Manca v Tullipan Homes Pty Ltd

The law

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 (s 80(1) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act).
2. An Appeal Panel also has jurisdiction to consider appeals in respect of interlocutory and ancillary decisions of the Tribunal (s 32(2)(a) of the NCAT Act).
3. Section 4 of the NCAT Act defines an "interlocutory decision of the Tribunal" as meaning a decision made by the Tribunal under legislation concerning relevantly: (e) an evidential matter, …
4. We are satisfied that the Interlocutory Decision made by the Tribunal on 17 May 2023 was an interlocutory decision for the purposes of the NCAT Act. This means Mr Manca needs leave to appeal from that decision. Section 80(2)(a) of the NCAT Act provides: (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.
5. The proper considerations in respect of appeals from interlocutory orders was considered in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [31] - [35] (citations omitted). 34. … there is no specification in the NCAT Act as to the circumstances in which leave should be granted in respect of interlocutory decisions. Rather, there is a discretion to be exercised and general principles apply to the grant of leave to appeal such decisions. 35. As stated in various decisions of the Tribunal … the principles to be applied are to be derived from the principles applicable to leave applications in courts. These principles include the following: (1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal. (2) However, the requirement for leave is a filter restricting access to the appeal process. (3) Leave should only be granted where there are substantial reasons to allow an appellate review. (4) Circumstances justifying leave may be an error of principle resulting in substantial injustice. However, these concepts may not be cumulative. (5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights. (6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal. (7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing. (8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case. (9) Lastly, subject to the above, the matters set out in Collins v Urban [2014] NSWCATAP 17 at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave.
6. Section 4 of the NCAT Act relevantly defines "an "ancillary decision of the Tribunal" as a decision made by the Tribunal consequential on a decision determining proceedings, including a decision concerning the awarding of costs in proceedings. Accordingly the Costs Decision is an ancillary decision for the purposes of the NCAT Act.
7. The appeals from the Interlocutory Decision and the Costs Decision are made pursuant to s 80(2)(b) of the NCAT Act which provides that: (2) Any internal appeal may be made: (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.
8. This means that Mr Manca: 1. Can appeal from the Interlocutory Decision with leave. 2. Can appeal as of right on any question of law in respect of the Remittal Decision and the Costs Decision. 3. Can appeal on any ground other than a question of law in respect of the Remittal Decision and the Costs Decision with the leave of the Appeal Panel granted under both cl 12 Sch 4 and s 80(2)(b) of the NCAT Act.
9. Under cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel's discretion to grant leave is only enlivened if the Panel is satisfied that: (1) 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, (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
10. 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 "as 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 (Collins v Urban [2014] NSWCATAP 17 at [76] ("Collins v Urban").
11. As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive, the authorities including Collins v Urban at [77] 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". 2. The decision under appeal can be said to be "against the weight of evidence" 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.
12. If the question of leave under cl 12 of Sch 4 has been determined in favour of an appellant, the Appeal Panel must then consider whether to grant leave under s 80(2)(b) of the NCAT Act.
13. The general principles have been summarised as follows in Collins v Urban at [84]): 1. In order to be granted leave to appeal, the appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. 2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. Issues of principle. 2. Questions of public importance or matters of administration or policy which might have general application. 3. 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. 4. a factual error that was unreasonably arrived at and clearly mistaken. 5. 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.

The Interlocutory Decision

1. Ground One of the Amended Notice of Appeal relates to the Interlocutory Decision in which the Tribunal refused to permit Mr Manca to rely on additional evidence at the Remittal Hearing.
2. A major element of Mr Manca's case is his dissatisfaction with the timber flooring installed by Tullipan. The contract provides for "Select Grade, Blackbutt T&G timber flooring".
3. On 25 September 2017 Mr Manca informed Tullipan that there was a timber strip on the upper ground floor which did not appear to be Select Grade.
4. Mr Manca's Home Building Application was filed in the Tribunal on 22 October 2019 with an expert report prepared by Mr Morris dated 21 September 2018. At para 8.02 Mr Morris said: Description: Timber feature flooring is not evenly matched and defects in colour and surface are apparent. Defect: The timber boards have not been selected nor matched. The grading is not regular. AS 2796.2.2006, section 2 Non-compliance with Afta Information Sheet no 33, September 2015 Photographs: See photographs 31, 32, 33, 34, 35, 36, 37, 62 & 63. Showing blemishes in the surface and colour differences. Breach: Non-compliance with AS 2796.2, 2006. Timber Hardwood Saw and Milled Products Part 2 Grade description Non-compliance Section A2, Select Grade
5. The matter was case managed from 3 December 2019. Directions were made for Mr Manca to file his expert evidence and a Scott Schedule but he did not comply with orders requiring him to do so by 10 February 2020 or 21 August 2020. On 23 October 2020 Mr Manca had not served his expert evidence, and the time for compliance was extended to 6 November 2020.
6. On 5 November 2020, Mr Manca served a second report from Mr Morris dated 26 October 2020. In that report Mr Morris relevantly said: Methodology: Visual inspection Research data on which my opinion is based: NSW Guide to Standards and Tolerances Defect: 191 Timber floor not select grade contrary to contract
7. On 17 November 2020, Tullipan's solicitor wrote to Mr Manca relevantly pointing out that Mr Morris: 1. Had not made any proper attempt to clearly and precisely identify the defects by reference to relevant standards, codes and the building and engineering plans. 2. Had not exposed his process of reasoning in support of his opinions.
8. On 18 December 2020 Mr Manca was directed to file and serve a supplementary expert report to address the concerns raised by Tullipan by 22 January 2021. Mr Manca did not do so until 9 February 2021 when he served a further report from Mr Morris dated 4 February 2021. This did not provide any further information in relation to the timber flooring.
9. On 5 May 2021, Tullipan's lay evidence was served. Mrs Tullipan, a director, relevantly said in an affidavit that, in October 2017, Mr Manca had complained to her about the grade of the timber and she had told him the flooring was Prestige Grade which is the best grade available in that size floorboard.
10. Mrs Tullipan called P&B Walker Bros Pty Ltd, who had supplied the timber. Its sales representative inspected the floor and said that in his opinion, the flooring looked exceptional and what was being described as imperfections were gum veins. He believed the manufacturer, Hurfords, classed Select grade as "Prestige Grade" and that Prestige and Select grade were the same.
11. Mrs Tullipan then arranged for two representatives from Hurfords to inspect the floor. They told her it was very good flooring which they considered to be Select Grade but said they could not call it Select Grade because of the width and thickness of the board. It was the highest grade of this particular board with only some very minor imperfections.
12. After the First Hearing had been completed the parties prepared written submissions. Senior counsel for Mr Manca, in his submissions, referred to an answer Mr Manca had given in cross examination when he said that he had taken other photographs which had not been tendered in evidence. The photographs were attached to the written submissions and the Tribunal was invited to find that the timber used did not conform to Select Grade. Email correspondence between Mr Manca and Tullipan's solicitor dated 29 April 2021 arranging the attendance of Mr Ryan, Tullipan's expert, at the site was also attached to the submissions and had not been tendered in evidence during the First Hearing.
13. Tullipan pointed out in its submissions in reply that the photographs were not in evidence. They could not be relied on because they were not new evidence, they had been available at the time of the hearing.
14. The parties also prepared written submissions in preparation for the First Appeal. Again counsel for Mr Manca referred to the additional photographs and again counsel for Tullipan pointed out that they had not been in evidence at the First Hearing and said that Tullipan objected to the photographs being in evidence on the Appeal.
15. Mr Manca did not make an Application either to the Tribunal which conducted the First Hearing nor to the Appeal Panel which made the First Appeal Decision to have those additional photographs admitted as evidence. There is no statement in either the First Decision or the First Appeal Decision admitting them into evidence.
16. At the commencement of the Remittal Hearing counsel for Mr Manca made an Application to reopen the evidence so he could tender those additional photographs.
17. The Tribunal held that the Order made in the First Appeal Decision - "The items … are remitted to the Tribunal as originally constituted for reconsideration without any further evidence" - was very succinct and unambiguous. Those words alone meant the Tribunal was to look at the matter on the evidence that was before the Tribunal at the First Hearing.
18. The Tribunal went on to say, that, even if this conclusion was wrong, looking at the principles of fairness, the additional evidence could have been led at the substantive hearing and Mr Manca had chosen not to do so. It was a well-established principle for an applicant to run his case and make forensic decisions on what evidence he wanted to rely on.

The Interlocutory Decision - Submissions

1. Counsel for Mr Manca submitted that Mr Manca did not need leave to appeal from the Interlocutory Decision and relied on a High Court authority, Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478; [2002] HCA 22 which considered an interlocutory ruling made in the District Court of NSW which was challenged in the NSW Court of Appeal. He said that decision established the general and well accepted position that if proceedings proceed to a final determination and an interlocutory ruling affects the final result, it can be challenged on appeal.
2. Counsel for Mr Manca submitted that the Tribunal erred in law in refusing to accept or consider additional evidence as it: 1. Misconstrued the effect of the Appeal Panel's order where some issues "were "remitted to Tribunal as originally constituted for reconsideration without any further evidence." 2. Erred in the exercise of its discretion in failing to give sufficient weight to a number of matters; and 3. Failed to give sufficient or cogent reasons for rejecting the Application, so that, in the interests of justice the Tribunal at the Remittal Hearing should have granted Mr Manca leave to reopen and provided Tullipan with an opportunity to respond with evidence in reply.
3. Counsel for Tullipan submitted that leave was required and should not be granted.

The Interlocutory Decision - Finding

1. The first issue is the question of leave.
2. We do not accept that leave is not required as submitted by counsel for Mr Manca. We do not consider that the effect of the decision of the High Court in Gerlach is to dispense with the requirement to obtain leave. NCAT has the jurisdiction and functions that are conferred or imposed on it by the NCAT Act and other legislation. We are satisfied s 80(2)(a) applies and it provides that that Mr Manca needs leave to appeal from the Interlocutory Decision.
3. In deciding whether to exercise the discretion to grant leave we have taken the following matters into consideration: 1. The photographs were not fresh evidence. It is clear from the evidence of Mr Manca that he had only placed examples of the photographs in evidence at the First Hearing and then, after the hearing had concluded, sought to "facilitate" the Tribunal by attaching the other photographs to counsel's submissions. 2. Counsel for Mr Manca explained the failure to tender the photographs at the First Hearing by asserting that the expert evidence had been served late and Mr Manca was waiting on evidence to be served before deciding what to serve in reply. This explanation is of no weight when the onus always lay on Mr Manca to establish his case, while the matter was being case managed before the First Hearing Mr Manca was given several opportunities to file his expert evidence, he was placed on notice by the letter dated 17 November 2020 that Tullipan considered his expert evidence was deficient, and on 18 December 2020 he had been directed to file and serve a supplementary expert report to address the concerns which had been raised by Tullipan. 3. Counsel for Mr Manca also asserted that, because the photographs were provided to both the Tribunal before it delivered the First Decision and to the Appeal Panel in the Appeal Book before the First Appeal Decision was made, it was not further evidence but rather evidence that was both before that Tribunal and the Appeal Panel. We do not accept that these items were in evidence either before the Tribunal or the Appeal Panel. It has not been suggested that they had been tendered as evidence during any hearing. We decline to find that the act of attaching them to written submissions after which there is no reference to them in either the First Decision or the First Appeal Decision means they have transformed into evidence, particularly in circumstances where Tullipan objected to them being considered in each of its submissions in reply. 1. The Tribunal's interpretation of the words used in the Appeal Decision was clearly open. In addition to it being the plain English meaning of the words, the Tribunal's interpretation is reinforced by the context in which the Order was made - which was just after the attempt by Mr Manca, in his counsel's written submissions, to supplement his case by attaching documents to his submissions which were not in evidence. 2. The photographs, even if admitted, were of minimal, if any, evidentiary weight. At most, they were a visual representation at a point in time of the condition of the floorboards. That was a matter Mr Manca and his expert had either provided evidence about or had a reasonable opportunity to provide evidence about.
4. We have referred to the relevant legal principles earlier in these Reasons. We are not persuaded that a substantial injustice would result if leave was refused, nor do we think the decision is attended with sufficient doubt to warrant it being reconsidered.
5. We decline to grant leave to Appeal from the Interlocutory Decision.
6. Appeal Ground One is dismissed.

The Remittal Decision - The Floor

1. Ground Two relates to the Remittal Decision in which the Tribunal rejected Mr Manca's claim for a work order in relation to the upstairs timber floor.
2. The Tribunal held that Mr Manca had failed to call probative evidence to support the submission that the floor laid by Tullipan did not comply with the building contract. In addition to his own evidence, Mr Manca relied on the evidence of Mr Morris. The Tribunal did not accept the expert evidence of Mr Morris because, it held, he had made bare assertions, provided no reasoning and provided an insufficient explanation as to his opinion.
3. The Tribunal held that while the expression Select Grade may have been specified under the contract for the flooring, it was not defined in the contract so that the Tribunal could not determine whether what was provided was substandard or different from what was required by the contract. There was no evidence to support a finding that what the manufacturer described as Prestige Grade fell short of the Select Grade contractual specification criteria, and there was insufficient evidence to establish any defect in the flooring.
4. Leave is required if the appeal is on a question other than a question of law. We understand Mr Manca to say that all of the issues he raises are errors on a question of law.
5. Tullipan concedes that adequacy of reasons and the proper construction of a contract are questions of law.
6. Mr Manca says: 1. The Tribunal found that the contract required Select Grade, but erroneously concluded that this could only be established by expert evidence in circumstances where lay evidence and photographs can establish such matters. We do not accept this submission. Firstly, the Tribunal took into account the evidence from both Mr Manca and Mr Morris when determining whether Mr Manca had shown that the grade of flooring did not comply with the contract. Secondly, without traversing the whole of Mr Manca's evidence in these Reasons we accept the submission by Tullipan that it was hopelessly inadequate to establish either the meaning of Select Grade in the contract or the way or ways in which the supplied floor did not meet that definition. We decline to find that the Tribunal made the error asserted by Mr Manca. 1. The Tribunal found that the term Select Grade was specified in the contract but not linked to a particular standard. Mr Manca says that the fact the term Select Grade is not defined in the contract is irrelevant. It is defined by industry usage and AS2792.2. We do not accept the submission that the absence of a definition in the contract is irrelevant. As set out in Tullipan's written submissions, the authorities, including the decision in Lawrence v Ciantar [2020] NSWCA 89 at [98]-[99]) establish that the critical and correct starting point to ascertain the meaning of the obligation to supply Select Grade flooring is the language of the contract. It was obviously a necessary finding. The Tribunal then sought to construe the meaning of Select Grade. It concluded that the evidence of Mr Morris or otherwise did not support a finding that Select Grade had a particular industry meaning which would attach to AS2796.2. We note that Mr Manca did not, at any stage in the proceedings, seek to tender AS2796.2. We have set out above the various reasons why the Tribunal did not accept the evidence of Mr Morris as establishing that an incorrect grade of flooring had been supplied. We decline to find that the Tribunal failed to provide adequate reasons for this finding. 1. Tullipan is bound by its admission that it had not installed Select Grade flooring. This submission is based on a false premise. It is true that the Tribunal said that "the respondent concedes that select grade was not what was provided". However the sentence continues "but points out and stresses that the definition of that has not been provided anywhere for the Tribunal to have regard to and certain case references were put to the Tribunal." As set out in Tullipan's submissions, this statement is a reference to Tullipan's evidence and submissions that the timber which was supplied was not called Select Grade by the manufacturer. The admission is only that the manufacturer described its product as Prestige Grade, which it described as the same as Select Grade but with a different label.
7. We decline to find any error on a question of law in relation to Ground 2.
8. Appeal Ground 2 is dismissed.

The Remittal Decision - Other Defects

1. Ground 3 relates to Items numbered 68, 74, 82, 126, 132, 133, 136, 173-177, 181, 183 and 186. By this stage these were agreed defects, the issue to be determined at the Remittal Hearing was the method of rectification.
2. Mr Manca says the Tribunal erred in law: 1. By adopting in a blanket manner, the rectification methods proposed by Tullipan's expert, Mr Ryan, on the basis that his report was superior to that of Mr Morris. 2. By failing to have proper or any regard of the methods proposed by Mr Morris. 3. By having regard to irrelevant considerations such as the burden of restoration and making good of any damage associated with the rectification methods proposed by Mr Morris.
3. The first issue we must consider is whether these submissions raise an error on a question of law.
4. We have already found that the Tribunal gave sufficient reasons for not accepting the evidence of Mr Morris in relation to the floor. Later in its Reasons other evidence from Mr Morris was not accepted for similar reasons. By way of example: 1. Mr Morris concluded that effluence on a tiled external deck was due to the absence of a membrane. While attempting to identify the cause of the defect, the Tribunal said that Mr Morris had not referred to the Building Code of Australia, had made a vague reference to a master plan guide with no evidence to link it directly to the matter in issue and that there was nothing in Mr Morris' evidence to lead to a finding that it was necessary to put in a second membrane. 2. The Tribunal also noted that Mr Morris had used the term "sagging" in describing a bifold door which the Tribunal described as vague as Mr Morris had not provided any measurements. Mr Ryan had found there was 1mm sagging which was supported by the photographs in evidence. 3. In relation to the ground floor tiles, the Tribunal found that Mr Morris' report did not meet the requirements for an expert's report when he referred to uneven tiles and lipping without any reasoning, without measurements and failed to explain how it did or did not comply with a particular standard or tolerance.
5. The Tribunal also gave reasons as to why it had preferred the opinion of Mr Ryan.
6. We are satisfied that the Tribunal gave sufficient reasons for not accepting the evidence of Mr Morris and preferring the opinion of Mr Ryan to that of Mr Morris where they conflicted. The reasons, although economical, are sufficient to satisfy the minimum acceptable standard criteria for adequacy of reasons (New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [66]-[77]). Further, as illustrated by the above examples, we are satisfied that the Tribunal did not adopt a "blanket" approach.
7. We are satisfied that the rest of the matters raised by Mr Manca in his submissions, simply go to his dissatisfaction with the outcome of each finding as to the method of rectification. For example, item 68 is a showerhead which, it was agreed, was installed 5 mm too low. This meant that, when the shower door was opened inwards, it came into contact with the showerhead. Tullipan suggested replacing it with a goosehead shower arm, a solution which would not cause any damage to the tiles. Mr Morris' solution, the precise nature of which was unclear because it interrelated with other claims which had been disallowed, involved fairly extensive replacement and removal of tiles. The Tribunal rejected Mr Morris' solution and found a new shower arm/ shower head which would lift the mechanism 5mm was appropriate.
8. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
9. We decline to find that the findings in the Remittal Decision as to the appropriate methods of rectification was made without evidence (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32), that the Tribunal asked itself the wrong question, took irrelevant considerations into account, or that there were mandatory considerations in its decision that the Tribunal failed to engage with (House v The King (1936) 55 CLR 499; [1936] HCA 40).
10. We also decline to find that these decisions were not decisions which a reasonable decision maker could have made (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223) or that the Tribunal below gave excessive weight to a relevant factor of no great importance, such that the decision was manifestly unreasonable (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at [15d]).
11. We find that there are no properly arguable grounds to find that the Tribunal erred on any question of law in the Remittal Decision. This means that Mr Manca needs leave to appeal.
12. In determining whether to grant leave, we decline to find that Mr Manca has shown that there was a substantial miscarriage of justice being the gateway requirement of cl 12(a) of Sch 4 of the NCAT Act.
13. We decline to find that there is any issue of principle or question of public importance or of policy which might have general application such as to satisfy the requirement for leave under s 80(2)(b) of the NCAT Act.
14. We decline to grant leave to appeal in relation to Ground 3.
15. Appeal Ground 3 is dismissed.

The Costs Decision

1. Ground 4 relates to the Costs Decision.
2. Following the First Decision on 10 March 2022, the Tribunal ordered each party to pay his or its own costs.
3. Following the First Appeal Decision, the First Appeal Panel: 1. Set aside the costs order of the Tribunal made on 10 March 2022. 2. Remitted the issue of the costs of the First Hearing to the Tribunal at the Remittal Hearing. 3. Ordered Tullipan to pay Mr Manca's costs of the appeal as agreed or assessed.
4. In submissions before the Tribunal, it was accepted by both parties that by reason of the amount being claimed or in dispute in the proceedings r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) applied, and the Tribunal could make a costs order unrestrained by the provisions of ss 60 (1) and (2) of the NCAT Act.
5. Both parties made extensive oral submissions on the issue of costs before the Tribunal (Appeal Court Book pp 2691-2702).
6. Tullipan submitted that Mr Manca should pay Tullipan's costs of the original Tribunal proceedings and the remitted proceedings because Tullipan had been the "successful" party; ether because Mr Manca had failed to obtain the orders he was seeking, or to the extent he did succeed, it had been "largely where there had been agreement between the parties in advance of the hearing and certainly in respect of the majority of the issues and the large issues" (Appeal Court Book pp 2693).
7. In the alternative, Tullipan sought that the costs of the original proceedings be that each party pay its own costs (i.e. the cost order made by the Tribunal in the First Hearing that was set aside by the Appeal Panel), and that Mr Manca pay Tullipan's costs of the remitted hearing, because, in substance, Mr Manca had failed to improve his position in the Remittal Hearing and should not be considered to be the successful party in the Remittal Hearing. It was submitted the builder was the "wholly successful" party in the Remittal Hearing (Appeal Court Book p 2694).
8. Mr Manca submitted that the costs order made at the First Hearing (each party pay its own costs) should be made again in the Remittal Hearing (Appeal Court Book p 2695) because (a) Mr Manca had improved his position in the Remittal Hearing; (b) Mr Manca was entitled to pursue the appeal and was not the cause of the proceedings being remitted; and (c) there was no reason why the same costs orders for the First Hearing should not be made in respect of the Remittal Hearing (Appeal Court Book pp 2696-2697).
9. In determining the Costs Orders for the First Hearing and the Remittal Hearing, the Tribunal in the Costs Decision took into account the following matters: 1. There had been very little change in the final outcome between the First Decision and the Remittal Decision, as Mr Manca had essentially failed in prosecuting the vast majority of his defective work items claim. The Remittal Decision, other than in respect of the timber floor, only decided on the method of rectification of work for defects which had been mostly conceded by Tullipan. 2. In some instances, Mr Manca had been forced to initiate proceedings before he obtained concessions from Tullipan. 3. Mr Manca made a forensic decision to rest the prosecution of the Remittal Hearing on a largely unmeritorious argument, that is that he would be permitted to introduce new evidence which was contrary to the First Appeal Decision. 4. The matter took up significant hearing time and required Tullipan to spend time in preparing a defence.
10. The Tribunal ordered in the Costs Decision: 1. Each party to pay his or its own costs of the First Hearing. 2. Mr Manca to pay Tullipan's costs of the Remittal Hearing.
11. Ground 4 of the Amended Notice of Appeal only sets out an appeal from the second of those orders. Mr Manca says that each party should have been ordered to pay his and its costs on the Remittal Hearing.

The Costs Decision - submissions

1. Counsel for Mr Manca did not identify, in his submissions, how the issues he raises are errors on a question of law.
2. Mr Manca says that the Tribunal erred in the exercise of its discretion in ordering him to pay the costs of the Remittal Hearing. We understand that broad reference to raise an error of law of the type identified in House v The King.
3. There will be some circumstances in which a decision maker, when exercising a discretion, makes an error on a question of law. The relevant principle is set out in Attorney-General (NSW) v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [55] per Spigelman CJ: The balancing of interests in the exercise of a discretion, as distinct from a decision-maker exercising the discretion on a wrong principle, or by reference to irrelevant matters, or without consideration of a matter the decision-maker was required to consider, does not involve a question of law:
4. Mr Manca says that the Tribunal failed to give sufficient weight to the fact that Mr Manca had an entitlement to have the matter properly determined, that the matter had been remitted because the Tribunal had failed to give proper or sufficient reasons and that the Tribunal had failed to specify adequate rectification methods in the First Decision. We take into account that the effect of this submission is that in any case where a matter is remitted by an Appeal Panel to the Tribunal by reason of an error on the part of the Tribunal, the respondent to remitted proceedings should always bear its own costs. There was no authority cited to support this submission and we agree with counsel for Tullipan that this would mean that the usual order as to costs would be effectively displaced in remittal hearings.
5. Mr Manca says that insufficient weight was given to the fact that he had improved his position in the Remittal Decision. This is far from clear. He did not succeed in the Interlocutory Decision. The Tribunal found that he had been largely unsuccessful in his claims.
6. We are not persuaded that Mr Manca has shown that the Tribunal in the Remittal Decision exercised its discretion on a wrong principle, or by reference to irrelevant matters, or without consideration of a matter it was required to consider. We accept the submission made by counsel for Tullipan that the Costs Decision was an orthodox application of the general rule that costs follow the event. The costs decision made was open to the Tribunal to make in the proper exercise of its discretion, and no error of a type set out in House v The King is established.
7. Accordingly Mr Manca has not shown that the Tribunal made an error on a question of law.
8. Further, Mr Manca has not shown that there was a substantial miscarriage of justice being the gateway requirement of cl 12(a) of Sch 4 of the NCAT Act.
9. We decline to find that there is any issue of principle or question of public importance or of policy which might have general application such as to satisfy the requirement for leave under s 80(2)(b) of the NCAT Act.
10. Appeal Ground 4 is dismissed.

Orders

1. We make the following Orders: 1. Leave to appeal is refused. 2. The Appeal is dismissed.

Costs of this decision

1. The parties sought an opportunity to be heard on the question of the costs of this Appeal. We make the following Orders: (3) In the event that a party wishes to bring a costs application, such application must be lodged in the Appeal Panel Registry and served on/given to the costs respondent within 14 days of the date of the orders either attaching or referring to the documents relied upon in support of the application. (4) The costs respondent will have 14 days after the date it or they receive the application to lodge in the Appeal Panel Registry and serve on/give to the costs applicant its or their submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon. (5) The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties' written submissions and attached documents, if any, without the need for a hearing. (6) Subject to the parties' submissions, the Appeal Panel will determine any costs application made on the basis of the papers lodged in the Appeal Panel Registry.

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 21 December 2023 - Coversheet - Representation for both Appellant and Respondent, amended. 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: 21 December 2023