Mick Fabar Constructions Pty Ltd v Nicholls; Nicholls v Mick Fabar Constructions Pty Ltd

NCAT Appeal Panel|2020-12-14|Before: Wilhelmsen Agency P

Solicitors Garden & Montgomerie for the Homeowner Campbell Paton & Taylor Solicitors for the Builder File Number(s): AP 20/24293 (2020/370819) AP 20/30093 (2020/370910) Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2021] Date of Decision: 1 May 2020 Before: D Goldstein, Senior Member File Number(s): HB 18/53450

REASONS FOR DECISION

These reasons relate to two appeals of a decision from the Consumer and Commercial division of the Tribunal. An appeal was filed by the builder on 3 July 2020 and a subsequent appeal was filed by the homeowner on 10 July 2020.
The parties entered into building contract for the construction of a dwelling on 14 December 2011. The homeowner made an application to the Tribunal on 13 December 2018 seeking orders for defective and incomplete works. The Tribunal decision was made on 1 May 2020 and orders were made for the builder to pay the homeowner a sum of $33,461.78. A further decision was made by the Tribunal on 11 June 2020 in relation to costs. An order was made for the builder to pay the homeowner's 'costs of and incidental to the limitation defence issue raised by it for the period 14 February 2019 to 4 March 2020 on the indemnity basis'. In relation to the balance of the proceedings, the Tribunal ordered that the builder was to pay the homeowner costs of the proceedings as agreed or assessed.

Extension of Time

The notices of appeal from both parties were not lodged within the 28-day time period specified in cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (the Rules). Both parties will require an extension of time pursuant to s 41 of the NCAT Act for the lodging of the appeal.
The Appeal Panel has power to extend time under s 41 of the NCAT Act. Both appeals were made out of time.
Both appeals in respect of the substantive decision were lodged about a month out of time, neither party raised objection to the extension of time and on that basis, we have granted an extension of time for the lodging of the appeals in both cases and proceeded to consider both appeals.

Ground 1 - Wrong Issue for Determination

The builder submits that the Tribunal erred when it considered the homeowners cause of action as one of breach contract and that the Tribunal misdirected itself when it identified breach of contract as an issue for determination.
They submit that the Tribunal fell into jurisdictional error because the Tribunal proceeded on the basis of breach of contract which was not what was pleaded and that cause of action would have been out of time (more than three years). The builder states there was no finding of a breach of statutory warranty and the Tribunal only found in relation to breach of contract.

Consideration

We do not find that the Tribunal has fallen into jurisdictional error. In the reasons for decision, the Tribunal set out the following: 20 I would also make the point that in order to be successful in these proceedings, the owner must establish that the builder has breached a term or condition of the contract or one of the sub-sections of s18B(1)(a) of the Act. 21 As stated, clause 38 of the contract states as express warranties of the contract the implied warranties that are contained in s18B(1)(a) of the Act. 22 The owner's Points of Claim alleged that the builder 'failed to construct the residence in accordance with good industry practice and in accordance with the Contract documents'. Breach of contract is not mentioned, although perhaps that is what is intended to be conveyed by the reference to a failure to construct in accordance with the contract documents when that is considered in conjunction with clause 38.1(a) of the contract. A failure to construct the residence in accordance with good industry practice might be understood to mean a failure construct the residence in a proper and workmanlike manner, also when considered in conjunction with clause 38.1(a) of the contract. It would be preferable if breaches of contract related to what is written in the contract.
Clause 38 of the contract sets out the statutory warranties in exact terms as they were at the time, in the Home Building Act 1989 (HBA). It is clear from the earlier history of the proceedings that the parties were aware that the matter was about breach of statutory warranties. In the documents provided to the Appeal Panel there were copies of submissions that had been provided by both parties about limitation issues and which statutory warranty scheme would apply.
In the transcript, the following exchange occurred between Counsel for the builder and the Member at the outset of the hearing: MR HOROBIN: Sorry, forgive me for cutting in, Senior Member. I just want to deal with one issue so that, basically, it doesn't have to be dealt with by the Tribunal, and it's raised in - both in the application and our reply in the defence, and that's the limitation issue, and I think the position is we' re both wrong and I would say that the applicants are in time, not for the reasons that they state. They're close, but the proper construction of the Home Building Act as it was amended in 2012, 2014, and, Senior Member, you may correct me, but the circumstances are that schedule 4, 30 clause I09 of the current Home Building Act creates a savings provision for the amendments. MR GOLDSTEIN: Yes. MR HOROBIN: And it expressly provides that the limitation period as existed prior to the 2012 amendments are preserved if the contract's entered into before 1 February 2012. The contract's in 16 December 2011, so I have to, on my view, seen against ourselves, concede that the applicant's application is within time, because the proper period is seven years. Now, I'd be happy for you to tell me I'm wrong, because that would, obviously, be helpful to our case, but I'm reasonably confident that is the proper construction.
It can be inferred from the reasons for decision that the Tribunal understood that it was dealing with a claim for breach of statutory warranty. As stated above, cl 38 of the building contract reproduced the statutory warranties contained at s 18B of the HBA at the time and the applicable limitation period was 7 years.
In Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 the Court of Appeal stated: 59 The reasons must do justice to the issues posed by the parties' cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge " 'enter into' the issues canvassed and explain why one case is preferred over another"; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J.
It is clear from para [20] of the reasons of the decision that the Member understood that in order for the homeowner to be successful in the proceedings, they needed to establish that the builder had breached a term or condition of the contract or one of the sub-sections of s18B(1)(a) of the HBA (the statutory warranties). The reasons for decision demonstrate that the Tribunal considered the scope of the contract in order to determine which works fell within the contract between the parties (at [30]-[37] of the reasons for decision). The Tribunal then proceeded to consider each of the defects claimed by the builder. It did so against what would be required by the statutory warranties as they are set out in clause 38 of the building contract. For example, in relation to the defective driveway the Tribunal stated in the reasons for decision at [78]: As a result I find that the builder has breached clause 38.1(a) of the contract because in constructing the driveway with a grade steeper than 16% it failed construct the building works in accordance with a contract plan, or drawing. In addition in making an error when carrying out the construction of the driveway, I find that the builder failed to perform the building works in a proper and workmanlike manner.
Clause 38.1(a) replicated the statutory warranty as contained in the HBA at the time and so if the defect was a breach of Clause 38, it was also a breach of the statutory warranty. Even if we are wrong on this point and the Tribunal considered these matters as a contractual claim and not as a breach of statutory warranty (which we do not find) it would be futile to remit the matter. The Tribunal considered the defects in the same terms as a claim for breach of statutory warranty and the outcome would have been the same. We find no jurisdictional error by the Tribunal and this ground of appeal fails.

Ground 2 - Error in finding that the experts agreed about the rectification cost of the driveway

The builder submits that the Tribunal erred in finding that the experts had agreed that the rectification cost for the driveway were agreed by the experts at $17,236.21. They refer to the joint expert report dated 12 November 2019 which was prepared by Mr David Dillon, the homeowner's expert, and Mr Peter Shepherd, the builder's expert report.
The homeowner's expert had proposed rectification works, which included the retaining wall that were costed at $54,656.26 (including GST and margin). The builder's expert proposed two methods of rectification of the driveway: Option 1: Remove and replace existing driveway: $17,236.21; and Option 2: Replace the existing transition plate: $3,101.00.
The builder submits that the joint Scott Schedule does not identify that the proposed Option 1 is agreed, or that it is was the preferred option of the builder's expert. They submit that the builder's expert was of the opinion that the driveway "was fit for purpose" and that the builder's expert disagreed with the applicant's expert that any further rectification was required. Accordingly, the builder submits that there was no evidence that the experts agreed on rectification costs

Consideration

We do not agree with the builder's submission on this point. At [81] - [83] of the reasons for decision the Tribunal stated: 81 I find that it is not exceptional for the owner to seek rectification damages in order to drive her car into her driveway without the car scraping the bottom of the driveway without the metal plates the builder has put onto her driveway which serve the purpose of overcoming or mitigating its error in constructing the driveway. 82 The experts in the Joint Expert Report agree that the rectification cost is $17,236.21. I accept their agreement regarding the cost of rectification. 83 I will make an order that the builder must pay the owner the sum of $17,236.21 in connection with this item of the scott schedule.
The reasoning demonstrates that the Tribunal did have evidence on which to come to its finding of fact. At [81] of the reasons for decision the Tribunal explained why option 2 was not a satisfactory option for rectification and why the driveway needed to be replaced. The Tribunal explained why it proceeded with option 1. In response to Mr Shepherd's two proposed methods of rectification, Mr Dillon, the expert for the homeowner had stated in the joint expert report: However, on an if found basis, for the driveway replacement only, I agree with the Respondent's scope and cost - $17,236.21
Given the Tribunals findings about the appropriate method of rectification and the homeowner's expert agreeing to the cost proposed by the builder's expert for the replacement of the driveway (if found), we find that it was open to the Tribunal to find that the experts had agreed about the costs. We find no error of law and this ground fails.

Ground 5 - Error of law in calculation of damages

The builder submits that the Tribunal erred in the calculation of damages in and failed to apply the decision in Hyder Consulting (Australia) P/L v Wilh Wilhelmsen Agency P/L & Anor [2001] NSWCA 313. The builder states that consistent with that decision damages should have been reduced by 20% on the ground of betterment as the homeowner had use of the driveway for seven years.

Consideration

In Scarano v Palm Pools and Spas Pty Ltd [2019] NSWCATAP 79 the appeal Panel stated at [49] and [50]: 'The principles governing the question of whether an appeal body should allow a new ground to be raised on appeal were the subject of consideration by the High Court in Coulton v Holcombe (1986) 162 CLR 1. In that case, Gibbs CJ, Wilson, Brennan and Dawson JJ said at 7-8: "To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards." In Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2016] NSWCATAP 210 at [55], after referring to Coulton v Holcombe, the Appeal Panel commented that "[t]he considerations favouring finality of litigation are at least as strong, and probably stronger, in the case of the Tribunal given the importance attached to the expeditious and inexpensive disposition of proceedings under the [NCAT] Act."'
The builder was legally represented at hearing. The issue of betterment and a reduction in line with Hyder was not put to the Tribunal. The builder made submissions that the reduction outlined in Hyder was simply a principle to be considered by the Tribunal in assessing damages. We disagree with that submission. If the builder intended to seek a reduction for betterment then it should have been plainly put before the Tribunal and parties should have had the opportunity to address it and makes submissions about how and if betterment would apply. Further, as highlighted in ground 2 above, the amount accepted by the Tribunal in relation to this costing had been an option proposed by the builder's expert and there was no mention that the amount should be reduced for betterment. This ground of appeal fails.

Ground 6 - Error in finding that the retaining wall was defective

The builder puts this ground on two alternative bases. First the builder submits that there was an error of law as there was 'no evidence' to support the finding that the retaining wall was defective. In the alternative the builder seeks leave to appeal on the basis that the finding in relation to the retaining wall was against the weight of evidence.
The builder submits that the Tribunal erred in finding that the retaining wall was defective (at [131-133] of the reasons for decision). They submit that there was no evidence of a defect requiring rectification in the retaining wall and that the homeowner's builder, Mr Noonan, conceded in cross-examination that: 1. He had not undertaken destructive testing to confirm which revision of the designs had been complied with; 2. there was no physical damage or defect present in the retaining wall; 3. he had not excavated the footings of the retaining wall to investigate them.
The builder submits that the alleged defect was determined on the basis of untested assumptions regarding the foundations of the retaining wall and a mathematical calculation performed on incorrect plans. Both the owner's expert, Mr Dillon, and Mr Shepherd for the builder agreed that there was no evidence of movement and/or damage of the retaining walls (at [87] of the reasons for decision).

Consideration

At [84] - [136] of the reasons for decision the Tribunal dealt in some detail with the evidence in relation to the retaining wall. Mr Noonan, Mr Shepherd and Mr Dillon all gave evidence regarding this point and it cannot be said that there was no evidence at all. On that basis there is no error of law.
As the decision the subject of appeal is a decision of the Tribunal in the Consumer and Commercial Division, the Appeal Panel may only grant leave to appeal where it 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). (see NCAT Act, Sch 4, cl 12)
In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel stated at [76] that a substantial miscarriage of justice may have been suffered 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 circumstances in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
If the appellants satisfy the requirements of clause 12(1), the Appeal Panel must still consider whether it should exercise its discretion pursuant to s.80(2)(b) of the Act.
We find no grounds to allow leave to appeal. At [126] of the reasons for decision, the Tribunal found in connection with the evidence of Mr Noonan: 126 I do not regard Mr Noonan's evidence to be highly persuasive. However it has not been contradicted by an engineer called by the builder. The fact that Mr Noonan refers to photographs which are not in evidence affect the credibility of his comments that owner provided photographs establish that the slab is 300mm higher than the footing. His admission that he did not carry out an excavation for RW2 adversely affects his evidence that the garage slab is approximately 300mm higher than the footing. 127 Then there is the fact that he does not explain that a lack of a lateral reaction to stabilise the footing has an adverse effect on RW2. I infer from his evidence that in some way which is not explained or referred to, if the footing is not stable or laterally supported, then its ability to support the retaining wall is compromised.
The issues now being raised by the builder were considered as matters of weight by the Tribunal and for that reason cannot be against the weight of evidence.
Further at [130] - [132] the Tribunal stated: 130 However Mr Noonan's evidence was that the magnitude of the lateral reaction to stabilise the footing had been calculated to be 26.1kN/m ultimate lateral force and that with no direct connection of the garage slab to the footing other than sitting on it, 86.7kPa of friction would be required to be developed by the slab to the footing, which could not be achieved having regard to the weight of the slab. He stated as a result of this reasoning, that a suitable reinforcement connection of the garage slab to the footing was required. 131 I accept the evidence in the preceding paragraph which has not been contradicted. I find that as RW2 was constructed as a variation and that the builder was responsible for providing the RW2 design which it did by engaging SRC. I find that Mr Noonan's evidence which is referred to at [129] establishes that the SRC design was deficient for failing to require a reinforcement connection of the slab to the footing. 132 I further find that by constructing the garage slab without a reinforcement connection to the footing, the builder was in breach of clause 38.(1)(a) of the contract by failing to perform the building works in a proper and workmanlike manner.
The defect as found by the Tribunal is that the garage slab should have had a reinforcement connection to the footing but did not have such a connection. The findings at [131] and [132] are based on the earlier calculation that the lateral reaction to stabilize the footing had been calculated at 26.1kN/m ultimate lateral force and that with no direct connection of the garage slab to the footing other than sitting on it. 86.7kPa of friction would be required to be developed by the slab to the footing. That could not be achieved having regard to the weight of the slab.
The fact that the defect was not apparent as physical damage to the structure is not determinative of whether it is a defect. It was open to the Tribunal to accept the calculations for the reasons it did. The issue was whether it was a breach of statutory warranty, that is, whether it was constructed in a proper and workmanlike manner. That can be found regardless of whether the physical consequences can be seen. Accordingly, we do not find that there has been a substantial miscarriage of justice resulting in the decision was against the weight of evidence and decline to grant leave to appeal on this ground.

Grounds 7,8 and 9 - Costs

The grounds all relate to the costs decision and so we have dealt with them together. The grounds relate to an alleged error in misapplying the test for the decision to grant costs in relation to the limitation issue, including the awarding of costs on an indemnity basis.
The Tribunal found at [43]-[44] of the reasons for decision in relation to costs that the builder's limitation defence was "so obviously untenable or manifestly groundless as to be utterly hopeless" and awarded indemnity costs on that basis. The builder submits that: 1. The limitation issue had been raised by the Tribunal and that the Tribunal initiated the issue by ordering submissions on the limitation issue earlier in the proceedings and the issue had not been raised by the parties. 2. Both parties had been incorrect in relation to the limitation issue. 3. The limitation issue was conceded by the builder was conceded on the first morning of the hearing. The builder refers to Re Minister for Immigration and Ethnic Affairs: Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 as authority for the proposition that ordinarily, an award of costs ought not be made where the Tribunal has not tried the merits of the issue. 4. The Tribunal misapplied Dean v Stockland Property Management Pty Limited & Anor [2010] NSWCA 66 as that decision applied to the entirety of a decision and not a discrete point in the proceedings.

Consideration

The builder framed these grounds as errors of law. We find no ascertainable errors of law. The decision on costs, including to award costs on an indemnity basis is a decision within the discretion of the Tribunal. The concession in relation to the limitation issue was not made until the morning of hearing. There is no explanation why the builder pressed the limitation issue up until the first day of hearing. The fact that the limitation defence was abandoned is no bar to indemnity costs being ordered and that is not the proposition advanced in Lai Qin.
The High Court per McHugh J set out the relevant principles in Lai Qin as follows: In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties… In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action… Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried… If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.
The matter remained a discretion for the Tribunal and the Tribunal found that builder's limitation defence was "so obviously untenable or manifestly groundless as to be utterly hopeless" and so it was open to find that the builder had not acted reasonably in pressing this defence.
We find that although Dean concerned a costs order which related to the entirety of the proceedings, it can be applied to a discrete point. At [43] of the reasons for decision in relation to costs the Tribunal stated how it applied Dean: 43 Based on the authorities cited above indemnity costs may be ordered if proceedings are 'so obviously untenable or manifestly groundless as to be utterly hopeless' or where a party should have known that 'there was no real prospect of success'. I find by parity of reasoning, that the same principles should apply to a discrete point in proceedings, such as the limitation issue. I find that because this point was abandoned by the respondent on the morning of the hearing, that it must have been considered by the respondent, or those advising it to be untenable, or having no real prospect of success. The basis upon which time limits apply to statutory warranty claims in the Tribunal under the Home Building Act are not opaque or shrouded in mystery. The respondent recognises this at [18] of its submissions when it refers to the Transition and Savings provisions of the Home Building Act. 44 For the reasons set out above I will make an indemnity costs order in favour of the applicant in connection with the limitation defence raised, pursued and abandoned by the builder.
That application was in our view appropriate. We do not find that the discretion to award indemnity costs miscarried or was as a result of a misapprehension of the law. The Tribunal applied its discretion, in circumstances where regardless of who had raised the issue, the builder had continued to maintain a defence in relation to the time limitation issue right up until the morning of the hearing. On that basis there can be no error of law. For completeness we also do not find that there was a substantial miscarriage of justice on the basis that the decision was not fair and equitable and would not grant leave to appeal on this point.

Ground 1 - Garage ceiling and roof frame

The homeowner submits that the Tribunal erred when it did not find that the garage ceiling needed to be lifted after it allowed for the garage floor to be raised. At [136] of the Tribunal's reasons for decision, the Tribunal made a finding in relation to the cost of supplying and installing a new concrete floor to the garage. The homeowners submit that the Tribunal did not take into account the evidence of Mr Dillon at page 8, paragraph 12 of his report, that the raising the garage floor would require the ceiling and roof frame to be raised. They submit that this is an error of law because the Tribunal did not deal with an issue that was before it for determination.

Consideration

We do not find an error of law on this point and do not accept that the Tribunal failed to deal with the issue. In the joint expert report the homeowner's expert had indicated a total method of rectification in relation to the driveway, retaining wall, and garage, that is items 1, 2 and 2a were costed as a total $54,656.26. The Tribunal did not accept that combined method of rectification or costing.
Having dealt with the rectification of the driveway and retaining earlier in the reasons for decision, the Tribunal at [133] to [136] found the following in relation to the garage floor: 133 So far as damages are concerned, I find that they are to be calculated by reference to the most appropriate rectification method. 134 In the Joint Expert Report, Mr Dillon states that raising the garage floor level and the associated works are reasonable. Apart from stating that capping costs of $300.00, in the Joint Expert Report, Mr Shepherd provides a rectification methodology if the stability of the wall is contingent upon there being friction between the garage slab and the footing. He has not costed his rectification methodology. 135 In his report Mr Dillon states that he agrees with Mr Noonan. He also states: 'It is my opinion that installing a new concrete floor inside the existing Garage, 553mm higher than the existing floor, will effectively reduce the height of the retaining walls and depending on the opinion of the structural engineer, reduce the need to demolish and reinstate the retaining walls. This will be subject to Structural Engineering Design.' 136 At page 38 of his report Mr Dillon at 5.6 deals with the supply and installation of a new concrete floor to the garage. He sets out his calculations to establish a cost of $7,487.44 for this work. Because this is the only evidence of the cost of this work, I accept this amount. I will find for the owner in this amount in connection with the garage retaining wall (RW2) claim.
The Tribunal, in its discretion considered the evidence and concluded the following:

That it preferred the proposed method and costing of rectification of the driveway proposed by Mr Shepherd as option 1 in relation to the driveway.
That it preferred a component of Mr Dillon's evidence in relation to the retaining wall and allowed for that amount.
The garage floor was dealt with at pages 8 and 9 of Mr Dillon's report and he stated that the floor of the garage needed to be raised in order to achieve the specified driveway slope of 16%. The raising of the roof and the need for a development application were raised at the hearing and dealt with in cross examination. However, the transcript of the cross examination does not reveal why this was necessary, and nor does Mr Dillon's report itself explain why the roof needs to be raised. It is simply assumed that because the floor is to be raised by 533 mm then the roof needs to be raised.
We do not accept that the Tribunal did not take into account this issue in the reasons for decision. Rather the Tribunal refused the overall global costing of all the items as had been proposed by Mr Dillon in the joint expert report, and instead made a finding as to the relevant cope of rectification and the applicable costs for this rectification. The Tribunal considered the evidence as a whole and what was required to rectify the defect and found only certain aspects were required to remedy the relevant defects. We find no error of law and do not allow the appeal on this ground.

Ground 2 - Pergola and Pelmet

The homeowner submits that the finding that the pergola and pelmet were excluded from the contract was against the weight of evidence and the homeowners seek leave to appeal.
The homeowner submits that the following are objective facts to support the case that the pergola and the pelmet were a part of the contract: 1. The parties entered into a contract on 16 December 2011 pursuant to which the builder was to construct a dwelling at 3 West Street Orange for the total contract sum of $338,046 inc GST in accordance with plans prepared by the owner, approved by the PCA on 20 July 2011 and by Orange City Council on 3 August 2011. 2. The pergola referred in the plans has not been constructed. 3. On 10 November 2011 the builder issued an updated quote that provided for Curtin pelmets over all living area windows from MDF 120 mm. 4. The contract included at item 14.2 of Schedule I a reference to 'updated quote'. 5. The builder relies upon a document dated 21 November 2011 that excludes the reference to curtain pelmets and identifies ' Pergola' as an excluded item. 6. Mr Fabar first testified that the owner initialled the contentious quote and then testified that she didn't (see [63] to [70]). The issue of who supplied the false initials remains unexplained but the inference is obvious.

Consideration

We do not grant leave to appeal in relation to this ground. The Tribunal's finding appears in relation to the pergola and pelmet are found at [69] of the reasons for decision: 69 By reason of finding that the owner's evidence cannot be fully relied upon, I prefer the builder's evidence regarding the circumstances in which the quote dated 21 November 2011 was prepared. In that regard I find that neither of the builder's quotes of 12 April or 10 November 2011 allowed for the construction of a Pergola under the 'Carpenter' section. I further find that the owner did not raise the inclusion of the pergola in her document 'Matters to Discuss' in response to the quotation of 12 April, or in her three column document. I find that the first time she raised the subject, at least in writing, was in her document which is at annexure E of her 6 March 2019 statement. I find that it is logical and consistent with the contemporary materials and the builder's version of events that the pergola was excluded from the quotes and later on 21 November 2011 recorded in the 'Extras for consideration' section. that it prefers the builder's evidence by reason of finding that the owner' s evidence cannot be fully relied on. That is a decision open to the Tribunal to make having observed the parties and heard the evidence. It open on the evidence before the Tribunal to make a finding that the Pergola and pelmets were excluded from the contract works.
Those were findings open to the Tribunal to make having considered the evidence of the builder's version of events, considered the delay in the homeowner raising the alleged exclusion and the contemporary materials that were before it. The Tribunal weighed up the evidence and we do not find a substantial miscarriage of justice having considered the weighing up of the evidence by the Tribunal and for that reason we do not grant leave to appeal on this ground.

Costs

We have made provision for submission on costs if either party proposes to make an application for costs. Given that both parties have failed in their respective appeals our preliminary view is that both parties should bear their own costs. However, it remains open to each party to make an application for costs and we have made directions and will decide the matter in due course if such application is made.

Orders

In relation to both appeals AP 20/24293 and AP 20/30093: 1. Time to appeal is extended 2. Leave to appeal is refused. 3. The appeals are dismissed. 4. In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application. 5. The costs respondent will have 14 days after the date she or it receives the application to lodge in the Tribunal and serve on the costs applicant her or its submissions, if any, in response to the cost applicant's costs application, such submissions either attaching or referring to the documents relied upon. 6. The cost applicant will have 14 days after the date she or it receives the cost respondent's submissions to lodge in the Tribunal and serve on the costs respondent her or its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon. 7. 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. 8. Subject to the parties' submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2021

At a glance

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Judgment (20 paragraphs)

Cases Cited (12)