Oppidan Homes Pty Ltd v Baldwin and Granofsky

NCAT Appeal Panel|2016-03-14

Solicitors: Gerald Aronstan (Appellant) File Number(s): AP 15/56840 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: Not Applicable Date of Decision: 15 September 2015 Before: S Thode, Senior Member File Number(s): HB 14/12446 and HB 14/24150

Background

This appeal arises out of a decision made in the Consumer and Commercial Division of the Tribunal published on 15 September 2015 (the Decision). The Decision concerned proceedings commenced by the appellant (who we shall refer to as the builder) against the respondents (who we shall refer to as the homeowners) as well as separate proceedings commenced by the homeowners against the builder. Both sets of proceedings arose out of a home building contract between the homeowners and the builder dated 7 December 2012 ("the Contract").
The effect of the Decision was that the Tribunal made an order that the homeowners pay to the builder the sum of $24,723.00. That figure was the net result of findings that the builder was entitled to be paid the sum of $59,605.00 by the homeowners and the homeowners were entitled to be paid the sum of $34,882.00 by the builder.
The notice of appeal was filed by the builder on 10 October 2015.

Grounds of appeal

The contract was a fixed sum contract but included allowance for provisional sums in the amount of $65,408 and prime cost items (PC) in the amount of $11,700. The builder's claims included amounts in respect of provisional sums and PC items. It was common ground that the builder was entitled to the amounts allowed in the contract plus $59,443 which the homeowners conceded. The builder claimed an additional amount of $49,406. The Tribunal allowed $17,656 in respect of electrical work but rejected the builder's claim for a further $31,750 on the basis that there was no supporting evidence for items of work in respect of which the builder made claims in that amount. The notice of appeal contended that in respect of eight of the rejected items there was evidence contained in Exhibit C (affidavit of Gavin Cohen dated 15 April 2014). The builder contended that the relevant evidence concerning the eight rejected items had not been considered by the Tribunal.
The second ground of appeal was that the Decision included a finding that the homeowners were entitled to recover builder's margin and GST on the rectification costs awarded to the homeowners notwithstanding that the defects for which the award was made to the homeowners were notified to the builder after the contract had been validly terminated by the builder and after the homeowners had denied the builder access to the site to carry out any further work.
The third ground of appeal was simply to the effect that, if the Appeal Panel decided to increase the award for provisional sums and PC items in favour of the builder, the amount of interest payable to the builder in accordance with the Contract would correspondingly increase. The homeowners did not dispute that, if the amount awarded to the builder was increased, the interest payable would also increase.
The above grounds are elaborated in the following paragraphs. However, it suffices to say that the builder asserts that the errors identified constitute errors of law and, in addition, the builder asserts that, in the alternative, the Appeal Panel ought to grant leave under cl 12 of Sch 4 to the Civil and Administrative Tribunal Act 2013 (the Act). The builder contends that the Decision was not fair and equitable and was against the weight of evidence having the consequential effect that the builder has suffered a substantial miscarriage of justice.

Appellant's submissions

In relation to the ground of appeal concerning provisional sums and PC items the builder submits that the Tribunal misdirected itself, made errors in law and denied the builder natural justice by disallowing the eight items claimed on the basis that there were no source documents to support the builder's claim.
The Decision clearly disallowed labour costs claimed by the builder in respect of labour costs incurred directly by the builder in respect of which the only evidence before the Tribunal was the builder's own assertion as to the labour supplied and the cost of that labour, supported only by documents prepared by the builder for the purposes of the litigation. The appeal does not concern those items. However, the Decision also rejected claims by the builder in respect of labour and other expenses which the builder incurred with subcontractors or suppliers. The builder contends that the finding by the Tribunal in paragraph 22 of the Decision to the effect that no source documents were provided to underpin those claims was not supported by the evidence. The builder contends that the relevant evidence was contained in Exhibit C and that it is apparent from the Decision (particularly paragraph 22) that the Tribunal did not have regard to the documents in Exhibit C. It appears that the Tribunal had regard to Exhibit D (another affidavit of Mr Cohen) and found correctly that the relevant source documents were not in that affidavit.
The Appeal Panel was taken to the documents which formed part of Exhibit C and to portions of the transcript of the hearing. It is apparent that the builder was cross examined on the items in Exhibit C concerning labour costs incurred by the builder. However, the Appeal Panel was informed (and the transcript discloses) that the builder was not cross examined on the documents constituting claims by subcontractors or suppliers.
The builder's submissions identify eight items which the builder submits were wrongly rejected by the Tribunal on the basis that there were no source documents and also identify the page numbers in Exhibit C at which the relevant evidence is to be found as follows: Amount Page number Source Document $520.00 32 Nick Carrol's Building Services $1,315.00 38 Shafco Pty Ltd $436.00 41 Ausbins Pty Ltd $2,100.00 42 AAA Bayside Homes Pty Ltd $6,630.00 43 I Construction Civil Pty Ltd $591.00 50 Ausbins Pty Ltd $1,700.00 77 Cosgate Enterprises Pty Ltd $550.00 80 Cosgate Enterprises Pty Ltd

The builder also contends that the Tribunal miscalculated the appropriate allowance for the electrical work in that the amount in dispute in respect of electrical work was actually $19,125.48 rather than the $17,656.00 allowed. (See paragraphs 33-34 of the builder's submissions in chief on the appeal).
The builder contends that the amount allowed for provisional sums and PC items should have, been $96,840.64 rather than the $77,099.00 allowed by the Tribunal. The difference between what was awarded and what should have been awarded is $19,741.64.
The builder contends that the error constitutes an error of law or, in the alternative, could be characterised as a finding against the weight of evidence.
The second ground of appeal concerns the builder's claim that the damages awarded to the homeowners on account of defects were excessive and require to be adjusted. The builder submits that the homeowners should not have been permitted to recover the costs of a third party builder which included a builder's margin and GST.
The builder submits that the evidence discloses that on 5 March 2014 the homeowners advised the builder that they were retaking possession of the site immediately. The homeowners also advised that there were defective electrical works and that they would have these defects rectified by another contractor. The builder contends that on receiving this advice the builder attended the site with its electrical subcontractor to investigate the alleged defects in the electrical installation. However, the builder and the electrical subcontractor were told to leave the site by the homeowners. Later, on 21 March 2014 the builder gave notice of termination of the contract. On 22 April 2014 the builder filed points of claim in the Tribunal. In the Decision, the Tribunal found that the builder was prevented from returning to the site to rectify or complete electrical work (paragraph 7 of the Decision) and that the builder was entitled to terminate the contract (paragraph 9 of the Decision).
The Decision dealt with the homeowners' defect claims. The Decision records that the parties' experts agreed to a significant degree in respect of rectification costs (paragraph 40). The Decision also dealt with and made awards with respect to a number of items listed as defects.
At paragraph 58 of the decision the Tribunal recorded that the builder claimed that other than the amounts "conceded by the experts in the conclave" the homeowners should not be awarded any further damages for defects. The builder submitted that the Tribunal should also exclude any award in respect of builders' margin for rectification work (which the experts had agreed should be 25% if recoverable) or GST, on the basis that the homeowners did not permit the builder to return to the property to allow further rectification work. The Decision included the finding that the homeowners did not permit the builder to return to site. However, the Decision also stated: "The builder may argue that in order to avoid the margin, it ought be afforded the opportunity to return to the site to perform the rectification work itself, thus eliminating the need for third party margins. No such work orders was sought, and in any event, even if it had been sought, it would have been unlikely that the Tribunal would have granted a work order, having regard to the animosity between the parties and the lengthy and difficult history of the litigation". Further in the same paragraph the Decision stated that, in circumstances "where an amount is awarded for rectification, margins charged by third party contractors are compensable and I make the awards accordingly".
The builder submitted that the costs of rectification should be assessed on the basis of what it would have cost the builder to do the work. The builder submitted that it had a contractual right to rectify the defects and if the homeowners had not repudiated the contract by denying the builder access the builder would have been able to carry out the rectification work itself with no cost to the homeowner.
The builder's position at first instance was that it accepted responsibility for the amount it would have cost the builder to rectify the defects, but did not accept responsibility for the amount it would cost the homeowners to employ a third party contractor to rectify the defects.
The builder also contends that the Decision was in error in not considering whether the homeowners did what was necessary to mitigate their loss.
Accordingly the builder submits that the builder has suffered a substantial miscarriage of justice in that the Decision in relation to margin and GST is not fair and equitable and is against the weight of evidence. The effect of the error is an overstatement of the amount to which the homeowners were entitled of $9,513.27 and a corresponding reduction in the amount which the homeowners were ordered to pay the builder.
Finally, the builder submits that if successful it should be entitled to have its costs of appeal paid by the homeowners having regard to the provisions of s 60 of the Act. Section 60 Provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Professional Uniform Law Application Act 2014) or on any other basis. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
The builder particularly relied upon s 60(3)(d), namely that the proceedings were of such a nature and complexity that special circumstances did exist. The builder referred to and relied upon the Appeal Panel decisions in Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 and 203 Castlereagh Street Pty Ltd v Skybloo Holdings Pty Ltd (No 3) [2015] NSWCATAP 240. On the other hand if the builder is unsuccessful on the appeal the builder contends that each party should pay their own costs.

The respondents' reply and submissions

The homeowners have filed a reply and oppose the appeal. They support the original orders made by the Tribunal. The homeowners dispute the builder's contention that the Tribunal had no regard to Exhibit C and point to a number of instances where the Decision makes reference to Exhibit C. Accordingly, the homeowners submit, there was no error of law by the Tribunal and the correct characterisation of the appeal is that it is a claim that the Decision is against the weight of evidence. Therefore the builder needs to establish that there has been a substantial injustice and that the discretion to grant leave to appeal on that basis should be exercised in favour of the builder.
The homeowners submit that the builder must do more than merely demonstrate that the Decision was arguably wrong in the conclusion it arrived at. The homeowners refer to the relevant principles which are applicable in consideration of the question whether leave should be granted. In particular, the homeowners submit that the builder has failed to demonstrate that the matter involves issues of principle, questions of public importance or an injustice which is reasonably clear, or a factual error which was unreasonably arrived at including a mistake. (See Collins v Urban [2014] NSWCATAP 17 at [84]).
In respect of the builder's submission that the damages awarded to the homeowners for defective works performed by the builder were excessive and required adjustment so as to exclude an amount for builder's margin and GST the homeowners make a number of submissions.
Firstly, the homeowners submit that no question of law has been identified with any precision
Secondly, the homeowners submit that the builders are seeking on appeal to reframe their case in a way that was not raised at first instance. The homeowners submit that the builder did not seek to put forward any argument before the Tribunal that the homeowners had failed to mitigate their loss. The homeowners submit that the builder should not be permitted to raise on appeal a matter not raised below which, had it been raised at the initial hearing, would have been the subject of evidence.
In their Reply to Appeal and in the Respondent's Outline of Submissions, the homeowners also raise by way of contention challenges to certain findings in the Decision. The homeowners submitted that: 1. Several of the adjustments claimed by the builder were for amounts included in the fixed sum contract price or were otherwise adjustments that the builder was not entitled to claim; 2. The builder did not validly terminate the contract but rather repudiated it; and 3. The builder breached Section 10 of the Home Building Act 1989 (NSW) and therefore was not entitled to claim any amount for adjustments to prime cost items and provisional sums.
In respect of costs the homeowners submitted that if successful they should have their costs of the appeal. Nevertheless, they disputed the builder's submission that the complexity of the proceeding warranted an order for costs. The homeowners submitted that although the proceedings below were complex the appeal itself was not complex.

Decision

It is clear to the Appeal Panel that the Decision overlooked evidence contained in Exhibit C which substantiated the builder's claim for certain provisional sums and PC items. The eight identified invoices agitated by the builder on appeal are clearly contained in Exhibit C. In the Appeal Panel's opinion the Decision reads as if the Member did not have regard to these documents when concluding that there was no source material supporting the claims. The relevant passage in the Decision appears in paragraph 22: "Mr Cohen supports his claim for adjustments in the sum of $108,000.00 to a large degree with self-serving documents he created, rather than invoices which actually substantiate amounts spent. For example, I have been referred to multiple invoices for wages allegedly incurred for various labourers who carried out 'siteworks'. The amounts claimed in respect of carpenters and labourers were said to have been incurred for 'external works'. The documents claiming labour costs were type written by Mr Cohen and claim labour cost for unsubstantiated hours at rates of $65.00 and $32.00 hours respectively. No source documents were provided to underpin the labour costs claimed. No site diary was tendered to substantiate the presence of the carpenter and labourer on site on various days and for the alleged hours. The documents are undated. The documents supporting the claim for wages came into existence only for the purpose of litigation and to support an adjusted claim for $108,850.00. The bulk of the documents in support of this significant claim are unsupported by source documents. Mr Cohen conceded under cross-examination that he had no independent source documents to substantiate these claims. I reject the documents that are not supported by original source documents. I find, as a whole that the reply affidavit tendered by Mr Cohen does not support the claim for additional PC items or provisional sums. As he has provided no source documents other than Bunnings invoices, I find that he has failed to discharge his onus of proof, and has not satisfied the Tribunal, on the balance of probabilities that the significant adjustment upwards should be made. The owners concede the sum of $59,443.00 and I find that this is the correct allowable amount for provisional sums and PC items.
In the view of the Appeal Panel, the Decision in this respect contains an error of law. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel listed a number of categories of questions of law. These included whether the Tribunal failed to take into account a relevant consideration and whether the Tribunal had made a finding of fact for which there was no evidence. In the view of the Appeal Panel each of these is the case with respect to the eight items now agitated by the builder.
Although the Decision refers to the claim being supported "to a large degree" with self-serving documents created by the builder rather than invoices, and refers to the invoices for wages allegedly incurred for labourers carrying out sitework by way of example, the Decision ultimately rejects the claim (save insofar as it was conceded by the homeowners) on the basis that the builder had provided no source documents other than Bunnings' invoices. There were only four invoices from Bunnings in the source documents bundle (Exhibit C) out of over 100 pages of invoices, and the Bunnings' invoices were in respect of items that were conceded by the homeowners.
The Appeal Panel was taken to the cross-examination of Mr Cohen referred to in the Decision and it is clear that Mr Cohen was being asked only about the documents claiming labour costs which were typewritten by Mr Cohen for the purpose of the litigation. Mr Cohen was not cross-examined about the eight invoices the subject of this appeal.
Although the Tribunal Member did refer to Exhibit C in earlier paragraphs of her decision it is clear that the Member did not have regard to the invoices included in Exhibit C in concluding that the builder had failed to produce source documents to support the eight items.
Each of the eight items was challenged by Mr Baldwin, in an affidavit which became Exhibit 1 below. The objection in each case was that the relevant invoice was for work or expenditure that was included in the contract price or was only necessary by reason of delays or errors by the builder.
The builder responded to each of those objections by the affidavit of Mr Cohen which became Exhibit D. In each case Exhibit D explained that the work or expenditure was properly attributable to items covered by a provisional sum or, in respect of one item relating to a change in colour of Caesarstone benchtops, was agreed to by the homeowners. There was no cross-examination of Mr Cohen concerning this evidence. The homeowners nevertheless maintained on the appeal that the eight items were "for amounts included in the fixed sum contract price or were otherwise adjustments that the builder not entitled to claim". (See paragraph 59(a) of the homeowners' submissions and paragraph 30(a) above). The Tribunal Member did not resolve this issue and therefore the proceedings must be remitted to the Tribunal Member for determination of that issue. The issue should be determined on the evidence before the Tribunal at the initial hearing.
Were we to be wrong in our conclusion that the Decision involved an error of law we would nevertheless grant leave to appeal and allow the appeal on the basis that the builder has not had its claim determined on the evidence and has thereby been deprived of a chance that was fairly open of achieving a better outcome than occurred.
We are also of the view that the Tribunal Member did make the error in calculation of the allowance for electrical work asserted by the builder. The homeowners' submissions did not dispute the builder's submission that such an error had been made.
The error is clear on the face of the documents. Although the error cannot be said to involve an error of law, we are of the view that the Decision in this regard was plainly in error and that it would be unjust to allow the finding to stand. Therefore we will grant the builder leave to appeal and allow the appeal in respect of the error in the calculation of the allowance for electrical work.
With respect to the claims for GST and margin, the Appeal Panel notes that the finding of the Tribunal was that there were a number of defects for which the homeowners were entitled to compensation. This leads to the conclusion that, in the ordinary course, the homeowners are entitled an amount which puts them into the position they would have been had there been no defects. This amount includes the cost necessary to engage a third party builder and therefore the builder's margin and GST must be included.
Although it is true to say that the Decision held that the homeowners were at fault for denying access to the builder and thus denying the builder the opportunity to rectify the defects, the position is also that the builder was in breach of the statutory warranties under the Home Building Act 1989 (HBA). The builder's case was argued on the basis that defects were conceded even though the amounts in respect of rectifying the defects were matters in contention. The builder did not argue its case upon the basis that the matters about which the homeowners complained were not defects but rather works which were incomplete and if completed would be work conducted in conformity with the builder's contract obligation.
Nor did the builder argue at first instance that the homeowners were obliged, in order to mitigate their loss to permit the builder to rectify the defects. Had the builder's case been so put, issues would have arisen whether, in light of the breakdown in relations between the parties, it was unreasonable of the homeowners not to permit the builder to rectify the defects. Had that issue been raised, a relevant issue would have been whether the homeowners had "reasonably lost confidence in the willingness and ability of the builder to do the work". (See Owners Strata Plan 76674 v Di Blasio Constructions [2014] NSWSC 1067 at [44]-[46] and Owners Strata Plan 73162 v Dyldam Developments [2014] NSWSC 1789 at [38]). The issue not having been squarely raised at the initial hearing, it is not appropriate to permit it to be raised on appeal.
As McColl JA, with whom Ward JA and Tobias AJA agreed, held in Mamo v Surace (2014) 86 NSWLR 275 at 289: [75] A party is bound by the conduct of his or her case. It has long been the law that, except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him or her, to raise on appeal (even one by way of rehearing) a new argument which, whether deliberately or by inadvertence, he or she failed to put during the hearing when there was an opportunity to do so: Coulton v Holcombe (1986) 162 CLR 1 at 7-8 per Gibbs CJ, Wilson, Brennan and Dawson JJ; approving University of Wollongong v Metwally (No 2)(1985) 59 ALJR 481 at 483; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598. [76] There are recognised exceptions to the principle that a party is bound by the conduct of his or her case. Thus, there are cases which recognise that when a question of law is raised for the first time in an ultimate court of appeal (as well as an intermediate court of appeal), as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided: O'Brien v Komesaroff (1982) 150 CLR 310 at 319 per Mason J; Coulton v Holcombe at 8. This exception will not apply where, if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial: Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645 per Mason P (Gleeson CJ and Priestley JA agreeing). [77] The particular circumstances of each case must be considered,"with due recognition that mistakes occur, that second thoughts are sometimes good thoughts, and that the appellant is entitled to justice; but extending justice to an appellant who has failed to take a point at the trial may work an unacceptable injustice on the respondent": Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 at [18] per Giles JA (Mason P and Priestley JA agreeing). [78] Various reasons have been advanced as underlying the principle that a party is bound by the conduct of his or her case. The maintenance of fair play and the repression of unnecessary litigation are two:Rowe v Australian United Steam Navigation Company Ltd(1909) 9 CLR 1 at 24 per Isaacs J. Ensuring "the main arena for the settlement of disputes [is not] move[d] from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish" is another:Coulton v Holcombe at 7. [79] Fundamental to all reasons advanced is the notion of finality of litigation, the proposition that "[a] central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances": D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [34] per Gleeson CJ, Gummow, Hayne and Heydon JJ. Although, of course, the appellate system is the "principal qualification to the general principle that controversies, once quelled, may not be reopened", there, too, "the importance of finality pervades the law [including in] rules about what points may be taken on appeal", all reflecting the fundamental proposition that "the substantial issues between the parties are ordinarily settled at the trial": D'Orta-Ekenaike at [35]. These principles are applicable to appeals before the Appeal Panel. As an Appeal Panel held in Drivas v Burrows [2014] NSWCATAP 87 at [32]: The considerations favouring finality of litigation are at least as strong, and probably stronger, in the case of the Tribunal given the importance attached to the expedition and inexpensive disposition of proceedings. See also Nelmeer Ashfield v Farah [2015] NSWCATAP 252 at [74]-[75].
In these circumstances the Appeal Panel is of the opinion that the decision to include the builder's margin and GST should not be permitted to be challenged and the appeal (and application for leave to appeal) in this respect should be dismissed.

Respondent's "Notice of Contention"

We have found that the first of the issues raised by the homeowners' reply and outline of submissions (referred to at paragraph [30] above) was not determined by the Tribunal Member with the consequence that the matter must be remitted for determination of that issue. The second and third issues were fully canvassed at the hearing below and determined against the homeowners. The homeowners did not identify any alleged error of law in relation to the points of contention.
The second issue raised by the homeowners, that is whether the builder validly terminated the contract or repudiated it, clearly involved contested issues of fact. The third issue, the application of s10 of the Home Building Act, might involve issues of law but we are not persuaded any such issue arises in this case.
The Tribunal Member found (in paragraphs 13-15 of the Decision) that Mr Cohen, the nominated supervisor, was not "continuously" at the property but that he attended "regularly" to ensure that the works were being carried out correctly. As the Tribunal Member stated, "the Act does not mandate that the licence holder must be continuously at the site". The Tribunal Member was not persuaded that the evidence established that "supervision was lacking to an extent to enliven the provisions".
In Wilson v Commissioner of Police [2015] NSWCATAP 248 at [59]-[60] an Appeal Panel held that where issues had been the subject of extensive evidence and had been thoroughly ventilated at first instance, and the respondent did not submit that the Tribunal had made an error of law, it was not appropriate to seek to re-agitate the Tribunal's findings on those issues by way of contention.
The homeowners submitted that in this respect the decision in Wilson v Commissioner of Police was incorrect. We do not find it necessary to determine that question.
It is clear in our view that in circumstances where a respondent does not allege any error of law in the decision under appeal, it would be inappropriate to address alleged errors of fact finding unless those alleged errors are such that, had the overall decision been adverse to the respondent, an application for leave to appeal by reference to those alleged errors would have succeeded.
The matters the homeowners seek to raise do not, in our view, meet that test.
The homeowners' submissions in support of the second and third issues of contention did not do more than refer to their submissions and submissions in reply at first instance. It is clear from the Decision, and from the submissions to which the homeowners referred, that there were contentious factual questions raised by both issues. The Tribunal Member determined those factual contests against the homeowners. To persuade an Appeal Panel to revisit such factual determinations would require something more than simply repeating the submissions made at first instance.
It follows that the appeal will be allowed and the matter will be remitted to the Tribunal Member for determination of the builder's entitlement to the eight items. The Tribunal Member should also take account of the error in calculation identified in paragraph 40 above, and make any necessary adjustment to the calculation of interest.

Costs

As we have recorded above, s60 of the NCAT Act provides that ordinarily each party to proceedings in the Tribunal should bear their own costs. Special circumstances are necessary before the Tribunal (including an Appeal Panel) can make an order in respect of costs.
The appellant builder relies on sub-paragraph (d) of s60(3) that is, the nature and complexity of the proceedings. The appellant does not rely on other sub-paragraphs of s60(3).
In our view there is nothing so "out of the ordinary" about this appeal as to warrant an order for costs (see Megerditchian v Kurmond Homes Ltd [2014] NSWCATAP 120 at [11]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]-[31]; eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48] and 203 Castlereagh Street v Skybloo Holdings (No.3) [2015] NSWCATAP 240).
The appeal as prosecuted did raise issues of some complexity, but it is fair to say that the issues on which the appellants have succeeded were not particularly complex. It cannot be said that the respondent's resistance to the appellant was inappropriate or without justification. The amount in issue on the appeal was not large.
We therefore make no order in relation to the costs of the appeal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2016

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (22)

Cited By (6)