Madic Construction Pty Ltd v Noble

The Notice of Appeal

1. We refer to the Notice of Appeal filed on 18 November 2022 and Annexures.
2. The critical grounds of appeal are set out at page two of the Notice of Appeal and in written submissions.
3. It is convenient to set out the appellant's grounds of appeal in full: 1. The Tribunal had no jurisdiction to allow renewal proceedings in relation to orders one (3), (4), (5), (6), (8), (12) since the works required by the orders made on 8 January 2022 had been complied with. 2. The Tribunal erred in making renewal orders in respect of orders 1 (9) and 1(10), made on 8 January 2022, in circumstances where it was the actions of the Respondents which prevented the Appellant carrying out those works ordered. 3. appeal ground withdrawn 4. Appeal ground withdrawn. 5. Order 2 made by the Tribunal is incapable of being complied with by the Appellant and is vague and uncertain. (This ground of appeal was settled by consent of the parties)

Reply to Appeal

1. In their Reply to Appeal filed on 29 November 2022 the owners support the orders made on 8 January 2022. By way of summary the owners say that the grounds for appeal are without merit.

Applicable legal principles governing appeals

1. Section 80 of the Civil and Administrative Tribunal Act 2013 ('CAT Act') provides as follows: "(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances."
2. Clause 12 of Schedule 4 to CAT Act states: "An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)."
3. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
4. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as examples of error of law: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
5. Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]-[79] and [84(2)] as follows: "74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 75 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]…. 84 The general principles derived from these cases can be summarised as follows: … (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
6. Even if the appellant establishes that it may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the CAT Act, the Appeal Panel has discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Appeal Panel's consideration of whether to exercise that discretion.

The Legislation - Renewal Proceedings

1. The provision of the CAT Act which allows proceedings to be renewed is found in Sch 4, which is the Division Schedule that applies to proceedings in the Consumer and Commercial Division of the Tribunal - see ss 16 and 17 of the CAT Act and Sch 4.
2. The Renewal provisions have recently been addressed by the Appeal in Panel in Mania v NSW Land and Housing Corporation [2022] NSWCATAP 376 at. Schedule 4 cl 8(4) provides: (4) When proceedings have been renewed in accordance with this clause, the Tribunal - (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order.
3. The meaning of the expression "other appropriate order under this Act or enabling legislation" was considered by the Appeal Panel in Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98. Of the word "other" the Appeal Panel said at [32]: 32 The first criterion, that an order made on renewal be "other", presents little difficulty. All that is required is that the order made is different in some material respect from the order originally made that has not been complied with.
4. That is, the order made on renewal must be "different in some material respect". As to the word "appropriate", the Appeal Panel in Blessed said at [33]: … Since the order is being made on a renewal application, it would be natural to construe "appropriate" as requiring the order to be fitting or suitable having regard to the purpose for which a renewal application is made, the circumstances giving rise to the renewal application and any other relevant circumstances whenever arising. …
5. The Appeal Panel then continued at [35]: … A renewal application is, however, designed to deal with a situation where there has been non-compliance with the original order that the Tribunal thought was appropriate when the matter was first determined. The circumstances will inevitably have changed since that time, if for no other reasons than because there has been non-compliance with the order that had been made. What was appropriate originally may well not be appropriate at the time of the hearing of the renewal application. To limit the orders that could be made on renewal to those that would have been appropriate when the matter was originally determined would be likely to prevent the Tribunal from doing justice between the parties, having regard to the non-compliance with the original order and to any other circumstances that had changed materially since the proceedings were originally determined. This would render the right to renew proceedings ineffective in a significant number of cases.
6. Adopting the principles enunciated at Mania at [35], the purpose of the renewal provision is to provide a mechanism for enforcement of or timely compliance with the original orders, it seems to us that the making of the same order but with the added requirement of a "certifier", neither has the effect of enforcing the original order nor ensuring the timely compliance with that order. Rather, an "other" order requiring the same work to be done but have it "certified" is not materially different. In addition the work that was ordered to be certified, does not require certification from a licensed professional in accordance with relevant building codes or standards and the additional requirement was more akin to "supervision".
7. Blessed is authority for a narrow construction of the word "other" and we are bound to follow it. We are of the view it serves no purpose to order work be "certified" or "supervised" and this requirement has not allowed finality to be reached in these proceedings.
8. The applicants had the opportunity to renew the proceedings to seek a money order. Instead the applicants simply complained that the orders had not been complied with and sought an identical remedy. The Tribunal should have considered whether in the absence of a claim for compensation supported by a report from a qualified contractor leave to renew the proceedings should have been declined and the Renewal proceedings dismissed.
9. As was discussed in Mania, in the absence of a claim for compensation, the applicants must look to other means of enforcement provided in the NCAT Act or the relevant enabling legislation. The fact these other means of enforcement may be more complex is not a basis for interpreting Sch 4 cl 8 in a manner that permits identical orders to be made twice that are not properly seen as a means of enforcing or ensuring compliance with the original orders.
10. Having regard to the above, in so far as the builder complains that the same work order was made twice, the appeal should succeed and those orders should be set aside.

Ground 1 - Order 1(3) Do whatever work is required by the owners' certifier to complete the brick piers in the garage including incorporating non-compressible packers and fixing tie-down straps.

1. The appellant submits that the Tribunal lacked jurisdiction to make a second work order because the builder had completed the brick piers and fixed the tie down straps in accordance with the initial work order 1(3) made on 8 January 2022.
2. There are two sets of decisions and work orders published by the Tribunal. The first work order was made on 8 January 2022 and the second work order was made on 4 November 2022. We will refer to the reasons and work orders as the first and second respectively. It is against the second orders and reasons that the builder appeals.
3. The relevant findings are found at [56] of the reasons for decision of 4 November 2022 and following. The Tribunal referred to cross-examination and the owners' admission that he could not see whether or not a tie-down strap was missing.
4. The Tribunal found that "neither party provided objective evidence to determine if the tie-down strap is or is not present".
5. The appellant submits that the relevant enquiry is whether the Order of 8 January 2022 had not been complied with and that the evidence did not support that contention, yet the Tribunal made a further work order in the following terms: 1(3) the appropriate course is to modify the work order [of 8 January 2022] to require the builder to undertake whatever work (if any,) that a certifier requires for this item.
6. The appellant submits that the Tribunal had no jurisdiction to make order 1(3) because there is no evidence to support a finding that the work order had not been complied with, or alternatively the finding was against the weight of evidence.
7. The builder relied on the material tendered before the Tribunal at first instance. Page 75 and 76 tendered before the Tribunal demonstrate that the brick piers were completed and an affidavit of Ms Matekalo, an employee of the builder and its nominated representative, establishes that the tie-down straps had been fixed.
8. The owners submitted that the Tribunal at first instance had been satisfied with their assertion from the bar table that there could be no certainty that the tie downs had been fixed because the appellant had provided no "confirmation" to their expert, Mr Mohammed El-Ghoul, that the work had been completed (see application form filed on 22 March 2022 and owners' evidence included in builder's bundle tendered on appeal).

Consideration

1. The order of 8 January 2022 merely required the builder to complete the brick piers and to fix the tie-down straps. At the Renewal proceedings the onus rested with the owners to establish that the work order had not been complied with. The overwhelming evidence of the builder, as set out in the affidavit of Ms Matekalo is that the builder completed the brickwork and fixed the tie downs. There was no requirement for the builder to have this work "certified" or "supervised" by specified contractors. Although there was no evidence that the work order had not been complied with, the Tribunal stated at [61] 'The appropriate course is to modify the work order to require the builder to undertake whatever work (if any) that a certifier requires for this item". The reasons in respect of this defect do not refer to evidence tendered by either party and it is unclear if the Tribunal considered the material tendered by the builder. We consider that there was no evidence to arrive at a finding that the order of 8 January 2022 had not been complied with. This ground of appeal is successful and Order 1(3) made on 22 November 2022 is set aside.

Ground 1 - Order 1(4) do whatever work is required by the owners' certifier to box in and rake eaves at gable ends of garage so as to conform with notation on sheet 14 of the architectural drawings "tiled roof to match existing dwelling", including re-lying to the underside of the purlins and verge rafter to match the existing residence with fibre cement flat sheet so as to match the remainder of the garage.

1. The Tribunal made a finding at [62] that "This was said to appear to have been completed except for painting". The Tribunal concluded at [64] "in the absence of other requirements for certification, the appropriate course is to modify the work order to require the builder to undertake whatever work, if any, the owners' private certifier requires of them".
2. The builder maintains that the work was completed and referred to the affidavit of Ms Matekalo. It submitted that the owners provided no evidence that the work was incomplete and the Tribunal mistakenly proceeded on the basis that "supervision" or "certification" was required. Evidence tendered at the hearing below included annexure L photograph 79 attached to the Matekalo affidavit showing completed eaves.
3. The owners made no submission concerning this item.

Consideration:

1. The relevant findings and orders are at paragraph [64] of the decision of 4 November 2022. Following a statement that the "Builder said it had completed the item and complied with the order" the Tribunal stated: "following that statement of compliance, and in the absence of other requirements for certification, the appropriate course is to modify the work order to require the builder to undertake whatever work [if any] the owners' private certifier requires for this item."
2. The Tribunal appears to acknowledge that the work order had been complied with and that there was no certification required, and yet makes an order for the builder's work to be performed by a "certifier".
3. The issue to be determined by the Tribunal was whether the external fascia gable was completed. That issue was not resolved at the hearing and it appears the owners made no submissions in support of their claim for a Renewal of the order as there is no mention of Order (4) in the transcript.
4. We are satisfied that there was no evidence tendered by the owners to establish non-compliance with Order (4) made on 8 January 2022.
5. We are satisfied that there was no evidence before the Tribunal on which the Tribunal could have based a finding that the order has not been complied with.
6. We consider that this ground of appeal is made out and Order (4) made on 4 November 2022 is set aside.

Ground 1 - Order 1(5) do whatever work is required by the owners' certifier to paint garage surfaces to accord with what was required under the contract documentation.

1. Having regard to the limitations of Renewal Proceedings, the Appeal Panel must consider whether the order to have "certifiers" appointed to supervise painting of fascia is an order "other" than the one made on 8 January 2022 and if it is "appropriate" under the circumstances.
2. The builder submits that the work order of 8 January 2022 was completed and the order did not call for painting of the eaves only the fascia. The Tribunal acknowledged in its reasons that the builder had partially complied with the work order but contrary to the weight of evidence made an order to "Do whatever work is required by the owners' certifier to paint garage surfaces to accord with what was required under the contract documentation".
3. The owners submit on appeal that there are areas of the fascia the builder has failed to prime and that there has been a failure to paint the timbers and this needs to be rectified.
4. The owners referred to photographs 27 and 28 which shows primed fascia. There is an explanation by the builder that he had "bought the fascia primed and painted it and matched the existing house by leaving the back of the garage fascia (facing inward) unpainted".
5. There was a conflict to be resolved whether the underside of the fascia of the garage remained unpainted because the remainder of the existing dwelling's fascia was also not painted and whether the builder was only required to "match the existing dwelling" and leave the inward facing fascia unpainted.
6. We are of the view that the work order was not complied with and that the appeal does not succeed. The first work order clearly states, "Paint the garage fascia including required priming and hole-filling." Without further qualification or exclusion we consider that work order (5) made on 8 January 2022 required the builder to paint both the exterior and the interior or underside of the fascia.
7. However, the order made on 8 January 2022 included no requirement to have the work "certified" and there was, in our view, no evidence before the Tribunal to add a requirement for certification. There was significant time spent by the Tribunal to resolve the apparent conundrum of how a second work order may be framed correctly under clause 8 of Schedule 4 of the Act.
8. The Tribunal acknowledged that it cannot make identical work orders twice. The additional requirement to "certify" painting of the underside of fascia of a residential garage in our view not supported by evidence or alternatively the order is structured in a way that simply repeats the first order. The word "certify" is not explained in the reasons, and it is left entirely to the parties who or what authority would certify such a minor painting task. The Tribunal acknowledged at [22] that renewal proceedings are of no utility if the same form of order as already in place was sought again. In [23] the Tribunal continues: A further possibility for was for independent supervision and certification at the builder's expense for the builder's work with the builder required to satisfy what was required by a supervisor or certifier. …
9. At [27] the Tribunal continues "the preferred option for any found non-compliance in my view is for the builder to engage and pay for one or more third party licensed and insured contractors and certifiers to perform the balance of existing work orders (including the work required by the relevant independent certifier including the owners' existing private certifier to achieve certification) without interference or comment from the owners"
10. And at [28] the Tribunal continued: the builder would comply with the orders by appointing the contractors and certifiers and paying them…
11. The first enquiry on Renewal is whether the builder complied with the work order. We are of the view that the evidence establishes that the underside of the fascia required painting and was not painted. For this reason this ground of appeal is not made out and the builder does not succeed. However, for the reasons set out above the Tribunal fell into error when it added the requirement for "certification". The appropriate course is therefore to set aside Order (5) and to reinstate the same order that was made on 8 January 2022 and to extend the time for compliance with the order to 16 June 2023 being a time frame accepted by the parties as reasonable.
12. Order (5) is varied as follows: (5) Paint the garage fascia including required priming and hole filling by 16 June 2023.

Ground 1 - 1(6) Procure that the author of the hydraulic engineering drawings… Certifies… That reducing the height of the path around the garage by 25 mm will still achieve compliance with the approved hydraulic engineering drawings and specifies what… Further measures are required with that solution to stop water entry through the side door into the garage, including installation of any extra collection point near the door and if certified and specified, undertake that alternative solution as certified and specified by appropriate changes to the existing works so as to reinstate the door frame and remove the extra course of bricks at the door, unless the owners state in writing signed by them that they will retain the existing solution.

1. The builder states that it raised the garage side doorway entrance by one course of bricks to prevent the garage from flooding. The builder submits the order was therefore complied with.
2. At the first hearing the parties tendered expert evidence. The owners' expert stated that there is a defect, being the side access door being too low relative to the proposed path and there being no collection or discharge point in that area leading water to flood the garage. The builder's expert stated there is no "viable solution". He concluded that to lower the concrete path to the garage by 25mm is not an option because a thinner concrete path would not cover the stormwater drainage pipes by the required 100mm and compromise the drainage system.
3. The Tribunal in its original decision found a defect with no "viable solution" and accepted the "only proposed solution being the owners' for a further course of bricks to raise the side door entry height sufficiently above the completed level of the external path to prevent water entry into the garage" (see reasons for decision 8 January 2022 at [108]).
4. We consider that the work order of the Tribunal was problematic as order (6) made on 8 January 2022 was conditional. The Tribunal found at [74] of the written reasons for decision that there was "no evidence that the author of the hydraulic drawings had undertaken any investigation of the alternative solution". It is not clear how this finding is relevant to the orders made on 8 January 2022. Order (6) did not require the builder to contact the owners' hydraulic engineer or to investigate an "alternative solution".
5. In the original work order made on 8 January 2022 there was no requirement for the builder to identify the owners' hydraulic engineer, nor can one infer from the wording of Order (6) that it was incumbent upon the appellant to identify, locate and retain the hydraulic engineer before installing the course of bricks. The order on its plain reading permits the builder to complete the work order by "raising the garage side doorway entrance by one course of bricks". This method was permissible unless or until the owners' hydraulic engineer prohibited it. There was no communication from the owners' hydraulic engineer that prohibited the builder from proceedings in the manner that it did. The builder performed the work as it was ordered to do. The work order was therefore complied with.
6. At the Renewal proceedings the owners complained that the work was performed defectively. At page 11 of their material the owners submit: The builder has reduced the overall height of the doorway entrance by installing a course of brick on the slab at the entrance. In doing so they have created a trip hazard and have substandard mortar work. Please refer to photos on page 29.
7. Other than their submission that the work creates a trip hazard, the owners otherwise agree that the step was raised by one course of bricks. On Renewal it was only possible for the owners to have the work assessed and, if defective, to make a claim for compensation. No such claim was made to the Tribunal.
8. We consider that there was no evidence to support a finding that Order (6) had not been complied with and no evidence to support a finding that the work was defective. Leave to renew the proceedings in respect of this ground should not have been granted.
9. Accordingly this ground of appeal must succeed and Order (6) made on 4 November 2022 is set aside.

Ground 1- work order (7) make good and repair the gouging in the surface of the garage

1. The parties agreed, by consent, to vary Order (7). The builder agrees to carry out the those works on or before 31 May 2023 and the time to comply with the work order made on 4 November 2022 is extended to 16 June 2023. It is not necessary for us to determine the merit of this appeal ground.

Ground 1 - work order (8) - on the relevant side retaining walls and steps, clean the side walls, fix the paver securely repair front paver.

1. The appellant contends the Tribunal has no jurisdiction to make a further work order as Order (8) of 8 January 2022 was complied with. There should have been no order to "clean the side walls, fix the paver securely and repair front of paver". The builder states at paragraph [69] of Ms Matekalo's affidavit that the work order was complied with and disagrees with the owners' claim that the constructed step is undermined or requires rendering.
2. The owners led no evidence before the Tribunal to support their contention the work order was not complied with. The owners conceded that the "relevant side retaining walls and step were repaired." At the hearing the builder established that a step had been constructed, the work had been completed, which the owner confirmed (see transcript TP 51 #2123 and #2129). The owners demanded that the step be rendered. The builder submits steps are not rendered and render would simply fall off.
3. There was no evidence before the Tribunal that Order (8) had not been complied with or that the work had been performed defectively. The Tribunal relied on a photograph (#29) of a concrete riser to arrive at a finding that the "further cleaning of the step to the main structure and repair to the front of the step still needs to be done." There was no requirement to render the step in the original order. No mention is made of the affidavit of Ms Matekalo, nor is there evidence from an expert that the riser was defectively installed.
4. We consider that there was no evidence to support a finding that Order (8) had not been complied with, there was no requirement to render the concrete step and there was no evidence to support a finding that the work was defective. There was no evidence to support the owners' submission from the bar table that the step will become unstable in future.
5. Accordingly this ground of appeal must succeed and Order (8) made on 3 November 2022 is set aside.

Ground 7 - Work order (9) - Supply and install the owners' choice of electrical items to an amount of $2340.

1. The owners submitted that the builder had failed to provide details of downlights and that the owners refuse to have Chinese products installed in their home. In the original application the owners expressed concern that the builder intended to connect the garage power to a circuit in the roof.
2. The Tribunal made Order (9) of 8 January 2022 in favour of the owners.
3. On Renewal the owners complained that the builder wanted to charge an additional $288 for a variation for additional downlights and they refused it.
4. The builder submits on appeal that the owners have failed to mitigate their losses and have refused access to the builder to complete the work.
5. The Tribunal found at [90] of the written reasons "the only clear position in that stalemate was the $2340 provisions for electricals which had not yet been used and that any variation would be at the owners' cost beyond that amount."
6. It is unclear why, following this finding, the Tribunal made an order that the "appropriate course is to modify the work order to have the builder's relevant engaged contractors undertake the electricals… but at the owners' cost beyond $2340".
7. The appropriate enquiry to make was whether the "stalemate" was caused because owners refused the builder access to the property to conclude Order (9), and if so found, to dismiss the owners' claim for renewal of the order.
8. The affidavit of Ms Matekalo establishes that the owners requested a schedule of local brands to be used, and that Ms Matekalo provided the schedule on 14 March 2022. The owners then "discontinued" contact with the appellant. The owner Mr Noble instructed the appellant not to proceed with the electrical work "the stated intention to tap into the main line is not agreed". We consider that the evidence before the Tribunal supported the appellant's contention that a stalemate was caused by the owners' repeated refusal to allow the builder to perform the work in accordance with the original quotation, including "tap into existing lines from main dwelling". No evidence was provided by the owners why this work was not allowed to proceed or that it did not form part of the original scope of work, or was otherwise not in compliance with electrical codes and Australian Standards.
9. We consider that there was no evidence to support a finding that Order (9) had not been complied with, rather the evidence overwhelmingly supports a finding that the owners would not allow the work to be completed and refused to pay for additional downlights.
10. Accordingly this ground of appeal must succeed and Order (9) made on 4 November 2022 is set aside.
11. This leaves the issue of the electrical work unresolved as there is an allowance in the contract for $2340 for electrical work and the contract price has been paid but the electrical work set out in the original scope of work has not been carried out. We consider that this is a windfall for the builder and that in order to bring finality to the proceedings we substitute the decision under s81(1)(d) of the NCAT Act. (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following-- (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
12. To resolve the "stalemate" and considering what orders the Tribunal could have made on the Renewal application, we are satisfied that the only order that will bring finality to the proceedings is if the builder be ordered to repay the amount of $2340 to the owners and be relieved from the scope of work in respect of electrical work.
13. We make the order accordingly.

Ground 8 - Work order (10) - on receipt of written variation signed by the owners install at the owners' costs a gyprock ceiling to the garage with appropriate cornices and painting if required by the owners and invoice the owners for this item

1. The builder submits the work order should not have been made in circumstances where the actions of the owners prevented the builder from carrying out the works and the decision was made against the weight of evidence.
2. It is submitted that the owners had no intention of letting the builder complete this order.
3. The builder refers to Ms Matekalo's affidavit at paragraphs [81] and [82]. The appellant states that it allowed reasonable time for the owners' contractor to install a gyprock ceiling, which did not occur and the builder concluded "the owners had not (sic) intention of finalising a contractor (sic) and providing details to Madic during the allocated work schedule as at the date of their renewal application they were still sourcing quotations".
4. Mr Noble, in submissions to the Appeal Panel, conceded that he had "concerns about the timber in the ceiling that is why we did not allow the gyprock to go ahead".
5. Similar concessions were made during the hearing of the Renewal Application. Mr Noble indicated in oral evidence that "we noted your advice that you weren't' interested in undertaking the work so we had sought an alternate supplier obviously with the issue about the timber work in the ceiling, and having the garage door people confirmed that they do not need any additional timbers within that area to mount either the track or the motor, that the works haven't preceded. They are not something that we would anticipate requiring you to do.
6. Ms Matekalo replied I complied with the order by allowing timing in the schedule for your third party contractors to attend to complete the works. I asked you on numerous occasions to provide me with the details and you did not and so therefore I have complied with what I was able to in terms of this order. ( See Tp 53 at 2197).
7. In light of the evidence, the issue to be determined by the Tribunal was whether the builder remained under an obligation to fulfill this work order, when the builder had been instructed that the owners would retain separate contractors to do the work or advise on the work, before allowing the builder to return. As we understand the owners' evidence they had planned to retain separate "suppliers" but never did so, and never instructed the builder to return.
8. The issue was not resolved by the Tribunal, the Tribunal found at [94]: The builder said that it had complied with the order by providing a week within the schedule for the third party gyprocker. This was communicated to the owners by email 31 January 2022 there was no evidence that the owners had objected to the timing there was in evidence no revised week or revised timetable after the builder requested and received the informal 3 week extension previously mentioned.
9. The evidence establishes that the parties agreed to what amounted to a "variation of the Order because the owners lost confidence in the builder and a third party contractor would assess and if necessary complete any timber work in the ceiling and proceed to gyprock the ceiling. What is not clear is whether the owners envisaged a third party would complete all of the work subject to the order or, critically, why the owners having advised they would get a second opinion about the timbers, never proceeded.
10. We are of the view that the evidence suggests the inaction of the owners prevented the builder's compliance with the order. The owners obtained a quote from a third party contractor to complete the gyprock work, but never hired or paid for a third party contractor to do work. In addition, it remains an unresolved question what the appellant was required to do, once third party contractors were retained to carry out the work subject to the order.
11. On balance the evidence supports a finding that the owners instructed the builder not to carry out the work instead insisting a third party contractor do the work instead. Finally it appears from the wording of the order that the Tribunal ordered the parties to enter into a written variation, which is not an order the Tribunal can make pursuant to section 48O of the Home Building Act 1989. If the parties wish to contract they will do so but the Tribunal cannot compel the parties to enter into further contractual arrangements.
12. Leave to renew the proceedings should not have been given in circumstances where the actions of the respondent prevented the appellant from carrying out the works and the decision was made against the weight of evidence or alternatively the Tribunal identified the wrong issue or asked the wrong question.
13. The appeal in respect of this ground must succeed and Order (10) made on 4 November 2023 is set aside.

Ground 8 - Work order (11) - Construct the driveway and obtain further council approval.

1. The parties have agreed to settle this ground of appeal. The builder will carry out the work in accordance with the work order and obtain the relevant council approval on or before 31 May 2023. The effect of this agreement is that the work order made on 4 November 2023 is affirmed and time for compliance is extended to 16 June 2023.

Ground 9 - Work order (12) - "Complete the stormwater works to the street in accord with contract drawings and required approval and on production by the owners (with private information redacted) of any approvals in their possession for sighting by the builder."

1. The builder submits that Order (12) should not have been made because the work order of 8 January 2022 was complied with.
2. The evidence of Ms Matekalo states that the findings and orders of the Tribunal that the work required certification by the owners' certifier were made in error, as the original work order did not call for certification.
3. Mr Noble asserted that "the works were undertaken by the builder who we believe is unqualified as a plumber to undertake such work" see owners' bundle page 17.
4. The work order is in our view not an order that the Tribunal could have made in accordance with cl 8 of Schedule 4 of the Act. The Tribunal was required to determine if the work order had been complied with. Clause 8 requires the Tribunal to make orders other than the original order upon Renewal (Blessed), it needed to arrive at a finding that the Order was not complied with there is no evidence to support this contention.
5. On 23 February 2023 Ms Matekalo emailed Mr Noble informing him that the stormwater repairs were completed and "made good". There was no evidence in the owners' that Mr Noble challenged or disagreed with this assessment. He merely asserted that the work was not undertaken by a licensed plumber.
6. We are of the view that the finding is against the weight of weight of evidence.
7. The applicant on Renewal bear the onus of proof. There is no evidence from Mr Noble that the work was not complied with other than an assertion from the bar table that the appellant had provided a "get out of jail free for that one" which we infer is an allegation that documents provided by the builder were fraudulent. Mr Noble alleges the work was not certified by a licensed plumber or that the plumber did not perform the work. Neither is supported by evidence. It was not denied that the work had taken place.
8. The appellant presented persuasive evidence during cross-examination that a licensed plumber undertook the work and provided certification.
9. This is confirmed by the Tribunal in questions at TP 56 L 2345. Senior Member : Did the plumber come on site before he issued this certificate? Ms Matekalo: He was on site before issuing the certificate completing the work, yes. Mr Noble: I will be contacting him to find out whether that is the truth or not, and simply whether it was simply a rubber stamp.
10. Attached at p103 of Ms Matekalo's affidavit is a certificate by AZ Building signed by contractor Enijad Cicak whose license number is displayed on the letter head. It states that "the storm water drain was drainage from last pit to the curb gutter at the above mentioned address has been installed and completed with AS/NZ 3500.3 on 16.02.2020". Ms Matekalo gives sworn evidence that the signatory is a licensed plumber and a free online search of the Department of Fair Trading website confirms the signatory is the holder of a plumbing license.
11. The Tribunal found that that the document in evidence did not identify that the signatory is a licensed plumber or did not prove that the signatory did the plumbing works or inspected them before signing the document
12. Whilst the document does not identify the four individual licenses Mr Cicak holds, the sworn evidence from Ms Matekalo that Mr Cicak is a plumber in conjunction with a document displaying a license number clearly outweighed Mr Noble's bare assertion that the plumber signed a false certificate, or did not hold the requisite qualifications. For these reasons we are persuaded that the findings were against the weight of evidence and this ground of appeal must succeed.
13. Further in light of the fact that an order had already been made on 8 January 2022, we are of the view that the Tribunal misdirected itself when it made identical orders on 4 November 2022. The Tribunal spent considerable time deliberating whether the NCAT Act permits identical orders to be made in subsequent renewal proceedings. With respect we agree with Tribunal's deliberations that identical orders cannot be made twice, see paragraphs 22 - 23 of the decision of 3 November 2022.
14. The Tribunal left open the possibility for an order that the builder at its cost carry out the work through a third party contractor or "for independent supervision and certification at the builder's expense". If this was the intention of the Tribunal, it is not reflected in the order. The orders made on 8 January 2023 and 22 November 2023 are identical and therefore do not comply with Schedule 4 para 8 of the Civil and Administrative Tribunal Act 2013 which provides that when Renewals are made the Tribunal may make any other [emphasis added] appropriate order under this Act … as it could have made when the matter was originally determined.
15. For these reasons we allow this ground of appeal.
16. Order 12 made on 4 November 2022 is set aside.

Conclusion

1. We are satisfied the Tribunal's decision was against the weight of evidence. We are also not satisfied the decision was not fair and equitable. A basis for leave to appeal under cl. 12 of Sch. 4 of the NCAT Act has been established by the appellant, and we do grant leave to appeal in accordance with the principles set out in Collins v Urban.

Orders

1. The orders that we accordingly make are as follows: 1. Leave to appeal is allowed. 2. The orders made on 4 November 2022 are varied as follows. 3. Order (3) made on 4 November 2022 is set aside. 4. Order (4) made on 4 November 2022 is set aside. 5. Order (5) made on 4 November 2022 is varied to the following: (5) Paint the garage fascia including required priming and hole filling by 16 June 2023. 6. Order (6) made on 4 November 2022 is set aside. 7. The parties agreed, by consent to vary order (7) as follows, the builder agrees to carry out the works and the time to comply with the work order (7) made on 4 November 2022 is extended to 16 June 2022. 8. Order (8) made on 4 November 2022 is set aside. 9. Order (9) made on 4 November 2022 is set aside and in lieu thereof, the Appeal Panel makes the following order: 1. The appellant Madic Construction Pty Ltd is ordered to pay $2340 to the respondents Robert and Margaret Noble immediately. 2. Pursuant to s48O(c)(ii) of the HB Act the appellant is to refrain from performing the garage electrical work to supply and install electrical items to the amount of $2340. 10. Order (10) made on 4 November 2022 is set aside. 11. By consent of the parties, Order (11) made on 4 November 2022 is varied: The builder will carry out the work in accordance with the work order (11) and obtain the relevant council approval on or before 16 June 2023. 12. Order 12 made on 4 November 2022 is set aside.

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

Amendments 15 May 2023 - 117. Of the order amended as instructed by the Member DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 May 2023