which prohibits relief, except, relevantly, in the circumstances described in section 65 (3) of that Act. Those circumstances require an "order" and this decision, it submits, does not fit that description. 149 The provisions of section 67 of the Act, which are recited above, do not confine "decisions" to final decisions. The ordinary meaning of decision, like the term "order" or "judgment", would, if not expressly confined, include an interlocutory decision. Of course, there are decisions, and decisions. A decision on practice may not be the subject of appeal, if only because the procedure of the Tribunal is a matter for it. Likewise, as was the issue before Associate Justice Harrison, a decision not to strike out a matter summarily may not be a decision of the relevant kind because it has no effect (other than to require a hearing). 150 It would seem that, if the term "decision" in section 67 of the Act is to be confined (otherwise than by requiring leave: see section 67 (2) of the Act), it could be confined only by the ordinary meaning of "decision". In that sense, a decision would include every practically operative or determinative adjudication of an issue in the proceedings: see ABT v Bond (1990) 170 CLR 321. An order, similarly, would include a direction or conclusion on matters: Onslow v Inland Revenue Commissioners (1890) 25 QBD 465; Peterborough v Wilsthorpe (1883) 12 QBD 1; and includes interlocutory orders or decisions, respectively: Maxwell v Keun [1928] KB 645; R v Ludeke, ex parte COA (1985) 155 CLR 513 at 526; Gas and Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48. 151 In Gas and Fuel Corporation Superannuation Fund v Saunders, supra, the Full Court of the Federal Court of Australia (Per Gummow and Heerey JJ, with whom Davies J agreed in a separate judgment) said: ". . . [T]he orders pronounced by his Honour . . . were orders which were (subject of course to obtaining leave) properly the subject of an appeal. They were in the nature of procedural directions and thus interlocutory, but orders nonetheless. The practical and legal effect of what his Honour did was, to use his Honour's words, to "order a new trial by another judge of the Court". Judges of this Court, as a matter of routine, give directions (which are a species of order) that cases be placed in a list for trial, or that a trial commence on a specified date or that a trial date already fixed be vacated. For example, an order of a judge directing that a matter be fixed for trial after rejecting a party's contention that it was not ready could be the subject of appeal." 152 This judgment was summarised by another Full Court of the Federal Court (Per Beaumont, Carr and Branson JJ in Brooks v The Upjohn Company and Others (1998) 85 FCR 469) as follows: "In Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 at 59-64 Gummow and Heerey JJ (with whom Davies J agreed) reviewed the authorities. In that case the primary judge, after a lengthy hearing and very shortly before delivering his reserved judgment, acceded to the applicants' request to disqualify himself on the ground of perceived bias.

His Honour made orders that the proceeding no longer stand for judgment, that it be placed in the list of cases to be fixed for hearing, and that the costs of the trial (and other costs) be reserved to the judge who would thereafter try the proceedings. The Full Court of this Court held that there was jurisdiction for it to consider whether the primary judge had erred in disqualifying himself. That was because the orders pronounced by his Honour, which we have just summarised, although procedural directions, and thus interlocutory, were "orders nonetheless" (see at 64). They were orders which, subject to obtaining leave, were properly the subject of an appeal. The same can be said of the two sets of orders in this matter. In the present matter, assuming that such a vehicle is necessary to ground an application for leave to appeal, it can be found in the orders made by her Honour on 2 April 1998, which included an order fixing the trial date. Even the costs order made by her Honour on 25 February 1998 when she declined to disqualify herself would suffice."

153 A decision remains so, even if interlocutory, as does an order. In this case, the finding (to use a neutral word) was an adjudication, which in a practical sense, was operative and determinative of an issue in the proceedings. Further, the Tribunal issued a declaration and, after further short submissions, an order for costs. 154 There is also an issue between the parties as to the precise limits of an appeal. The provision gives a right of appeal to a party who is dissatisfied with the decision of the Tribunal where it decides "a question with respect to a matter of law". There is some authority on the issue: see Kalokerinos v HIA Insurance [2004] NSWCA 312 and A J Bignell v S G Edenden [2004] NSWSC 27. 155 The legislature has, with those words, chosen an unusual formulation. Often appeals are restricted to "errors of law" or "raising questions of law". Sometimes the restriction is to allow appeals only from "decisions on a question of law": see Hutchinson v RTA [2000] NSWCA 332. In Hutchinson the Court of Appeal said: "[33] Section 54 of the Act enables an appeal against any decision, whether final or interlocutory, which is a decision on a question of law, and is not limited to a final determination ( Metropolitan Water Sewerage and Drainage Board v Histon (1982) 2 NSWLR 720; Clisdell v Commissioner of Police (1993) 31 NSWLR 555; Maritime Services Board v Murray (1993) 52 IR 455). The word 'decision' is important. It includes an opinion of the Tribunal on a question of law upon which its determination is based ( Clisdell v Commissioner of Police at 559; Commissioner of Police v Donlan (CA, 8 August 1995, unreported)), but it is not enough that an error of law has occurred in the course of a hearing before the Tribunal ( Totalisator Agency Board of New South Wales v Casey at 359; Wijesuriya v The Director-General of Conservation and Land Management (1994) 54 IR 384 at 385). In Totalisator Agency Board of New South Wales v Casey Kirby P held that when the Tribunal denied procedural fairness by relying on matters not the subject of evidence or argument, it had made an error of law but had not made an error in deciding a question of law (see at 360: the other members of the Court did not think there had been a denial of procedural fairness)." (Per Giles JA, Meagher and Powell JJA agreeing) 156 In section 67 of the Consumer, Trader and Tenancy Tribunal Act, the legislature and the words "with respect to", which, if they were to be given a meaning, broaden the decided questions that may be appealed. "With respect to" are similar words to "in respect of", which have the widest possible meaning of any words used to convey some connection or relation between two subject matters: see State GIO v Crittenden (1996) 117 CLR 412 at 416; Technical Products Pty Ltd v SGIO (Qld) (1989) 167 CLR 45 at 47, 51. In the context of the validity of regulations the phrase "with respect to" requires only a substantial connection between the grant of power and the regulations made under it: see Herald and Weekly Times v Commonwealth (1966) 115 CLR 418 at 436 (per Kitto J.); Paull v Munday (1975) 11 SASR 346 at 348-9 (per Bray CJ), 352, 353-5 (per Wells J). As will be seen, it is unnecessary to determine finally, or at all, what, if any, broader meaning is added by the words "with respect to" in the provision. 157 In this case, for reasons that I will now address, the appeal does challenge directly a decision on a question with respect to a matter of law, even if that term were construed giving the words "with respect to" (or more conveniently the words "with respect to a matter") no meaning at all. It is for Mr and Mrs Kostas to establish the existence of an error on such a question: Bignell, supra, at [10] per Shaw J. Further, it is for Mr and Mrs Kostas to identify the question with precision: Grygiel v Baine [2005] NSWCA 218 per Basten JA at [29]. 158 It is therefore necessary to determine whether the questions identified by Mr and Mrs Kostas are decisions on questions of law (ignoring for present purposes the words "with respect to") and whether they display errors of law. 159 The classic relevant expression of the discrimination between error of law and error of fact derives from the statement of Jordan CJ (with whom Halse Rogers J agreed) in Australian Gaslight Co v Valuer-General (1940) SR (NSW) 126: "In cases in which an appellate tribunal has jurisdiction to determine only questions of law, the following rules appear to be established by the authorities: (1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact, not of law. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence; although evidence is receivable as to the meaning of technical terms; and the meaning of a technical legal term is a question of law: Commissioners for Special Purposes of Income Tax v Pemsel . (2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact. (3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences. (4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences. Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law." (Citations omitted.) 160 In the current proceedings, the questions of law decided by the Tribunal from which an appeal lies are that:

(i) The clauses of the Contract relevant to the dispute did not include Clause 27; (ii) There was some (or any) evidence of claims for extension of time; (iii) The uncontroverted and uncontested evidence of Mr Paul Rappoport did not support a lawful termination of the Contract by Mr and Mrs Kostas; (iv) The notice by Mr and Mrs Kostas on 4 May and 12 May 2000 were ineffective in law and contrary to the requirements of the Contract; (v) There was evidence inconsistent with the occurrence of a suspension of work without reasonable cause by Sydney Construction; (vi) There was evidence inconsistent with the uncontested and uncontroverted evidence of Mr Paul Rappoport that Sydney Construction had failed to proceed diligently with the work. 161 As is clear from the foregoing, there was no evidence to support some findings of fact crucial to the determination of the Tribunal. I do not by that mean that the findings were simply illogical. Lack of logic is not synonymous with error of law. But on these matters, there is no basis for the findings and no basis for the inferences drawn: see ABT v Bond (1990) 170 CLR 321 at 356 (per Mason CJ). 162 Moreover, Mr and Mrs Kostas posed these questions to the Tribunal. The Tribunal, expressly in some instances and implicitly in others, arrived at these findings despite the submission that there was no basis in law for them because there was no evidence on which they could be based. 163 As a consequence of all of the foregoing, errors of law infected the findings of the Tribunal and the appeal ought to be allowed. 164 Further and in the alternative, the question of law is whether the conduct of Mr and/or Mrs Kostas was unlawful, in that it was inconsistent with their rights under common law and/or inconsistent with the Contract. 165 The errors of law occurred in determining that question by: incorrectly construing the Contract (the failure to pay regard in Clause 24 to "suspension" and "proceeding diligently"); in determining the relevant clauses of the Contract and failing to have regard to all relevant matters (Clause 27); and, in determining the necessary facts to such a question in the total absence of evidence supporting those findings. 166 It is unnecessary to determine finally whether the Tribunal relied upon the affidavit of Mr Turrisi. If it did, there was a denial of procedural fairness and orders in the nature of certiorari are available under section 69 of the Supreme Court Act. Such orders are not prevented by the terms of section 65 of the Consumer, Trader and Tenancy Tribunal Act: see section 65(3)(b) of the Act. 167 It is therefore also unnecessary to determine how, in the context of section 73 of the Constitution, the privative clause would operate to exclude the jurisdiction of this Court or what, if any, impact the privative clause would have on the grant of substantive jurisdiction: see Fish v Solution 6 (2006) 225 CLR 180. 168 The errors of law that have been made and require correction do not include the finding of credit on Mr Kostas. If this were a rehearing on fact, or on fact and law, then correction would be required, but the task undertaken by the Court is confined to questions of law on which error is identified (or manifest). 169 The finding of credit in relation to Mrs Kostas is more difficult. It depends on how the procedural agreement on 10 November 2004 is to be applied. It is also clear that there was some nuance in the agreement. The Tribunal heard (and saw) the parties and there seemed to be some matters agreed that a reading of the transcript does not convey. Further, it does not seem to be a matter posed, as a question of law or a question at all, to the Tribunal and, therefore, not a decision by the Tribunal with respect to a question of law. Thankfully, it is unnecessary to decide this issue finally for the purpose of making the orders that I propose. Conclusion 170 There are a number of decisions of the Tribunal with respect to questions of law where the Tribunal is in error. Correction of those decisions requires the following findings:

(i) The Contract was due to be completed on or before 1 July 2000; (ii) No extension of time beyond 1 July 2000 had been effected; (iii) There were, as at 4 May 2000, 12 May 2000 and 21 May 2000, works for which payment had been made, but that had not been completed and/or were defective; (iv) Sydney Construction had suspended works without reasonable cause; (v) Sydney Construction had not, as at 4 May 2000, 12 May 2000 and 21 May 2000, proceeded diligently with the work; (vi) The notice of 4 May 2000, 12 May 2000 and 16 May 2000 were effective and valid notices under Clause 24 of the Contract relating to failure to proceed diligently with the work and to the suspension of work without reasonable cause; (vii) The notice of 21 June 2000 did not waive non-compliance and required an undertaking the effect of which was that Sydney Construction would remedy the defective work and proceed diligently with the works. 171 On 29 June 2000, Mr and Mrs Kostas were entitled to terminate the Contract in accordance with Clause 24. The failure of Sydney Construction to reply, within the timeframe that it had set, to the effect that it would comply with the Contract, was confirmation of its unwillingness to perform its obligations. The termination of the Contract by Mr and Mrs Kostas was lawful. 172 I make the following orders and declarations:

(i) The findings and orders of the Consumer, Trader & Tenancy Tribunal in HB00/79928 between the plaintiffs and HIA Insurance Services Pty Ltd, made 25 May 2005, be quashed and/or set aside; (ii) The costs orders of the aforesaid Tribunal in the aforementioned matter made on 20 September 2005 be quashed and/or set aside; (iii) The plaintiffs' termination on 29 June 2000, of the Contract of 5 August 1999 between the plaintiffs herein and Sydney Construction, was lawful and effective; (iv) The defendant shall pay the plaintiffs' costs of and incidental to these proceedings and the proceedings before the Consumer, Trader & Tenancy Tribunal; (v) To the extent otherwise entitled, the defendant shall have a certificate under the Suitors' Fund Act 1951 (NSW); (vi) The matter is otherwise remitted to the aforesaid Tribunal to hear and determine any remaining issue in accordance with these orders and the reasons therefor, and otherwise in accordance with law.

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