NSW Self Insurance Corporation v CN1 Pty Limited

Texts Cited: Nil

Category: Procedural rulings

Parties: NSW Self Insurance Corporation (Applicant)
CN1 Pty Limited (Respondent)

Representation: Counsel:
S Ahmed (Appellant)
T Smartt (Respondent)
Solicitors:
Gillis Delaney Lawyers (Appellant)
Centurion Lawyers (Respondent)

File Number(s): 2024/00140470

Publication restriction: None cited

REASONS FOR DECISION

1. On 12 February 2025 we allowed an appeal by the NSW Self Insurance Corporation (SiCorp) from a decision made in the Consumer and Commercial Division of the Tribunal. The issue before the Tribunal and in the appeal was whether the applicant in the Tribunal proceedings, CN1 Pty Limited (CN1), was a “developer” for the purposes of s 3A of the Home Building Act 1989 (NSW) (HBA) and under a policy of insurance issued by SiCorp (the Policy) to Willoughby Homes Pty Ltd for home building work.

2. Willoughby Homes had been contracted by CN1 under two contracts to construct dual occupancies on two lots in Kellyville (Lots 544 and 547). Willoughby Homes became insolvent and, on 2 August 2022, CN1 made a claim for indemnity under the Policy in respect of defective and incomplete home building work done by Willoughby Homes on Lot 544 (Lot 547 having previously been sold by CN1).

3. The appeal by SiCorp against the Tribunal decision was on one ground only, that ground being that the Tribunal had erred in the proper construction of the Policy and, in context, s 3A of the HBA, in particular the phrases “residential development” and “developer” in s 3A of the HBA. We were satisfied that this was a question of law.

4. We held that the Tribunal had erred in finding that CN1 was not a developer for the purposes of the HBA and the Policy as the residential building work in question had not been done in connection with a “residential development” as required by s 3A(2)(a) of the HBA. We went on to determine that CN1 was a developer.

5. CN1 appealed from our decision to the Supreme Court. Kirk J allowed the appeal on one ground and held that the Appeal Panel had proceeded upon a misconstruction of cl 3.4(a) of the Policy by addressing the question of whether CN1 was a developer as at a time prior to when the residential building work in question was done. Kirk J set aside our orders in the appeal and remitted the matter to the Appeal Panel, as previously constituted, for redetermination.

6. Under s 3A of the HBA an individual, a partnership or a corporation on whose behalf residential building work is done is a “developer” in relation to that residential building work in circumstances where the residential building work is done in connection with an existing or proposed dwelling in “a residential development” where four or more of the existing or proposed dwellings are or will be owned by the individual, partnership or corporation. At [53] Kirk J said:

… the notion of “a residential development” in s 3A(2) of the HBA refers to a site with four or more existing or proposed dwellings which can, at the time that the residential building work in question was undertaken, meaningfully and reasonably be characterised as a (ie one) residential development. That is a practical issue of characterisation involving various matters of fact and degree. A range of factors may be relevant including (without seeking to be exhaustive): when the site was developed as such (ie was there some proximate development process or was that process merely an historical fact); whether the site was product of a subdivision for residential purposes and, if so, when that occurred and whether the person in question (or some related person) played a role in that occurring; whether the land in question is contiguous (see the discussion below in relation to question 1); and whether there was more than one DA or other regulatory approval, building contract, and/or insurance contract.

7. When the appeal came back before us for directions following the Supreme Court’s judgment SiCorp sought to issue a summons to CN1 for the production of various documents which were not before the Tribunal at first instance and which, as we understand it, are said to be relevant to whether CN1 is a developer as defined in the HBA. It thus became clear that SiCorp wishes to adduce new evidence in the remitted appeal in light of the Supreme Court’s judgment, in particular in relation to the matters set out at [53]. CN1’s position is that the Appeal Panel should not permit new evidence to be filed in the appeal.

8. We directed the parties to provide written submissions on:

(a) whether we should re-exercise our functions under s 81(2) Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and determine the matter under appeal, or remit the matter under appeal to the Consumer and Commercial Division to be determined; and (b) if either of these courses is taken, whether the parties should be permitted to file new evidence in the remitted matter.

9. The parties have provided those submissions.

10. We also sought the views of the parties as to whether these issues could be determined on the basis of the written submissions and an oral hearing dispensed with under s 50(2) of the NCAT Act. While SiCorp consents to these issues being determined on the papers, CN1 has made no comment. Having considered the submissions of the parties, we are satisfied that the issues can be adequately determined in the absence of the parties and therefore dispense with an oral hearing under s 50(2).

How internal appeals are determined

11. Division 2 of Part 6 of the NCAT Act provides for internal appeals against first instance decisions of the Tribunal. Under s 80(3) of the NCAT Act the Appeal Panel may, if it considers the grounds of appeal so warrant, determine the appeal by way of a new hearing and in such a case receive further evidence (including evidence additional to or in substitution for the evidence at first instance).

12. Section 80(3) of the NCAT therefore empowers the Appeal Panel to itself redetermine a matter with or without new evidence. It is not necessary to establish that the Tribunal below made an error of law before exercising the discretion to deal with the appeal by way of a new hearing: Sheehy v NSW Police Force; Rapisarda v NSW Police Force; Housego v NSW Police Force [2018] NSWCATAP 307 at [18].

13. Neither party submits that the Appeal Panel should conduct a new hearing as contemplated by s 80(3). We also are of that view. The ground of appeal in the remitted matter is the same ground as in the original appeal and we do not consider that that ground warrants a new hearing: see Sheehy v NSW Police Force; Rapisarda v NSW Police Force; Housego v NSW Police Force at [18].

14. Section 81(1) of the NCAT Act sets out how internal appeals are to be determined:

81 Determination of internal appeals

(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following —

(a) the appeal to be allowed or dismissed,

(b) the decision under appeal to be confirmed, affirmed or varied,

(c) the decision under appeal to be quashed or set aside,

(d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.

15. Section 81(2) provides that the Appeal Panel may exercise all the functions that are conferred or imposed on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.

16. The Appeal Panel is therefore able, instead of remitting the whole or any part of the case to the Tribunal under s 81(1)(e) to be reconsidered, to itself redetermine a matter in accordance with the powers given to it under s 81(2). Both parties submit that, in light of the Supreme Court’s judgment, in determining the remitted appeal, we should exercise our functions under s 81(2) and determine the matter under appeal.

17. In Xu v Naganath [2026] NSWCATAP 111 at [60] the Appeal Panel stated:

Section 81(2) permits the Appeal Panel, where it can fairly do so, to determine a question which the Tribunal at first instance has failed to consider: see for example Kaye v The Owners - Strata Plan No 4350 [2022] NSWCATAP 173 at [54] - not doubted on appeal Kaye v The Owners - Strata Plan No 4350 [2022] NSWSC 1386 at [23].

18. This was the approach of the Appeal Panel taken in Boensch v City of Parramatta Council [2025] NSWCATAP 143 at [26] where the Appeal Panel, as permitted to do by s 81(2) of the NCAT Act, determined the outstanding jurisdictional issues in the matter in order to finally determine the issue of jurisdiction. The Appeal Panel stated that this was preferable to remitting the proceedings to the Tribunal for further hearing.

19. We agree that we should determine the remitted issue ourselves rather than remit the matter to the Tribunal. This is because:

(a) the matter to be determined is confined and the ground of appeal from the Tribunal’s decision remains the same; (b) we are familiar with the evidence, the issues under appeal and the Supreme Court’s judgment; and (c) it would be in keeping with the guiding principle in s 36(1) of the NCAT Act and consistent with the instruction in s 36(4) for the matter to be brought to finality.

Should new evidence be permitted in the remitted appeal?

20. In considering this question it is important to understand the nature of the matter that has been remitted to the Appeal Panel.

21. The issue before the Tribunal at first instance was whether the site at which the residential building work in question was undertaken can meaningfully and reasonably be characterised as one residential development. The Tribunal found that it could not be so characterised. On appeal we reached a different conclusion and determined that the site can be characterised as one residential development (and thus CN1 was a “developer”). Kirk J held that we had proceeded upon an erroneous understanding of the statutory term “a residential development”, leading to an erroneous understanding of the statutory term “developer”. This was because we had also addressed the question of whether CN1 was a developer as at a time prior to when the residential building work was done, which was around 17 February 2021, rather than simply as at the time the residential building work was done. It is worthy of note that other conclusions of the Appeal Panel were either not challenged or were not disturbed on appeal to the Supreme Court.

22. The Supreme Court has made clear that the assessment of whether CN1 was a developer must be made as at the time the residential building work was done. Kirk J noted at [53] that this assessment “is a practical issue of characterisation involving various matters of fact and degree”. He then set out a non-exhaustive range of factors that may be relevant to that characterisation.

23. The remitted appeal is confined in scope and is limited to the question of whether CN1 was a “developer” at the time the residential building work was done around 17 February 2021.

24. SiCorp submits that the parties should be permitted to adduce further evidence in the appeal in order to address the matters identified by Kirk J at [53] which may be relevant to whether there is “a residential development”. The admission of further evidence, SiCorp argues, would permit the remitted issue to be decided on a proper factual footing in light of the Supreme Court’s reasons and guidance. The documents which are now sought under summons are tenders, building contracts, development applications and development consents. The documents in general relate to lots in Deposited Plan 1204342 of which CN1, at a particular point in time, was the registered proprietor and cover the period 1 January 2016 to 1 March 2021.

25. In Yuen v Thom [2016] NSWCATAP 243 at [15]-[20] the Appeal Panel examined the nature of appeals under s 80 of the NCAT Act. The Appeal Panel concluded that an appeal determined by way of a new hearing (under s 80(3) of the NCAT Act) is akin to a hearing de novo; but otherwise, an appeal under s 80 of the NCAT Act is by way of a rehearing.

26. As was stated recently in Wojciechowska v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Wojciechowska [2026] NSWCATAP 210 at [23]:

In an appeal by way of rehearing, an appeal panel is authorised to determine whether the order the subject of the appeal is the result of some legal, factual or discretionary error. In other words, unless an appeal panel decides to determine an appeal by way of a new hearing (a hearing de novo) in accordance with s 80(3), an appeal panel’s role is to discern and, where appropriate, correct, error.

27. In Yuen v Thom the Appeal Panel accepted that, in an appeal that is not being determined by way of a new hearing under s 80(3), the Appeal Panel would conduct an appeal akin to a rehearing, with the ability to receive further evidence: at [20]. The Appeal Panel referred to the judgment of McColl JA in Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 at [59] to [61] where her Honour discussed the nature of appeals. At [61] McColl JA stated in relation to an appeal by way of rehearing:

One of the indicia of a rehearing function is the conferral of a discretion on an appellate body to admit further evidence. Such a power is of a remedial nature conferred “to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures.”

28. In Yuen v Thom the Appeal Panel stated at [21] that an appeal on a question of law would rarely warrant the receipt of new evidence. The Appeal Panel went on to say, however, that there may nevertheless be circumstances where the particular question of law warrants the receipt of additional evidence to prove the error. The Appeal Panel gave as an example where the evidence is necessary to prove the circumstances which resulted in a breach of procedural fairness. In Yuen v Thom the appeal concerned whether the Tribunal had jurisdiction to make a consent order, the answer to which turned, in part, on whether there was an underlying agreement between the parties. The Appeal Panel permitted evidence to be given that went to whether or not there was such an agreement.

29. In Lettau v Artwork Transport Pty Ltd [2017] NSWCATAP 14 at [24] the Appeal Panel agreed that an appeal on a question of law rarely warrants the receipt of new evidence. In order to permit new evidence, the Appeal Panel said there must be some persuasive reason or reasons why the general principle that new evidence is not generally warranted in appeals dealing with questions of law should not be applied.

30. In Lettau, an appeal which, as here, raised a question of law only, the Appeal Panel said that the fact the appellant had received incorrect legal advice or misunderstood the effect of the advice she had been given, and therefore chose not adduce evidence she could have, is not without more, a sufficient reason to allow her to lead that evidence, as new evidence, on appeal.

31. At [28] the Appeal Panel set out matters that it regarded as relevant to the discretion of the Appeal Panel to receive new evidence on the appeal (which is not by way of a new hearing):

(a) whether that evidence was available at the time of the hearing and, if so, why it was not relied on; (b) whether it is likely that the new evidence would have produced a different result at the Tribunal; (c) any prejudice caused to the other party if the new evidence was received; and (d) other matters which are also relevant to that discretion.

32. The parties agree that Lettau identifies the relevant considerations governing whether the Appeal Panel should receive new evidence on an appeal which is not by way of a new hearing.

33. SiCorp concedes that it could have pursued some of the evidence now sought in the proposed summons at an earlier time. SiCorp had in fact put before the Tribunal in its evidence documents relating to the ownership by CN1 of other lots in DP 1204342. Indeed, in its submissions to the Tribunal SiCorp stated that when the work was being done, that is from the date of the building contract on 17 February 2021, CN1 owned the other lots.

34. SiCorp made submissions to the Tribunal that Lot 544 is just one lot in a much larger residential development which includes the lots SiCorp now seeks to obtain evidence about. In its decision the Tribunal noted that SiCorp had made broad submissions in relation to the other lots being part of one residential development but had provided no evidence, such as building contracts, identification of builder and owner and insurance policies for each, to make a determination that they were one “residential development”.

35. SiCorp states that its position has always been that the other lots in relation to which it now seeks to adduce further evidence ought to be considered as part of the relevant residential development. Before the Tribunal (and in the appeal before us prior to the Supreme Court’s judgment), however, SiCorp took the view that the issues could be resolved merely by reference to lots 544 and 547. SiCorp argues that we should permit the new evidence because Kirk J’s judgment has brought into sharper focus the broader factual matters bearing upon whether there was one residential development.

36. The import of the Supreme Court’s judgment on the appeal from our decision is that it has clarified the time at which the characterisation of whether a site with four or more existing or proposed dwellings is one residential development is to be made at the time the residential building work was done. While Kirk J set out at [53] of the judgment a non-exhaustive range of factors which may be relevant to that issue, it was always the case that there is a range of factors which bear upon that characterisation. Indeed, those factors may vary from site to site and, as stated by Kirk J, involve various matters of fact and degree.

37. Ordinarily, in an appeal parties are bound by the way they conducted their case at first instance: see Crown v Nicodemou in his capacity as Receiver and Manager of Coronam Holdings Pty Ltd [2026] NSWCA 49 at [60]. This is not a case where SiCorp seeks to raise an issue which was not in fact raised before the Tribunal. Put simply, SiCorp’s position is that it always knew the other lots were relevant but it made a decision not to provide further evidence in relation to those lots. That evidence would have been available at the time and could have been obtained through the very process SiCorp now seeks leave to follow.

38. The contents of the documents SiCorp seeks to be produced and perhaps rely upon in the remitted appeal are not known. Indeed, it is not known whether the documents proposed to be summonsed in fact exist and are held by CN1. It is therefore not possible to determine whether the documents may assist SiCorp’s position that Lot 544 is part of one residential development and, therefore, whether the evidence would likely have produced a different result before the Tribunal.

39. There would be some prejudice to CN1 in permitting SiCorp to now rely upon new evidence in the appeal. While it is likely that CN1 would be able to respond to the evidence sought to be relied upon and make submissions about its relevance and weight, it is still the case that time, effort and cost would be incurred.

40. Having considered the factors relevant to the exercise of our discretion to admit new evidence in the appeal as set out above, we refuse SiCorp’s application to rely on new evidence.

Orders

1. The application by the Appellant to submit new evidence in the appeal is refused.
2. The appeal is listed for directions at 9:30 am on 22 September by AVL.

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