Professional Construction Service Pty Ltd v The Owners - SP 92156 - [2023] NSWCATAP 323 - NSWCATAP 2023 case summary

Professional Construction Service Pty Ltd v The Owners - SP 92156 - [2023] NSWCATAP 323 - NSWCATAP 2023 case summary — Zoe

The Grounds of Appeal

The Builder's grounds of appeal are set out in an annexure to its Notice of Appeal filed 29 August 2023.
In summary, the grounds of appeal, are as follows: 1. Ground One: in holding at [17] of the Decision that the Builder had an obligation to "investigate the source and cause of water leaks and trace the water leaks in order to rectify them the Tribunal erred in law by failing properly to construe a contractual obligation to "Trace and make good water leaks to enclosed terrace around columns and fixed frames". The Builder submits that, properly construed, the obligation was limited to the enclosed terrace around columns and fixed frames; 2. Ground Two: in holding at [40] to [41] of the Decision that the Builder "did not adequately address the water ingress issues" in respect of item 3, the Tribunal erred in law in the following respects: 1. it failed to identify and apply the relevant contractual obligation, being to trace and make good water leaks to enclosed terrace around columns and fixed frames; 2. it so held in the absence of evidence as to the source of water ingress; 3. it so held in the absence of evidence as to what the Builder was required to do, but failed to do, to rectify the water leaks; 4. it failed to impose the burden of proof on the Owners Corporation; 1. Ground Three: in holding that the Builder was required to pay damages in the amount of $22,600 by reference to item 2, the Tribunal erred in law in the following respects: 1. it failed to consider the difference between the costings of the parties' experts: 2. it held that the difference in the costings of the parties' experts was partly due to a difference in rates where there were no rates in the Owners Corporation's evidence; 3. it failed to consider the cost for replacement of the wall tiles (being the only difference in scope of works between the parties); 4. it failed to impose the burden of proof on the Owners Corporation; 1. Ground Four: in holding at [43] of the Decision that the Builder was required to pay damages in the amount of $150,000 by reference to item 3, the Tribunal erred in law in the following respects: 1. it so held despite having made the errors identified in paragraphs (a), (b) and (c) of Ground Two, in which circumstances the identity of the defects and the scope of work required to rectify them was unknown; 2. it so held without evidence of costings; 3. it accepted as evidence quotes from untested sources, not alleged to be expert opinion, and failed properly to calculate the average costings in those quotes; 4. it failed to impose the burden of proof on the Owners Corporation. 1. Ground 5: in holding that a money order should be made instead of a work order the Tribunal erred in law in the following respects: 1. by failing to give effect to the principle mandated by s 48MA of the Home Building Act 1989 (NSW) (HB Act); 2. by taking into account irrelevant considerations, namely that: 1. the Builder denied responsibility for the defects; 2. the bare fact that the Builder was responsible for the defects; 3. the Builder had complied with previous rectification orders from Fair Trading which did not concern the alleged defects; 1. it failed properly to exercise its discretion and to give reasons for doing so.
In addition to these grounds, the Builder seeks leave to appeal the Decision in relation to Grounds 2, 3, 4, and 5 in the event we decide that no question of law is raised.
The Builder filed lengthy written submissions on 10 October 2023. The Builder's counsel Mr Smith amplified these submissions in oral submissions during the course of the hearing. Similarly, we had the benefit of written submissions from the Owners Corporation which were amplified by its counsel Mr Horobin.

[6]

Leave to appeal

Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The principles to be applied by an appeal panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

[7]

The Decision

Before considering the grounds of appeal it is convenient to first summarise the Decision. As noted above, the Tribunal's ultimate conclusion was to order the Builder to pay the Owners Corporation the sum of $234,046.56.
The Decision commences by setting out the background to the dispute between the parties, noting at [2] that the Owners Corporation had alleged that the work carried out by the Builder breached the statutory warranties in s 18B of the Home Building Act 1989 (NSW) (the HB Act) in respect of 5 items; namely the Unit 12 bedroom window leak (Item 1); the Unit 11 ensuite leak (Item 2); the Unit 11 water ingress to lounge room, dining room, bathroom (Item 3); the water ingress through the first bedroom 1 sliding door (Item 4), and fire penetrations (Item 5).
At [4] the Decision states: It is not disputed that the work which was carried out by the respondent involved the conversion of a commercial lot into two residential units. The respondent tendered for the work and entered into the Contract. The tender document included a scope of work, relevantly including: Restaurant area Check water penetration windows and column along front façade. Allow to rectify water ingress underneath windowsills and columns. New Work to Construct to (sic) New Units Form new openings in the external walls for insertion of new aluminium window frames to bedrooms and bathrooms. Provide waterproofing to all wet areas to comply with the BCA. Note: All new penetrations in the concrete floors are to be fire rated in accordance with the requirements of the PCA. All redundant penetrations in the existing concrete floor are to be filled with concrete. Trace and make good water leaks to the enclosed terrace around columns and fixed frames. Supply and instal new wall tiles to ensuites bathroom and new laundry. (underlining added for the purposes of these reasons - see [26] below)
At [5], the Decision records that, as a result of the work carried out, the commercial lot which had been used as a restaurant was converted into two residential units. Part of the space that had been a balcony area had previously been enclosed to form part of the restaurant. At some time, an extra layer of tiles was laid over part of the floor, and the experts agreed that this was contributing to the water ingress issues. The Builder denied laying that extra layer of tiles. The Owners Corporation asked the Tribunal to find, on the balance of probabilities, that it did.
At [6], the Decision records that the Owners Corporation submitted that the Builder was responsible for the water ingress issue because it had a contractual obligation to investigate and rectify them. In addition, the Owners Corporation submitted that as the contract required the conversion of a non-habitable space into a habitable space (namely the balcony space), the Builder's obligations extended to ensuring that the work it did complied with the statutory warranties, and resulted in a dwelling which would be fit for that use.
At [7], the Decision records that the Builder submitted that it was not responsible for any defects in the "base building" because that work was carried out by Steve Nolan Constructions Pty Ltd (which we understand was the developer of the strata scheme), and the Owners Corporation had already been compensated for those defects which had been the subject of a separate claim.
At [8], the Tribunal set out the issues for determination as follows.
The first issue was whether the Builder laid the second layer of travertine tiles. At [11], the Tribunal concluded that it was not satisfied the Owners Corporation had proved that the Builder had laid the second layer of tiles.
The second issue, and the one of importance for the Builder's appeal, was what responsibility the Builder had in respect of water ingress issues.
After referring to those parts of the scope of works underlined above at [20], and then referring at some length to Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin [2020] NSWCA 358, the Tribunal concluded: 17 The Builder's obligation was to carry out the scope of work required by the Contract. That required that the Builder to investigate the source and cause of water leaks and "trace" the water leaks in order to rectify them. In doing so the Builder had an obligation to carry out any additional work incidental to that work. This would include installing flashings. However, I do not accept the applicant's submission that the Builder's obligation extended: "to ensure that there was no water penetration into the internal areas of the residence even if that requirement was not expressly stated". 18 This would be to extend the operation of the warranties beyond "the extent of the work carried out".
At [20] the Tribunal stated that it did not accept the Builder's argument that Oikos could be distinguished, finding that the facts were "actually quite similar".
After setting out the definition of "major defect" found in the HB Act in s 18E(4), the Tribunal then went on to determine which if any of the items in dispute were major defects.
For the reasons given at [25] to [27] of the Decision, the Tribunal found that Item 1 was a major defect.
For the reasons given at [28] to [32] of the Decision, the Tribunal found that Item 2 was a major defect.
As to Item 3, the Tribunal does not make a finding in terms that Item 3 was a major defect. This may have been an oversight as it was clear that the Tribunal considered that all the water ingress issues raised major defects, finding at [41] that the Builder had failed to rectify the water ingress issues and was in breach of the contract and the statutory warranties.
For the reasons given at [44] to [45] of the Decision, the Tribunal found that Item 4 was a major defect.
As to Item 5, there was no finding whether or not the item was a major defect. But in any event, the claim for compensation in the amount of $12,353.00 was rejected for lack of evidence (Decision, at [50]).
After dealing with the amount of Builder's margin to be allowed (the Tribunal finding that the margin should be 20%:Decision at [52]) and whether there should be any "uplift" for inflation (answering that question in the negative: Decision at [53]), the Tribunal then turns to the issue of whether a money order or a work order should be made.
The Tribunal decided to make a money order for the following reasons (Decision at [43]): The Builder has at all times argued that he is not responsible to rectify the defects complained of, because he did not undertake the original work. Whilst he now seeks that the Tribunal make a work order, I have no confidence that this would result in a just, quick and cheap resolution of the real issues in dispute. The Builder had the opportunity initially to rectify the water ingress issues but the work he carried out was unsuccessful. He had a further opportunity to carry out rectification pursuant to the Department of Fair Trading Rectification Order, but the issues remain. I am satisfied that this is a matter in which the preferred outcome is not appropriate.

[9]

The Builder's submissions

The Builder submits that the Tribunal's statement at [17] of the Decision (set out above), was not an accurate statement of its contractual obligations, as the Tribunal's statement was wider than the actual contractual obligation. While the Builder accepts that there was a duty to trace water leaks in the "existing structure", it submits that this obligation was limited to the enclosed terrace area around window sills and columns.
The Builder submits that, properly construed, the Builder's obligations in relation to water leaks were to check water penetration through windows and the column along the front façade, rectify water ingress underneath window sills and columns, and to trace and make good water leaks to the enclosed terrace around columns and fixed frames.
The Builder submits that, when considering Item 3 at [40], the Tribunal did not apply the construction it had identified at [17].
The Builder submits that the Decision at [40] exhibits further errors in the construction of the Builder's obligations in relation to the water leaks.
At [40] the Tribunal stated: However, the Builder was contractually required to address the water ingress issues which were apparent at the time of the tender. He was also required to ensure that any work which he carried out resulted in an area which was fit for habitation as a residence. He said that he had carried out the work he was required by the Contract to do because he checked the columns, but it is apparent the work he carried out did not adequately address the water ingress issues. Likewise, he may not have laid the second layer of tiles, but he was contractually obliged to "Trace and make good water leaks to the enclosed terrace around columns and fixed frames". If at the tender stage he could not identify what needed to be done, it was open to him to include a note to that effect, and to provide for a variation if other work was required. As was conceded by the respondent's expert under cross examination, when carrying out the work, the Builder's contractual obligations required that he undertake such investigation (including destructive investigation) as might be required in order to fulfil his contractual obligations.
As to the sentence, "However, the Builder was contractually required to address the water ingress issues which were apparent at the time of the tender", the Builder submits that it was not contractually obliged to address the water ingress issues as they appeared at the time of tender; rather its contractual obligation was to perform the Scope of Works.
As to the sentence, "He was also required to ensure that any work which he carried out resulted in an area which was fit for habitation as a residence", the Builder submits that it was not obliged to ensure that any work which it carried out resulted in an area which was fit for habitation as a residence. This the Builder submits is the very error which Oikos cautioned against, as it expands the scope of the contractual obligation by treating s 18B(1)(e) as amounting to a warranty that the end result is an area which was fit for habitation as a residence. The Builder submits that the correct approach is first to identify the work required to be done and to see if that work complied with the warranty. The Builder submits that this is "especially pertinent" when considering works in the nature of alteration or renovation.
As to the sentence, "Likewise, he may not have laid the second layer of tiles, but he was contractually obliged to 'Trace and make good water leaks to the enclosed terrace around columns and fixed frames", the Builder submits that the connection between the second layer of tiles and the columns and fixed frames does not appear.
Finally, as to the sentence, "If at the tender stage he could not identify what needed to be done, it was open to him to include a note to that effect, and to provide for a variation if other work was required", the Builder submits that this imposes an obligation on the Builder to identify its own scope of work prior to entering into the contract, and to ensure that the scope of work will ensure that all water ingress will be prevented. The Builder submits that the correct approach is to construe the actual content of the Builder's contractual obligations.
The Builder submits that Oikos supports the manner in which the Tribunal has undertaken the task of construing the Contract.

[10]

The Owners Corporation's submissions

First, the Owners Corporation submits that the Builder's submissions omit the full scope of the subject contract when attempting to find fault with the Tribunal's construction. The Owners Corporation submits that, consistent with Flynn v PPK Mining Equipment Pty Ltd (No 2) [2022] NSWSC 1640 at [134], in order to understand the Builder's obligations, it is necessary to consider the genesis of the contract as well as the contract itself.
After referring to various clauses of the contract and what documents constituted the contract, the Owners Corporation submits that the scope of works specifies that the Builder was, in relation to water penetration issues, to: 1. "check water penetration windows and columns along the front facade"; 2. "permit rectification of water ingress beneath window sills and columns"; and 3. "trace and repair water leaks to enclosed terrace around columns and fixed frames."
The Owners Corporation further submits that the prerequisite to investigate water infiltration specifically identified photographs (No. 0043, 0044, 0045, and 0046) of the window sills and columns on pp 257 to 259.
Thus, the Owners Corporation submits that the Builder did not address this material and in so doing elides the context and object of the contract.
The Owners Corporation submits that the consequence of this was that the Builder was obligated to ensure that Units 11 and 12 met the requisite building standards for a class 2 building including, relevantly, Performance Requirement FPI4 in relation to water penetration.
In conclusion, the Owners Corporation submits that there was no error in the Tribunal's construction of the Contract and, as discussed in Ground 2, no error in the Tribunal's finding that the Builder had not complied with its obligations.
As to the Builder's submissions addressing the statutory warranties in the HB Act, the Owners Corporation submits the Builder's assertion that only one warranty, s 18B(1)(e) of the HB Act, was considered by the Tribunal (at [13]), is incorrect, pointing to findings of the Tribunal at [15] and [41].
As to the Builder's submissions in relation to Oikos, the Owners Corporation submits that: 1. The Builder's submissions only partially extract the passages cited by the Tribunal at [16]. 2. While the Tribunal found at [14] "[t]he warranty does not expand the scope of the work required to be done", a point reiterated at [20], White JA stated in Oikos at [81] that "In some circumstances the operation of the warranties may expand the scope of work that a builder contracts to do".
In any event, the Owners Corporation submits that the Builder was contractually obliged to warrant that the converted units were reasonably fit for occupation as a dwelling. A principal object of the contract was to take a commercial space and make it fit for occupation. The Tribunal therefore was entitled to find on the evidence that this warranty (as well the other warranties in s 18B) was breached.

[13]

Submissions of the Builder

The Builder submits that its contractual obligation in relation to water ingress was delineated by reference to specific features of the existing structure. The Builder submits that the Owners Corporation bore the onus of establishing that the Builder had failed to do one or more of the following, and that the failure was a cause of water ingress: 1. check water penetration through windows and the column along the front façade; 2. rectify water ingress underneath window sills and columns; 3. trace and make good water leaks to the enclosed terrace around columns and fixed frames.
The Builder submits there are "no findings" about these matters, and that none of the findings of breach is supported by any reasoning. This the Builder claims is a failure to explain the basis of a crucial finding of fact and thus an error of law: Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260 at [387]-[388].
The Builder submits that the Owners Corporation needed to adduce expert evidence of what the Builder was required to do, but did not do. Instead, its expert approached his task as being to identify defects. The consequence was that there was: 1. no direct evidence at all about what the Builder should have done to trace leaks to the enclosed terrace around columns and fixed frames compared with what the Builder did in that regard; 2. no evidence about what sources of water leaks at those points the Builder would have identified and what damage has been caused by those leaks; 3. no evidence of what the Builder would have been required to do to make good any water leaks so identified, how effective those works would have been, and what specific damage has resulted.
The Builder notes that there is some suggestion in the evidence that there are sources of water ingress other than the two layers of tiles, including that the face brick columns allowed moisture to migrate damaging fixed internal plasterboard linings. The Builder submits that there is no evidence at all about the scale of this problem as compared with the two layers of tiles, and what is required to remedy this issue.
Finally, the Builder submits that there is no evidence that the Builder was or should have been aware of these problems.

[15]

Conclusion

The Builder notes in its submissions that the Tribunal's errors set out in Ground One had implications for Ground Two.
We see substance in the Owners Corporation's submission that the Builder's submissions are directed to the Tribunal's reasons and not to any lack of evidence.
We also see substance in the Owners Corporation's submission that it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: WALE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, at [46]-[47]. Further, we accept that an inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons, but that is an inference not too readily to be drawn where the reasons are otherwise comprehensive, and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected: Wale at [47]
Finally, we accept that the Builder's submissions overlook the Builder's own evidence that it did not rectify or make good any of the water leaks and had conducted limited testing.
Therefore, while we accept that the Builder has raised a question of law, we see no error by the Tribunal and would not allow the appeal in relation to the "no evidence" ground of Ground Two.
As to the adequacy of the Tribunal's reasons on this issue, we consider that the reasons meet the minimum acceptable standard of the type described by the Court of Appeal in NSW Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr). Bell P (as the Chief Justice then was) relevantly stated: 66. In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 (Bisley). … 71. That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. (emphasis added)
We consider that the reasons in relation to this ground of appeal satisfy the Court of Appeal's criteria in Orr.

[25]

The Builder's submissions

In summary the Builder submits: 1. the Tribunal miscarried in the exercise of its discretion and thus House v The King ((1936) 55 CLR 499) principles are engaged; 2. most of what is stated by the Tribunal at [54] of the Decision must be rejected; 3. it is not to the point that the Builder had denied responsibility to rectify the defects. There is no suggestion that the case advanced by the Builder at first instance was devoid of merit, speculative or opportunistic. It was a bona fide claim that did not succeed. That is entirely usual, and it was in error to treat this as a factor tending in favour of a money order; 4. the Tribunal's statement that the Builder had the opportunity initially to rectify the water ingress issues but the work carried out was unsuccessful, is incorrect. The Builder's Mr Jones gave unchallenged evidence that he attended and rectified the defects for which he agreed he was responsible. The Builder submits that it was content to, and did, return to the subject property to fix defects for which it accepted it was liable. The Builder submits that this evidence can only be treated as evidence in favour of a work order; 5. the Tribunal's finding that the Builder had a further opportunity to carry out rectification pursuant to a Department of Fair Trading Rectification Order, but the issues remain, lacks any foundation in the evidence. The Builder explained that he was contacted by NSW Fair Trading, that he attended and performed the work required of him, and that the rectification order was complied with to the satisfaction of the Owners Corporation. This Builder again submits that this evidence can only be treated as evidence in favour of a work order.
In addition, the Builder submits that the Tribunal failed to take into account its unchallenged evidence that: 1. it is solvent, has the capacity, and is ready, willing and able to perform rectification work; 2. the Builder's director Mr Jones gave oral evidence that he would comply with a work order; 3. there was no cross-examination of the Builder on this issue; 4. a money order would be to the Builder's very serious disadvantage, given that $35,461 has been allowed as a builder's margin in the costings; 5. there were serious shortcomings in the evidence quantifying loss as set out in Grounds Three and Four.
The Builder submits that, in the language of House v The King, the Tribunal allowed an extraneous or irrelevant matter to guide it and that it had mistaken the facts. The Builder submits that the end result is unreasonable and plainly unjust.

[27]

Consideration

We note that included in the appeal papers were the post-hearing written submissions considered by the Tribunal, and a transcript of the Tribunal proceedings. We are satisfied that the s 48MA was raised at the hearing, as the transcript records the Member relevantly stating, in relation to the filing of written submissions: We also need to address on 48MA because I think that's still a little bit up in the air, as to what the [Owners Corporation's] position is about it, if that's where we land.
In its submissions of 17 April 2023, the Owners Corporation submitted: 104 The [Owners Corporation] does not seek a work order pursuant to s 48MA of the HBA because of its previous difficulties in having the [Builder] address rectification works. It also notes that the [Builder] opposed the making of a work order at hearing and the [Owners Corporation] would be reluctant to have the [Builder] carry out the work where it was reluctant to do so. 105 It is also relevant that the [Builder] declined to admit it was liable under the contract, declined to admit it was liable as a major defect, declined to admit the full scope of repair for each item initially and/or for the full period of dispute and a final contested hearing was required in order to reach an outcome, those issues themselves contributing to a situation where the relationship of the parties has deteriorated and is not conducive to a work order were not sought by the [Owners Corporation] and opposed by the [Builder] at final hearing.
In its submissions in response of 12 May 2023, the Builder submitted at [70]: Should, despite the above submissions, it be found that the Builder is liable for defective works, the Builder seeks and should be entitled to return to site to remedy any defects. It should be noted that the Builder complied with the OFT rectification order. There is no reason advanced why the preferred outcome should not apply.
In its submission in reply of 25 May 2023, the Owners Corporation submitted: 46. The owner opposes the making of a work order for the reasons submitted in opening: a. The builder has expressed reluctance to come back and do the scope of works sought by the owner; b. The fact that prior issues have had to be taken to New South Wales Fair Trading to be addressed, prior to the commencement of proceedings, and remains not adequately resolved.
Section 48MA of the HB Act provides: 48MA Rectification of defective work is preferred outcome in proceedings A court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the "responsible party" ) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome.
As the Appeal Panel noted in Kurmond at [43], s 48MA is directed towards the remedy or "outcome" to be provided by the court or tribunal where a claimant establishes the responsible party has carried out defective residential building work or specialist work. In this sense, it is not properly described as a "presumption". Rather, it is a remedy to be "preferred" to other forms of order which the Tribunal might make. The section does not mandate a work order
The principle embodied in s 48MA is not in issue. What is in issue is whether the Tribunal made an error in respect of a question of law.
We have set out above [54] of the Decision.
Again, we consider that the reasons meet the minimum acceptable standard of the type described by the Court of Appeal in Orr.

Professional Construction Service Pty Ltd v The Owners - SP 92156

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