Miles v Buildfix Group Pty Ltd

Dyjecinska v Step-Up Renovations (NSW) Pty Ltd [2023] NSWCATAP 36

IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30

Keirl v Kelson (2004) VR 244

Metal Manufacturers Ltd v Lewis (1988) 13 NSWLR 315

Mills v Walsh [2022] NSWCA 255

MyEnvironment Inc v VicForests (2013) 42 VR 456; [2013] VSCA 356

Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin [2020] NSWCA 358

Owners Corporation Strata Plan 61288 v Brookfield Multiplex [2012] NSWSC 1219

Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

Secretary, Department of Social Security v Cooper (1990) 19 ALD 1; 94 ALR 301

State of New South Wales v Chapman-Davis [2016] NSWCA 237

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Victims Compensation Fund Corporation v Brown [2003] HCA 54; 77 ALJR 1797

Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113

Carter and Harland, Contract Law in Australia (3rd ed, 1996, Butterworths)

1. This is an internal appeal filed pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) from the decisions of the Consumer and Commercial Division of the Tribunal (Tribunal) of 19 February 2025 in applications 2022/00412678 (formerly HB 22/41763) and 2022/0407778 (formerly HB 22/42200) (Primary Decision).
2. In application 2022/00412678 (Homeowner's Application) the appellant/homeowner (Homeowner) sought orders that she did not have to pay the respondent/builder (Builder) $4,785.00 and that the Builder "provide sufficient remuneration to solve the moisture problem in my wall as they have been contracted". The amount sought by the Homeowner was $88,000.00.
3. For the reasons given in the Primary Decision, the Tribunal dismissed the Homeowner's Application.
4. In application 2022/0407778, (Builder's Application), the Builder sought orders that the Homeowner pay it $4,785.00, being its fees for outstanding services.
5. For the reasons given in the Primary Decision, the Tribunal made the order sought by the Builder.
6. The Homeowner has appealed the orders in both applications.
7. For the following reasons, we have decided to dismiss the appeal.

1. The Builder filed a Notice of Appeal on 19 March 2025 (which was within the time limits prescribed for internal appeals) and an Amended Notice of Appeal on 30 April 2025.

1. The Amended Notice of Appeal contains four grounds of appeal.
2. Ground 1 is titled "Error in law: Construction of Contractual Purpose".
3. The Homeowner states that the Tribunal erred in law in construing the purpose of the contracts between the Homeowner and the Builder (including the terms implied by s 18B of the Home Building Act 1989 (NSW) (HB Act) by finding (at [60] of the Primary Decision) that the purpose did not require the Builder to rectify the cause of moisture ingress affecting the subject wall, irrespective of its specific source "(such as rising damp vs. lateral ingress)".
4. Ground 2 is titled "Error in Law: Application of [HB Act] s 18B(f)[1] (Fitness for Purpose)".
5. The Homeowner states that the Tribunal erred in law by failing to correctly apply the warranty implied by s 18B(f)[2] of the HB Act in finding at [60] of the Primary Decision and implicitly at [59] that the Homeowner had not made known the particular purpose or desired result (namely, rectification of the moisture problem in the subject wall to allow repainting) so as to show reliance on the Builder's skill and judgment, despite evidence of the Homeowner's communications.
6. Ground 3 is titled "Error in Law: Interpretation/Application of [HB Act] s 18B(e)[3] (Reasonably Fit for Occupation)".
7. The Homeowner states that the Tribunal erred in law in interpreting and applying the warranty implied by s 18B(e)[4] of the HB Act by finding (Primary Decision at [61]) that the warranty was limited solely to the physical extent of the DampBlock Works performed, thereby failing to consider whether the result of those works, in the context of the known moisture issues, rendered the dwelling reasonably fit for occupation to the extent of those works.
8. Ground 4 is titled "Error in Law: Failure to Find Breach".
9. Here the Homeowner states that, "consequent upon Errors 1, 2, and/or 3," the Tribunal erred in law in failing to find that the Builder breached the contract and/or the warranties implied by s 18B of the HB Act.

1. In the Amended Notice of Appeal, the Homeowner states that she seeks orders that her appeal be allowed; that the orders of the Tribunal dismissing the Homeowner's Application and ordering her to pay the Builder $4,785.00 in the Builder's Application be set aside; and that the Builder's Application be dismissed.
2. In relation to her application, the Homeowner seeks rectification orders "to address the water ingress affecting the subject wall at the Property", alternatively a money order for $49,600.00; alternatively, that her application be remitted to the Tribunal for determination according to law.
3. In addition, the Homeowner seeks orders that the Builder pay her costs of the appeal, her costs in both applications in the Tribunal, together with interest as calculated under the Civil Procedure Act 2005 (NSW).

1. The Builder filed its Amended Reply to Appeal on 7 May 2025, responding to the Amended Notice of Appeal.
2. The Builder commenced its Amended Reply to Appeal with the heading "Still no question of law identified".
3. The Builder says that in its original Reply to Appeal dated 15 April 2025, it pointed out that the Homeowner had not identified any relevant question of law. The Builder states that, despite being given another opportunity, and despite the Tribunal specifically drawing to the Homeowner's attention recent authority on the issue,[5] the Homeowner still has not done so. Rather, "it appears that the [Homeowner] has merely used different words to describe substantially the same things".
4. The Builder then sets out what it describes as the requirements for establishing a question of law, and refers to the principles stated in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ("Prendergast") and Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 ("Cusumano").
5. The Builder then responds to each of the grounds of appeal. We will summarise these responses briefly.

(1) Ground 1 does not disclose any question of law; it is "simply a vague contention" that the Homeowner should have won the case;

(2) while the Tribunal found, at [60], that the "purpose" or "stated purpose" of the contracts (for the purposes of the warranties implied by ss 18B(1)(b), (e) and (f) of the HB Act (Implied Warranties) did not require the Builder to find the source, whatever it was, of any water the Homeowner has not explained why the Tribunal erred, or ought to have made different findings;

(3) what the Homeowner essentially seeks to do in this ground is to simply say that the Tribunal erred as to its ultimate conclusions in the proceedings, and should instead have found for the Homeowner, but without identifying why;

(4) while the Homeowner originally sought to rely on the Implied Warranties to expand the scope of work from that stated in the contracts, the Tribunal (at [14]-[19]) correctly identified and applied the law on this issue as set out by the Court of Appeal in Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin [2020] NSWCA 358 ("Oikos");

(5) the Tribunal correctly considered the relevant "purpose" (for the purposes of the Implied Warranties) by reference to the factual material in the proceedings, including the written contractual documentation and evidence of relevant discussions: Primary Decision at [20];

(6) the Tribunal correctly found that weight should be given to the written and signed contractual documentation itself, which contained a description of the works and their purpose, and less weight should be given to the parties' recollection of conversations, or what the appellant may have said in an initial enquiry, in determining the objective purpose of the works: Primary Decision at [57]-[60];

(7) the matter of weight to be given to evidence is a matter for the primary decision-maker, and does not give rise to a question of law on appeal;

(8) in any event, the Tribunal found at [59] that even if it accepted the Homeowner's version of the conversations, that was factually insufficient.

1. The Builder submits that Ground 2 does not disclose any question of law; and that, again, that it is in substance "simply a vague contention" that the Homeowner should have won.

(1) the Tribunal correctly found at [61] that the warranty implied by s 18B(1)(e) of the HB Act was limited to the extent of the works that were performed. This is consistent with the wording of the section itself ("to the extent of the work conducted") and the Court of Appeal authority referred to and applied by the Tribunal at [18], Oikos.

(2) Ground 3 suggests that the Tribunal failed to consider whether "the result of those works" rendered the dwelling reasonably fit for occupation "to the extent of those works". The Builder submits that it is not at all apparent what this was intended to mean. In any event, the Tribunal did consider the "result of the works" conducted, and found that they had been conducted satisfactorily: Primary Decision at [42], [103];

(3) if the Homeowner is contending that the s 18B(1)(e) warranty can extend the obligation beyond an expressly agreed scope of works, such a conclusion is inconsistent with Court of Appeal authority in Oikos. If she is contending that the decision in Oikos is incorrect, she has not identified how.

1. The Builder submits that this ground does not appear to raise any additional ground. Instead, it is a conclusion which is said to follow from Grounds 1 to 3. Therefore, Ground 4 itself does not need to be addressed separately.

1. Section 80 of the NCAT Act sets out the basis upon which internal appeals from decisions of the Tribunal may be brought. That section states that an internal appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

1. In Prendergast at [13], the Appeal Panel set out a non-exhaustive list of possible questions of law giving rise to an appeal as of right:

(1) whether there has been a failure to provide proper reasons;

(2) whether the Tribunal identified the wrong issue or asked the wrong question;

(3) whether a wrong principle of law had been applied;

(4) whether there was a failure to afford procedural fairness;

(5) whether the Tribunal failed to take into account relevant (that is, mandatory) considerations;

(6) whether the Tribunal took into account an irrelevant consideration;

(7) whether there was no evidence to support a finding of fact;

(8) whether the decision was so unreasonable that no reasonable decision-maker would make it.

1. These matters were clarified and expanded by the Appeal Panel in Cusumano, where the Appeal Panel stated (references omitted):

32 To the above list [referring to the list in Prendergast extracted above] might be added the following (some of which are nuanced aspects of the categories in Prendergast):

(1) Whether the Tribunal drew inferences that were not available from the facts as found (an extension of item 7 [of Prendergast]) ...

(2) Whether the construction of a statute or contract arrived at by the Tribunal at first instance was wrong in some identified way: ...

(3) Whether the Tribunal's decision was vitiated by bias, or a reasonable apprehension of bias, relates to and intersects with the fair hearing rule, and may encompass or be related to the procedural fairness question: ...

(4) Whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice, that is, procedural unfairness. Alternatively, it may also constitute a constructive failure to exercise jurisdiction: ...

(5) Whether the facts as found necessarily satisfied the statute or necessarily did not: ...

...

1. The Appeal Panel then observed at [33] that, 'plainly', the categories (that is, the categories of questions of law) are not closed.

1. We will not set out the requirements for establishing a grant of leave to appeal. That is because the Homeowner has expressly stated at [2] of her written submissions dated 2 June 2025 that leave to appeal is not required. She has not sought leave in relation to any of her appeal grounds, even in the alternative.

1. Before considering the grounds of appeal, it is appropriate to briefly summarise the structure and content of the Primary Decision.
2. At [1], the Tribunal provides a brief Introduction about the dispute, noting that it was a dispute between the Homeowner and the Builder in respect of a contract or contracts and work performed by the Builder at the Homeowner's property in Leichhardt, NSW.
3. At [2]-[5], the Tribunal then summarises the two applications.
4. At [6], the Tribunal deals with its jurisdiction to hear the two applications. At [7]-[10], the Tribunal summarises the procedural history of the applications.
5. At [11], the Tribunal sets out the issues for consideration, being:

(1) identification of the "purpose" or "specified purpose" of the works to be performed pursuant to the DampBlock Contract for the purposes of the Implied Warranties;

(2) identification of the cause of the Water Ingress;

(3) whether the DampBlock Works were performed with due care and skill and were reasonably fit for their "purpose," or any "specified purpose" as required by the Implied Warranties;

(4) whether the fact of any ongoing Water Ingress means that there has been a breach of the Implied Warranties or the DampBlock Contract;

(5) subject to a consideration of issues (1) to (4) what, if any relief ought to be ordered.

1. At [12] - [19], the Tribunal discusses the warranties implied by s 18B of the HB Act into every contract to do residential building work, and refers in particular to the judgment of the Court of Appeal in Oikos at [81]:

"In some circumstances the operation of the warranties may expand the scope of work that a builder contracts to do. Thus, a builder cannot avoid the operation of the warranty under s 18B(b) that the materials supplied be good and suitable by specifying sub-standard materials. A builder cannot avoid the warranty in s 18B(c) that the work comply with the law by relying on the fact that the plans and specifications do not include the provision of sprinklers required by law (The Owners - Strata Plan No 66375 v King [2018] NSWCA 170 at [332], [399]-[409])".

1. The next section of the Primary Decision is headed "Background facts and consideration of the purpose or any specified purposes". This section consists of [20]-[55].
2. After setting out:
   • the fact of the Homeowner's telephone call to "someone" at the Builder in early January 2022;
   • the Homeowner's subsequent online enquiry to the Builder that:

"... have rising damp and damaged walls. Needs damp course and walls repaired. I would like a quote and preferably work is to be done sooner rather than later."

• the Builder's inspection of the Homeowner's property on 31 January 2022 and a conversation between the Homeowner and the Builder's employee Mr Olivera;
• the emailing of two quotations by the Builder to the Homeowner on 1 February 2024,[6] namely the quotation for the "Dampblock Works" and the quotation for the "Saltblock Works";
• various photographs and other documents attached to the two quotations,

the Tribunal found at [33] that the Homeowner accepted the DampBlock Works quotation on 1 February and the SaltBlock Works quotation on 2 February 2024.[7]

1. In relation to the Dampblock Works quotation, the Tribunal stated:

...

"Description of Works

Repair rising damp in walls by injecting damp block systems at locations on the attached repair detail.

...

Warranty details and inclusions

A 10-year warranty will be provided to cover the structure from further rising damp issues at the locations detailed and in accordance with the agreement".

1. Not noted by the Tribunal was that the quotation also stated that the price of the works was $4,785.00.[8]
2. The Tribunal then continues:

27 It then attached a page of photos which stated:

"Rising Damp Repair Detail

Cause

Likely cause of rising damp is due to an insufficient damp barrier within the walls.

Repair Recommendations

To stop further decay of walls, damp block system to be injected into the wall 150 mm (approx..) above ground level ..."

29 The quote also attached a one-page description of DampBlock rising damp repair.

1. The contents of that page were not set out in the Primary Decision. The DampBlock Works quotation was Exhibit SA-1 to the affidavit sworn 8 November 2022 of the Builder's Customer Service Manager, Ms Samantha Awakian. The "one-page description of DampBlock rising damp repair" stated:

"Introduction to DampBlock™

DampBlock™™ is a revolutionary new product developed with the home environment in mind. Using water-based technology instead of petrochemical solvents or flammables, DampBlock™ treats rising dampness in masonry without harmful chemicals. It's safe for use around children and pets and leaves no lingering odours.

DampBlock™™ damp proofing method explained

DampBlock™™ is injected through small drill holes near the ground level and penetrates the affected masonry. The injection spacing is approximately 5cm apart, and the process lasts until the wall is saturated and appears wet. After 24 hours, DampBlock™ will begin to fade and will be completely invisible after 72 hours. Soon after injections, the drill holes are filled to blend with the existing.

Quote notes

• This quote does not include decoration works such as replastering or painting.

• If repairs are internal, skirting boards may be removed by Buildfix to access the lowest brick course for injection. The reattachment of skirting boards is not including in this quote and should be left unattached for a 72-hour period to allow the wall to dry.

• Colour variations may occur during repointing. An exact match to the original colour cannot always be guaranteed

• If you are planning on painting the area repaired by Buildfix, allow 28 days before priming the surface.

Customer requirements

• Furniture and valuables near repair locations should be removed before arrival to ensure repairs are undertaken efficiently and completed on time.

• The owner or nominated person must be onsite during repairs.

Warranty details and inclusions

A 10-year warranty will be provided to cover the structure from further rising damp issues at the locations detailed and in accordance with the agreement.

Quotation expiry

This quote is valid for 30 days and will remain fixed price during this time.

Payment terms

Full payment is required 7 days after the invoice date which will be sent shortly after completion. We accept bank transfer and credit card through our payment portal.

Getting started

To accept this quote and proceed, please follow the link below to our booking form. No deposit required. Click here https://live.buildfix.com.au/quote-details/book-my-job/1.0-RD-370772".

1. As noted, the Tribunal found that the Homeowner accepted the DampBlock Works quotation on 1 February 2022, thus forming the DampBlock Contract. The Tribunal stated at [34] that that contract (relevantly) stated:

Job details

[Date as shown on quote]

[2022-01-31]

Brief Description of Works

Carry out works as per the repair detail provided with the quote.

...

Owners Signature

I accept Buildfix quote.

(The italicised passages do not appear in the Primary Decision, but see p 183 of the "Court Book").

1. The Tribunal found that the DampBlock Contract works were performed on 29 and 30 March 2022 (Primary Decision at [38]).
2. In relation to the Saltblock Works quotation the Tribunal stated:

Description of Works

Repair salt damage by removing affected plaster and replacing with SaltBlock systems and locations highlighted on the attached structural prepared details.

...

Warranty details and inclusions

A 10-year warranty will be provided to cover the structure from salt decay at the locations detailed and in accordance with the agreement.

1. Not noted by the Tribunal was that the quotation also stated that the price of the works was $7,095.00.[9]
2. The Tribunal then continued:

31 It also attached a page of photos identifying work to be performed. The page stated:

Salt Block

Cause

The likely cause of the damaged wall is due to salt crystallisation within the structure. The effects have led to plasterwork decay and detachment

Repair Recommendations

To stop further decay of walls and to increase the visual appearance, salt block system is to be applied onto the wall one metre (approx.) above finished floor

32 The SaltBlock Works quote also attached a one-page summary of the work to be performed.

1. The contents of that page were not set out in the Primary Decision. The SaltBlock Works quotation was Exhibit SA-2 to Ms Awakian's affidavit sworn 15 December 2022. The "one-page description of DampBlock rising damp repair" stated:

"Introduction to our SaltBlock™ System

After rising damp treatments, salt crystals can damage plasters, and mould can appear on surfaces as walls dry out.

The SaltBlock™ systems incorporates powerful fungicides and a waterproofing additive to prevent salts from causing damage. The system leaves a great, smooth finish and effectively allows walls to breathe and dry out naturally.

Our SaltBlock™ method explained

SaltBlock™ system are applied onto the wall to inhibit the effects of salt crystallisation and stop further decay. Existing loose and drummy plaster is removed from the wall up to 1m above finish floor level. Walls are treated with a waterproofing tanking coat, followed by 2 x coats of cement render.

Quote notes

• This quote does not include decoration works such as painting or gap filling around skirting boards, facings, or cornices.

• If you are planning on painting the area repaired by Buildfix, allow 28 days before priming the surface, filling the gaps and painting. We recommend, two coats of undercoat and two finish coats. Allow 24 hours between each coat of paint.

• The reattachment of skirting boards is not including in this quote and should be left unattached for a 28 day period.

Customer requirements

• Furniture and valuables near repair locations should be removed before arrival to ensure repairs are undertaken efficiently and completed on time.

• The owner or nominated person must be onsite during repairs.

Warranty details and inclusions

A 10-year warranty will be provided to cover the structure from salt decay at the locations detailed and in accordance with the agreement.

Quotation expiry

This quote is valid for 30 days and will remain fixed price during this time.

Payment terms

Full payment is required 7 days after the invoice date which will be sent shortly after completion. We accept bank transfer and credit card through our payment portal.

Getting started

To accept this quote and proceed, please follow the link below to our booking form. No 3.0-SB-57393".

1. As noted, the Tribunal found that the Homeowner accepted the SaltBlock Works quotation on 12 February 2022. The Tribunal stated at [35] that that contract (relevantly) stated:

"Job details

[Date as shown on quote]

2022-01-31]

Brief Description of Works

Carry out works as per the repair detail provided with the quote.

...

Owners Signature

I accept Buildfix quote.

(The italicised passages do not appear in the Primary Decision, but see p 277 of the "Court Book")".

1. The Tribunal found at [43] that the Builder attended the Homeowner's property on 31 March and 1 April (presumably) 2022 to perform the SaltBlock Works, but that:

"... apart from removing some plaster, no work was performed because of persistent rain, a leak reported by the [H]omeowner from a hole in the wall where the repairs were to be performed, and more generally, the moisture content of the wall."

1. The Tribunal then sets out the course of events whereby the Builder recommended to the Homeowner that she engage a plumber to investigate the water ingress that had occurred. Plumbers were engaged and quotations provided. The Homeowner also engaged a Building Inspector, Mr Klaas Valstar, to inspect her property (Primary Decision at [50]).
2. Thereafter, the Homeowner, her father, Mr Valstaar and the Builder communicated generally in respect of the DampBlock Works that were performed; the ongoing water ingress; the SaltBlock Works that were not performed; and damage that remained in an internal wall where the SaltBlock Works were to be performed (Primary Decision at [52]).
3. At [56]-[61], the Tribunal considers the Homeowner's contention as to the specified purpose of the DampBlock Contract. The Tribunal accepted that at the meeting at the Homeowner's property on 31 January 2022, the Homeowner and Mr Olivera discussed, "in a general sense", observations of rising damp at the subject property; a recommendation by Mr Olivera that the Builder could remedy the rising damp issue using a DampBlock system; other damage to a hallway wall that was not the result of rising damp; and what the DampBlock Contract works and the SaltBlock contract works would involve (Primary Decision at [56]).
4. However, because there was evidence of the two written quotations provided by the Builder shortly after the meeting containing a description of the works which identified the purpose of the work being to repair rising damp in walls, the likely cause of the rising damp and the work to be performed, and two written contracts signed by the parties in respect of the work to be performed, the Tribunal did not place weight on the parties' recollection of conversations on 31 January 2022 "to enquire about their services", to determine objectively, the purpose or specific purpose of the works the Builder was contracted to perform (Primary Decision at [57]).
5. The Tribunal concluded that:

"58... the purpose of the DampBlock Contract was to repair rising damp in the relevant wall, which was to be done by injecting the DampBlock at locations on a structural repair detail attached to the DampBlock Works quote. It was not to deal with moisture or water ingress generally. And the purpose of the SaltBlock Works Contract, which works were not performed, was to rectify damage in the hallway wall some of which damage may have been caused by moisture other than rising damp".

"59 Even if I accepted the applicants evidence of what she said to the [Builder's] employee when she made her initial enquiry or to Mr Oliveira on 31 January, when considered in the context of the online enquiry, the quotes, the contracts and the Completion report, I could not be satisfied that that she expressly made known to Mr Oliveira that the particular purpose for which the work was required, or the result she desired the work to achieve, was the inspection of an removal of all water ingress or sources of moisture entering the Property, so as to show that she relied upon [the Builder's] skill and judgment as to what was required to achieve that";

"60 I therefore reject the [H]omeowners submissions to the effect that the 'purpose' or 'stated purpose' for the purposes of the Implied Warranties or the contracts required [the Builder] to find the source, whatever it was, of any water ingress to the Property and produce a methodology which would rectify it".

"61 I also find that the warranty implied by s 18B(e) is limited to the extent of the DampBlock Works that were performed and reject the [H]omeowners submission that the warranty implied by s 18B (e) of the HB [Act] has been breached".

1. Paragraphs 62 to 104 of the Primary Decision are headed "Expert evidence and consideration of the work performed". Here the Tribunal considers the expert evidence. The Homeowner's expert evidence was an undated report of Mr Valstar of KAV Building Services Pty Ltd. The Builder relied on expert reports of Mr Elsusun of Noviion Engineering respectively dated 16 December 2022 and 18 July 2023.
2. There was no joint report and the two experts were each cross-examined.
3. For the reasons given in the Primary Decision, the Tribunal preferred the evidence of Mr Elsusun in respect of the positioning of the dampcourse and its installation generally, and was satisfied that the installation of the dampproof course was done with due care and skill.
4. At [105], in the section headed "Determination/Orders", the Tribunal stated, by way of summary, that the Homeowner's Application failed because:

(1) the Tribunal rejected the Homeowner's contentions as to the purpose of the works;

(2) the Tribunal found that the DampProof Works were performed with due care and skill; and

(3) the damages claimed were for:

(a) the repair of the pre-existing damage to the wall which was largely the purpose of the SaltBlock Work and which was not damage said to have been caused by the DampBlock Work; and

(b) the cost to investigate and eliminate the water ingress from the property which the Tribunal had found the Builder was not responsible for.

1. At [106], the Tribunal stated, again by way of summary, that the Builder's Application succeeded because, having been satisfied that the DampBlock works were completed on 31 March 2022 and were performed with due care and skill, it followed that the amount invoiced by the Builder for the DampBlock Works contract price was due and payable.

1. As has been seen, the Homeowner claims that each ground of appeal raises a question of law.
2. The Builder submits that:

(1) the Homeowner has failed to do so, and that for that reason alone, the appeal should be dismissed as incompetent;

(2) in Cusumano at [25]-[40], the Appeal Panel noted (at [25(2)]), that a question of law should be stated with precision and that it was not sufficient to simply refer to Prendergast matters without modification or clarification (at [35]-[36]).

1. By way of example, we note that Ground 3, as originally appearing in the Notice of Appeal, was stated in the following terms:

"The [Tribunal] erred (at J[61]) in finding that the warranty implied by s 18B(e) was limited to the extent of the DampBlock Works that were performed and reject the [H]omeowner's submission that the warranty implied by s 18B(e) of the [HB Act] has been breached."

1. As repleaded, Ground 3, as appearing in the Amended Notice of Appeal, states:

"Error in Law: Interpretation/Application of HBA s 18B(e) (Reasonably Fit for Occupation)". The [Tribunal] erred in law in interpreting and applying the warranty implied by s 18B(e) of the HB Act by finding (at J[61]) that the warranty was limited solely to the physical extent of the DampBlock Works performed, thereby failing to consider whether the result of those works, in the context of the known moisture issues, rendered the dwelling reasonably fit for occupation to the extent of those works".

(Emphasis of the Homeowner.)

"merely used different words to describe substantially the same things. The [Homeowner's] submissions do not take things much further. Despite attempts to characterise her arguments as questions of law, in substance they are not."

1. Accordingly, the Builder sought that the appeal be dismissed on the basis that it was incompetent.
2. We decline to do so. We will however examine carefully whether the Homeowner raises any question of law. As noted, the Homeowner has not sought leave to appeal in relation to any ground of appeal should she be wrong in her assertion that each ground of appeal raises a question of law.
3. We also note that in the Homeowner's submissions in reply, she reiterates that each ground of appeal raises a question of law and the Builder's attempt to dismiss the grounds as factual is a "transparent attempt to shield the [Primary] Decision's legal errors from appellate review".

1. We also had the benefit of written submissions filed by:
   • the Homeowner on 2 June 2025;
   • the Builder on 16 June 2025; and
   • the Homeowner in reply on 23 June 2025.
2. Before considering the submissions, we note that the Homeowner's counsel submitted at the commencement of the appeal hearing that it was more logical to consider the second ground in the Amended Notice of Appeal before the first ground. Accordingly, at the appeal hearing we renumbered Ground 2 as appearing in the Amended Notice of Appeal as Ground 1 in the appeal, and Ground 1 as appearing in the Amended Notice of Appeal as Ground 2 in the appeal.

1. Ground 1 was that the Tribunal erred in law by failing to correctly apply the warranty implied by s 18B(f)[10] of the HB Act in finding (at [60], of the Primary Decision, and implicitly at [59]) that the Homeowner had not made known the particular purpose or desired result (namely, rectification of the moisture problem in the subject wall to allow repainting) so as to show reliance on the Builder's skill and judgment, despite evidence of the Homeowner's communications.

1. In the introduction to her submissions, the Homeowner stated, as a "central error of law", that the Tribunal erroneously concluded that she had not made known the particular purpose for the works so as to show reliance,[11] thus misapplying the legal test for reliance in the context of a lay homeowner engaging a specialist contractor.
2. The Homeowner submitted that s 18B(f)[12] of the HB Act was a "cornerstone consumer protection", and that whether the facts demonstrate that the purpose was made known so as to show reliance,[13] involves applying the legal standard inherent in that phrase. The Homeowner submits that the Tribunal erred in the application of this standard.
3. The Homeowner submits that the evidence before the Tribunal overwhelmingly established reliance by reason of:

(1) the Homeowner expressly making known her purpose: "fix the moisture problem in my wall"; make it "nice and repaint it"; this being communicated from the first interaction;

(2) the context "screamed reliance"; a layperson with no technical expertise approaching a large, specialist firm with some 40 employees including engineers and builders holding itself out as capable of providing a "permanent fix" for a significant issue in an old house;

(3) objectively, this demonstrates reliance on the Builder's professed skill and judgment to diagnose and propose an effective solution;

(4) the Builder's representative (Mr Oliveira) acknowledged the moisture issue could be fixed using the Builder's technology, reinforcing the basis for the Homeowner's reliance.

1. The Homeowner submits that the Tribunal's "implicit finding" at [59] that this was insufficient to show reliance appears to set an erroneously high bar, contrary to the "protective intent" of s 18B(f).[14]
2. Finally, the Homeowner submits that the Builder cannot invoke the defence provided for in s 18F of the HB Act. As the Builder has not done so, or purported to do so, it is not necessary to set out or consider the Homeowner's submissions on this issue.

1. In summary, the Builder makes the following submissions.
2. First, it is not apparent how the legal test for reliance is said by the Homeowner to have been misapplied, as opposed to the Tribunal simply not finding that the s 18B(1)(f) matters existed on the facts, and hence how there was any error on a question of law.
3. Secondly, as to the submission that the Tribunal set an erroneously high bar, contrary to the HB Act's protective intent, the Builder submits that simply because the Tribunal did not find in favour of the Homeowner does not mean that the Tribunal set an erroneously high bar or applied the wrong legal test. The Builder submits that the Homeowner does not explain the nature of the legal test allegedly (mis)applied by the Tribunal, or compare this with what she contends to be the correct legal test.
4. Thirdly, as to the issue of reliance, the Builder submits that the issue is not whether the Homeowner relied on the respondent's expertise. The Builder relies on [59] of the Primary Decision, where the Tribunal stated:

"Even if I accepted the applicant[']s evidence of what she said to the [Builder's] employee when she made her initial enquiry or to Mr Oliveira on 31 January, when considered in the context of the online enquiry, the quotes, the contracts and the Completion report, I could not be satisfied that that she expressly made known to Mr Oliveira that the particular purpose for which the work was required, or the result she desired the work to achieve, was the inspection of an [sic] removal of all water ingress or sources of moisture entering the Property, so as to show that she relied upon [the Builder's] skill and judgment as to what was required to achieve that[.]"

1. The Builder submits that that does not mean that the Homeowner did not rely on her (correct) diagnosis that there was rising damp present, or the scope of work for the Builder's DampBlock product to address rising damp. The Builder submits that, in all likelihood, the Homeowner may well have relied on that.
2. However, the Builder contends that that is not the issue. The question is not whether there was any reliance at all in a general sense, but whether all of the elements of s 18B(1)(f) were made out (being reliance in the context of a specific thing having been expressly communicated). The Builder submits that there is no indication that the Tribunal misapplied any legal test in finding that they were not.
3. Finally, as to Mr Oliveira's acknowledgement that the moisture issue could be fixed using the Builder's technology, (said to reinforce the basis for the Homeowner's reliance), the Builder submits that this is not a true representation of the Tribunal's findings. The Tribunal found at [56] that the Homeowner and Mr Oliveira discussed in a general sense observations of rising damp at the property, and a recommendation by Mr Oliveira that the Homeowner could remedy the rising damp issue using a DampBlock system.
4. The Builder submits that that turned out to be true, as the DampBlock did in fact remedy the rising damp, but this is not the same as the Homeowner's characterisation of it as a representation that the DampBlock product would fix "the moisture problem", by which she apparently meant "all issues of water ingress".
5. The Builder notes that the Homeowner submits that the Builder's submissions ignore the "powerful and objective indicators of reliance", and that the Homeowner relied on the Builder's specialist skill and judgment to correctly diagnose the cause of the communicated "moisture problem", and propose and perform scope of works that would be effective in achieving the desired result, being a dry wall suitable for repainting.
6. The Homeowner responds that:

(1) the Builder accepted, "and indeed invited", this reliance. Its representative, a structural engineer, attended the site, inspected the wall, and represented that its technology could fix the issue and provide a "permanent fix";

(2) in his own evidence, the Builder's director, Mr Stewart, states that it was clear that there was an observable damp problem;

(3) the Builder cannot now argue that its obligation was confined to its own flawed and limited diagnosis. By proposing a fixed-price solution to the Homeowner's stated problem without appropriate qualification, the Builder took the risk that its proposed method would be adequate;

(4) critically, if the Builder perceived its proposed solution was limited, it was incumbent upon it to provide express written advice to that effect to engage the s 18F defence. It provided no such advice;

(5) the Builder cannot now complain that it is being held to the standard required by the s 18B(f)[15] warranty, nor can it hide behind its own internal policy of limiting its inspections to the issue identified by the customer in their initial enquiry; such internal policies, cannot override the statutory obligations imposed by the HB Act.

1. In conclusion, the Homeowner submits that the Tribunal's failure to find that the warranty was engaged was a misapplication of the legal test for reliance in the context of a consumer engaging a specialist contractor.

1. The Homeowner's submissions in reply are largely repetitive of her submissions in chief, which we will not repeat here. Relevantly, the Homeowner additionally submits:

(1) the Builder cannot now argue that its obligation was confined to its "own flawed and limited diagnosis. By proposing a fixed-price solution to the [Homeowner's] stated problem was without appropriate qualification and the [Builder] took the risk that its proposed method would be adequate";

(2) "critically", if the Builder perceived its proposed solution was limited, it was incumbent upon it to provide express written advice to that effect to engage the s 18F defence. It provided no such advice;

(3) the Builder cannot now complain that it is being held to the standard required by the s 18B(f)[16] warranty, nor can hide behind its own internal policy of limiting its inspections to the issue identified by the customer in their initial enquiry; such internal policies, cannot override the statutory obligations imposed by the HB Act;

(4) the Tribunal's failure to find that the warranty was engaged was a misapplication of the legal test for reliance in the context of a consumer engaging a specialist contractor.

18B Warranties as to residential building work

(1) The following warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract to do residential building work--

...

(f) a warranty that the work and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the person for whom the work is done expressly makes known to the holder of the contractor licence or person required to hold a contractor licence, or another person with express or apparent authority to enter into or vary contractual arrangements on behalf of the holder or person, the particular purpose for which the work is required or the result that the owner desires the work to achieve, so as to show that the owner relies on the holder's or person's skill and judgment.

1. The Homeowner submits that, whether the facts demonstrate that the purpose was made known so as to show reliance[17] involves applying "the legal standard inherent in that phrase".
2. The Homeowner goes on to submit that the evidence overwhelmingly established the conditions for reliance, for the reasons set out above. She submits that the Tribunal's implicit finding that those matters were insufficient to show reliance was wrong, and "appears to set an erroneously high bar, contrary to the provision's intent", ignoring "the commercial reality of consumers relying on specialists". It is submitted this is a misapplication of the legal test within s 18B(f).[18]
3. We disagree. The Homeowner has not set out what it says is the legal test within s 18B(1)(f), less still how it was incorrectly applied by the Tribunal. As the Builder submits, correctly, there is no indication that the Tribunal misapplied any legal test.
4. Moreover, we see no question of law raised. What we see being raised is a claim that the Tribunal's finding was against the weight of the evidence, a matter for which leave is required but not sought.
5. In substance, in this appeal ground, is a claim that the Tribunal's finding that the Homeowner did not expressly make known to the Bulder the particular purpose for which the work was required or the result that the Homeowner desired the work to achieve, so as to show that the Homeowner relied on the Builder's skill and judgment, was wrong.
6. In the Primary Decision, the Tribunal turned its mind to s 18B(1)(f) commencing at [56] under the heading "Consideration of the homeowner contention as to the specified purpose". Having referred at [56] to the discussion between the Homeowner and Mr Olivera on 31 January 2022, the Tribunal placed no weight on those discussions to determine objectively, the purpose of the works the Builder was to perform (Primary Decision at [57]). This was because two written quotations were provided and the contracts signed after those discussions.
7. At [58], the Tribunal found that the purpose of the DampBlock Contract was to repair rising damp in the relevant wall, which was to be done by injecting the DampBlock at locations on a structural repair detail attached to the DampBlock Works quotation; it was not to deal with moisture or water ingress generally.
8. Then at [59], the Tribunal states that even if it accepted the Homeowner's evidence of what she said to Mr Olivera on 31 January 2022 (which we emphasise that the Tribunal did not accept), the Tribunal would not have been satisfied that the Homeowner expressly made known to Mr Olivera the particular purpose for which the work was required, or the result she desired the work to achieve.
9. We see no error in the Tribunal's reasoning process or its fact-finding. Further, leave to appeal was not sought.
10. In the circumstances, to the extent that this ground of appeal raises any question of law, the appeal is dismissed.

1. Ground 2 was that the Tribunal erred in law in construing the purpose of the contracts between the parties (including the terms implied by s 18B of the HB Act) by finding at [60] of the Primary Decision that the purpose did not require the Builder to rectify the cause of moisture ingress affecting the subject wall, irrespective of its specific source "(such as 'rising damp' vs. 'lateral ingress')".

1. In the introduction to her submissions, the Homeowner stated, as a "central error of law", that the Tribunal misconstrued the objective purpose of the contract(s) entered into between the Homeowner and the Builder, contrary to established principles of contractual interpretation and the protective, beneficial purpose of the HB Act, specifically regarding the obligation to remedy the manifest moisture problem in the subject wall.
2. The Homeowner then submits that it is "imperative to underscore the proper approach" to construing the HB Act and the implied warranties in s 18B. She submits that:

(1) the HB Act is remedial legislation enacted primarily for the protection of consumers who undertake residential building work: Mills v Walsh [2022] NSWCA 255 at [7]; Secretary, Department of Social Security v Cooper (1990) 19 ALD 1; 94 ALR 301;

(2) there is difficulty in ascertainment of the purpose of a complex statute such as the HB Act and that the level of specificity with which legislative "purpose" is articulated can be critical to the outcome in terms of construction: see Victims Compensation Fund Corporation v Brown [2003] HCA 54; 77 ALJR 1797 ("Brown") at [33]; Metal Manufacturers Ltd v Lewis (1988) 13 NSWLR 315 at 326; MyEnvironment Inc v VicForests (2013) 42 VR 456; [2013] VSCA 356 at [2]- [18];

(3) what emerges from the above is that the legislature was seeking to strike a fair balance between the interests of consumers and home building contractors and recalibrate a contracting process which was described in the relevant second reading speech as having been, for too long, "heavily skewed in favour of the builder". The HB Act seeks to provide a comprehensive scheme of statutory warranties which will enure for the benefit of subsequent owners and close loopholes in situations where, for example, homeowners have been left with no recourse against a bankrupt builder;

(4) in such a case as this, the textual, contextual, and purposive indications point in the same direction, namely that a builder's liability, statutory warranties, is not predicated upon, any abstract concepts in favour of the builder. It follows that the statutory warranties in s 18B must be construed beneficially, not narrowly or technically, so as to give the fullest relief which the fair meaning of their language allows: Dyjecinska v Step-Up Renovations (NSW) Pty Ltd [2023] NSWCATAP 36, with any ambiguity being resolved in favour of the homeowner, consistent with the HB Act's protective purpose: Owners Corporation Strata Plan 61288 v Brookfield Multiplex [2012] NSWSC 1219 at [50]- [51].

1. In light of these principles, the Homeowner submits that the Tribunal erred in failing to apply this beneficial construction principle when interpreting the scope of the Builder's obligations and the application of the warranties, particularly ss 18B(e)[19] and 18B(f).[20] The Homeowner submits that the Tribunal favoured "an unduly restrictive approach", effectively allowing the Builder to rely on semantic distinctions ("rising damp" vs "moisture") and "contractual boilerplate" to negate the substance of the warranties and the Homeowner's clearly communicated purpose.
2. The Homeowner submits that the Tribunal found that the purpose of the DampBlock Contract was limited to repairing "rising damp" as narrowly defined by the Builder, giving determinative weight to the literal words in the Builder's quotation and the Homeowner's initial online enquiry, the Tribunal expressly discounting the Homeowner's evidence regarding the broader purpose communicated ("fix the moisture problem", make wall fit for repainting).
3. The Homeowner submits that this finding constitutes a manifest error of law for three reasons. These were that the Tribunal:

(1) erred in a principle of construction;

(2) failed to "integrate" HB Act warranties; and

(3) asked the wrong question.

1. Here the Homeowner submits that the Tribunal failed to apply the correct objective test. The task was not to determine the subjective understanding of the parties or dissect the Homeowner's use of technical terms ("rising damp" vs "moisture"), but to ascertain what a reasonable person, knowing the background facts, would understand the agreed purpose to be: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40] ('Toll (FGCT)').
2. Objectively, engaging a specialist to fix a manifest "moisture problem" implies a purpose of achieving a dry wall, not merely applying a specific product regardless of its efficacy in addressing the underlying cause. The focus on the Builder's quotation wording elevates the supplier's description over the consumer's expressed need, an approach antithetical to the HB Act's consumer protection ethos. The Homeowner's case, as consistently put, was that the objective purpose was to rectify issues connected to or arising from rising damp, by whatever means necessary.

1. Secondly, the Homeowner submits that the Tribunal erred by compartmentalising the express terms from the warranties implied by the HB Act. Section 18B(1)(f), once triggered by the communication of purpose and reliance, informs and potentially expands the scope required to achieve fitness for that purpose.
2. The purpose cannot be construed so narrowly as to render the implied warranties illusory. The objective purpose included achieving a result (a dry wall suitable for repainting), engaging the s 18B(1)(f) warranty for fitness for result. The Tribunal at [60] failed to construe the contract consistently with this warranty. The Builder was obliged to "deal with the situation as (it) finds it (Keirl v Kelson (2004) VR 244) and ensure the scope was adequate for the known purpose.

1. Thirdly, the Homeowner submits that the Tribunal, by focusing heavily on whether the Homeowner used the technically precise term "rising damp", asked the wrong question. The Homeowner submits that the relevant question was what objective purpose was communicated and reasonably understood, regardless of the specific terminology used by the layperson Homeowner. The Homeowner submits that the Builder's attempt to impute technical expertise to her based on website terminology was a diversion from the Builder's own obligations.
2. The Homeowner submits that the Builder contracted not merely to inject a product, but to solve the problem made known to it. Its failure to ensure its scope was adequate for that purpose, given the lump sum nature of the contracts, means it bore the risk of site conditions and the need for ancillary work to achieve the objective purpose.
3. Finally, the Homeowner submits that the Tribunal's reliance on the Homeowner's initial online 'Enquiry' to narrowly define the contractual purpose was an error. As submitted at first instance and borne out by the evidence, the Builder operated under a misapprehension that the Homeowner's initial enquiry defined the absolute outer limit of its obligations, irrespective of the broader purpose communicated and the requirements of the HB Act warranties. The Homeowner submits that this internal policy or misapprehension cannot override the objective construction of the contract or the statutory protection of the HB Act. Thus, the Tribunal's conclusion (at [60] of the Primary Decision) relieving the Builder of this responsibility was an error of law.

1. The Builder commences its submissions by noting that although the Homeowner refers throughout her submissions to the "purpose" of the contract, it should be borne in mind that, as a starting point, the interpretation of a contract is a matter for orthodox principles of contractual construction. The Builder submits that no general question of discerning an overall "purpose" arises in this context.

Alleged error in principle of contractual construction

(1) the Tribunal construed the contract by reference to its express, written terms. As there was no ambiguity in or dispute over any of those terms, the Tribunal did not have to have reference to any particular contractual interpretation principles;

(2) the Homeowner disavowed any implied terms;

(3) there was no case for implied terms in any event;

(4) the Homeowner's contention that the Tribunal erred in applying contractual construction principles by elevating the written quote over the appellant's expressed need is misconceived.

Alleged error in integrating Implied Warranties

(1) as to the Homeowner's contention that the Tribunal failed to apply the principle of beneficial construction when interpreting the scope of the Builder's obligations and the application of the Implied Warranties, just because the Tribunal did not make the findings for which the Homeowner contended, that does not mean that the Tribunal failed to appropriately apply the legislation. While the Homeowner contends that "any ambiguity should be resolved in favour of the Homeowner, consistent with the [HB Act's] protective purpose", the Homeowner has not identified any ambiguities in the relevant legislation, that would need to be resolved using any such principles;

(2) the Implied Warranties are not rendered illusory merely because the facts as found in any particular case are insufficient to extend the express scope of work under the relevant contract;

(3) while the Homeowner refers collectively to the Implied Warranties upon which she makes her claim, being s 18B(1)(b), (e) and (f), the concept of a "purpose" is only relevant to paragraphs (b) and (f). Further, the context in which the word "purpose" is used in each of those paragraphs differs, and each paragraph needs to be considered separately. It was not necessary for the Tribunal, in light of its conclusion in rejecting the broader "purpose" contended by the Homeowner to go into any further detail on the specific meaning of "purpose" of each relevant paragraph of s 18B(1);

(4) the warranty in s 18B(1)(b) is that "all materials supplied by the holder or person will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new". The relevant "purpose" in this context is therefore the "purpose" for which materials supplied are in fact used. That is a different context, and narrower purpose, from that contemplated by s 18B(1)(f). In this case, no particular complaint was made about the suitability of the materials supplied by the Builder for the purpose for which they were used. The Homeowner's attempts to assert a broader purpose for the purposes of this warranty (being a purpose to investigate and conduct fundamentally different works from those specified to address different problems) are inapt in this context, and would be a strain on the language of that paragraph which is focused on the purpose for which materials are actually used.

1. As to the warranty in s 18B(1)(f), the essence of the Homeowner's claims are that the vague, general statements she allegedly made when contacting the Builder (prior to engaging them and agreeing to their scope) about wanting the Builder to fix a "moisture problem", and ultimately wanting to be able to repaint her wall were sufficient to fundamentally change the scope of a subsequent, specific written contract.
2. The Builder submits that:

(1) it is difficult to discern what is the error of law contended by the Homeowner. The Tribunal's reasoning involved a number of steps, and it is not clear which of these steps the Homeowner seeks to impugn;

(2) the first step involved considering what in fact was said by the appellant prior to entering into the Contract. The Tribunal noted that this was disputed: Primary Decision at [24]. Ultimately, the Tribunal did not need to make specific findings as to what in fact was said, because the Tribunal found that even if it accepted the appellant's version in full, that would still be factually insufficient: Primary Decision at [59];

(3) the Tribunal applied an entirely conventional approach to the weighting of the evidence before it, in not placing weight on the parties' recollections of pre-contractual conversations in determining the purpose of the works that the respondent was contracted to perform, in light of the subsequent detailed written contract: Primary Decision at [57];

(4) it is both common and conventional for decision-makers to give greater weight to documentation than to parties' or witnesses' differing recollections of oral conversations, as part of the decision-maker's fact-finding exercise. It is also both common and conventional for decision-makers to give less weight to pre-contractual statements (particularly "as vague as the general nature of an initial enquiry") than to the terms of a subsequent written contract, in discerning the parties' intentions at the time of entering into that contract;

(5) in the present case, the Tribunal did appropriately consider pre-contractual communications for the purposes of the s 18B(1)(f) warranty, although it was also appropriately cautious in its approach to disputed oral evidence (and bearing in mind that the Tribunal did not ultimately need to make findings as to what was said, because the Tribunal considered that even if the Homeowner's version were accepted in full, it would be insufficient).

1. The Builder then submits that a further issue arises in the present case, being that there was in fact rising damp at the property, the works were suitable for addressing rising damp, and the works were properly performed, and there was no omission of any ancillary technical detail. Rather, the Homeowner effectively alleges that she made known to the Builder that she was expecting a complete and comprehensive guarantee that the work to be performed by the Builder would solve all water ingress problems of any kind, that the Builder then promised and took on the risk that it would do just that, and that the Homeowner entered into the contract on that basis. This is inconsistent with the terms of the contract that was eventually entered into, which contained a specific scope of works to address rising damp (only), for a low price ($4,785), and which expressly stated that its scope was not a full engineering solution to any issues experienced by the customer at the site. In those circumstances, the Tribunal was correct in not placing too much weight on what the Homeowner allegedly said in her initial enquiries. If it were truly an expectation that the contract would contain such a far-reaching guarantee, one would expect the contract to say so.
2. Finally, the Builder submits that the contract price is also a relevant factor. The Builder submits that the contract was for a fixed, low price of $4,785, clearly aimed at a fixed, defined scope of work, and not a general promise to take the risk of other work of an unrelated nature that might arise, including intrusive investigations on the neighbouring property, at a potential cost of many multiples of that amount.

1. The Builder notes that the Homeowner contends that the Tribunal asked the wrong question as to the objective purpose of the contract by placing undue emphasis on the Homeowner's specific language ("rising damp"), rather than considering the broader intention.
2. The Builder submits that it is not immediately apparent what the Homeowner contends is the wrong question which the Tribunal asked or addressed, and has not articulated any such question. The Builder submits that the Homeowner's real complaint appears to be the weight given to the Homeowner's own use of the term "rising damp".

1. The Builder concludes its submissions by submitting:

61. Unprecedented: It would be unprecedented, and a novel extension of the law, if any trade contract, no matter how specific the express scope, limited in price and appropriately disclaimed as to its extent, could be turned into a full warranty and undertaking to do unrelated work to address a different problem, not observable at the time, for the same fixed price, merely on the basis of vague and general statements made by a homeowner at some stage prior to enter into the contract.

62. Subjective intentions: ... it can be accepted as likely that, as a subjective matter, the [Homeowner] desired that she would have no further problems involving water ingress, following the rising damp repairs. Who would not desire to have no further problems? But the [Homeowner] has now sought to translate that understandable human desire into an entirely unjustifiable attempt to retrospectively transfer all such risk to the [Builder], in circumstances where there can be no doubt that the [Builder] never took on such risk.

1. The Homeowner largely repeats points made in its submissions in chief.

1. The proper construction of a contract, ascertaining the objective meaning of its terms including those implied by statute, is a question of law: Cusumano at [32(2)].
2. Accordingly, we consider that Ground 2 raises a question of law.
3. And, as the Full Court of the Federal Court of Australia stated in Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50 at [66]:

"... The interpretation of a statute or contract is directed to the ascertainment of the document's actual and true meaning. When the document is properly construed, there is only one correct meaning: Industry Research and Development Board v Bridgestone Australia Ltd [2001] FCA 954, (2001) 109 FCR 564 at [54]; Chief Executive Officer of Customs v Adelaide Brighton Cement Ltd [2004] FCAFC 183, (2004) 139 FCR 147 at [118]. It is for this reason that the proper construction of a statute is a question of law: Adelaide Brighton Cement at [118], [139]."

1. In Chief Executive Officer of Customs v Adelaide Brighton Cement Ltd (2004) 139 FCR 147; [2004] FCAFC 183 at [118], in another passage we thought useful, Tamberlin, Sackville and Finn JJ stated:

"As a Full Court of this Court has recently observed, the 'differences between questions of law, fact and mixed fact and law can be difficult to rationalise': Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 780; (2003) 75 ALD 478, at [51]; see too, Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, at 395-396, per curiam. The question whether facts as found answer a statutory description or satisfy statutory criteria is generally a question of law: Vetter v Lake Macquarie City Council (2001) 202 CLR 439, at 450, per Gleeson, Gummow and Callinan JJ. A question of law will also arise when competing constructions of a statutory expression are put forward, only one of which can be correct: see, for example, Industry Research and Development Board v Bridgestone Australia Ltd [2001] FCA 954; (2001) 109 FCR 564, at 576-579, per Lindgren J (with whom Branson and Mansfield JJ agreed). But when a statute uses words according to their ordinary meaning and it is reasonably open to the decision-maker to find that the facts of the case fall within those words, the question whether they do or not is one of fact: Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, at 8, per Mason J, citing NSW Associated Blue-Metal Quarries Ltd v Federal Commission of Taxation [1956] HCA 80; (1956) 94 CLR 509, at 512, per Kitto J; Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, at 395, per curiam."

(emphasis added.)

1. As was stated by Carter and Harland, Contract Law in Australia (3rd ed, 1996, Butterworths) in passages we found helpful, the authors stated:

[702] Issue of law. At least where the contract is expressed or evidenced (wholly or partly) in a document, 'construction' raises an issue of law not fact. [Bowes v Shand [1877] UKLawRpKQB 10; (1877) 2 App Cas 455 at 462, Francis v Lyon [1907] HCA 12; (1907) 4 CLR 1023 at 1040]. The basis for this rule is historical rather than logical. Lord Diplock once described it as a legacy of the system of trials by juries who might not all be literate.

[703] Construction and intention. The primary 'object' of construction is to determine what is the intention of the parties. Thus, when a court construes a contract it does so in order to determine and give effect to the intention of the parties.

Intention may be actual, expressed or implied. 'Actual' intention is the intention subjectively (actually) held by the parties. 'Expressed' intention is the intention disclosed in the words of the contract. 'Implied' (or inferred or imputed) intention is the intention which is attributed to the intention of the parties. ...

When it is said that construction depends on the "intention" of the parties it is clear that the word is being used objectively. "Intention" therefore refers to expressed intention, to be ascertained from the words used. [Goldsborough Mort & Co Ltd v Carter [1914] HCA 80; (1914) 19 CLR 429 at 447]. Accordingly, references to intention are not to the parties' actual intentions, still less to their desires, aspirations or expectations [Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352-353]. Where no intention is expressed, intention must be determined by implication. It will be implied, inferred or imputed on the basis of the words used, read in context and in the light of principles of contract law. This is an objective inquiry, generally based on the meaning or legal effect which a reasonable person in the position of the party to whom the words were addressed would regard as the other party's intention."

(emphasis added.)

1. This passage, written as long ago as 1996, is not too dissimilar to the Homeowner's submission that the task of the Tribunal was not to determine the subjective understanding of the parties or dissect the Homeowner's use of technical terms ("rising damp" vs "moisture"), but to ascertain what a reasonable person, knowing the background facts, would understand the agreed purpose to be: Toll (FGCT) at [40]). There, the High Court of Australia stated:

"This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) [2004] HCA 35; 78 ALJR 1045; 208 ALR 213] has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction [Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 78 ALJR 1045 at 1050-1051 [22]; [2004] HCA 35; 208 ALR 213 at 221]."

(emphasis added.)

1. The Tribunal had extensive written submissions before it, including each parties' opening and closing written submissions. It was clearly articulated that the Homeowner's application was "nothing more than a case of contractual construction and in that respect, a question for the Tribunal as to what was the objective 'purpose' sought to be achieved by virtue of that agreement". In oral submissions at the Tribunal hearing, Mr Keene submitted that "we say that the description, the subject of that quote, is commensurate with the purpose by which the [Homeowner] engaged the [Builder] to carry out the remediation work. That was to rectify issues connected to or arising from rising damp".[21]
2. The Homeowner submitted to the Tribunal that:

(1) as early as her first interaction with the Builder, she made it abundantly clear that she was relying on the Builder's expertise: "I am looking for someone to fix the moisture problem in my wall";

(2) she also asked a representative of the Builder "So does it look like this moisture problem can be fixed? Because I'm concerned about the damp, its not healthy. Also I would love to have this wall nice and repaint it, but there's not much point until the moisture issue is addressed";

(3) there was no carve out to this stated purpose, allowing the Builder to remedy only part of the wall. The Homeowner simply wanted the moisture problem in her wall fixed;

(4) the Builder's focus on the Homeowner's online enquiry "Have rising damp and damaged walls. House is very old. Needs damp course and walls then repaired. I would like a quote and preferably for work to be done sooner rather than later", suggests that she was not "in truth some lay residential homeowner but rather, a person who had a requisite degree of knowledge such that she could discern between the different methods of waterproofing and their effect";

(5) such a suggestion was "frankly farcical", and the attempt to infer knowledge on the Homeowner ought to be construed for what it really is, "an attempt to render nugatory, or limit the effect of, ss 18B and 18F" of the HB Act.

1. On the other hand, in its closing submissions, the Builder described the Homeowner's case as "quite extraordinary",[22] submitting that the Builder:

"entered into a contract with [the Homeowner] for defined (and confined) rising damp repair works, for a modest price of $4,785 (being the DampBlock Contract). [The Homeowner] is now effectively trying to hold [the Builder] responsible for numerous pre-existing (and indeed unidentified) issues, not only with her property but also with the property next door, and to claim an extraordinary amount of money from [the Builder] for these things. The basis for such extraordinary claims remains elusive. There does not appear to be any suggestion that [the Builder] caused any of those issues, but rather, that it was part of [the Builders] contractual scope to fix them."

1. In summary, the Homeowner submits that the Tribunal erred in finding that the purpose of the DampBlock Contract was limited to repairing "rising damp", narrowly defined by the Builder, being an error by the Tribunal as it:

(1) erred in a principle of construction;

(2) failed to "integrate" HB Act warranties; and

(3) asked the wrong question.

1. As to the error in a principle of construction or purpose of the DampBlock Contract, the gravamen of the appellant's submissions is that the Tribunal adopted an unduly narrow approach in construing the purpose of the contract (including terms implied by s 18B of the HB Act) in by finding at [160] of the Primary Decision that the purpose of the contract did not require the Builder to rectify the cause of moisture ingress affecting the subject wall, irrespective of its specific source.
2. We make the following initial observations.
3. First, the starting point is that beneficial legislation should be construed liberally or beneficially to give the fullest relief that the fair meaning of the words will allow. For instance, in IW v City of Perth (1997) [191 CLR 1; [1997] HCA 30, Brennan CJ and McHugh J, in considering the s 18 of the Interpretation Act 1984 (WA), stated that:

"There is ample authority that remedial legislation, such as that found here, is to be accorded "a fair, large and liberal" interpretation rather than one which is "literal or technical"."

1. That said, in Carr v The State of Western Australia [2007] HCA 47, Gleeson CJ stated at [5] (footnotes omitted) noted that:

"Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose."

(emphasis added.)

1. Further, as the Court of Appeal stated in State of New South Wales v Chapman-Davis [2016] NSWCA 237 at (per Gleeson JA, with whom McColl JA agreed):

Beneficial legislation

75 ... the exemption can be seen to be beneficial legislation. ...

76 While primacy must be given to the text, context and purpose of the WC Act and a court needs to be cautious about a priori assumptions based on its character or legislative history, the exemption attracts the principle stated by Deane J and Gaudron J (although in dissent on the facts) in Bird v The Commonwealth (1988) 165 CLR 1; [1988] HCA 23 at 9 "that workers compensation legislation is remedial in its character "and, like all such Acts, should be beneficially construed". Their Honours continued (at 9):

'The 'established principle' was correctly identified by Fullagar J in the course of his dissenting judgment in Wilson v Wilson's Tile Works Pty Ltd [1960] HCA 63; 104 CLR 328 at 335: "where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred". "If a person or a case falls within the general spirit of such remedial legislation, and there are two possible interpretations, the courts ought not construe the Act so as to exclude that person or case".

77 The respondent submitted that the exemption is to be given the broadest meaning available consistent with the text of the provision. This submission requires some qualification. One is that the interpretation adopted must be restrained within the confines of "the actual language employed" and what is "fairly open" on the words used": Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622; [1984] HCA 55 at 638. Another is that where a provision is to be given a liberal and beneficial construction, "a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural": IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 at 12 (Brennan CJ and McHugh J).

(emphasis added.)

1. In our view, the Homeowner seeks to override the objective purpose of the DampBlock Contract by submitting that a beneficial approach to the construction of the HB Act allows this to happen. The point is made in Brown at [33] in a passage relied on by the Homeowner, namely (footnotes omitted):

"To begin consideration of issues of construction by positing that a "liberal", "broad", or "narrow" construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require. Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. The numerous injuries set out in the Table to Sched 1 (which extends over twelve pages) are identified with considerable precision. The clauses in Sched 1 which precede the Table, too, are drafted with some attempt at precision. The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl 5, it is not open to apply much liberality of construction. It is difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language. As Spigelman CJ said "The issue before the Court is the determination of the circumstances in which compensation is payable". The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence "[t]he Court is not required to give the most expansive possible interpretation of such circumstances".

(emphasis added.)

1. The Homeowner asserts that the Tribunal erred by failing to ascertain that the reasonable person, knowing the background facts, could have understood the purpose of the contact to be: Toll (FGCT) at [40]. At [40], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ stated (footnotes omitted):

"This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction."

1. We do not accept that a reasonable person would find that the DampBlock Contract agreed to by the parties was an open-ended one to find a solution to the Homeowner's water ingress. The purpose of the DampBlock Contract was clear, and stated in writing in the quotation accepted by the Homeowner, to "[r]epair rising damp in walls by injecting damp block systems at locations on the attached repair detail".[23]
2. In our view, the Homeowner inappropriately invokes principles of interpretation in relation to beneficial legislation to submit that the purpose of the contract was other than what a reasonable person would understand when construing the terms of the contract.
3. In any event, while the Homeowner contends that "any ambiguity should be resolved in favour of the Homeowner, consistent with the [HB Act's] protective purpose", the Homeowner has not identified any ambiguities in the legislation, that would need to be resolved by resort to the above principles.
4. As to the Tribunal's failure to "integrate" the HB Act warranties, we discern no error of the kind submitted by the Homeowner and accept the Builder's submissions on this sub-issue.
5. The third limb of this ground of appeal was the contention that the Tribunal asked itself "the wrong question", by focusing heavily on whether the Homeowner used the technically precise term "rising damp". The Homeowner submits that the relevant question was what objective purpose was communicated and reasonably understood, regardless of the specific terminology used by the layperson Homeowner. The Homeowner submits that the Builder's attempt to impute technical expertise to her based on website terminology was a diversion from the Builder's own obligations.
6. This is just another way of stating the same argument set out above. The submission is rejected. In any event, the Tribunal clearly referred to an objective test in determining the purpose of specific purpose of the works the Builder was contracted to perform under the DampBlack contract: Primary Decision at [57], [58].
7. For completeness, we reject the Homeowner's submission that the Builder operated under a misapprehension that the Homeowner's initial enquiry defined the absolute outer limit of its obligations, irrespective of the broader purpose communicated and the requirements of the HB Act warranties. In this respect, we accept the Builder's submission that it would be unprecedented, and a novel extension of the law, if any trade contract, no matter how specific the express scope, limited in price and appropriately disclaimed as to its extent, could be turned into a full warranty and undertaking to do unrelated work to address a different problem, not observable at the time, for the same fixed price, merely on the basis of vague and general statements made by a homeowner at some stage prior to enter into the contract.
8. In conclusion, we see no error raised on the question of law identified. This ground of appeal is dismissed.

1. Ground 3 was that the Tribunal erred in law in interpreting and applying the warranty implied by s 18B(e)[24] of the HB Act by finding (at [61]) that the warranty was limited solely to the physical extent of the DampBlock Works performed, thereby failing to consider whether the result of those works, in the context of the known moisture issues, rendered the dwelling reasonably fit for occupation to the extent of those works.

1. In the introduction to her submissions, the Homeowner stated, as a "central error of law", that the Tribunal adopted an impermissibly narrow interpretation of the warranty as to fitness for occupation under s 18B(e)[25] of the HB Act, confining it solely to the physical works performed and ignoring the resultant condition of the dwelling.
2. The Homeowner notes that s 18B(e)[26] warrants that repair work will result, to the extent of the work conducted, in a dwelling reasonably fit for occupation. The Homeowner submits, in summary:

(1) this warranty, like others in s 18B, must be construed beneficially to afford proper protection to the Homeowner;

(2) the interpretation of this provision, particularly the qualifying phrase "to the extent of the work conducted," is a question of law;

(3) the Tribunal erred at [61] by adopting an interpretation that renders the warranty practically ineffective. Limiting the assessment of "fitness for occupation" solely to the physical act of injection, divorced from its functional outcome or the context it addresses, is legally flawed as the warranty relates to the result of the work;

(4) the correct approach requires assessing whether the outcome achieved by the work conducted, viewed in context, contributes positively to the dwelling's fitness for occupation concerning the issue addressed. Here, the DampBlock work was conducted specifically to address pervasive moisture;

(5) the evidence established persistent, high moisture readings post-works [reading of 99.9%], rendering that part of the dwelling arguably unfit or unhealthy;

(6) work that fundamentally fails to remedy the problem it purports to fix cannot produce a result consistent with reasonable fitness for occupation, even "to the extent of the work conducted". The work, in its context, failed to achieve a result consistent with reasonable fitness for occupation.

(1) the qualification "to the extent of the work conducted" means the warranty doesn't require the contractor to fix unrelated defects, but it does require the specific work done to be effective in contributing to overall fitness regarding the issue it addressed. Oikos, referenced by the Tribunal at [18], [61] of the Primary Decision, confirms the warranty does not expand scope beyond the agreement, but it does not negate the requirement for the work agreed upon and conducted to result in fitness for occupation in relation to its purpose;[27]

(2) the Tribunal's application of Oikos at [61] of the Primary Decision misinterprets this balance and constitutes an error of law, facilitating circumvention of the HB Act's objectives.

1. The Builder submits that, while the Homeowner contends that the Tribunal adopted an impermissibly narrow interpretation of the fitness for occupation warranty in s 18B(1)(e), the Homeowner has not explained what aspect of the section is allegedly ambiguous, how the ambiguity should be resolved or how or why the Tribunal's interpretation is said to be impermissibly narrow.
2. The Builder submits that the Tribunal correctly found at [61] that the warranty implied by s 18B(1)(e) was limited to the extent of the works that were performed, which is consistent with the words of the section namely:

"a warranty that, if the work consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling."

(emphasis of the Builder.)

1. The Builder submits that the Tribunal's approach was consistent with Oikos, in particular at [83] where the Court of Appeal held that the s 18B(1)(e) warranty cannot be used to extend the obligation beyond an expressly agreed scope of works.
2. In addition, the Builder submits that the Homeowner appears to be proceeding on a faulty premise, namely that following completion of the works, there were high moisture readings of 99.9%, rendering part of the dwelling arguably unfit or unhealthy.
3. The Builder submits that this was not case, as while there was evidence of a single reading of 99.9%, the Builder's expert explained, and the Tribunal accepted, that this was an erroneous reading because of the salt content in the wall, noting that the Homeowner's own expert's reading was 20%.

(1) the Builder's argument that the s 18B(e)[28] warranty is limited "to the extent of the work conducted" and, relying on Oikos, cannot expand the scope of works, is based on a flawed reading of both the section and the authorities;

(2) the Homeowner does not argue that s 18B(e)[29] required the Builder to fix unrelated defects. The argument, consistent with the plain words of the statute, is that the warranty requires the work that was in fact conducted to result in a dwelling that is reasonably fit for occupation, specifically concerning the very issue the work was meant to address;

(3) the work conducted was the injection of a damp-proof course to remedy a significant moisture problem. The evidence established that significant moisture issues persisted, and work that fails to remedy the problem it purports to fix cannot produce a result that is consistent with reasonable fitness for occupation;

(4) the interpretation advanced by the Builder and adopted by the Tribunal would render the warranty "toothless", as a builder could perform a completely ineffective repair and, as long as the physical actions were performed, escape liability under this section. This ignores the crucial word "result" in the section and cannot be what Parliament intended.

1. We see nothing of substance in this ground of appeal, and we do not consider that it raises a question of law. In essence, the Homeowner is repeating the same argument it made about the Tribunal's failure to beneficially interpret the implied warranty under s 18B(1)(f) of the HB Act to the implied warranty under s 18B(1)(e).
2. We do not accept the Homeowner's submissions.
3. We agree that the Tribunal correctly found at [61] of the Primary Decision that the warranty implied by s 18B(1)(e) was limited to the extent of the works that were performed. We agree that that is consistent with the words of the section.
4. We also agree that the Tribunal's approach was consistent with the Court of Appeal's approach in Oikos.
5. We see no error in the Tribunal's reasoning process, its fact-finding or its identification of or application of relevant principles.
6. To the extent that this ground of appeal raises any question of law, the appeal is dismissed.

1. Ground 4 was that, consequent upon "Errors 1, 2, and/or 3" the Tribunal erred in law in failing to find that the Builder breached the contract and/or the warranties.
2. For the reasons appearing above, we are not satisfied that there was any error on a question of law in relation to Grounds 1, 2 and 3. Therefore, there is no further error consequent upon established errors the subject of Grounds 1, 2 or 3.

1. For the above reasons, each ground of appeal is rejected.
2. To the extent that the appeal raises any question of law, the appeal is dismissed.

1. We will make the following orders in relation to a timetable for the costs of the appeal. The costs rule to be applied on internal appeals is the same rule that was applicable before the Tribunal: Civil and Administrative Tribunal Act Rules 2014 (NSW) (NCAT Rules), r 38A. However, it appears to us that in the Builder's Application the relevant costs rule is that found in s 60 of the NCAT Act, while the relevant costs ruled in the Homeowner's Application is found in r 38 of the NCAT Rules.
2. However, we have not reached a concluded view about these matters, as we have not heard from the parties.
3. The Builder as the successful party is to file and serve submissions as to costs with 14 days of the publication of these reasons. The Homeowner may respond within a further 14 days.
4. The Builder may reply within a further 7 days.
5. Submissions are to be limited to 5 pages.
6. We propose to dispense with a hearing on the issue of costs in accordance with s 50(2) of the NCAT Act and determine the question of costs of the appeal on the written material provided by the parties. Any party opposing that course should address that issue in their submissions.
7. The parties' attention is drawn to the Appeal Panel decision of Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113, where the Appeal Panel stated at [85]:

"[i]t is the experience of the Appeal Panel that costs decisions in the Consumer and Commercial Division and on appeal (unless dealt with at the time of the hearing) are routinely considered 'on the papers' and without a hearing. The parties were given an opportunity to provide written submissions and did so. They can be presumed to have included all relevant issues in their written submissions".

1. We will not deal the costs of the two applications in the Tribunal. That is a matter for the Senior Member constituting the Tribunal, who issued a timetable for submissions on costs in the orders of the Primary Decision.

(1) To the extent that the appeal raises questions of law, the appeal is dismissed.

(2) The respondent is to file and serve any application for costs and submissions (and if necessary evidence) on or before 14 days from the date of these orders.

(3) The appellant is to file and serve any submissions in reply (and if necessary evidence) on or before 28 days from the date of these orders.

(4) The respondent may file and serve any reply on or before 35 days from the date of these orders.

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.

[5] At a directions hearing of the Appeal Panel on 16 April 2025; see direction (3).

[6] Presumably a typographical error, the correct date being 1 February 2022.

[7] Presumably a typographical error, the correct dates being respectively 1 February and 2 February 2022.

[21] Emphasis of Mr Keene, closing submissions, 7 June 2024, p 602 of the Court Book.

[22] Closing submissions to the Tribunal, 5 July 2024 at [2] (Court Book at [2]).