Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott - [2017] NSWCATAP 187 - NSWCATAP 2017 case summary — Zoe

NSWNSWCATAP

Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott

[2017] NSWCATAP 187

NCAT Appeal Panel|2017-06-19|Before: Wright J, Bailey AM

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2017-06-19

Before

Wright J, Bailey AM

Source

Original judgment source is linked above.

Judgment (82 paragraphs)

[1]

Introduction

The appellants, in proceedings AP 17/04738, are Mr Rekrut and Ms Scott (the owners) and Champion Homes Sales Pty Ltd (the builder) is the respondent. In proceedings AP 17/09469, the appellant is the builder and the owners are the respondents.
In 2009, the builder contracted with the owners to carry out certain home building work.
On 23 December 2013, the owners made claims against the builder under the Home Building Act 1989 (NSW) (HB Act) for damages for alleged incomplete or defective building work and contractual damages including liquidated damages. They lodged their application in the former Consumer, Trader and Tenancy Tribunal (CTTT). Under the transitional provisions in cl 7 of Sch 1 to the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), this Tribunal was empowered to hear and determine those proceedings.
The hearing at first instance took place over many months, on 18 and 19 August and 20 October 2015 and 7 June 2016. After this, the parties were permitted to file written submissions. The period for filing those submissions did not close until 20 August 2016.
On 23 December 2016, the Tribunal at first instance ordered that the builder pay to the owners $63,586.59, as well as making other ancillary orders and providing its reasons for decision.
On 31 January 2017, the owners lodged an appeal (AP 17/04738) against the Tribunal's decision. The builder also lodged an appeal (AP 17/09469) but not until 27 February 2017.
For the reasons set out below, we have determined that both appeals should be allowed in part and otherwise dismissed. Using the items as identified below in our reasons, the effect of our decision can be summarised as follows: Item Owners' claim at first instance Tribunal below Appeal ground - result Order on Appeal 1(a) $10,000 discount on entry into contract Rejected. Owners' first ground - upheld. $10,000 awarded to owners. 1(b) $5,000 reduction for signing contract Rejected N/A N/A 2 Variation 1 - Front Door and Laundry Door Rejected. Owners' second ground - dismissed. N/A 3(a) Variation 2 - Vanity items Rejected. Owners' second ground dismissed. N/A 3(b) Variation 2 - Garage Door Rejected. N/A. N/A 4 Variation 3 - Tiling Upgrade Rejected. Not necessary to address owners' third ground. N/A 5(a) Variation 10 - Hydraulic Design Rejected. Owners' fourth ground - upheld. Claim remitted to be reconsidered. 5(b) Variation 10-Survey Rejected. Owners' fourth ground - upheld. Claim remitted to be reconsidered. 5(c) Variation 10 - Engineer Inspections Rejected. Owners' fourth ground - upheld. Claim remitted to be reconsidered. 6 Private Certifier/SS Certificates Rejected. N/A N/A 7 Variation 12 - Structural Steel Rejected. Owners' fifth ground - upheld. Claim remitted to be reconsidered. 8 Stormwater refund $8,000 awarded. Builder's first ground - upheld. Set aside award of $8,000 to owners. 9 Variation 11 amended Withdrawn. N/A N/A. 10 Balustrade $1,100 awarded. N/A N/A 11 Stormwater Detention System Rejected. Owner's sixth ground - upheld. Claim remitted to be reconsidered. 12 Interest Rejected. Owners' seventh ground - not pressed. N/A 13 Defects and Incomplete Works $12,756.18 awarded. N/A N/A 14 As built plans and certificates $8,600 awarded. Builder's third ground - dismissed. N/A 15 Water supply to Fire fighting hose $8,832.02 awarded. Owner's twelfth ground - upheld. Builder's second ground - not necessary to address. Set aside award of $8,832.02 to owners. Claims 8.5.6 and 8.7 in Experts' Conclave Scott Schedule remitted to be reconsidered. 16 Further items $2,007.55 and $979.00 awarded. N/A N/A 17(a) Damage to retaining wall $19,073.34 awarded N/A N/A 17(b) Damage to brickwork to front of house $638.50 awarded N/A N/A 17(c) Damage to Retaining Wall at Cabana $1,600.00 awarded N/A N/A 18 Damages for Failure to reach Practical Completion Rejected. Owners' eighth and ninth grounds - upheld. Claim remitted to be reconsidered. Owners' tenth ground - dismissed. Owners' eleventh ground - not necessary to address.

[3]

Background

The Tribunal at first instance made various findings at various points in its reasons for decision and we have attempted to collect the relevant background facts in the following paragraphs. We have indicated the paragraphs in the reasons for decision of the Tribunal below where the findings were made. We have supplemented the Tribunal's findings with material taken from the contractual and related documents, which were not in dispute. Our summary of the background to these appeals is set out in the paragraphs that follow.
Before seeking a tender from the builder, the owners had plans prepared for their proposed building work. As part of this they engaged engineers, J&F Designs, to design the hydraulic or stormwater detention system for the work. The owners gave the plans, including the design prepared by the engineers, to the builder prior to the builder providing its tender to the owners. (Reasons [24(c)], [139])
The builder provided an initial tender for the building work dated 27 February 2009 (the Tender) to the owners. Under the Tender the "Total Building Price GST inclusive" was $388,994.00. Between late February 2009 and 21 April 2009 there were discussions between the builder and the owners and the builder provided the owners with two tender amendments: 1. Tender Amendment 1 dated 27 February 2009, which made a number of changes to the Tender and included a "Revised Total Building Price GST inclusive" of $392,194.00; 2. Tender Amendment 2 dated 21 April 2009, which made further changes to the Tender, spelt out a number of matters and included a special discount so that the "Revised Total Building Price GST inclusive" was now $367,400.00.
On 22 April 2009, the owners accepted the Tender as amended by Tender Amendments 1 and 2 and the owners and the builder signed a contract for the supply of materials and construction of a free standing residential dwelling (the home). The contract price shown was $357,400.00. (Reasons [25]).
The documents signed or initialled by the parties on 22 April 2009 in entering into the contract included: 1. The Tender, including schedules of materials, fittings and fixtures and a number of additional notes. 2. Tender Amendments 1 and 2; 3. Completed standard form contractual documentation with special conditions as follows: 1. Table of Contents 2. Attachment A - Checklist 3. Schedule 1 - Particulars of Contract 4. Schedule 2 - Progress Payments 5. Schedules 3 - Excluded Items (Clause 18) 6. Schedule 4 - Warranty Insurance 7. Clauses 1 - 43 8. Special Conditions - Clauses 44 - 55 9. General Housing Specification.
Although it is not clear from the reasons for decision (at, for example, [33] and [34]) whether the Tribunal made a finding to this effect, as opposed to reciting the evidence, it appears that at about the time the owners signed the contract they also signed a construction/complying development certificate application form appointing Mr Trives as the principal certifying authority.
On 7 July 2009, the owners sent an email to the builder enquiring about the hydraulic plan, also referred to as the stormwater detention system design, that had been approved with the development approval. (Reasons [140])
On 22 July 2009, Mr Trives issued a construction certificate for the works. (Reasons [35])
By letter dated 7 August 2009, the owners were advised that the construction certificate had been issued. Included with that advice were the final architectural plans revision "C" and the structural engineer's details prepared by Donovan Designs Pty Ltd, issue "A". (Reasons [40]) It is not entirely clear from the reasons which hydraulic engineers details for the stormwater detention system were included: those prepared by J&F Designs; or the details for the design prepared by ANA Civil & Structural Engineers, issue "1" (see reasons [36] to [40]). The difficulties with the Tribunal's findings in this regard are referred to in the consideration of some of the grounds of appeal below.
On or about 1 September 2009, building works commenced. (Reasons [25]) The relations between the builder and the owners did not proceed smoothly. The stormwater detention system was the subject of considerable dispute.
In June 2010 the owners decided to seek to amend the stormwater detention system in accordance with a design obtained by them and not the design obtained by the builder. This would have resulted in the need for a variation of the Development Approval. (Reasons [175])
On 8 December 2010, the owners' engineer issued an engineer's design certificate that the revised drawings for the stormwater detention system complied with the Council's stormwater code. (Reasons [175])
During the period from 13 July 2009 until 15 December 2010, the builder issued 14 Variations and 4 Contract Price Adjustments. Some of these were signed by the owners and some were not. Nonetheless, the total amount charged by the builder is the subject of, and is explained by, the Tender, the Tender Amendments, the Variations or the Contract Price Adjustments, whether or not the owners accept they were liable under particular variations or adjustments.
On 16 December 2010 the builder issued a notice of practical completion and final invoice for the building works, under cl 26.1 of the contract. (Reasons [27]). The final invoice took the form of a Final Statement dated 16 December 2010. The Final Statement set out all of the charges made by the builder by specific reference to each of the Tender, the Tender Amendments, the Variations and the Contract Price Adjustments (whether or not they were signed by the owners).
As it is an essential document for the purposes of considering at least two of the grounds of appeal in these appeals, we set out a copy of the Final Statement here.
On the Final Statement the "Revised Total Building Price GST inclusive" was stated to be $425,299.55 and the "Settlement Amount" (that is, the amount outstanding) was $28,268.15. It was not in dispute at the hearing or on appeal that, in about early 2011, the builder waived Variation 13 in the amount of $2,500.00 and agreed to a further deduction of $1,221.00. The resulting actual Revised Total Building Price GST inclusive was $421,578.55 and the total outstanding was $24,547.15. (See also Reasons [130])
On 20 December 2010, the owners and the builder signed a final inspection report. A schedule of defective work and omissions to be remedied by the builder was attached to the report. (Reasons [28]) Other than for minor works, the builder last attended the site of the works on or about 20 December 2010. (Reasons [22])
On 14 January 2011, upon the assurance of the builder that the defects and omissions listed in the final inspection report would be remedied, the owners paid to the builder $24,547.15. On that same day the keys of the home were delivered to the owners. (Reasons [29], [130], [281]) The statement in the reasons at [277] that the owners have lived in the home continuously since, seems to be an error (see the finding at [297]).
During April 2011, the owners commenced to move into the home. (Reasons [297]) The owners' argument referred to by the Tribunal at [292] indicates that they commenced to move in on about 24 April 2011, that is twelve months prior to 24 April 2012.
At the hearing at first instance, the builder produced its Debtor Statement of 17 August 2015 which set out each payment the builder received from the owners. The information contained in that document was also not in dispute.
As it is an essential document for the purposes of considering at least two of the grounds of appeal in these appeals, we set out a copy of the Debtor Statement here.
The agreed waiver of the $2,500.00 in Variation 13 and of the additional $1,221.00, referred to above, was reflected in the Debtor Statement by the entry: "21/01/2011 N2392-Disc -$3,721.00".
It will be noted that the total amount the builder received from the owners was $421,578.55, which is equal to the Revised Total Building Price GST inclusive in the Final Statement after the agreed adjustments.

[4]

The Owners' Application

On 23 December 2013, the owners lodged their application under the HB Act in the CTTT. The claims originally made in the application are found in items 16 and 17 of the application form. Item 16 records that the owners sought: 1. An order for the payment of $33,212.70; 2. An order to do work or services to an unspecified value; 3. An order to deliver, return or replace specified goods of an unspecified value; 4. An order to supply specified services to an unspecified value. It was also expressly stated that the $33,212.70 was "not inclusive of repairs and other work identified in Appendix A, E and F [attached to the application]".
Item 17 in the application form described the subject matter of the dispute as: "Unsubstantiated charges; significant delays in completion of the home; damage to property; remaining faulty work; failure of Champion Homes to properly liaise with the certifier to confirm work had been completed".
Appendix A contained material under the heading "16. What orders do you want?" and appears to provide more specific information concerning the orders actually sought. That material in Appendix A includes: "a) An Order to refund the amount of $12412.70- in unsubstantiated charges. We were promised original receipts and copies of surveys for these unsubstantiated charges. After repeated requests Champion Homes failed to account for these charges. … b) An Order to account for Liquidated Damages Clause 30 at contracted rate of $160 per day calculated on a daily basis. … c) An order to do work to finish work and rectify damage: [attention was directed to the detail in Appendix E and there was also a list of 8 specific items of work or rectification] d) An Order for Champion Homes to obtain a valuation for money owing in compensation on damage to the side front house and to compensate accordingly as suggested by Pack Wong. [attention was directed to Appendix D and certain evidence]"
It appears that the owners' claims evolved over time. The Tribunal below recorded, at [7], that "at the hearing" the owners' claim had crystallised into four heads of claim as follows: "a. Damages arising from the Contractual dispute $249,812.17 with interest at 15% continuing to accrue at $55.21 per day from 8 July 2016; b. Damages for incomplete and defective works $42,815.27 c. Compensation for damage caused by builder to site $21,311.84 d. Damages for failure to reach Practical Completion: 1. If from 20/12/10 to 4/7/16 being 289 weeks at $1500 per week and continuing $433,500.00 Or, 2. If 2030 working days between 20/12/10 to 4/7/16 at $160 per day $324,800.00"
To the extent that the quantum of the claim in total exceeded $500,000, the owners said they would "cap the value of their total claim" to that amount. (Reasons [8])
In its reasons, the Tribunal below distilled the parties' claims into discrete items. Each item was placed under a heading. Under each heading, the Tribunal generally outlined the contentions of the parties, identified some of the relevant facts in dispute and then reached a conclusion on the relevant item.
The items into which the Tribunal distilled the owners' claims (which we have numbered) were as follows: Item Heading and Nature of the Claim Paragraphs in Reasons Tribunal's conclusion "Discount on entry into contract" 1 (a) A claim that a $10,000 reduction in the tender price was agreed but not applied - [47], [50]; and [47] - [57] Claim for both sub-items rejected - [52], [56], [57] (b) A claim for a further $5,000 reduction for signing the contract - [47], [48] 2 "Variation 1-Front Door" [58] - [65] Claim rejected - [65] A claim for $3,048.89 for the front door and $673.48 [this should be $457] for the laundry door to be credited against variation 1 - [58]" "Variation 2-Vanity items and Garage Door" 3 (a) A claim for $673.48 to be credited against variation 2 in respect of vanity items - [66]; and [66] - [79] Claim for both sub-items rejected - [69], [70], [78], [79] (b) A claim for $2,994.00 to be credited against variation 2 in respect of garage doors - [67]. 4 "Variation 3-Tiling Upgrade" [80] - [87] Claim rejected - [86], [87] A claim to recover the "25% builder's margin" on tiles, $2,999.25, based on a breach of s 47of the Competition and Consumer Act 2010 (Cth) - [80] - [82] "Variation 10-Hydraulic Design, Survey and Engineer Inspections and PCA (SS) site inspections" Claims for all sub-items were rejected: 5 (a) "Hydraulic design" -a claim for a refund of $1,584 charged in Variation 10 for hydraulic design - [88], [89] [88] - [101] (a) [92] (b) "Survey" - a claim for a refund of $4,018.80 charged in Variation 10 for cost of the survey [93], [95] (b) [99] (c) "Engineering Inspections" - a claim for a refund of $1,214.40 charged in Variation 10 for builder's engineer's inspections - [98], [99] (c) [101] 6 "Private Certifier/ SS Certificates" [102] - [109] Claim rejected - [109] A claim for a refund of $1,656 charged in respect of Mr Trives when he was no longer a Private Certifying Authority - [102], [105] 7 "Variation 12-Structural Steel" [110] - [119] Claim rejected - [118], [119]. A claim for a refund of $6,388.70 for structural steel claimed in variation 12 - [110] 8 "Stormwater refund" [120] - [135] $8,000 awarded - [135] A claim for a further refund of $8,000 in respect of the contract price adjustment 3 concerning hydraulic and stormwater works - [120] 9 "Variation 11 amended" [136] Claim withdrawn - [136]. The claim was withdrawn 10 "Balustrade" [137] - [138] $1,100 awarded - [138] The builder conceded overcharging $1,100 for the balustrades - [137] 11 "Stormwater Detention System" [139] - [182] Claim rejected - [181], [182] A claim for $39,765 (or $30,000) being loss suffered as a result of misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law (New South Wales) (ACL) - [149]. Alternatively, a claim for the same amount based on unconscionable conduct in contravention of s 21 of the ACL - [164]. 12 "Interest" [183] - [186] Claim rejected - [186] A claim for interest on all the refunds due at the rate of 15% shown in Cl 10 of Sch 1 of the Contract - [183] 13 "Defects and Incomplete Works" [187] - [189] $12,756.18 awarded - [189] A claim for the cost of rectification of the defective work identified in the table at [187] 14 "As built plans and certificates" [190] - [195] $8,600 awarded - [195] A claim for $8,600.00 for failure to provide all as built certificates and plans - [190] 15 "Water supply to Fire fighting hose" [196] - [202] $8,832.02 awarded - [202] A claim for $9,632.42 for the cost of bringing the water supply to the existing house - [196] 16 "Further items" [203] - [208] $2,007.55 and $979.00 awarded -[208] A claim for the cost of rectifying defects in the storm water draining system, $2,007.55, and consequential rock excavation, $979 - [204], [205] "Damage caused by builder on site" (a) $19,073.34 awarded - [226] 17 (a) "Retaining Wall" which was a claim for $19,073.34 to repair damage to the retaining wall - [210] [209] - [232] (b) $638.50 awarded - [229] (b) "Damage to brickwork to front of house" which was a claim for $638.50 for damage to an existing house (c) $1,600.00 awarded - [232] (c) "Damage to Retaining Wall at Cabana" which was a claim for $1,600 for damage to the cabana 18 "Damages for Failure to reach Practical Completion" [233] - [308] Claim rejected - [280], [281], [282], [305], [306], [308] A claim for damages for failure to reach practical completion on 27 July 2010, on the basis either of liquidated damages under the contract of $160 per day or damages under the ACL as a result of misleading or deceptive conduct - [233], [235], [294]

[5]

It can be noted, at this point, that the parties have not sought to challenge in either of their appeals the Tribunal's distillation of the owners' claim into the items identified in the table above, except in relation to Item 15. Indeed, the owners and the builder have framed their appeals largely in terms of these items identified by the Tribunal below. Accordingly, it is appropriate to proceed on the basis that, apart from Item 15, the Tribunal's distillation accurately reflected the final form of the owners' claims. Item 15 is the subject of the owners' twelfth ground of appeal. As explained below in these reasons, it appears to be a mistaken conflation of two separate claims.
On 23 December 2016, the Tribunal made the following orders: "1. The Tribunal orders that the respondent, Champion Home Sales Pty Ltd must pay to the applicants, Adam Rekrut and Sandra Scott $63,586.59 immediately. 2. Any application for costs by a party is to be supported by evidence and submissions of no more than 3 pages in length and is to be filed with the Tribunal and served on the other party on or before 22 January 2017. 3. If there is no application made for costs by 22 January 2017 there will be no order as to costs. 4. Any evidence and submissions in response to an application for costs from the party opposing the application for costs is to be filed with the Tribunal and served on the other party on or before 22 February 2017. 5. The parties are to advise the Tribunal in their respective submission if they consent to the issue of costs being determined dealt with on the papers. 6. Alternatively the parties are to make submissions as to why such an order should not be made pursuant to section 50 of the Civil and Administrative Tribunal Act 2013."
At [311], the Tribunal identified how the sum of $63,586.59 in order 1 was made up. It was as follows: " Item Amount Stormwater refund [Item 8] $8,000.00 Balustrade [Item 10] $1,100.00 Defects found [Item 13] $12,756.18 Failure to Supply Certificates [Item 14] $8,600.00 Fire Tank [Item 15] $8,832.02 Additional defects [Item 16] $2,007.55 $979.00 Repair to retaining wall [Item 17(a)] $19,073.34 Damage to brickwork [Item 17(b)] $638.50 Damage to retaining wall at Cabana [Item 17(c)] $1,600.00 Total $63,586.59 "

[7]

The Owners' Appeal

On 31 January 2017, the owners lodged their notice of appeal. In place of order 1, the owners sought an order that the builder pay to the owners "$173,768.53 (as a minimum sum)".
The owners' grounds of appeal set out in section 5A of their notice of appeal are as follows: "1. $10,000 overpayment. The Tribunal's finding that the homeowners received a $10,000 discount from the tender price is against the weight of the evidence. The discount was not received, as is borne out on the builder's final statement. 2. The Tribunal member erred in law by finding that the owners are estopped from claiming overpayments arising out of the following variations: variation 1 - front door (claim amount $3,048.89) variation 2 - laundry door and vanity items ($457 and $673.48) Alternatively, the failure to find in favour of the homeowners was not fair or equitable 3. The tiling upgrade overpayment and third line forcing. The Tribunal's finding that the homeowners were not required to purchase tiles through Dons tiles was against the weight of evidence. Alternatively, the failure to find in favour of the homeowners was not or equitable. (claim amount $2,995.25) 4. Variation 10 a). The Tribunal erred in finding that the unsigned and unseen variation in respect of the amended hydraulic design was a charge properly payable pursuant to the contract. Alternatively, the failure to find in favour of the homeowners was not fair or equitable (claim amount $1,584) b)The Tribunal member erred in law by finding that the owners are estopped from claiming overpayments arising out of the unsigned and unseen variation in relation to the surveys and engineering inspections. Alternatively, the failure to find in favour of the homeowners was not fair or equitable.(claim amount $4,018.80 and $1,214.40) 5. Variation 12. - structural steel. The Member's finding that there was "no other evidence offered of any other misleading or deceptive conduct" was against the weight of the evidence. It was also an error of law to apply this test to this aspect of the claim. Alternatively, the failure to find in favour of the homeowners was not fair or equitable.($6,388.70) 6. The stormwater drainage costs and associated delays. The Member's decision is based upon facts which are demonstrably false and against the weight of evidence. Further, the Member had failed to adequately address the claim made by the homeowners in this aspect of the claim. The Member erred in law by failing to find that the charge made by the builder was an allowance permitted under the contract. Alternatively, the failure to find in favour of the homeowners was not fair or equitable.($39,765 and $16,640) 7. [This ground of appeal was not pressed by the owners at the hearing of the appeal]. 8. Date of practical completion. The Member's finding that Practical completion was achieved on 20 December 2010 was an error of law, given that practical completion as defined within the contract had, on the evidence before the Tribunal, not in fact been achieved. The finding was therefore against the weight of the evidence. The Tribunal failed to address the claim by the homeowners of misleading and deceptive conduct in relation to this claim. (claim is for liquidated damages arising from the delay being until at least April 2011 pursuant to the contract or alternately until the date that a final occupation was obtained pursuant to s236 Australian Consumer Law. (Claim being at least $13,760) 9. Due date of practical completion. The Members finding that 20 December 2010 was the due date of completion under the contract was against the weight of the evidence. 10. s109M(2) argument. The Member erred in law by failing to provide a decision at all in relation to the alternate arguments advanced by both parties.. 11. The Tribunal erred in finding that "rental loss" was not an appropriate measure of damages for the purposes of s 236 of the Australian Consumer Law. 12. Incomplete work - Water supply to existing house. This was found in favour of the homeowner but the Member omitted to add the claimed sum to the award. A request has been made for the Member to remedy this issue pursuant to s63. If this does not occur then the claim is pressed by way of appeal on the basis that it would not be fair or equitable for the owners not to be awarded the claimed sum to finish work given the findings made. ( Claim $9,632.42)".
The owners' 11 grounds that are pressed do not challenge any of the findings that support the order for the payment of $63,586.59. Rather, they seek to have the amount awarded increased by challenging the conclusions in relation to the following items (identified using the item numbers in the table set out above): 1. Ground 1 - Item 1(a), the rejected claim concerning the $10,000 reduction in the contract price; 2. Ground 2 - Items 2 and 3(a), the rejected claims for refunds in relation to Variations 1 and 2 for the front door, laundry door and vanity items; 3. Ground 3 - Item 4, the rejected claim to recover the builder's margin in respect of the tiling upgrade; 4. Ground 4 - Item 5(a), (b) and (c), the rejected claims for refunds for the hydraulic designs, survey and engineering inspection costs in Variation 10; 5. Ground 5 - Item 7, the rejected claim for a refund of the structural steel cost in variation 12; 6. Ground 6 - Item 11, the rejected misleading and deceptive conduct or unconscionable conduct claims in relation to the hydraulic or storm water detention system; 7. Grounds 8, 9, 10 and 11 - Item 18, the rejected claim for damages for failure to reach practical completion within the time required under the contract; 8. Ground 12 - Item 15, the rejected claim for $9,632.42 for the cost of bringing the water supply to the existing house.
In appeals from final decisions made in the general jurisdiction of the Tribunal, such as the present, an appellant can appeal as of right on a question of law and by leave on any other ground, s 80(2)(b) of the NCAT Act. Further, as the decision at first instance was made in the Consumer and Commercial Division, the Appeal Panel's ability to grant leave is restricted by cl 12(1) of Sch 4 to the NCAT Act. That sub-clause provides: "(1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)."
The attachment to the owners' notice of appeal indicates that the owners are seeking leave to appeal on a number of their grounds to the extent those grounds do not raise questions of law. In particular, leave is sought in respect of the following grounds on the basis that the owners may have suffered a substantial miscarriage of justice, within cl 12(1) of Sch 4 to the NCAT Act because, in brief summary: 1. For Ground 1: 1. the decision was not fair and equitable because of the conduct of the builder and the finding, in those circumstances, that the owner was estopped from claiming overpayments; and 2. the decision was against the weight of the evidence in that the documents prove there was no deduction of $10,000 and there was no document or evidence to suggest otherwise; 1. For Ground 2, the decision was not fair and equitable because of the conduct of the builder and the finding that the owner was estopped from claiming overpayments; 2. For Ground 3: 1. the decision was not fair and equitable because of the conduct of the builder and the finding that the owner was estopped from claiming overpayments; and 2. the decision was against the weight of the evidence in that there were admissions by the builder's representative that the owners had no option but to buy tiles from the preferred supplier; 1. For Ground 4, the decision was not fair and equitable because of the conduct of the builder and the finding that the owner was estopped from claiming overpayments; 2. For Ground 5, the decision was against the weight of the evidence in that there were admissions by a director of the builder that he had given evidence to the Office of Fair Trading that was not truthful to the effect that the builder had complied with a work order when it had not; 3. For Ground 8, the decision that practical completion had been achieved was against the weight of the evidence having regard to the expert evidence, the terms of the contract and the evidence of defects and incomplete works which were necessary for completion; 4. For Ground 9, the decision was against the weight of the evidence having regard to the contract terms and the builder's failure to give evidence of any clam for an extension of time.
Finally, the owners indicated, in section 7 of their notice of appeal, that they required an extension of time in which to appeal. They provided an explanation of why they only filed the appeal on 31 January 2017.
The builder filed its reply to appeal on 27 February 2017. It took issue with each of the grounds of appeal and further submitted that leave to appeal should not be granted. The builder also opposed the granting of an extension of time to appeal.

[10]

Extension of Time for Owners' Appeal

The owners lodged their notice of appeal on 31 January 2017. In section 7 of the owners' notice of appeal, they state that they did not receive the decision until 11 January 2017 "as they were away for the Christmas period". Strangely, on the front page of the notice of appeal, the owners state that they received the decision on 12 January 2017. Nothing, however, turns upon the difference between 11 and 12 January.
It thus appears that the owners were not notified of the decision and were not given reasons for the decision until 11 or 12 January 2017, when they became aware of the letter of 23 December 2016 (and the reasons for decision enclosed with that letter). On this basis, we are of the view that, in the owners' case, the 28 day period established by r 25(4) did not commence to run until 12 or 13 January. Since the owners lodged their notice of appeal on 31 January 2017, this was within the 28 day period. Thus, the owners do not require an extension of time.
In case we are wrong in reaching that conclusion, we shall consider whether the owners require an extension of time if s 76 of the Interpretation Act 1987 (NSW) is applied.
Rule 13(2)(b) authorises a document, such as a notice of a decision given for the purposes of s 62(1) of the NCAT Act, to be given by post. The letter of 23 December 2016 was such a notice of a decision. Section 76 of the Interpretation Act provides, in part: "(1) If an Act or instrument authorises or requires any document to be served by post (whether the word "serve", "give" or "send" or any other word is used), service of the document: (a) may be effected by properly addressing, prepaying and posting a letter containing the document, and (b) in Australia or in an external Territory - is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted, and … (2) In this section: working day means a day that is not: (a) a Saturday or Sunday, or (b) a public holiday or a bank holiday in the place to which the letter was addressed."
On the assumption that the owners' information as to when they actually received the letter is not "evidence sufficient to raise doubt adduced to the contrary", then by application of s 76(1)(b) service of the notice of the decision letter and enclosed reasons are taken to have been effected on the fourth working day after the letter was posted. In 2016, 26 and 27 December were public holidays, as was 2 January 2017. Thus, the fourth working day after 23 December 2016, was 3 January 2017.
Under r 6(2) of the Rules, "[i]f a time of one day or longer is to be reckoned by reference to a given day or event, the given day or the day of the given event is not to be counted." Consequently, the 28 day period prescribed by r 25(4)(c) commenced to run on 4 January 2017 and expired at the end of 31 January 2017. As the owners' notice of appeal was filed on 31 January 2017, it is within time, if s 76 of the Interpretation Act is applied. On this basis as well, the owners do not require an extension of time in which to file their notice of appeal.
Finally and for completeness, if we are wrong and the owners do require an extension of time, we should consider whether to grant such an extension, having regard to the principles summarised in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22].
The builder, in its reply to appeal, submitted in effect that: 1. the owners had been advised by the Tribunal that the "expected time for final decision will be at best mid-December 2016"; 2. the owners, and their legal representative, were aware of the time limits in relation to any proposed appeal; 3. the builder had already paid the amount ordered to be paid; and 4. the builder was prejudiced because it had paid and could not seek a stay or security for costs of the appeal and because of the way the proceedings had been conducted at first instance.
In our view, if an extension were required by the owners it should be granted because: 1. the length of any delay in filing the notice of appeal would not have been more than a few days; 2. the owners gave an acceptable reason for the delay, namely that they were away over the Christmas and New Year period and only received the notice of the decision when they returned and then acted with appropriate alacrity; 3. the grounds of appeal could not be said to be unarguable and the owners have some reasonable prospects of success; 4. no relevant, substantial prejudice to the builder, flowing from the fact that the notice of appeal was filed on 31 January 2017 rather than some days earlier, was identified; and 5. neither the interests of justice nor the need to ensure that time limits are generally observed would require or justify the refusal of an extension in the owners' case.

[11]

Extension of Time for Builder's Appeal

The builder's notice of appeal was not filed until 27 February 2017. In section 7, the builder indicated that it required an extension of time. In the box where the builder was required to provide its explanation of, among other things, "why the application was not lodged within the time limit", the builder wrote: "Appeal is a Cross Appeal and the priciples relied upon by the respondent to the appeal are relied upon by the Applicant."
We note that in section 2 of the builder's notice of appeal, the builder stated that the notice of the decision was received on 7 February 2017. If this were correct, no extension of time would be required. Given the concession that an extension was required and the reference to a "Cross Appeal" in section 7 of the notice of appeal, it may be that what was received on 7 February 2017 was the owners' notice of appeal, filed on 31 January 2017, not notice of the original decision.
The owners in their reply to appeal opposed the grant of an extension on the basis that: "the [builder] was well aware of the decision in early January in that it sent a letter to the [owners] accompanying payment to the effect that it reserved its rights."
We do not accept that the statement in section 2 of the builder's notice of appeal that notice of the decision was received on 7 February 2017 amounts to "evidence sufficient to raise doubt", for the purposes of s 76(1)(b) of the Interpretation Act, in the light of what the builder has said in section 7 of its notice of appeal and the owners' material in reply. Accordingly, applying s 76(1)(b), we accept that the builder is taken to have been given notice of the decision on 3 January 2017.
It follows that the builder's appeal was lodged approximately three and a half weeks after the expiration of the period in r 25(4). The only explanation proffered is that the builder's appeal was a "cross appeal". There is, however, no provision for cross appeals in the Tribunal. The situation is explained in NCAT Guideline 1 - Internal Appeals, to which potential appellants are expressly directed in section 7 of the notice of appeal form. Paragraph 47 of that Guideline states: "There is no provision for cross appeals. Where a respondent to an appeal also seeks to have the original orders varied the respondent must lodge a separate Notice of Appeal and pay the prescribed fee. If the respondent has not lodged a Notice of Appeal prior to the expiration of the time for filing of the notice, the respondent must ask the Tribunal for an extension of time. If the Notice of Appeal has been lodged within a short time after the first appeal, that fact may be taken into account when the Tribunal decides whether to give an extension of time."
The only other submission relied on by the builder was that it relied upon "the principles relied upon by the respondent to the appeal are relied upon by the Applicant."
The owners opposed the builder's request for an extension of time, submitting that the builder was "well aware of the decision in early January" and that "no reason has been advanced for the delay in bringing the appeal."
Applying the principles summarised in Jackson v NSW Land and Housing Corporation, we take into account the following considerations: 1. there was a delay of approximately three and a half weeks after the expiration of the period for lodging a notice of appeal; 2. there was no real explanation for the delay in lodging the notice of appeal. The description of the appeal as a "cross appeal" does not explain why the builder did not appeal within the period specified by the rules, especially as the situation was explained in NCAT Guideline 1 and attention was drawn to that Guideline in the section of the form completed by the builder; 3. the way in which the grounds of appeal are framed in the Annexure to the builder's appeal indicates that all are grounds that require leave to appeal but it is not possible to conclude that the grounds are unarguable or have no real prospects of success; 4. there does not appear to be any substantial prejudice to the owners flowing from the builder lodging its appeal some weeks after the expiration of the 28 day period, especially since the owners' appeal has to be prepared and heard in any event; 5. it is important to encourage parties to comply with time periods specified in the NCAT Act and the Rules, and this should be done by not extending time except when the interests of justice require otherwise.
Although the factors are finely balanced, we are of the view that it would be preferable to extend the time for the builder to file its appeal to 27 February 2017 so that all challenges to the decision at first instance can be considered. We reach this view particularly on the basis that the owners' appeal is substantial and dealing with the builders' appeal at the same time is efficient and unlikely to extend the hearing to a significant extent. We shall make an order extending time accordingly.
We shall consider the owners' grounds of appeal first and then deal with the builder's grounds of appeal.

[15]

Ground 1 Consideration

The owners' first ground of appeal involved two elements: 1. The Tribunal's finding that the promised $10,000 discount had been applied was against the weight of the evidence; and 2. The discount of $10,000 was not received, as was borne out by the builder's final statement.
The first element, as it is expressed, does not raise a question of law but is a challenge to the Tribunal's finding on the basis that it is against the weight of the evidence. To this extent, leave to appeal is required under cl 12(1) of Sch 4 to the NCAT Act. The owners sought leave to appeal in respect of this ground on the bases that the decision was: 1. not fair and equitable; and 2. was against the weight of the evidence in that the documents prove there was no deduction of $10,000 and there was no document or evidence to suggest otherwise.
The second basis for leave to appeal, as well as the second element in this ground of appeal, raises in substance the point that there was no evidence to support the Tribunal's finding that a discount of $10,000 had been applied. An appeal on the ground that there was no evidence to support a finding is an appeal on a question of law - Australian Gas Light Company v Valuer-General (1940) 40 SR(NSW) 126 at 138, Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [90] - [91], Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(7)]. In such a case, leave is not required by operation of s 80(2)(b) of the NCAT Act.
Further, as we understand it, the subject matter of this ground was the promised deduction of $10,000.00, as agreed between the parties. It appears to us that the owners may have been loose in referring to this as "a $10,000 discount from the tender price" in their formulation of this ground of appeal, given the wording of the tender document, which we address below.
Taking into account the guiding principle in s 36(1) of the NCAT Act and the obligation to proceed without regard to technicalities and legal forms in s 38(4), we believe we should take a broad view of what is the substance of the challenge to the Tribunal's decision raised by this ground of appeal. Each party has had the opportunity to make written and oral submissions on each ground of appeal and application for leave to appeal. They have also taken the opportunity to reply to the submissions of the other party. It could not be said that taking such a broad approach involves any failure to afford procedural fairness in the circumstances. We shall also adopt this approach generally for all the other grounds of appeal, since they were not always formulated with clarity or precision but all aspects were covered in the parties' wide ranging submissions.
Accordingly, we shall treat the owners' first ground of appeal as raising: 1. the question of law whether there was no evidence to support the Tribunal's conclusion that the promised deduction of $10,000.00 had been applied; and, alternatively 2. the question whether the conclusion was against the weight of the evidence and leave to appeal should be granted.
What was charged and what was paid are disclosed on the Final Statement and Debtor Statement, which have been set out above. To determine whether the evidence discloses that the $10,000 deduction was applied, it is necessary to understand what the arrangements between the owners and the builder actually provided concerning the $10,000.00 deduction.
It was not in dispute (see for example [50] and [51]) and the contractual documents show that: 1. The price eventually tendered for the building work by the builder was $367,400.00, this being the "Revised Total Building Price GST Inclusive" after Tender Amendments 1 and 2, (the Tender Amount). 2. The Tender, which was also expressly incorporated into the contract signed on 22 April 2009, contained the following: "Please acknowledge your acceptance of this Tender by signing where indicated below. In consideration of accepting this Tender the Owner agrees to pay a non-refundable tender fee in the sum of $10,000. and this sum will be deducted from the Contract price. … This tender price will be fixed for the entire construction period provided the building works are commenced within one hundred (120) days from the tender date. This is not an offer and no contractual obligation exists between us until a Building Contract is entered into and when the Building Contract is entered into this Tender will form part of the Building Contract." (underlining added) 1. The Debtor Statement indicates that, after some apparent problem on 22 April 2009, the builder received $10,000.00 from the owners on 24 April 2009. 2. In the contract, item 4(a) in Schedule 1 - Particulars of Contract provided: "4(a) Contract price (Clause 1) The contract price is: Three hundred and fifty seven thousand and four hundred dollars only The contract price is GST inclusive: $357,400.00 WARNING - The contract price may vary under this contract. The reasons for variations to the contract price include: ● Clause 10 - a survey being required; ● Clause 12 - a consultant being engaged to erport on the site conditions; ● Special Condition 52.4 - an increase in tax, charge or levy after this contract is signed; ● Clause 17 - variations to the building works; ● Special Condition 44.4 - commencement of building works after expiry of time allowed in Tender; ● Special Condition 47.2 - additional pierring; ● Special Condition 47.3 - change in soil classification; ● Clause 21 - an adjustment for prime cost items and provisional sum items. Note: The builder cannot demand or receive any of the contract price (including the deposit) until warranty insurance is in force and the owner is provided with the certificate of insurance." 1. "Schedule 2. Progress Payments" sets out a table of payments totalling $357,400.00. 2. Clause 1 contains the following definition: "'contract price' means the amount stated in Item 4(a) of Schedule 1, as changed by this contract; 1. Clause 3.1 of the contract provides: "The owner must pay the contract price and other money that becomes payable under this contract in the manner and at the times stated in this contract."
What occurred in the present case can be analysed as involving two distinct contracts. First, there was the contract concerning the payment of the $10,000 tender fee which resulted from the owners accepting the builder's tender. This contract was to the effect that "[i]n consideration of accepting this Tender the [owners agree] to pay a non-refundable tender fee in the sum of $10,000. and this sum will be deducted from the Contract price". Secondly, there was the substantive building contract entered into by the owners and the builder on 22 April 2009.
In effect, if the builder is to succeed on the ground, the words "Contract price" in the first contract would have to be taken to refer to the Tender Amount and not the contract price in item 4(a) of Schedule 1 of the building contract. We do not accept this is so. The words used in the Tender are clear and unambiguous. The Tender expressly contemplated that if the Tender was accepted: 1. the owners would have to pay $10,000 to the builder; 2. "a Building Contract [would be] entered into and when the Building Contract is entered into this Tender will form part of the Building Contract"; and 3. the "Contract price" would have $10,000 deducted from it.
The phrase "Contract price" in this context can only refer to the contract price specified in that "Building Contract". The Tender itself, on the same page, differentiates between the "Contract price" and the "tender price".
We note that although the Tender Amount was $367,400.00, the "contract price" as specified in item 4(a) in Schedule 1 to the contract was $10,000.00 less, namely $357,400.00. If what was intended was that the $10,000.00 would be deducted from the Tender Amount to yield the contract price, this is not what the Tender says. That intention was not objectively revealed by the words used in the context known to both parties. Giving the words "Contract price" their obvious meaning does not make commercial nonsense or work commercial inconvenience. See generally Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35].
The Debtor Statement establishes that the owners paid the builder a total of $421,578.55 but this includes the "non-refundable tender fee in the sum of $10,000", as indicated by the entries for 22 to 24 April 2009. When the pre-building contract payment of the non-refundable tender fee is excluded, the Debtor Statement shows that the owners have paid the builder $411,578.55 for claims under the building contract.
The Final Statement summarises all the amounts claimed by the builder by reference to the original amount of the Tender, the 2 Tender Amendments, the 14 Variations and the 4 Contract Price Adjustments. The total amount claimed by the builder to be payable was $425,299.55 but it was agreed that the sum of $3,721.00 should be deducted, as explained above, yielding a total of $421,578.55.
On a review of the Final Statement, it can be seen that the $421,578.55 is based on the Tender Amount, that is the original amount of the Tender as adjusted by the 2 Tender Amendments, $367,400.00. It is not, as it should be under the building contract, based on the contract price, $357,400.00. Under the building contract, the Variations and Contract Price Adjustments are variations and adjustments to the contract price not the Tender Amount (see cl 3.1, the definition of "contract price in cl 1 and item 4(a) of Schedule 1 to the contract). Thus, the Final Statement overstated the amount that could be claimed by the builder under the building contract by $10,000.00. If this error is corrected, the Final Statement should have stated that the "Revised Total Building Price GST Inclusive" under the contract was $411,578.55. That is not, however, the only overstatement that needed to be corrected.
The Final Statement does not contain a credit of $10,000 in the credit column, or a negative debit of $10,000 in the debit column, in favour of the owners, to reflect the reduction by $10,000 in the "Contract price" promised by the builder if the owners accepted the Tender and paid the $10,000.00 "non-refundable tender fee". Consequently, the Final Statement contains a further overstatement of the amount that could be claimed by the builder under the contract by $10,000.00. If this overstatement is corrected, the "Revised Total Building Price GST Inclusive" in the Final Statement should been $401,578.55.
The evidence, to which we have referred and which was not contested, shows that: 1. the owners have paid $411,578.55 under the building contract; 2. even if all the claims made by the builder were justified (and we shall consider whether this is so below), it was only entitled to claim under the contract $401,578.55, after taking into account the promised $10,000 reduction in the "Contact price"; 3. thus, the owners have overpaid the builder $10,000.00.
In other words, the evidence establishes that the $10,000.00 reduction that was to be applied to the "Contract price" if the owners accepted the Tender and paid the $10,000.00 "non-refundable tender fee" was not applied.
Our attention was not drawn to any evidence that suggested anything to the contrary. In these circumstances, we accept that there was no evidence to support the Tribunal's conclusion that the $10,000 reduction in the contract price "has been applied". Consequently the Tribunal erred in law by finding as it did. The owners' appeal on the first ground should be upheld.
Alternatively, if the owners should not be permitted to rely on any error of law and leave to appeal is required in respect of this ground 1, we are satisfied that: 1. the evidence in its totality preponderates against the conclusion that "that the promised discount of $10,000 has been applied" and thus the decision was against the weight of the evidence; 2. there is a significant possibility of the owners being deprived of a more favourable result than they obtained as a result of the Tribunal's finding and, thus, the owners may have suffered a substantial miscarriage of justice; and 3. there would be an injustice to the owners if leave to appeal were not granted, in the circumstances.
For these reasons and having regard to the relevant principles concerning the application of cl 12(1) of Sch 4 to the NCAT Act in Collins v Urban [2014] NSWCATAP 17 at [65] to [84], we would grant leave to appeal, if leave were required. We would also uphold the appeal on ground 1, having regard to the material referred to above.
The owners also raised on appeal the questions of whether the builder's conduct in not starting with the discounted contract price in Variation 1, as opposed to the Tender Amount, was misleading and deceptive or false and misleading within ss 18 and 29(1) of the ACL. In the light of our conclusions above, it is not necessary for us to consider these contentions and whether they are available to the owners on this appeal.
Thus, the finding of the Tribunal below that the $10,000 discount had been applied was in error and should not be allowed to stand. We do not, however, believe that this claim, Item 1(a), should be remitted to the Tribunal below for reconsideration. The relevant material was before us and was not in dispute. In our view, the only conclusion open on this material is that the owners overpaid the builder by $10,000.00 because the builder, in calculating the amount due to it under the building contract, did not apply the deduction to the "Contact price" as promised.
In these circumstances, it is appropriate for us to make an order, when dealing with the appeals as a whole, that has the effect that the builder is to repay the $10,000 overpaid by the owners, as claimed in Item 1(a).

[16]

Ground 2 - Items 2 and 3(a), refunds for the front door, laundry door and vanity items in Variations 1 and 2

The owners' second ground of appeal relates to Items 2 and 3(a) (as identified above) and was expressed as follows: "The Tribunal member erred in law by finding that the owners are estopped from claiming overpayments arising out of the following variations: variation 1 - front door (claim amount $3,048.89) variation 2 - laundry door and vanity items ($457 and $673.48) Alternatively, the failure to find in favour of the homeowners was not fair or equitable."
In respect of this ground it should be noted that Variation 1 dealt not only with the front door but also the laundry door. Variation 2 relevantly covered only the vanity items. In addition, it appears the Tribunal below made a transpositional or similar error at [58] and [66] of its reasons when it said that the owners' claim in respect of the laundry door was for $673.48. That sum was the amount of the claim for the vanity items the subject of Variation 2. The owners' claim in relation to the laundry door was for $457. We do not understand that these matters were in dispute and nothing of substance appears to turn on them.
As to the Item 2 claim in respect of the front and laundry doors, the Tribunal below at [58] noted that this claim for a refund was based on the builder's ignoring the owners' request for invoices to support the amounts claimed. The Tribunal continued: "58 … Subsequently the owners have made enquiries of other building suppliers about the cost of the front door and the laundry doors selected and supplied and have found that the price of the doors from a supplier is significantly less than they were charged. They seek a refund of $3048.89 for the front door and $673.48 [sic $457] for the laundry door. 59 The builder relies on the fact that the owners signed and accepted the Variation 1 on 16 June 2009. 60 The owners in their submission in reply to the builder's response says that Mr Malesev advised them to pay the final invoice and he would then provide them with copies of the invoice and if there were discrepancies he would ensure a refund of any overpayment. To date those invoices have not been provided and the owners are entitled to know the basis upon which they were charged the higher price and if necessary a refund of what they then assess to overpayment to be."
After referring at [63] to the relevant terms of Variation 1, which was signed by both the owners and the builder, the Tribunal concluded at [64], in effect, that Variation 1 complied with the requirements of cl 17 of the contract and fixed the amounts payable by the owners for the changed doors. The Tribunal then held that there was "not sufficient probative evidence to support the owners' claim in respect of the alleged discussion with Mr Malesev about the invoices for doors and Variation 1 being further adjusted." Finally, the Tribunal noted that the owners accepted the variation and paid the amount claimed and were liable for that amount. On these bases, the Tribunal dismissed the Item 2 claim for the front and laundry door refunds (at [65]).
As to the Item 3(a) claim for the refund for the vanity items, the Tribunal noted at [66] that: 1. Variation 2 included a credit of $400 for various vanity items because they had been provided by the owners and not the builder; but 2. the owners' expert later assessed their value at $1,074.48; 3. thus, the owners claimed a refund of the difference of $673.48 (why this figure and not $674.48 was claimed is not explained).
The Tribunal recorded at [68] that the builder relied on the fact that the owners signed and accepted Variation 2 and argued that they were estopped from now seeking to go behind the variation. At [69] it was noted that the owners relied upon similar arguments to those used for the doors in the Item 2 claim. The Tribunal concluded in respect of the Item 3(a) claim for the vanity items refund, at [70]: "For the same reasons as given in respect of Variation 1, the Tribunal is not satisfied that the owners can now deny their acceptance of the variation and they are estopped from the claim they now make."
Thus, it can be seen that for both claims the substance of the Tribunal's reasoning (although not always express) was, in summary: 1. the owners signed and accepted both Variations 1 and 2; 2. the Tribunal was not satisfied that the alleged discussions with Mr Malesev about the provision of invoices and potential refunds amounted to sufficient probative evidence to support the owners' claims in this regard; 3. the owners could not, having accepted the Variations and paid the amounts claimed, now deny their acceptance; 4. the owners were liable for the relevant amounts in Variation 1 and not entitled to any refunds in respect of either Variation 1 or 2 as claimed; and 5. the owners were estopped from making these claims.

[17]

Ground 2 Owners' Submissions

In pars 14 - 16 of their written submissions on this ground 2, the owners contended that, in making its findings concerning Variation 1 (at [64]) and Variation 2 (at [70]), that the Tribunal had failed to take into account: "14…. a. SS 18 & 29(1) ACL wherein Business must state the correct price for goods and services and/or b. clause 15.6 of the contract which states "Other than in relation to a final progress claim: (a) payment of a progress claim is on account only and the (b) the owner has no right of set off". 15. It is clear from email communications, at attachment SS14 to the statement of Sandra Scott dated 9 September 2014 that assurances were given to the homeowner that invoices and receipts would be forwarded to the homeowner but only if they paid the final invoice in full first. It was said that a refund would be provided later if a discrepancy arose. 16. As it turned out no such receipts or invoices were in fact forwarded for Variations 10, 12, 13 & 14 (noting they were variations not received until the time of the final invoice) nor for surveys."
The owners also submitted that the builder owed an additional statutory duty and an additional implied contractual duty to the owners. These duties were expressed in the following terms: "19. Again, going back to: a. the builder's obligations under SS18 & 29(1) ACL and/or b. the implied duty of good faith or at least honest dealings…"
In the light of these duties, the owners' submissions continued as follows: "19 .… the homeowner is entitled to know the actual cost of the item as that is the basis upon which; ▪ any increase or decrease on the allowance operations and ▪ the basis upon which the builder is entitled to charge any additional margin. 20. Denying the homeowner the simple courtesy of supplying a receipt to demonstrate the actual cost of the PC item cannot be consistent with such a duty. 21. The fact that the builder failed to produce the actual receipts for the above items, even following a formal call during the hearing for them would have given rise at least to a query that the actual price was not as claimed. 22. Further, the payment of the above variations, forming part of the first progress claim are payments on account in any event. The final contract account is usually the time when a full and final reconciliation of all variations, PC increases and the like takes place so that both parties are fully aware of what the final price actually is. 23. The Tribunal therefore erred in finding that he homeowners are estopped from claiming the refunds due."
As noted above, to the extent that leave to appeal was required, the owners submitted that the decisions made by the Tribunal in respect of Items 2 and 3(a) were not fair or equitable.

[18]

Ground 2 Builder's Submissions

In its written submissions, the builder effectively relied on the terms of cl 17 of the contract concerning variations and contended that to accept the owners' primary submission would be to "deny the contract".
In response to the owners' argument concerning the ACL, the builder submitted that: "42. The primary submissions by the Owners before the Tribunal which is based on the fact that he Owners were able to find the items at a cheaper price subsequently does not amount to any breach of the contract nor does it amount to a misrepresentation under the ACL. 43. For there to be breach of the ACL it must be representation or conduct which induces error…. The fact that tiles may be found cheaper after the event does not amount to any representation as to price. The conduct does not induce error. The builder was not obliged to find the cheapest price for tiles. … 45. Even if there was a promise to provide the invoices it would not assist the Owners as this was for the provision of the purposes of a reconciliation at the time of the final account to the comparison of the amounts claimed by the Builder against the amounts paid by the Owner. … 48. [As to s 18 or s 29 of the ACL]…, the principles laid out in Dell Computers [[2002] FCAFC 434] are not applicable to the present circumstances. … 50. Even if, on the other hand, the Owners were aware of a cheaper price and still accepted the variation that in itself would defeat any claim under the ACL as it cannot be said that they were misled."
In response to the owners' argument concerning the implied duty of good faith, the builder submitted that: "49. The submission that there is an implied duty of good faith is misconceived as the parties are not required to do anything more than they are obliged to under the terms of the contract: Australian Media, Impact Funds; Cordon Investments above."
In response to the owners' argument that the Tribunal's finding was not fair or equitable, the builder submitted that: "52. The submission at paragraph [24] that "such a finding would not be fair or equitable" is, with all due respect, a meaningless standalone statement. What is fair and equitable is not an idiosyncratic concept of fairness based on one's perception…. The relationship is governed by contract. The contract may result in obligations and rights which favour one party over another but in themselves cannot be the foundation of something which is considered by a party to be either unfair or inequitable because it does not lead to a favourable result. 53. The principles enunciated above in Collins and Fryer when applied to the Tribunal's reasoning do not disclose an unfairness in procedure or result necessitating in upsetting the conclusion reached by the Tribunal."

[20]

Ground 2 Consideration

The owners' second ground of appeal has two elements: 1. The Tribunal erred in law by finding that the owners were estopped from claiming (in Items 2 and 3(a)) refunds for the front and laundry doors and the vanity items, the subject of Variations 1 and 2; 2. The failure to find in favour of the owners was not fair and equitable.
The specific basis upon which it was contended that the decision on the claims in Items 2 and 3(a) was not fair and equitable was set out in the attachment to the owners' notice of appeal as follows: "This claim is made in the alternative to a number of items where the appeal is primarily on a matter of law. In essence, the homeowners will point to the conduct of the builder and show their business dealings were prejudicial to the homeowner's interests and were a breach of good faith. For example: i) In refusing to disclose the actual cost of PC items or variations at time those variations were issued ii) Threatening to stop works and not remedy defects or install appliances unless the homeowners paid all outstanding monies, despite the homeowners querying invoices and claims iii) Promising to provide receipts and issue refunds if necessary after payment was made iv) Failing to provide those receipts The homeowners will show that they always operated in good faith and made payments to the builder on account, expecting a proper reconciliation of their account at the end of the works. This never occurred and they are now being told that they are estopped from claiming overpayments. Decisions on this basis, against consumers in a weaker bargaining position cannot be fair and equitable. They are required only to pay the contract price for the supply of goods and for any variations or increases in PC allowances in accordance with the terms of the contract."
We shall deal with each element in turn.
The first element raised the question whether the Tribunal's reliance upon estoppel involved an error of law. At the outset, we note that the Tribunal's reasoning, which we have set out in summary above, was not based solely, or even principally, on estoppel. Thus, even if the Tribunal did err in law in finding that the owners were estopped from making these claims, it does not necessarily follow that the Tribunal's decision in this regard should be set aside.
When considering the challenge to the Tribunal's decision in relation to the claims in Items 2 and 3(a), it is also important to note that the owners had signed, and thus accepted, each of Variations 1 and 2. This was found to be so by the Tribunal below, was consistent with the copies of the documents before us and was not disputed by the owners.
Variation 1, as signed by the owners on 16 June 2009, was relevantly in the following terms: " Debit Credit VARIATIONS: Provisional allowance 1 Delete previously introduced provisional allowance for non-standard entry door. -$1,000.00 Miscellaneous 1 Provide a Corinthian 'Infinity INFWS 6G' entry door with clear glass, in lieu of standard entry door. $2,985.00 … …

[23]

The terms of Variation 1 reflected the fact that the Tender had specified a non-standard front door "Corinthian panel carve PPC4, PPC8, PPC9" and included "a provisional allowance for non-standard entry door $1,000." The laundry door was not similarly the subject of a provisional allowance in the Tender.
On 29 July 2009, the owners signed Variation 2. That variation included a credit of $400.00 explained as follows in item 2 in the variation: "Due to the owner supplying toilet suites, bath tub & kitchen tap, introduce a credit for deletion of standard 3 x toilet suites, standard bath tub & standard kitchen tapware".
The relevant terms of both variations are clear. The variations were in writing and signed by the owners and on behalf of the builder. Thus, it can be concluded that the owners and the builder agreed to vary the contract between them as set out in those variations. Unless there was something to vitiate the effect of that signature and acceptance by the owners, then as a result of these Variations the owners were contractually: 1. liable to pay in addition to the contract price: 1. $1,985.00 (that is $2,985.00 less the $1,000 credit) in respect of the front door; and 2. $965.00 in respect of the laundry door; 1. entitled to a deduction from the contract price of $400.00 for the vanity items they supplied.
The acceptance of a variation would, for example, be vitiated if it was proved that a builder had attempted to circumvent the operation of a clause such as cl 21.6 in order to recover more than it was entitled to under that clause by: 1. issuing a variation to delete a prime cost or provisional sum item and replace it with a fixed cost item at a cost higher than the actual price; and 2. inducing a homeowner to sign the variation by misleading the homeowner as to the actual price paid by the builder.
In the present case, the first element of the owners' second ground of appeal was limited to the Tribunal's conclusion based on estoppel being erroneous. This element did not involve any challenge to the finding at [64] that '[t]here is not sufficient probative evidence to support the owners claim in respect of the alleged discussions with Mr Malesev about the invoices for the doors and Variation 1 being further adjusted." Consequently, there was no basis under this element which could, in our view, justify us concluding that the binding contractual effect of Variations 1 and 2 was vitiated in some way. We shall deal with whether any misleading or deceptive conduct or other circumstances had the effect of vitiating the owners' acceptance of Variations 1 and 2 when we consider the second element of this ground of appeal.
In the light of the owners' signing and thus accepting Variations 1 and 2, it was not necessary for the Tribunal to rely on any finding that the owners were estopped from making the Item 2 and 3(a) claims when arriving at its relevant conclusions. Nonetheless, the Tribunal did expressly find, at [70], that the owners were estopped from making the Item 3(a) claim. No similar express estoppel finding was made in respect of the Item 2 claim but it may have been implicit in so far as the Tribunal relied on the fact that the owners paid the amount claimed in Variation 1 to support its conclusion that the owners were not entitled to the refund claimed.
In finding that the owners were so estopped from making the Item 3(a) claim, and possibly the Item 2 claim, the Tribunal did fall into error. Although the Tribunal's reasoning is not exposed in any detail in its reasons for decision, it appears to us that the Tribunal's estoppel finding was substantially based on the fact that the owners had made payments that included the amounts claimed under Variation 1 and the deduction to which the owners were entitled under Variation 2. We deal with estoppel in the light of the contract between the owners and the builder in more detail below. It is sufficient to note here that payment of claims under the contract cannot, without more, give rise to an estoppel, in the light of the terms of cl 15 of the contract.
Clause 15 dealt with how payment for the work done under the contract was to be made. Under cl 15.5 the owners were required to pay progress claims (which under cl 15.4 included amounts claimed and not paid for variations) within 5 working days of the builder giving the claim. Clause 15.6 provided: "Other than in relation to the final progress claim: (a) payment of a progress claim is on account only; and (b) the owner has no right of set off."
By operation of cl 15.6, if the owners paid the amounts claimed in Variation 1 and did not pay the amount of the deduction in Variation 2 as part of a progress claim (other than the final progress claim), the payment was "on account only". Thus such a payment could not, by itself, provide the foundation for an estoppel that would prevent the owners challenging the builder's claim for those amounts. In addition, if the payment was made as part of the payment of the final progress claim, the owner would have a right of set off for all sums that the owners were not liable to pay or for which they could claim a refund, under the contract or on any other basis. In other words, any payment of the sums in question would not involve any express or implied representation by the owners that they were giving up any entitlement to claim the refunds sought in the Items 2 and 3(a) claims. Consequently, the builder had no basis for assuming that the owners were giving up such entitlement. Whether or not the builder acted to its detriment on the basis of such an assumption would have no significance. No estoppel could arise. Thus, the Tribunal was wrong to conclude that the owners were estopped in the circumstances.
Nonetheless, for the reasons we have explained above, the Tribunal's conclusions as to estoppel were not necessary to support its decision. Accordingly, although the Tribunal was in error in that regard, we do not accept that the appeal should be upheld on the first element of the owners' second ground of appeal, because the Tribunal's decision was supported on other bases which were not challenged and which did not involve error.
The second element of this ground of appeal involves the questions of whether the Tribunal's decision on the Item 2 and 3(a) claims was not fair and equitable and whether leave to appeal should be granted, under cl 12(1) of Sch 4 to the NCAT Act. As we understand it, this second element raised an alternative ground of appeal, for which leave to appeal was sought.
The owners' contentions as to why the Tribunal's decision was not fair and equitable can be summarised as follows: 1. the builder refused to disclose the actual cost of provisional sum items and other varied items when the variations were issued and this was unlawful or unfair because: 1. The owners were entitled to know the actual cost of provisional sum items and were entitled to an adjustment in accordance with cl 21.6 of the contract if the actual cost was different from the provisional sum; 2. Sections 18 and 29(1) required the builder to state the correct price for goods and services; 3. The builder was under an implied duty of good faith or at least honest dealings. 1. The builder threatened to stop work and not remedy defects or install appliances unless the owners paid all outstanding moneys, despite the owners' queries, and promised, including in emails referred to in the submissions, to provide receipts and issue refunds if necessary after payment, but failed to provide the receipts for Variations 10, 12, 13 and 14 or for surveys.
For the reasons set out in the following paragraphs, we do not accept that these factors alone, or taken together, mean that the Tribunal's decision on the Items 2 and 3(a) claims was not fair and equitable. Nor do we accept that as a result the owners may have suffered a substantial miscarriage of justice so as to enliven the Appeal Panel's power to grant leave to appeal under cl 12(1)(a) of Sch 4 to the NCAT Act in this case.
There were no specific findings concerning what information was requested and what information was disclosed when Variations 1 and 2 were signed. Thus, there was no basis for concluding that the owners were misled into signing the variations. Nor were there any findings as to the actual prices paid the builder of the front door or the laundry door or the cost the builder saved by not having to provide the vanity items supplied by the owners. Nonetheless, we assume, for the purpose of considering this element of the second ground of appeal, that the builder did not disclose to the owners at the time of presenting the variations for consideration by the owners the actual price paid or cost saved by the builder. In our view, the owners had no entitlement to that information on any of the bases identified by the owners. In particular: 1. The was no such entitlement under cl 21.6 of the contract because that clause only applied to prime cost or provisional sum items where the builder was claiming payment on that basis. In the present case, neither the laundry door nor the vanity items were at any point prime cost or provisional sum items. As far as the front door is concerned, this obligation would have applied if the front door had remained a provisional sum item, but it did not, as a result of Variation 1. The owners were not required to accept the variation for the front door put forward by the builder. They could have required that the front door continue to be treated as a provisional sum item. They did not. They signed Variation 1 and thereby the terms of the contract were varied and the owners became liable to pay an additional sum of $1,985.00 in respect of the front door. It was no longer a provisional sum item and accordingly the terms of cl 21.6 of the contract became inapplicable. 2. There was no such obligation on the builder under ss 18 and 29(1) of the ACL. The prices for which the builder was prepared to supply and install the front door and the laundry door were set out in Variation 1. This was not misleading or deceptive or likely to mislead or deceive. Nor did it involve any false or misleading representation with respect to the price that the builder was proposing to charge for those goods or services. Further, the amount that the builder proposed to charge to supply and install each of the doors on a fixed price basis was not required to equal the price paid by the builder for each door. As to the vanity items, the amount of the credit that the builder proposed to give if the owners provided those items was set out in Variation 2. This was not required to equal the amount paid by the owners for those goods (which in any event should have been known to the owners). The owners were not required to accept the variations. They could have refused to accept the variations until the builder provided any relevant information the owners sought. They did not do so. 3. Even if it were accepted that in the present contract there was "an implied duty of good faith or at least honest dealings" (and we should not be taken as accepting that there was), the builder's putting forward Variations 1 and 2 without disclosing the actual cost to the builder of the items in question would not, without more, amount to failing to act in good faith or deal honestly.
Finally, the owners argued that the decision was not fair and equitable having regard to: 1. the builder's threatening to stop work, not remedy defects or install appliances unless the owners paid all outstanding moneys; and 2. the builder's promises to provide invoices which were not honoured.
We do not accept this contention. There were no specific or comprehensive findings by the Tribunal concerning these matters. Nonetheless, assuming that the communications occurred as contended, they concerned the payment of the "final invoice" (see pars 15 and 16 of the Appellants' Submissions and the Tribunal's summary of the material relied upon by the owners at first instance at [60]). The "final invoice" was the Final Statement, a copy of which is provided above. From this, it can be inferred the communications occurred in December 2010 when the Final Statement was issued. This was almost a year and a half after Variations 1 and 2 were signed by the owners. This is supported by the fact that the emails referred to in the owners' submissions, "attachment SS14 to the statement of Sandra Scott dated 9 September 2014" were emails between the owners and Mr Maselev sent between 20 and 21 December 2010. None of these communications related to Variations 1 and 2. Some of them related to the unsigned Variations 10, 12, 13 & 14, as is confirmed by reference in par 16 of the Appellants' Submission. None of this material gives direct or substantial support to the contention that the owners were misled into signing Variations 1 and 2 or that the Tribunal's decision concerning the Item 2 and 3(a) claims was otherwise not fair and equitable.
For these reasons, we do not accept that the Tribunal's decision on the Item 2 and 3(a) claims was not fair and equitable. Nor do we accept that the owners may have suffered a substantial miscarriage of justice as a result. In these circumstances, our power to grant leave to appeal has not been enlivened, under cl 12(1) of Sch 4 to the NCAT Act. Furthermore, even if we did have power to grant leave, we would not do. Some relevant considerations on the question of whether to grant leave are set out in Collins v Urban [2014] NSWCATAP 17 at [84]. In our view, neither this second element of the second ground of appeal nor the ground itself has been shown to involve an issue of principle, a question of public importance, an injustice that was reasonably clear or a factual error that was unreasonably arrived at or was clearly mistaken. The Tribunal could not be said to have gone about its task in such a way that it was likely to produce an unfair result so that it would be in the interests of justice to review the decision.
For all of these reasons, we refuse leave to appeal, reject ground 2 of the owners' appeal and dismiss this aspect of the appeal.

[26]

Ground 4(a)

Ground 4(a) relates to the charge in Variation 10 of $1,320 for "ANA - Amended hydraulic details" and the builder's margin of 20%, making a total of $1,584. The owners' claim for a refund for this total amount is Item 5(a).
The Tribunal below distilled this part of the owners' claim as follows: "[88] The owners claim that the builder did not advise the owners that their own drainage design required amendment prior to the issue of the Construction Certificate. They contend that they should have been given an opportunity to have their engineer amend the plans. Even so, they had the right to have the expectation that their engineering design would have been constructed as that design was included in Revision "C" of the construction drawings. [89] The owners claim that they are entitled to a refund of the amount of $1,584 being the amount charged to them in Variation 10 including the builder's margin of 20%. [90] The builder contends that the owners are responsible for obtaining and paying for all building and planning approvals, including engineering details and certificates, survey reports and certifications pursuant to Clause 7.3 with Item 11 of Schedule 1 of the Contract. [91] The builder further contends that the evidence supports the builder's contention that the hydraulic detail furnished by the owner did not comply with Development Control Plan 47 and that the owners were aware that the builder was seeking to get those plans approved or amended to allow the certificate of compliance to issue before the issue of the construction certificate. The amount charged by the builder was both reasonable and justifiable."
The Tribunal below dismissed this part of the claim as follows: "[92] The Tribunal is satisfied that the charges made by the builder for amending the hydraulic design are charges properly payable by the owners pursuant to the Contract. The owners claim is not brought in relation to any provision of the Contract or at law that would permit the Tribunal to make the order sought. It was the owners' responsibility under clause 7.3 and in the absence of their compliance with that obligation the builder properly charged the amount charged and subsequently paid by the owners.

[27]

Ground 4(a) Owners' Submissions

The owners submitted that the "Tribunal appears to have totally misunderstood the factual background surrounding the amended (ANA) hydraulic design". The owners provided their version of the factual background as follows in their written submissions (footnotes omitted): "30. The owners supplied their own hydraulic design to the builder for quotation.(The J &F round tank design) 31. Prior to the issue of the construction certificate the homeowners enquired whether any change or amendment was required to their hydraulic design. There was nothing from the builder to indicate any change was required. 32. The construction certificate was issued on 22 July 2009 and approved plans were those prepared by Champion. 33. The stamped for construction site plan incorporated the homeowner's J & F round tank hydraulic design. These plans were sent to the homeowner on 7 August 2009, noting no further changes to the plans could occur. 34. The contract included a provisional cost of $25,000 for the homeowners J & F design. 35. Around 6 weeks after the work commenced, the builder issued a contract price adjustment number 3, withdrawing the provisional cost of $25,000(excluding rock and spoil removal.) The homeowners believed this was in relation to the actual costs of building to their own design. 36. They sought a break down of costs from the builder at that time given that the builder appeared to be charging at least double the estimate. 37. The builder refused to provide a breakdown of the costs.. 38. It was only in April 2010, that the homeowners became aware that a new hydraulic design had been issued. 39. The new ANA, rectangular tank design appeared to have occurred before issue of the construction certificate. However it was not incorporated into the stamped plans provided before construction. 40. As it turned out during the cross-examination of Mick Barbaro, for the builder, the builder amended the construction plans to Rev "D" drawings in September 2009, after the works had commenced and without notice to the homeowner. The Rev "D" drawings showed the new ANA rectangular hydraulic plan. The unilateral charge was in breach of Clause 7.4 of the contract."
The owners' challenge regarding the hydraulic designs continued as follows: "41. The homeowners assert that they should have been advised of the need for an amended design before the construction certificate was issued, as it would have given them the opportunity to go back to their own engineer to fix any problem. 42. Further, the construction drawings issued to the homeowner were therefore incorrect, as they did not incorporate the amended ANA hydraulic design. 43. Given the failure of the builder to; a. Notify the homeowner that their design needed amendment and b. Produce correct work order drawings, the charge in relation to the amendment was not one properly made under the contract."
The owners also submitted that the Appeal Panel could set aside the Tribunal's finding on the hydraulic designs, on the basis that the builder's conduct amounted to misleading and deceptive conduct: "44. In addition, the failure of the builder to notify or disclose to the homeowners the change to their design was misleading and deceptive. Miller & Associates Insurance Broking Pty Ltd v BMW Australian Finance Limited [2010] HCA 31. 45. It was therefore not a charge properly payable by the owners as the Tribunal found. 46. To find otherwise would also be unfair and inequitable."

[28]

Ground 4(a) Builder's Submissions

In relation to this ground 4(a), the builder contended that it was entitled to make variations to the hydraulic design and submitted that the owners knew about those variations. In particular, it was said: "64. [Variation 10] relates to various charges which were entitled to be charged by the Builder pursuant to clause 7.3 of the contract. 65. The evidence by Mr Mick Barbaro (statement 20 February 2015) and Mr Moussa Zaioor (statement 7 September 2015) and Mr Malesev clearly indicate that after the initial cost of the detention basin came in at a figure a little under $50,000 which was twice the estimated cost of the provisional sum allowed there was a number of meetings discussions and alterations of design. The cross-examination of Mr Barbaro and Mr Zaioor clearly discloses that there were a number of site meetings and changes for positions for the detention tank. 66. All these changes were done with the knowledge of the Owners and ultimately a design was determined which effectively allowed for a $4,088 credit to the Owners. … 70. The Owners' primary submissions and the submissions before the Appeal Panel appears to be that the Owners should have been told of the changes. In fact, they were fully cognisant of the fact that there were a number of changes to the detention tank as well as its particular placement on the site. That was the purpose of the various meetings to the extent that the Builder complained that it was holding up works."
In response to the owners' claim concerning misleading and deceptive conduct, the builder maintained that it had consulted with the owners: "67. The proposition which is propounded by Miller & Associates Insurance Broking Pty Ltd v BMW Australian Finance Limited [2010] HCA 31 has no bearing on the present matter. Mr Zaioor was in communication directly with the Owners and in consultation with the Owners with the various changes of design. At one point the Owners did not get back to him with any further instructions, noting that Mr Zaioor had been engaged by the Owners. 68. Mr Barbaro gave evidence of the Owners wishing a certain course of events to take place and how he was out there to try and determine what were the best arrangements for the detention tank. The discussions centred around the detention tank. 69. The evidence of Ms Scott at [51] and following of her statement 9 September 2014 clearly indicates that there were continuing discussions about the amendment of the drainage plans with the consultant engineer, Mr Zaioor."
Furthermore, the builder submitted that: "71. The Tribunal's finding at paragraph [92] were correct and cannot be said to be unfair or inequitable. It was an obligation under the contract: Duke Master, Cordon Investments. 72. Being an obligation under the contract it cannot be said to be unfair or inequitable for the Tribunal to conclude that it was a proper charge by the Builder."

[29]

Ground 4(a) Consideration

The substance of ground 4(a) was that the Tribunal below erred in law because it concluded that the amended hydraulic design charge was properly payable under the contract. From the notice of appeal and the owners' submissions, it was apparent that the owners were contending that the charge was not properly payable for a number of reasons including: 1. Variation 10 was unsigned by the owners and the amended design had not been seen by the owners and the owners were not informed that a change was required at the time the charge was incurred; and 2. The Tribunal's conclusion that the charge was properly payable because of cl 7 of the contract was erroneous and the "charge was in breach of Clause 7.4 of the contract".
In addition, the owners sought leave to appeal on the basis that the decision on the claim in Item 5(a) was not fair and equitable because of the conduct of the builder in refusing to provide information on the costs underlying the variation and the finding that the owners were estopped from claiming the overpayment.
At [92], the Tribunal below concluded that the amended hydraulic design charge was properly payable under the contract because it was the owners' responsibility under cl 7.3 to provide the hydraulic design and in the absence of compliance with that obligation the builder properly charged the amount. The Tribunal did not set out its findings of fact relevant to this conclusion and did not refer to cl 7.4.
We pause to note here that at [92], the Tribunal did not rely on, or refer to, Variation 10 in reaching its conclusion in relation to the amended hydraulic design charge even though this charge was included in that variation. At [97], the Tribunal considered the significance of Variation 10 in the context of the survey charge. There was no apparent reason why the Tribunal did not apply this reasoning to the amended hydraulic design charge as well.
We shall deal with the owners' challenge to the Tribunal's decision based on cl 7 first and only address the other contentions to the extent required in the light of our conclusion concerning cl 7.
Clause 7 provided in full: "7.1 The party named in Item 11 of Schedule 1 must obtain and pay for all building and planning approvals. 7.2 If the builder is named in Item 11 of Schedule 1, the owner authorises the builder to sign any document necessary to obtain the approvals. 7.3 If the owner is named in Item 11 of Schedule 1, the owner must both obtain and give the approvals to the builder promptly. 7.4 If the requirements of a statutory or other authority necessitate a change to the building works the builder must inform the owner of the change required and ask for a variation for the building works to comply with the requirements."
Item 11 of Schedule 1 to the contract was in the following terms: "The person to obtain and pay for all planning and building approvals including engineering details & certificates, survey reports and certifications is: The Owner."
In the light of these provisions, the Tribunal was correct in so far as it held that the owners were required to obtain and give "building and planning approvals" to the builder. We shall assume for the purposes of our consideration (without deciding) that the hydraulic design in question was such an "approval", being "engineering details". If, however, the owners complied with obligation under cl 7.3 and a change was required because of the requirements of a statutory or other authority, the builder was then obliged under cl 7.4 to inform the owner of the change required and ask for a variation for the building works to comply with the requirements.
At [92] the Tribunal held that the owners had not complied with their obligation under cl 7.3 to provide the hydraulic design and thus the builder properly charged for the amended hydraulic design.
The substance of the owners' challenge based on cl 7 was that the Tribunal was wrong to conclude that the owners had not complied with cl 7.3 and, in fact, it was the builder which had not complied with cl 7.4, if the facts were properly found and considered. As a result, it was said that the Tribunal was in error in concluding that the builder was entitled to recover the amount charged for the amended hydraulic design, especially when the Tribunal had not made findings concerning all the relevant factual matters.
In our view, the owners' appeal on this ground should be upheld. We have already noted that the Tribunal's reasoning in relation to the amended hydraulic design charge does not include, or refer to, any findings of fact to support the conclusion that the owners failed to comply with their obligation under cl 7.3. It is apparent that the Tribunal did not consider or take into account its finding (at [24(c)]) that the owners had given the hydraulic designs by J&F Designs to the builder prior to the contract being entered into.
The Tribunal fell into error, either: 1. by not taking into account the finding that the owners had provided the J&F engineering details for the hydraulic system to the builders and, as a consequence, concluding that the owners complied with their obligation under cl 7.3; or 2. by failing to explain why that was not the case.
If, as the Tribunal's own finding at [24(c)] indicates, the owners did comply with the obligation under cl 7.3, the Tribunal was then required to consider whether the builder took the steps required by cl 7.4. Consideration of that question would have required the Tribunal to make findings of fact concerning the matters referred to in pars 35 to 40 of the owners' submissions set out above. The Tribunal's failure to do so, was also an error.
For these reasons, the Tribunal's conclusion at [92] cannot be allowed to stand and the owners' appeal on ground 4(a) should be upheld. It is consequently unnecessary for us to consider any of the other elements of ground 4(a) relied upon by the owners to challenge the Tribunal's conclusion on the Item 5(a) claim.
There are, however, insufficient findings made by the Tribunal or uncontested facts to allow us to determine what order should be made in respect of the claim in Item 5(a). Accordingly, it is appropriate for us to remit the Item 5(a) claim to be reconsidered by the Consumer and Commercial Division in accordance with the Appeal Panel's directions.

[30]

Ground 4(b)

Ground 4(b) concerns the charges in Variation 10 for surveys and engineering inspections - the claims in Items 5(b) and (c), respectively. These charges are described in Variation 10 as: "Donovans - Survey - $3,349.00 Donovans - Engineering - $1,012.00"
The builder's margin of 20% was applied to these items, yielding total claims of $4,018.80 and $1,214.40, respectively.
The error of law identified in ground 4(b) in the notice of appeal was that the Tribunal was wrong to conclude that the owners were estopped from claiming overpayments in relation to the surveys and engineering inspections when the variation by which those payments were charged was unsigned and unseen. In the alternative, it was contended that the decision was not fair and equitable and, presumably, leave to appeal should be granted.
In respect of the claim for a refund of the survey charge of $4,018.80, the Tribunal had distilled this part of the owners' claim as follows: "[93] The owners claim that the cost of the survey charged in Variation 10 has been wrongly charged. The Builder has not followed the procedure set out in Clause 10 of the Contract."
This part of the claim was rejected by the Tribunal below as follows: "[97] The owners paid invoice for Variation 10. Although they did not sign the variation, they accepted the charges claimed in it by their payment. The invoice was for a variation of the Contract. By making their payment they are estopped from denying the charge being properly made. The procedure for disputing a charge made by variation, as has been referred to before in this judgment, have not been followed by the owners. They therefore cannot now make a claim to claw back the amount paid."
In respect of the claim for a refund of the engineering inspection charge of $1,214.40, the Tribunal summarised this part of the owners' claim as follows: "[98] The owners' further claim is that the charges in variation 10 for the builder's engineer's invoices are not properly payable by the owners on the basis that they were not informed of the inspections carried out, that they were not informed of or given copies of invoices from the engineer and the variation was not signed by them."
This part of the claim was rejected as follows: "[101] For the same reasons as given in respect of the hydraulic design, the Tribunal finds that the charges have been properly charged to the owners under Variation 10 and they have paid that amount. This element of their claim is dismissed."

[32]

Ground 4(b) Builder's Submissions

In respect of the costs for the additional survey and engineering inspection, the builder submitted that, in making payments to the builder under the contract, the owners had accepted the builder's variations: "76. Clause 7.3 together with item 11 to schedule 1 of the contract requires the Owners for payment of the various certificates…. … 77. It is accepted that clause 15.6 of the contract makes payments on account but once they are paid they have been paid for the particular purposes of the contract and have been appropriated to the costs associated with the contract. Accordingly, there is no room to suggest that the payment was not an acceptance of the variations as found by the Tribunal."
Furthermore, the builder made submissions in response to the owners' alternative arguments contained in par 49 of their submissions: "78. The proposition which is raised in paragraph 49 of the Owners' submission (that the Builder breached sections 18 and 29 of the ACL) is incorrect. The invoices for reconciliation are provided simply to make a determination between the sums claimed against the amounts paid. They do not impact on whether or not they should be paid which is the contention put forward by the Owners. Accordingly, the reconciliation will not be of any assistance in determining liability except to the extent that the total of the invoices is less than the amount that has been claimed. It is only in this latter case that any claim for refund can be made. There is no evidence of such difference in price in the present case and accordingly no claim for refund can be made. 79. The propositions which are laid down in Walton Stores (Interstate) Ltd v Maher [1988] HCA are simply inapplicable. In Walton Stores the defendant stood by and allowed a detriment to the plaintiff knowing full well that it was acting under the misconception that a contract had been entered into between the parties. No such assumption can be given to the factual material which has been complained of. The complaint simply appears to be that invoices for the purpose of reconciliation will be provided. As noted above the reconciliation will only determine whether there is an overpayment based on the invoices. 80. Given clause 26 of the contract behind the emails behind SS 14 and the subsequent conduct in the payment of the final progress payment it is difficult to see how any breaches of the ACL have occurred. Both parties were acutely aware of the particular rights and obligations under the terms of the contract. In fact the Tribunal noted at [180] that the Owners "were well informed consumers of building services" who "had extensive records and constantly oversaw the works being carried out by the Builder", and that they "demonstrated an ability to understand the works to be carried out"."

[34]

Ground 4(b) Consideration

As noted above, the primary contention in ground 4(b) was that the Tribunal erred in law by finding that the owners were estopped from claiming overpayments arising out of the unsigned and unseen variation in relation to the surveys and engineering inspections. If we can dispose of this ground of appeal by addressing that contention, it will be unnecessary to consider the alternative basis that the decision was not fair and equitable.
As we understand the Tribunal's reasoning, such as it was, at [97] and [101] in respect of the survey and engineering inspection charges, it can be summarised as follows: 1. the survey claim was rejected principally on the basis that the owners were estopped from challenging the charge because they had paid the amount charged and not challenged it; 2. the engineering claim was rejected on the basis that the charges were properly recoverable by the builder under the contract for the same reasons as the amended hydraulic design charge was recoverable.
Notwithstanding this, it appears to us that the estoppel argument, if it applies at all, would apply equally to all the charges that were included in Variation 10.
We shall deal with the estoppel basis for the Tribunal's decision first and then consider whether the engineering charge was recoverable on the same basis as the Tribunal had held that the amended hydraulic design was recoverable.
As a comment preliminary to our consideration of estoppel, we note that there was no dispute, and the Tribunal found at [97], that Variation 10 was not signed by the owners. Thus, cl 17.1 of the contract and s 6(1)(b) and s 7(1) of the HB Act were not complied with in this regard and the builder was not entitled to recover the amount of the amended hydraulic design charge on the basis that Variation 10 effected a variation of the contract, see for example Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 at [105]. To the extent that the Tribunal below held to the contrary in relation to the survey charge, at [97] or the engineering inspections at [101], it was in error.
Even if Variation 10 was not signed and accepted by the owners that would not, however, be an end of the matter. The amount charged might be recoverable on a quantum meruit basis. See Liebe v Molloy (1906) 4 CLR 347 at 353-4, Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251 at 272, 274, Lumbers v W Cook Builders Pty Ltd [2008] HCA 27; (2008) 232 CLR 635 at [83] - [85]. This was not, however, considered by the Tribunal and no findings of fact necessary to determine such a claim were made.
The Tribunal effectively concluded at [97] that the owners could not claim a refund of amounts charged under Variation 10, because: 1. although the owners did not sign Variation 10, the owners "accepted the charges in it by making their payment;" and 2. "[b]y making their payment they are estopped from denying the charge being properly made".
The Tribunal also stated that "[t]he procedure for disputing a charge made by variation, as has been referred to before in this judgment, have not been followed by the owners. They therefore cannot now make a claim to claw back the amount paid." What procedures, in particular, the Tribunal below was referring to is not obvious. Neither cl 17 nor 21 of the contract provides a mechanism for disputing a charge made by an unsigned variation. No other procedure was referred to in the reasons at first instance.
We have touched upon the interaction of cl 15 of the contract and estoppel above. Here we make these further comments specifically related to the Item 5(b) and (c) claims. The fact of payment of an amount specified in an unsigned variation must be viewed in the light of the contract between the parties. Clause 15 of the contract deals with the obligation of the owners to make payments and relevantly provides: "15.2 The owner must pay the contract price progressively as claimed by the builder. 15.3 The builder must give the owner a written claim for a progress payment for the substantial completion of each stage. 15.4 A progress claim is to state: (a) the amount claimed and not paid for the stages substantially completed; (b) the amount claimed and not paid for contract price adjustments; (c) the amount claimed and not paid for variations; and (d) the sum of the above amounts. 15.5 The owner must pay a progress claim within 5 working days of the builder giving the claim. 15.6 Other than in relation to the final progress claim: (a) payment of a progress claim is on account only; and (b) the owner has no right of set off."
Clause 15.6 is inconsistent with mere payment of a claim made under the contract, whether based on a binding variation or otherwise, being capable of giving rise to an estoppel, without more. This is because payments are expressly stated to be "on account only" or subject to any "right of set off" the payer might have, depending on whether the payment related to a non-final or final progress claim.
In this particular case, there was no specific, identifiable payment of the amount claimed in Variation 10. From the Debtor Statement, it appears the payment for those charges was included in the final payment made by the owners on or about 5 January 2011.
A summary, sufficient for present purposes, of the general elements required to establish an estoppel can be found in The Principles of Equity, edited by Prof Patrick Parkinson, (2nd Ed, Law Book Co, 2003) at [722] as follows: "● The party claiming the estoppel must have adopted an assumption as the basis of an act or omission. ● The claimant, upon the basis of the assumption, must have so acted or abstained from acting that a detriment will be suffered if the person against whom the estoppel is asserted is afterwards allowed to set up the rights inconsistent with it. ● The party against whom the estoppel is alleged must have played such a part in the adoption of, or persistence in, the assumption that freedom to act otherwise than in a manner consistent with it would be unfair or unjust." (footnotes omitted)
In order to provide a sufficient foundation for a finding of estoppel, the Tribunal below would have had to make findings such as: 1. the builder made an assumption that the owners agreed that they would not challenge the charges the subject of Variation 10; 2. the builder acted in reliance upon that assumption so that, if the owners were allowed to challenge the validity of the charges in Variation 10 or their liability to pay those charges, the builder would suffer detriment; 3. the owners played such a part in the builder's making the assumption upon which it acted that it would be unfair or unjust, for the owners now to claim a refund for the amount of the charges in Variation 10.
The Tribunal did not make these or any similar findings.
In the absence of such findings and any adequate findings concerning the basis upon which the owners made the final payment under the contract in the light of cl 15 or otherwise, the Tribunal's conclusion as to estoppel was erroneous. In the context of the present case, mere payment of a claim made by the builder is insufficient to support a finding that the owners are estopped from challenging the charges contained in such a claim and seeking a refund. This is especially so when the variation upon which the claim is partly based has not been signed or accepted by the owners and the payments the owners made were either on account or subject to any off setting claims the owners may have, under cl 15.6 of the contract.
For these reasons, we conclude that the Tribunal's conclusion at [97] that the owners were estopped from claiming a refund of the survey charge, in Item 5(b), was in error. In so far as the Tribunal also rejected the Item 5(c) on the basis of estoppel, we find that would have been similarly erroneous.
Accordingly, we uphold the owners' appeal on ground 4(b) on the basis that the Tribunal erred in concluding that the owners were estopped from making the claims to recover the amounts of the charges in Variation 10 because they made a payment which included the amount of those charges.
As to the Tribunal's conclusion at [101] that the owners were not entitled to a refund for the engineering inspection charges because those charges were legitimately payable under the contract on the same basis as the amended hydraulic design charge, we believe that this conclusion is also erroneous and the appeal on ground 4(b) should be allowed in the regard for the reasons that follow.
The owners' challenge to this aspect of the Tribunal's decision was covered by the alternative ground identified in ground 4(b), namely, "the failure to find in favour of the homeowners was not fair or equitable".
In respect of the engineering inspection charges, which were the subject of the Item 5(c) claim, the Tribunal: 1. set out the owners' contentions at [98] and [99]; 2. set out the builder's contentions at [100]; 3. stated that the contract did not require notice of inspections to be given at [100]; and 4. concluded "the amount paid is properly payable as a variation under Variation 10", at [100].
The Tribunal, at [101] then expressly relying on the reasoning in relation to the amended hydraulic design charges concluded that the engineering inspection charges were "properly charged to the owners under Variation 10 and they have paid that amount".
Thus, there were two bases for the Tribunal's dismissal of the Item 5(c) claim, namely: 1. The reasoning relating to the amended hydraulic design charges; and 2. The fact that the engineering inspection charge was contained in Variation 10 which had been paid for.
As to the first basis, the Tribunal's decision concerning the amended hydraulic design charge turned upon cl 7 of the contract. Clause 7, which has been set out in full above, applies to "approvals" that the owner is required to give to the builder. It does not relevantly appear to apply to "engineering inspections" carried out during the building work. Accordingly, even if the reasoning based on cl 7 in relation to the amended hydraulic design charge was not erroneous (contrary to our conclusion above), that reasoning does not provide support for the Tribunal's conclusion concerning the engineering inspection charge. Thus, the Tribunal's reasoning in relation to the engineering inspection charges was erroneous.
As to the second basis, Variation 10 was not signed by the owners and consequently did not provide any foundation for the claim, for the reasons given above in relation to the survey charge. We have also explained above why payment of a claim based upon unsigned Variation 10, without more, does not give rise to an estoppel. No relevant findings of fact that might support a quantum meruit claim based on Variation 10 were made. Consequently, the Tribunal fell into error in reaching its conclusion that the engineering inspection charges were properly payable under the contract.
In these circumstances, we are satisfied that the Tribunal's decision in [101], not being based on any express findings of relevant facts, relevant contractual provisions or any other identified sufficient basis, should be found to be not fair and equitable. It is necessary, when such a ground of appeal is relied upon, to obtain leave to appeal. We grant leave to appeal in this case for the reasons which follow.
In the circumstances referred to above, we are satisfied that the owners may have suffered a substantial injustice because the Tribunal's decision concerning the engineering inspection charges was not fair and equitable. If the Item 5(c) claim had been properly considered, the owners would have had a significant chance of obtaining a more favourable outcome. Thus, our ability to grant leave to appeal under cl 12(1) of Sch 4 of the NCAT Act is enlivened. In our view, there would be a reasonably clear injustice if the Tribunal's decision on the Item 5(c) claim is allowed to stand. See Collins v Urban [2014] NSWCATAP 17 at [84].
For all these reasons, we grant leave to appeal and uphold the appeal on ground 4(b) which relates to the claims in Items 5(b) and (c). There are insufficient uncontested facts and findings of the Tribunal to allow us to dispose of this part of the matter by substituting appropriate orders. We shall therefore remit the claims in Item 5(b) and (c) to be reconsidered by the Consumer and Commercial Division in accordance with the directions of the Appeal Panel.

[35]

Ground 5 - Item 7, refund of the structural steel cost in variation 12

The owners' fifth ground of appeal was: "5. Variation 12. - structural steel. The Member's finding that there was 'no other evidence offered of any other misleading or deceptive conduct' was against the weight of the evidence. It was also an error of law to apply this test to this aspect of the claim. Alternatively, the failure to find in favour of the homeowners was not fair or equitable.($6,388.70)"
The Tribunal below recorded the owners' claim in Item 7 as follows: "110. The owners dispute the amount paid to the builder for the structural steel of $6,388.70 pursuant to Variation 12. The basis of the claim is that no notice was given by the builder of the separate charge being made for the item. The owners contend that Mr Malasev conceded in cross examination that in her email of 9 April 2009 [one of the owners] Ms Scott question whether there would be any other costs in respect of piering and the slab to which Mr Malasev responded there would be additional site costs for "price for additional piering is set out in the Contract" and "change from "M" class slab would be an additional cost and the cost … is set out in the contract" 111 The owners say that having had the benefit of the architectural plans the builder should have been able to price what was required to build the dwelling including the structural steel. 112 The owners attribute to Mr Malesev that he said "It's a commercial transaction, I do what's best for me, they do what's best for them" The builder denies these words were used and relies on the transcript to show that the words used were "I do what's best for me, they do what's best for them". 113. The owners contend that given Mr Malesev's answers in cross examination and the difficulty in eliciting responses from him, his conduct amounts to misleading and deceptive conduct pursuant to section 18 of the ACL and on that basis the builder should refund to the owner the amount of $6,388.70."
The Tribunal rejected the owners' claim, after referring to the part of the Tender relating to "Piering Requirements" and "Concete Slab", as follows: "117 The Tribunal is satisfied that the variation for the additional structural steel is a proper variation based on the exclusions from the Contract as specified in the Tender. The Tribunal is not satisfied that the owners have displaced their liability to pay the variation on the basis of a misleading and deceptive conduct. The evidence of Mr Malesev does not establish misleading or deceptive conduct. There is no other evidence offered of any other misleading or deceptive conduct. The conduct of Mr Malesev does not satisfy the elements of offence to the provisions of section 18 of the ACL. 118 The terms of the Contract do not give a right to the refund of the amount paid under Variation 12. The Tender makes it clear what is excluded from the Contract price and in addition Mr Malesev's evidence is such that it establishes that the owners were on notice there was likely to be a charge for additional work in relation to piering and the slab if the engineer recommended that. 119 This claim for a refund of the additional structural steel is dismissed."

[39]

Ground 5 Consideration

There appear to be three elements to ground of appeal 5: 1. The finding at [117] of the Tribunal's reasons that there was "no other evidence offered of any other misleading or deceptive conduct" was against the weight of the evidence. 2. The Tribunal erred in law by applying "this test to this aspect of the claim". 3. Alternatively (as a basis for granting leave to appeal presumably), the failure to find in favour of the homeowners was not fair or equitable.
As to the first element, the owners are challenging a conclusion of fact on the basis that it was against the weight of the evidence. This does not raise a question of law and, as a result of the terms of s 80(2)(b) of the NCAT, the owners require leave to appeal in this regard.
The owners contend that the Tribunal failed "to fully consider the evidence of the homeowner". The summary of the owners' case in [110] to [113] of the reasons at first instance indicates the material on which the Tribunal understood the owners relied. There is no reason to believe that the Tribunal did not consider it. The Tribunal's reasoning at [117], although very short, indicates that the Tribunal considered both Mr Malesev's evidence in cross examination and whether there was other evidence, which included the owners' questions and Mr Malesev's answers or silence, that went so far as to establish that he had engaged in misleading and deceptive conduct. The Tribunal concluded that there was no evidence which actually established that proposition.
In the attachment to the owners' notice of appeal, the owners also indicated that they sought leave to appeal in respect of ground 5 on the basis that the decision was against the weight of the evidence in that "the evidence was in the form of admission from the company director information given to the Office of Fair Trading by way of email was not truthful, that email saying that the builder had complied with a work order when it had not".
Given the manner in which it is described by the owners, it does not appear to be directly relevant to facts underlying the claim in Item 7, which is the subject of ground 5. In addition, "the company director" is not identified in the attachment to the notice of appeal. Whilst it suggests that the director in question may not have been honest in the email to the Office of Fair Trading, it does not appear to us to provide a sufficient basis for concluding that the Tribunal's findings in respect of the structural steel claim (Item 7) were against the weight of the evidence. If the material being relied upon is what is recorded by the Tribunal at [247] - [248] concerning the claim for damages for failure to reach practical completion in Item 18, we do not think this provides any substantial support for the owners' in relation to the claim in Item 7 relating to the structural steel.
In the circumstances, we do not accept that there is any sufficient basis for us to conclude that the evidence so preponderated against the Tribunal's finding that it was unreasonable for the Tribunal to have reached the conclusion that it did in respect of the structural steel claim in Item 7. Thus, we are not satisfied that the owners may have suffered a substantial miscarriage of justice because the Tribunal was against the weight of the evidence. Accordingly, having regard to cl 12(1) of Sch 4 to the NCAT Act, we are not in a position to grant leave to appeal in relation to the first element in ground 5 on this basis.
As to the second element, we have some difficulty understanding exactly what the proposition that the Tribunal erred in law by applying "this test to this aspect of the claim" means. So far as we understood it, it was not clarified in submissions. In our view, we cannot uphold the owners' appeal on the basis of this second element of ground 5.
As to the third element, in light of the terms of cl 12(1)(a) of Sch 4 to the NCAT Act, it appears that the ground that the decision in relation to the structural steel was not fair and equitable raises an alternate ground of appeal for which leave to appeal is required.
In particular, as we understand it, the owners argued that because Variation 12 was unsigned, structural steel was not an excluded item in Schedule 3 to the contract and no mention was made of the steel being a required additional item before Variation 12 was raised, the builder was not entitled to claim for it under the contract or on a quantum meruit basis. If this is correct, the decision that the owners were liable for the structural steel as claimed in Variation 12 could be said to be not fair and equitable, as the owners contend.
Variation 12 contained a charge of $6,388.70 explained as follows: "Introduce a charge in the amount of $6,388.70 to supply and install structural steel as required by the structural engineer. As set out in the builders tender no allowance has been made in relation to any structural steel requirements"
The owners did not sign Variation 12. This was not in dispute. Accordingly, Variation 12 did not, itself, provide a basis upon which the builder could recover the amount charged, for the reasons given above in relation to other unsigned variations.
The owners then contended, as we understood it, that "it [the structural steel] was not an excluded item under the contract". The Tribunal, however, stated in [117] of its reasons that the structural steel was an exclusion from the contract "as specified in the Tender". In our view, the Tribunal was correct in this regard and the owners have misunderstood Schedule 3. In the "Additional notes" section of the Tender (which formed part of the contract) it was stated: "● No allowance has been made in relation to any structural steel requirements".
Schedule 3 to the contract contained the following: "The owner acknowledges that the builder is not responsible for the supply and installation of materials, goods or the provision of services that are listed below: any conditions imposed by statutory or other authority not included in the tender any items not included in the tender".
Clause 18 of the contract provided: "18.1 The owner and the builder agree that the items set out in Schedule 3 are excluded from this contract."
Since it was expressly stated in the Tender that no allowance was made for "any structural steel requirements" this means that the structural steel was not included in the Tender. Thus, by operation of cl 18.1 and Schedule 3, the owners and the builders agreed that the structural steel was excluded from the contract. Consequently, the owners' contrary contention must be rejected.
A claim under the contract was not available as the structural steel was excluded from the contract and Variation 12 was not accepted by the owners. In these circumstances, contrary to the owners' contention, the builder may have been entitled to claim for the supply of the structural steel on a quantum meruit basis. If the builder was to recover on a quantum meruit basis, however, it had to establish its entitlement by reference to the principles established in Liebe v Molloy (1906) 4 CLR 347 at 353-4 and Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251 at 272, 274.
The Tribunal concluded, at [117], that the variation for the additional structural steel was a proper variation based on the exclusions from the Contract as specified in the Tender and that the owners had not displaced their liability to pay the variation on the basis of a misleading and deceptive conduct.
Given that Variation 12 was not signed by the owners, the Tribunal was in error in concluding, at [117], that "the variation for the additional structural steel was a proper variation based on the exclusions from the Contract as specified in the Tender". This is reinforced by the observation that Variation 12 was only dated 10 December 2010, which was at the very end of the work and likely to have been well after the claimed costs were incurred.
Having reached the conclusion that it did, the Tribunal did not, understandably, go on to consider whether the builder was entitled to recover on a quantum meruit basis. If it had, the Tribunal would have been required to consider relevant questions including, for example, whether the owners: 1. had actual knowledge of the extra works, in this case the provision of the structural steel, as they were being done; 2. knew that the provision of structural steel was outside the contract; 3. knew that the builder expected to be paid for them as extras, see Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251 at 272 and the other authorities referred to in Dorter and Sharkey, Building and Construction Contracts in Australia, 2nd Ed (looseleaf service) (Lawbook Co. Sydney), at [8.160].
The Tribunal has made no findings in relation to these types of questions except for the finding in [118] that "Mr Malesev's evidence is such that it establishes that the owners were on notice there was likely to be a charge for additional work in relation to piering and the slab if the engineer recommended that".
This leaves the claim in the unsatisfactory situation that: 1. the Tribunal was in error in concluding that the builder could recover for the structural steel under Variation 12 as a valid contractual variation; but 2. in the absence of sufficient, relevant findings by the Tribunal as to whether the builder could recover on a quantum meruit basis, it cannot be determined whether or not the owners were liable to pay the amount claimed for the structural steel.
In this sense, it can be accepted that the Tribunal's decision in relation to the structural steel claim in Item 7 was not fair and equitable, even if this is not exactly the basis put forward by the owners.
Further, we are satisfied that if this aspect of the Tribunal's decision were allowed to stand, the owners may have suffered a significant miscarriage of justice. In the circumstances, and given the inadequate fact finding by the Tribunal, we believe it is appropriate to grant leave to appeal in respect of ground 5.
For these reasons, we uphold the appeal based on the owners' fifth ground of appeal.
Although the appeal on ground 5 is upheld, we are not in a position to substitute an appropriate order because the necessary facts either have not been fully found or are likely to be contested. In the circumstances, in our view, the appropriate course is to remit the claim in Item 7 to be reconsidered by the Consumer and Commercial Division in accordance with the Appeal Panel's directions.

[40]

Ground 6 - Item 11, misleading and deceptive conduct or unconscionable conduct claims in relation to the hydraulic or storm water detention system

The owners' sixth ground of appeal concerned the claim in Item 11 and was: "6. The stormwater drainage costs and associated delays. The Member's decision is based upon facts which are demonstrably false and against the weight of evidence. Further, the Member had failed to adequately address the claim made by the homeowners in this aspect of the claim. The Member erred in law by failing to find that the charge made by the builder was an allowance permitted under the contract. Alternatively, the failure to find in favour of the homeowners was not fair or equitable.($39,765 and $16,640)"
Despite the fact that this ground was at times formulated in terms which reflect cl 12(1) of Sch 4 to the NCAT Act concerning leave to appeal, in the attachment to the owners' notice of appeal no leave to appeal was sought in respect of this ground 6.
We have not found it easy to understand, from the Tribunal's summary of the parties contentions at [139] to [172], precisely how the owners put their claim in respect of Item 11 and how the builder contended that it was not liable. We have already noted the unsatisfactory state of the findings made by the Tribunal below in relation to whether the J&F Designs' plans or the ANA detention tank plans were the plans included when the construction certificate was issued.
As we understand it, the owners' claim (as opposed to the findings by the Tribunal) could be adequately (albeit incompletely) summarised for present purposes, as follows: 1. The hydraulic design for the stormwater detention system was originally covered by a prime cost allowance of $25,000.00 in the contract - Reasons [139]; 2. There was some confusion as to which plans for the stormwater detention system, also known as the hydraulic design, were included in the final architectural plans sent with the construction certificate on 7 August 2009 - Reasons [140] - [144]; 3. The builder provided Amended Contract Price Adjustment 3 dated 14 October 2009 to the owners. This sought to substitute for the provisional allowance of $25,000.00 a fixed sum of $40,205.00 and a builder's margin of $9,137 exclusive of rock excavation and spoil removal - Reasons [144]. (We note that this Amended Contract Price Adjustment 3 also contained a credit of $8,137.00 described as "Provide discount on builders margin as gesture of good will"); 4. The builder's refusal to disclose the details of the revised costs was so as to enable it to overcharge the owners for the works and the revised costs bore no relationship to the actual cost - Reasons [147]. Despite the cost in Amended Contract Price Adjustment 3, the revised hydraulic stormwater detention work was quoted at $9,880.00 plus GST - Reasons [145]. (We note that this appears to be for only part of the works); 5. The owners then contended (as recorded in the Reasons at [148]): "… that the Tribunal ought to infer from the builder's conduct that it has engaged in misleading and deceptive conduct because the builder: (a) Unilaterally changed the drainage design from Revision "C" construction drawings without proper notice or agreement. (b) Did not give the owners an opportunity to have their own engineer to amend his design for the Construction Certificate; (c) Failed to excavate for the drainage at the time the footings for the dwelling were dug; (d) By its director told blatant lies in the witness box to the effect that the owners refused to excavate for the drainage at the time of the footings being excavated; (e) By withdrawing the provisional sum for the drainage and unilaterally applying a fixed sum for $40,205.00, an amount that was a blatant and excessive overcharge, after considering the late disclosure during the hearing of the actual charge made by Mr Moon; (f) By refusing to disclose costs or give reasons to the owner as to the builders unilateral amendment; (g) By refusing to assist the owner to find an alternative solution to the drainage; (h) By refusing to build the drainage works to include the tanks beneath the Cabana." 1. The owners' damages resulting from this conduct were identified at [149] as: "(a) Difference between amount paid for drainage of $64,765 less the provisional allowance of $25,000 for the owners J & F Design, forming part of Revision "C Construction Drawings, being $39,765.00; (b) [the other part of the claim was expressly withdrawn - see Reasons [172]."
The builder submitted that the owners' claim was misconceived (Reasons at [158]) on the bases set out in the reasons of the Tribunal below.
In reply to the builder's submission the owners contended, among other things, that: 1. "the actual cost revealed at the hearing was $19,380 and not $41,205 as claimed by the builder" - Reasons [162]; and 2. "[s]uch conduct is either misleading or deceptive pursuant to section 18 of the ACL and or amounts to unconscionable conduct pursuant to section 21 of the ACL" - Reasons [164].
The Tribunal at first instance dismissed this Item 11 claim as follows: "173 The Tribunal is satisfied that the stormwater detention system was a Prime Cost allowance under the contract of $25,000 based on a design provided by the owners at the time of the builders tender. … 176 The builder is entitled to charge the cost of the stormwater works plus margin and GST. The owners have dwelt on the actual cost charged by the contractor to the builder and its relationship to the charge made by the builder for the stormwater detention system. … 180 The evidence infers that the owners were well informed consumers of building services. … The Tribunal is not satisfied that the owners were in a weak position with their bargaining with the builder. The builder and the owners engaged in robust exchanges about issues as they arose. The owners negotiated the Contract, not just accepting the first tender submitted by the builder. They demonstrated an ability to understand the works to be carried out. The Tribunal is not satisfied on the evidence adduced by the owners that the builder did not act in good faith. 181 On the evidence before it, the Tribunal is not satisfied that the builder's conduct complained of by the owners is such that it amounts to misleading and deceptive or oppressive conduct. It was a charge made in the ordinary course of building and an allowance permitted under the Contract. The owners have paid the amount and accepted the charge at the time they paid it."

[44]

Ground 6 Consideration

The owners' sixth ground of appeal contains 4 elements: 1. "The … decision [was] based upon facts which are demonstrably false and against the weight of evidence." 2. "The [Tribunal below] failed to adequately address the claim made by the [owners] in this aspect of the claim." 3. "The Member erred in law by failing to find that the charge made by the builder was an allowance permitted under the contract." 4. "Alternatively, the failure to find in favour of the homeowners was not fair or equitable."
We believe that this ground can be adequately disposed of by considering the second element alone. The second element raises whether the Tribunal failed to address a claim genuinely brought before the Tribunal, which is question of law - see Khan v Kang [2014] NSWCATAP 48 at [28]. In addition, it might also be seen as raising the related issue of whether the Tribunal gave adequate reasons for its decision in relation to Item 11, which is also a question of law - see Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 13. If the owners are successful on this element of the sixth ground, it will be unnecessary to address the other elements of that ground.
For this purpose, it is necessary to examine in detail the Tribunal's reasoning concerning the claim in Item 11. As we understood it, this was a claim for damages for misleading and deceptive conduct in contravention of s 18 of the ACL and/or unconscionable conduct in contravention of s 21 of the ACL.
The Tribunal set out at some length (Reasons [139] - [172]) the contentions of the parties but did not make any comprehensive findings of fact relevant to the determination of the claim.
The first step in the Tribunal's reasoning was at [173]. There, the Tribunal stated it was "satisfied that the stormwater detention system was a Prime Cost allowance under the contract of $25,000 based on a design provided by the owners at the time of the builders tender". How this conclusion was arrived at, especially in the light of Amended Contract Price Adjustment 3, which was signed by the builder and the owners, and which deleted the "previously introduced provisional allowance for stormwater draining works" of $25,000.00 and introduced a fixed charge for certain stormwater drainage works was not explained by the Tribunal below. In this regard the reasons were, at least, inadequate.
We pause to note that, on appeal, the owners submitted in effect that the builder "unilaterally" withdrew the provisional sum and substituted it with a fixed cost. We do not accept that this is necessarily the case since Amended Contract Price Adjustment 3 was signed by the owners. Nonetheless, it is not necessary for us to reach a conclusion on this point in order to determine whether to uphold the appeal on the owners' sixth ground.
At [175], the Tribunal found that it was the owners who decided in June 2010 to amend the stormwater detention system in accordance with their design, to save money. It was not the builder's decision. The effect of the owners' decision was to delay the stormwater works. The Tribunal also found that the owners' engineer only issued an engineer's design certificate that the revised drawings complied with the Council's stormwater code on 8 December 2010.
The next step in the Tribunal's reasoning, apparently based on its conclusion at [173], was, at [176], that the builder was entitled to charge the cost of the stormwater works plus margin and GST. It is not clear on what basis this conclusion was reached. It may be that the sum was thought to be recoverable on a quantum meruit basis. It may be that the stormwater detention system became a provisional sum allowance item under the contract again because Amended Contract Price Adjustment 3 was reversed in some way. In this regard, if Variation 11 was relied upon to effect the reversal, it should be noted that it was not signed by the owners and did not purport to reinstate the stormwater detention system as a provisional sum item but rather purported to introduce a fixed charge for that system. The reasons of the Tribunal simply do not explain how it reached its conclusion.
The Tribunal noted, at [177], the owners' contention that by charging the amount that it did for the stormwater detention system, the builder engaged in misleading and deceptive conduct within s 18 of the ACL. The Tribunal went on to say, at [177]: "… The owners rely on the charge made by Fodori Contracting for the revised storm water system in the amount of $9,880.00 disclosed during the hearing and the amount charged for the stormwater detention system by the builder for drainage of $64,765 (including additional excavation and rock and spoil removal).. After deduction of the Prime Cost allowance of $25,000, the owners claim that the additional cost including the revised stormwater detention system being $39,765.00 to support their claim that the additional cost was charged without explanation to them why it was necessary."
The Tribunal did not, however, at this point make any findings as to what specific conduct the builder engaged in that was said to be misleading and deceptive, what representations that conduct conveyed or whether any of that conduct or those representations were misleading or deceptive.
At [178] the Tribunal moved on to consider the claim that the builder engaged in unconscionable conduct, in contravention of s 21 of the ACL. It concluded that s 21 of the ACL applied to building works. At [179], the Tribunal observed that in relation to claims under s 21, it was required to consider under s 22 "if the conduct of the builder complained of amounts to a finding that its conduct towards the owners was oppressive in that it took advantage of the weakness or vulnerability of the owners in its stronger position".
The Tribunal then made findings at [180] that: 1. the owners were "well informed consumers of building services" and explained why it reached that conclusion; 2. it was not satisfied that "the owners were in a weak position with their bargaining with the builder" and explained why it reached that conclusion; 3. it was not satisfied that "the builder did not act in good faith".
At [181], the Tribunal below stated that it was not satisfied that the builder's conduct complained of amounted to: 1. Misleading and deceptive conduct; or 2. Oppressive conduct.
As to the Tribunal's conclusion in relation to misleading and deceptive conduct, this was unsupported by any findings of fact, any statement of the law or application of the law to the facts. The Tribunal did not set out the evidence in relation to the alleged misleading and deceptive conduct nor did it make any relevant findings of fact based on that evidence. More specifically, there was no finding as to what amount the builder actually charged for the stormwater detention system, what amount the owners eventually paid for that system in total (whether to the builder or to other suppliers) or what amount the builder was actually entitled to charge in that regard. As has been noted above, there was no analysis of what representations were actually made by the builder or why the builder's impugned conduct was or was not misleading or deceptive or likely to mislead or deceive, on the Tribunal's understanding of the applicable facts and law.
In our view, the Tribunal's reasons in relation to misleading and deceptive conduct in Item 11 were so lacking that they do not amount to an adequate statement of reasons. We accept what was said by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [57] concerning the variable nature of the content and extent of adequate reasons for decision, depending on the nature of the decision making body, the jurisdiction being exercised, the particular subject matter and the circumstances of the case. Nonetheless, in a case such as the present, the duty to give reasons required the Tribunal to make all necessary findings of fact, referring to the evidence upon those findings were based, to state its understanding of the applicable law and to set out the reasoning processes that led the Tribunal to its conclusions - see the discussion in Collins v Urban at [47] to [56] and note what is required when a written statement of reasons is required under s 62 of the NCAT Act. We do not believe the Tribunal adequately discharged its duty in the present case.
The failure to provide any adequate reasons in the circumstances of this claim also justifies the conclusion that the Tribunal did not adequately address the claim for damages for misleading and deceptive conduct in Item 11. On this basis, we accept that the Tribunal failed to exercise its jurisdiction properly invoked in relation to the Item 11 claim. As a result the Tribunal fell into error in dealing with this aspect of the Item 11 claim.
As to the unconscionable conduct aspect of the claim in Item 11, the Tribunal did, at [180], make some findings which could be seen as relating to: 1. The relative strengths of the bargaining positions of the supplier and the customer, referred to in s 22(1)(a); 2. Whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services, referred to in s 22(1)(c); and 3. The extent to which the supplier acted in good faith, referred to in s 22(1)(l).
The Tribunal did not, however, make any finding in relation to, or consider, other factors referred to in s 22(1) of the ACL which the nature of the owners' claim indicated were likely to be of particular relevance, including the factors in s 22(1)(b), (d), (e), (i) or (j).
Furthermore, in so far as the Tribunal set out its understanding of the applicable law in relation to unconscionable conduct under ss 21 and 22 of the ACL, this appears at [179] where the Tribunal held: "the Tribunal must consider under section 22 of the ACL if the conduct of the builder complained of amounts to a finding that its conduct towards the owners was oppressive in that it took advantage of the weakness or vulnerability of the owners in its stronger position".
We do not accept that this correctly encapsulates the broad prohibition on unconscionable conduct contained in s 21, which is different from the concept of unconscionabililty under the unwritten law, which is the subject of s 20 of the ACL - NRM Corporation Pty Ltd v Australian Competition and Consumer Commission [2016] FCAFC 98 at [160].
The task faced by a Court or Tribunal in determining whether s 21 had been contravened is to be undertaken bearing in mind the observations of the Full Court of the Federal Court in NRM Corporation Pty Ltd at [161] - [164] and in particular: "163. Unconscionable conduct is that which is "clearly unfair or unreasonable, or serious misconduct": Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 at [36] per Gordon J. .... There must be disregard of certain norms or standards which "must be more than those that happen to be personal to the court or tribunal charged with the responsibility of deciding whether conduct is unconscionable": Director of Consumer Affairs (Vic) v Scully [2013] VSCA 292 at [56], (2013) 303 ALR at 186 per Santamaria JA (Neave and Osborn JJA agreeing). 164. But it remains undesirable to attempt any comprehensive definition of that which is "unconscionable": Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389. Allsop P (as his Honour then was) there concluded: [291] … It is neither possible nor desirable to provide a comprehensive definition. The range of conduct is wide and can include bullying and thuggish behaviour, undue pressure and unfair tactics, taking advantage of vulnerability or lack of understanding, trickery or misleading conduct. A finding requires an examination of all the circumstances. See also: PT Ltd v Spuds Surf Chatswood Pty Ltd [2013] NSWCA 446 at [106] per Sackville AJA, (McColl and Leeming JJA agreeing)."
At [181], the Tribunal concluded that it was not satisfied that the builder's conduct amounted to "oppressive conduct" and, consequently, dismissed the claim. Unconscionable conduct within s 21 of the ACL NSW cannot be simply assimilated to "oppressive conduct", although the oppressiveness of conduct may be a factor relevant to determining whether conduct is "in all the circumstances, unconscionable".
In our view, even taking into account the findings at [180], the Tribunal below has not made sufficient findings as to what actually occurred between the owners and builder concerning the stormwater detention system so as to allow the Tribunal to give proper or adequate consideration to the owners' unconscionable conduct claim. In addition, potentially relevant matters going to unconscionable conduct, which we have identified above, were not the subject of any findings of fact or analysis. Nor did the Tribunal apply the broad test established by s 21 of the ACL but rather it appears to have attempted to apply the concept of unconscionable conduct within the meaning of the unwritten law which is the subject of s 20 of the ACL. Consequently, we are of the view that, in the light of the principles in Collins v Urban referred to above, the Tribunal below failed to give adequate reasons for its decision concerning the unconscionable conduct aspect of the claim in Item 11. We also accept that the Tribunal has not adequately addressed or considered the part of the claim based on an allegation of contravention of s 21 of the ACL.
For these reasons, we are of the view that the owners' appeal, based upon the sixth ground, should be upheld.
In the light of this conclusion, it is unnecessary to consider the other elements of the sixth ground.
Because of the absence of the necessary findings or uncontested facts, however, we are not in a position to determine what orders should be made to dispose of the claim in Item 11. In these circumstances, it is appropriate for us to remit the claim in Item 11 for reconsideration by the Consumer and Commercial Division in accordance with the Appeal Panel's directions.

[47]

Ground 8 Builder's submissions

In respect of the owners' eighth appeal ground concerning the date of practical completion, the builder relied on cl 26.3 of the contract, submitting that: "101. Clause 26.3 of the contract requires a notice to be provided to the Builder prior to the payment of the final account. If the homeowners pay the money of the final account they are entitled to the keys and to move into the premises then that becomes the date of practical completion."
Furthermore, the builder submitted the Tribunal's finding was consistent with the relevant authorities concerning the determination of the date of practical completion for building works: "102. The decisions in Clarendon Homes NSW Pty Ltd v Naidosofski [2010] NSWCTT 320 and HSH Hotels v Multiplex [2004] NSWCA 302 referred to in the primary submissions by the Builder at [169] & [169] support the Builder's contentions as to the completion being at the stage when it was substantially completed and the Owners were capable of moving into the premises even if there were still some outstanding building works. 103. The Owners are in effect asking for an interpretation of practical completion as a defect free completion as a condition of payment to the builder. This construction cannot be supported because the obligation for an occupation certificate was always with the Owners and thus the Builder was obliged to perform to substantially complete: Cordon Investments at [93] - [94].
The builder also submitted that, "in any event, the matters complained of… only indicate minor irregularities" (Respondent's Submissions on Appeal par 104).
Furthermore, the builder submitted that: "106. The Tribunal considered all the evidence and submissions by the parties to come to its conclusion. 107. It follows that the Tribunal was correct in its decision as to when practical completion had been reached and there was nothing in the manner in which it reached the conclusion as to suggest that it was not fair and equitable. The evidence that the Tribunal relied upon and for the reasons stated above support the conclusion that it reached."

[49]

Ground 8 Consideration

The owners' eighth ground of appeal challenged the Tribunal's finding that practical completion was achieved on 20 December 2010. The ground as originally formulated in the notice of appeal had three elements: 1. the finding that practical completion was achieved on 20 December 2010 was an error of law, given that practical completion as defined within the contract had, on the evidence, not been achieved; 2. the finding was against the weight of the evidence; 3. the Tribunal failed to address the owners' claim based on misleading and deceptive conduct.
The owners submissions developed the first two elements of this ground as involving at least the failure of the Tribunal below to give any or adequate reasons for its decision that practical completion had been achieved on 20 December 2010 - see, for example, par 74 of the owners' submissions. In particular, the owners drew attention to the fact that Mr Dietrich had given unchallenged evidence concerning the state of the building work at 20 December 2010 and his opinion that it did not satisfy the requirements specified in the contract for practical completion. It was pointed out that, notwithstanding Mr Dietrich's observations and expertise, the Tribunal apparently rejected his evidence, see [278], [279] and [281] of the Tribunal's reasons, but failed to explain why.
Further, in so far as the Tribunal relied upon deemed practical completion under cl 26.6 in reaching its conclusion (see for example [282]), the owners submitted that the Tribunal failed to address their contention that they invoked the process for challenging a notice of practical completion under cl 26.3(b) and thus there was no deemed practical completion, contrary to the Tribunal's apparent conclusion.
Having regard to the ground of appeal as originally formulated and as developed in written submissions, we accept that the owners raised, in substance under their eighth ground, the questions of whether the Tribunal gave adequate reasons for its decision that practical completion was achieved on 20 December 2010 and whether the Tribunal considered all aspects of the owners' claim.
An appeal based on a failure to give reasons for a decision or conclusion raises a question of law - see Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 13 and the cases there cited. An appeal on the basis that the Tribunal has failed to consider a claim also involves a question of law - Khan v Kang [2014] NSWCATAP 48 at [28]. No leave to appeal is required in either case, see s 80(2)(b) of the NCAT Act.
On a review of the Tribunal's reasons for decision, it is true that the Tribunal set out in detail over 43 paragraphs, [234] - [276], the submissions of the parties concerning whether practical completion had been achieved on 20 December 2017. Although it is not entirely clear as the paragraphs appear under the heading "Builders response to Owners claim for damages for late completion", the Tribunal's findings of fact, analysis of the contract and reasoning was limited, however, to the following: "277 In this case the owners attended the offices of the builder on 14 January 2011, paid the final progress payment, and were given a handover package being the keys to the property, relevant certificates and warranty documents for their new home. They signed the formal handover document. They have lived in the premises continuously since. [This last sentence is inconsistent with what is apparently accepted at [297] and [305]] 278 Despite the owners submissions in support of their argument that practical completion has not been achieved the Tribunal is the final arbiter of the question of fact. 279 The owners rely on the unchallenged opinion of Mr Dietrich and what flows from that. However, as submitted by the builder, it is for the Tribunal to decide on questions of law interpreting the meaning of practical completion. Mr Dietrich's opinion is not made as an expert as it is not within his expertise to give a legal interpretation and opinion. 280 The 20 December 2010 is within the time for completion of the building works under the Contract, such date having been extended as contended by the builder with allowances for weather, industry shutdown and the delay caused by the owners indecision about the drainage works. 281 The Tribunal has considered the submissions made by both parties in respect of the date of completion of the building works. The Tribunal is satisfied that the building works were completed for the purposes of the contract on the evidence of the builder being 20 December 2010. Practical completion was achieved in accordance with the contract on that day. The keys of the home were delivered to the owners on 14 January 2011 and they paid the final progress payment on that day. 282 The Tribunal finds that the builder fulfilled its obligations under clause 26 of the Contract and that practical completion was achieved on the date in the notice, 20 December 2010."
That reasoning does not: 1. refer to the specific content of any of the relevant evidence, including Mr Dietrich's, or explain why it was accepted or rejected; 2. disclose the Tribunal's findings of fact as to what occurred in relation to the building work under the contract and what the state of building work was on 20 December 2010; 3. set out or analyse any of the relevant contractual provisions including, for example: 1. par (e) of Sch 2 to the contract titled "Practical Completion"; 2. cl 1 of the terms and conditions which contains relevant definitions including, for example, "date of practical completion", "notice of practical completion", "practical completion"; 3. cl 26 of the terms and conditions which deals with practical completion; 4. cl 50 of the special conditions which also concerns practical completion; 1. explain how the Tribunal reached its conclusions, at [281] and [282] including, for example, that: 1. the building works were completed for the purposes of the contract on 20 December 2010; 2. the builder fulfilled any relevant obligations under clause 26 of the contract or what they specifically were; and 3. practical completion was achieved, on 20 December 2010; 1. consider whether cl 26.3(b) was invoked by the owners or operated so as to prevent practical completion being deemed under cl 26.4 or 26.6.
We have touched upon the nature and extent of the duty to give reasons for decisions and have referred to some of the authorities, above. For a discussion by the Appeal Panel of the duty to give reasons and what is required to satisfy that duty see Collins v Urban [2014] NSWCATAP 17 at [48] ff and the authorities referred to there and Hernady v Raccani [2016] NSWCATAP 67 at [43] - [44] and [52] - [54]. In the circumstances of this matter and having regard to the principles and deficiencies identified above, we have reached the conclusion that the reasons of the Tribunal at first instance concerning when practical completion was achieved are manifestly inadequate in many material respects. For these reasons, they do not meet the required standard of adequacy in this matter. As a consequence, it can also be concluded that the Tribunal below did not consider, adequately or at all, the owners' claim in this regard.
As we have already noted, failure to give adequate reasons for a decision is an error of law, as is a failure to consider or adequately consider a claim, legitimately made. Leave is not required. The appeal on ground 8 should be upheld. In the light of this conclusion, it is not necessary for us to consider the other elements of the owners' eighth ground of appeal.
The Tribunal below rejected the claim in Item 18 on the basis, in part, that practical completion was achieved on or by 20 December 2010. The Appeal Panel is not a in a position to determine whether or not practical completion was achieved by 20 December 2010 in the absence of relevant findings by the Tribunal or other sufficient uncontested facts. At least in relation to this aspect of the claim in Item 18, the claim should be remitted to be reconsidered by the Consumer and Commercial Division in accordance with the Appeal Panel's directions.

[53]

Ground 9 Consideration

The owners' ninth ground challenged the finding that the due date of practical completion was 20 December 2010 or, as stated by the Tribunal at [280], that "20 December 2010 was within the time for completion of the building works under the Contract". The finding was said to be against the weight of the evidence. Formulating a ground in this way would usually indicate that the appellant intended to seek leave to appeal, in the light of cl 12(1) of Sch 4 to the NCAT ACT. In the part of attachment to the notice of appeal in which the owners set out why leave to appeal should be granted, they identified the following considerations as relevant to the ninth ground: "The evidence was the contract terms. The builder failed to give evidence of any claim for an extension of time."
Those considerations, taken together with the owners' submissions, indicate that the substance of the owners' ninth ground was that the Tribunal's conclusion as to the due date for practical completion was erroneous because it did not take into account: 1. the relevant contractual provisions; 2. the absence of evidence of any claim for an extension of time or of actual delay (for example, in relation to wet weather); and 3. the evidence led by the owners.
Failure to consider or apply correctly the applicable contractual provisions raises a question of law. Whether there was no evidentiary support for a finding also raises a question of law. Leave to appeal is not required for grounds which raise those types of questions, s 80(2)(b) of the NCAT Act. As to failure to consider evidence led by a party, this appears to raise the question whether the decision was against the weight of the evidence. Leave to appeal would be required for such a ground.
We shall address the three aspects of this ninth ground of appeal and then consider whether leave to appeal should be granted, if required.
The relevant reasoning of the Tribunal at [280] appears to be limited merely to adopting what the builder had contended without further analysis. The Tribunal recorded the builder's contentions as to the due date for practical completion at [236] to [240]: "236 The builder submits that the owners have misinterpreted the Contract provisions in relation to the time for completion of the works. It contends that the time is calculated in accordance with Item 12 of Schedule 1 to the Contract. That is, the works must reach the stage of practical completion no more than the number of weeks set out after the Contract period commences and subject to Clause 9 of the Contract and the special conditions. It further contends that the time is 34 weeks for the dwelling, but subject to an extension of 4 weeks for stormwater and hydraulic engineering works and a further 4 weeks for the air-conditioning installation. 237 With the industry shutdown allowance in the Contract of 5 weeks, the builder contends that the time for completion of the works is 34+4+4+5 weeks=47 weeks. Before any allowance is made for adverse weather. 238 The builder contends that Mr Malesev's evidence supports its claim that the works were delayed by the owners' indecision on at least 6 occasions. 239 The builder contends that 9 weeks work was lost as a result of wet weather and supports this contention by exhibiting Bureau of Meteorology rainfall charts for the period prepared from rainfall measurements taken at Gordon Golf Club. 240 On the builder's submissions the time for completion of the works, after adjustments as set out above was 56 weeks plus the delay caused by the owners' indecision. The builder contends that the works commenced on 1 September 2009 and achieved practical completion on 20 December 2010, within the time allowed under the contract."
At [280], the Tribunal held: "The 20 December 2010 is within the time for completion of the building works under the Contract, such date having been extended as contended by the builder with allowances for weather, industry shutdown and the delay caused by the owners indecision about the drainage works."
As to the first aspect, the Tribunal's failure to consider the relevant contractual provisions, the Tribunal does not identify any of the relevant contractual provisions in its reasoning at [280]. The builder's contentions that are adopted in that paragraph mention only Item 12 of Sch 1 to the contract and cl 9. The specific content of those provisions was not set out by the Tribunal, except partially where it was recording the owners' submissions which it, without explanation, did not accept.
It is necessary to consider those provisions in more detail. Item 12 in Schedule 1 - Particulars of Contract was as follows: "12. Contract period (Clauses 1 and 9) The building works must reach the practical completion no more than the number of weeks set out below after the contract period (Clause 8) commences, subject to Clause 9 & Special Conditions. a) Single storey standard slab on ground construction - 26 weeks b) Two storey standard slab on ground construction - 34 weeks Provided that if works as set out below are to be carried out, the time allowed for practical completion to reached will be extended as follows:- i) External concreting works or paving - 4 weeks; ii) Stormwater and hydraulic engineering works - 4 weeks; iii) Airconditioning installation - 4 weeks iv) Retaining walls construction - 5 weeks; v) Bearers and joist construction - 6 weeks; vi) Where cut and/or fill to the site exceeds 600mm - 6 weeks vii) Demolition of existing dwelling on site - 5 weeks viii) Works as set out in Sydney Water Section 73 ix) Fencing works - 4 weeks x) Supply and installation of more than one kitchen - 4 weeks xi) Rendering works - 3 weeks"
It can be observed that the Tribunal's reasoning did not include a calculation of the number of weeks which constituted the contract period in accordance with this Item 12 in Sch 1. Nor did the Tribunal make any findings of fact necessary to allow that calculation to be done. The Tribunal adopted the builder' contentions that the number of weeks was, subject to further periods under cl 9 and the special conditions, "34+4+4+5 weeks=47 weeks".
As to this 47 week period, the following comments can be made. For the 34 week period to be correct, the home must have been a standard two storey house with slab on ground construction. No such finding was made by the Tribunal and nor was this recorded as a contention of the builder that the Tribunal adopted. Nonetheless, this fact may not have been in dispute. Similarly, the two extensions of 4 weeks for "[s]tormwater and hydraulic engineering works" and "[a]irconditioning installation", claimed by the builder, were not supported by any specific findings by the Tribunal, but they may not have been in dispute. The 5 week extension for the industry shutdown, established by cl 9.1(j) of the contract, may on the proper construction of that clause only be applicable if a cause beyond the sole control of the builder meant that the work extended over the December/January period.
The Tribunal, at [280], then implicitly accepted the builder's contention that it was entitled to "allowances for weather … and the delay caused by the owners indecision about the drainage works". As provided in Item 12 of Sch 1, however, to be applicable these "allowances" had to fall within cl 9 and the special conditions.
Clause 9 (as amended by cl 52.2 of the Special Conditions) provided: "Clause 9. Delays and Extensions of Time 9.1 The builder is entitled to a reasonable extension of the contract period if the building works are delayed by the builder suspending the building works under Clause 32 or from a cause beyond the sole control of the builder including: (a) a variation or a request for a variation by the owner; (b) an act of God, fire, explosion, earthquake or civil commotion; (c) adverse weather; (d) an industrial dispute; (e) a dispute with adjoining or neighbouring residents or owners; (f) anything done or not done by the owner; (g) delays in getting any approvals; (h) a delay in the supply of materials selected by the owner; (i) the need for a survey of or other report in relation to the site; or (j) the industry shutdown being a 5 week period commencing on or about 22 December in each year. 9.2 The builder is to give the owner written notice of an entitlement to an extension of time detailing both: (a) the cause of the delay; and (b) the extension of time, Within 10 working days after becoming aware of both the cause and the extent of the delay. 9.3 If the owner wishes to dispute the builder's entitlement to an extension of time the owner must, within 5 working days of receiving the builder's notice, give the builder a written notice: (a) disputing the extension of time; and (b) detailing the reasons why the extension of time is disputed. 9.2 The builder must take all reasonable steps to minimise the impact of delay on the progress of the building works, but is not obliged to give the owner written or oral notice of any entitlement to an extension of the contract period. 9.3 When giving a notice of practical completion pursuant to Clause 26, the builder must give the owner particulars of any entitlement to an extension of the contract period, including the cause of any delay and the extension of time. For the purpose of Clause 9.1, a reasonable extension of the contract period for adverse weather shall mean two days for each day of adverse weather to allow for drying out of the site. 9.4 For every day the subject of an extension of time caused by an act, default or omission of the owner, delay damages, being the total of the actual increase in cost to the builder to carry out the building works plus the builder's margin applied to that cost is due and payable to the builder on demand."
As cl 9.3 in its amended form makes clear, if the builder was to claim any entitlement to an extension to the contract period, it was required to give the owners particulars of that entitlement, including the cause of any delay and the extension of time claimed, when giving a notice of practical completion under cl 26. The contention that this had not been done was specifically raised by the owners in their submissions to the Tribunal as recorded at [241] of its reasons. The Tribunal did not, however, address this contention or the proper application of cl 9.3 in its reasons.
It was conceded by counsel for the builder, Mr Stomo, before us that no claim for an extension of time for wet weather had ever been made by the builder. As to any other claim for delay, it was noted that a claim for 5 months had been made in Variation 13 but it was accepted that the builder had agreed with the owners, in early 2011, that this variation would not be pressed. (See also the Tribunal's reasons at [130] as to the waiver of Variation 13).
It was not suggested, nor do we accept, that the builder complied with cl 9.3 and gave the required particulars of any entitlement to any extension of time for wet weather or for any other cause, when giving its notice of practical completion pursuant to cl 26.
Accordingly in our view, because the Tribunal failed to take into account the relevant contractual provisions, including in particular the requirements in cl 9.3, in the light of the uncontested facts, the Tribunal's conclusion at [280] that the contract period was more than 47 weeks, as contended by the builder, was erroneous.
Clause 9.3 was not, however, the only relevant contractual provision which the Tribunal failed to consider. Given the terms of the contract, the end of the contract period cannot be determined without determining when the period commenced. Neither the builder's contentions nor the Tribunal in its reasoning at [280] addressed what was the date of commencement of the contract period under the contract. It appears that the builder simply assumed, as recorded at [240], that it was the date on which building works commenced and the Tribunal adopted this assumption at [280]. The contract in cl 8 appears to provide otherwise.
Although Item 12 in Schedule 1 refers to cl 8 in the words "after the contract period (Clause 8) commences", that clause was not mentioned anywhere by the Tribunal or by the builder in the contentions which the Tribunal adopted. Clause 8 provided: "8.1 The builder is to commence the building works within 20 working days after the day that: (a) the builder receives all necessary building permits and planning approvals for the building works to commence; or (b) the owner satisfies all of the requirements of clause 4, Whichever is later. 8.2 The contract period commences on the date the builder is obliged to commence the building works under sub-clause 8.1."
Special conditions cll 44.2 and 44.3 modified cl 8 and provided: "Clause 44 Owner Acknowledgements and Agreements … 44.2 Despite Clause 8 the builder shall commence building works within 20 working days after the owner satisfies the requirements of Clause 4 and the following requirements: a) Receipt of Surveyors peg out report; b) Receipt of approval by any statutory or other authority or land developer; c) Receipt of final plans, Tender amendments, variations, kitchen layout, Champion Homes Colours & Accessories Agreement all signed by the owner; d) If applicable, completion by the owner, to the builder's satisfaction, of any preparatory building work to enable the builder to commence building works. 44.3 The building works and contract period will not commence until all of the above requirements and the requirements of Clause 4 are satisfied by the owner. …"
The Tribunal did not consider the application of those clauses. Nor did it make any findings of fact which would have allowed it to determine when the contract period commenced under cl 8.2 and in accordance with cll 44.2 and 44.3 of the special conditions. In these circumstances where the date of the commencement of the period has not been determined, the Tribunal's conclusion, at [280], that 20 December 2010 was within the contract period, "the time for completion of the building works", was unsupported and in error. It should not be allowed to stand.
For these reasons, we uphold the owners' appeal on the first aspect of their ninth ground.
We turn to the second aspect of this ground relied upon by the owners, the absence of evidence of any claim for an extension of time or of actual delay leading to the decision being erroneous. We have already noted that the builder did not contend that it gave particulars of extensions claimed in accordance with cl 9.3 nor, quite properly, did the builder resile from its agreement concerning waiver of Variation 13. In these circumstances: 1. the absence of particulars of claims, or evidence of claims, for extensions of time that complied with cl 9.3 of the contract; and 2. the fact that the builder did not rely on evidence of specific, actual periods of delay, support the conclusion that the Tribunal's finding that 20 December 2010 was within the time for completion of the building works under the Contract was erroneous.
For these reasons, we would uphold the ninth ground on the second aspect as well.
As to the third aspect, it was contended that the Tribunal also erred in failing to take into account the evidence led by the owners. This aspect of the owners' case appears to us to relate to whether practical completion was achieved on 20 December 2010, which was the subject of their eighth ground, rather than the ninth ground, which concerned what was the due date for practical completion. Accordingly, we do not believe that this aspect provides an additional basis for upholding the owners' ninth ground.
Taking into account all of these matters, we conclude that the Tribunal erred as contended by the owners under the first and second aspects of their ninth ground of appeal. The Tribunal's conclusion to the effect that 20 December 2010 was within the contract period was erroneous given the Tribunal's lack of findings, its failure to address all the owners' contention and consider the applicable contractual provisions and the uncontested absence of compliance with cl 9.3 in relation to claims for extensions of time.
In so far as we are correct to characterise this ground of appeal as, in substance, raising a question of law, leave to appeal is not required. We also note that had the owners appealed on the ground that the Tribunal had failed to give adequate reasons for its decision as to whether practical completion had been achieved within the contract period, we would have upheld the appeal on this ground as well.
To the extent that we are wrong and leave to appeal in respect of this ninth ground is required, we would grant leave to appeal. In the circumstances referred to above, we are satisfied that the owners may have suffered a substantial injustice because the decision was against the weight of the evidence or was not fair and equitable, and the injustice of letting the decision stand is reasonably clear.
Having decided to uphold the appeal on the basis of the owners' ninth ground as well as the eighth ground, it is not appropriate to allow the Tribunal's decision concerning any aspect of the claim in Item 18 to stand. Once again, however, the Appeal Panel is not in a position to determine what orders might be appropriate to dispose of the claim in Item 18. Accordingly, we shall remit the Item 18 claim for reconsideration by the Consumer and Commercial Division in accordance with the Appeal Panel's directions.

[59]

Ground 11 Owners' Submissions

In support of their eleventh ground appeal, the owners submitted in par 84 of their written submissions: "It is noted that the homeowners moved into the incomplete works for Easter 2011 which ends entitlement to liquidated damages under the contract. However, in circumstances where the works remain outstanding and do not get completed and the homeowners claim continues in the alternative under the ACL. The Tribunal may award compensation as it sees fit. Loss of rent is used only as measure of the damage and not the actual damage itself."
From this paragraph, we take it that the owners concede that they had no entitlement to liquidated damages after April 2011 when they went into occupation of the home. Nonetheless, they claim damages under s 236 of the ACL, to be quantified by reference to the amount of rental income that might have been earned if the home was finished and rented out, even if no rental income had actually been lost because the owners lived in the home.
The owners also made the following submissions under the heading "Damages": "47. The homeowner refutes the finding that practical completion occurred on 20 December 2010 and say works remained incomplete. The contract specified an amount for liquidated damages where the works were not completed on time. It is noted that liquidated damages stops accruing when the owner takes possession. The owner's therefore claim liquidated damages under the contract from the due date of completion under the contract being, they say, 23 July 2010 until they took possession in Easter 2011. 48. They then claim damages pursuant to s236 ACL from Easter 2011 onwards, for the failure of the builder to complete the works. 49. The sum claimed in damages under this part is either equivalent to the rent, which could have been obtained or equal to the sum agreed in the contract for liquidated damages. Rental income was nominated as a measure of damages. It was not suggested that the home would actually be rented out given that it could not be rented out owing to the unfinished items, including the bushfire protections."
We note that these submissions restate what the owners claimed but do not identify specifically why the Tribunal was in error in rejecting this claim.

[62]

Ground 12 - Item 15, the cost of bringing the water supply to the existing house

The owners' twelfth ground of appeal was expressed as follows: "12. Incomplete work - Water supply to existing house. This was found in favour of the homeowner but the Member omitted to add the claimed sum to the award. A request has been made for the Member to remedy this issue pursuant to s63. If this does not occur then the claim is pressed by way of appeal on the basis that it would not be fair or equitable for the owners not to be awarded the claimed sum to finish work given the findings made. ( Claim $9,632.42)"
As the owners observe, the Tribunal found at [202] in the owners' favour in relation to a claim by them concerning some aspect of the water supply. They were awarded $8,832.02 but not the $9,632.42 that the Tribunal recorded was claimed by the owners for Item 15.
The Tribunal identified the owners' Item 15 claim at first instance under the heading "Water supply to Fire fighting hose" as follows: "196 The owners claim an amount of $9,632.42 for the cost of bringing the water supply to the existing house. 197 The drainage plans in relation to the dwelling including the initial J & F design, the amended design and the final tanks as built included detail for a 5,500 litre tank for the existing dwelling on the land belonging to the owner's father and father in law. The owners claim that the builder failed to provide the tank, in breach of the Contract."
After summarising some of the evidence and contentions, the Tribunal concluded at [202]: "The Tribunal finds that the builder was aware before and at the time of submitting its tender upon which the Contract price was determined that a fire fighting service was required to comply with the development approval. Whether the builder "only quoted on Level 2 Bushfire Requirements" does not answer the requirement to install the fire fighting service. The J & F original and amended design included the provision of the 5,500 litre tank to the existing dwelling as part of the building works to be carried out under the Contract. The Tribunal is satisfied that the provision of the 5,500 litre tank to the existing dwelling was part of the building works on which the builder quoted. The builder is liable for the cost of the provision of the fire fighting service which should have been completed by the builder. The Tribunal accepts the cost of these works at $8,832.02 as a reasonable cost of provision of the works and allows the owners claim.."
There is no explanation of why $8,832.02 was awarded and not $9,632.42 as claimed.
The owners do not challenge the award of $8,832.02 but, as we understand it, seek an additional award of $9,632.42.
At this point, it should be noted that the builder's second ground of appeal challenges the Tribunal's decision to award $8,832.02 in respect of "Water supply to Fire fighting hose". Our decision on the owners' twelfth ground makes it unnecessary to address that aspect of the builder's appeal.

[65]

Ground 12 Consideration

It is essential as a first step to ascertain whether the owners contend that they are entitled to an additional $9,632.42 or only an additional $800.42. In this regard, footnote 23 and par 87 of the owners' written submissions assist to resolve the matter (pars 85 to 90 and the footnote have been set out in full above). Paragraphs 86 and 87 involved the contentions that the Tribunal understood that the claim for $9,632.42 concerned the water tanks, the claim for $8,832.02 related to a 30m fire hose reel and they were separate claims. Footnote 23 to par 87 noted that this was "[a]s per the position of Mr. Dietrich, expert for the homeowner, post conclave."
Mr Dietrich's position "post conclave" can be found in two documents that were before the Tribunal at first instance and before us. One was a 2 page typed document headed "Defects Position Post Conclave" and the other a 17 page document headed "Joint Memorandum of Experts Conclave" signed by Mr Dietrich and Mr Zakos, who were the owners' and the builder's experts, respectively.
The 17 page document included a Scott Schedule containing various items numbered from 8.3.1 to 8.9 with spaces for, among other things, the owners and the builder to make comments and provide an estimate of loss. Mr Dietrich and Mr Zakos noted in handwriting where matters were agreed or disagreed at the conclave of experts. The results of the conclave between Mr Dietrich and Mr Zakos were thus recorded in the 17 page document and were summarised in the 2 page "post conclave" document.
The 17 page document refers to two relevant claims, not one, about which the experts reached agreement as follows: Claim Amount Agreed comment 8.5.6 Water supply to Original Residence $9,632.43 "Responsibility not agreed. Contract dispute. Extent of work and quantum depend on contractual obligations and could not be adequately established." 8.7 Bushfire Construction Requirements: Water Supply for Fire Fighting. $8,832.02 "Same as item 8.5.6"

[67]

It thus appears that, originally, there were two claims but the Tribunal at first instance mistakenly conflated them.
At [196] of the Tribunal's reasons, the Tribunal refers to the claim as the "cost of bringing the water supply to the existing house" and the amount was $9,632.42. This is clearly claim 8.5.6 "Water supply to Original Residence" or "Water supply to original existing house".
In its reasons from [198] to [202], however, the Tribunal appears to be considering claim 8.7 "Bushfire Construction Requirements: Water Supply for Fire Fighting" or "Water supply - fire fighting" where the amount claimed was $8,832.02.
The Tribunal's descriptions of the claims and the amounts claimed demonstrate that it inadvertently slipped from considering claim 8.5.6 at the beginning of this part of its reasons to dealing with claim 8.7 in the remainder.
On this basis, we accept that the Tribunal has failed to consider either claim 8.5.6 for $9,632.42 or claim 8.7 for $8,832.02 properly or independently. Accordingly, it could be said that the Tribunal failed to exercise its jurisdiction, properly invoked, in respect of these claims. To the extent that the owners' twelfth ground raises such a failure, it is an appeal on a question of law - see generally the discussion in Amaca Pty Ltd v Tullipan [2014] NSWCA 269 at [9] and [10] and the authorities there quoted and also Khan v Kang [2014] NSWCATAP 48 at [28]. Consequently, leave to appeal is not required, s 80(2)(b) of the NCAT Act.
We note, however, that the owners have expressed the ground of appeal as an "appeal on the basis that it would not be fair or equitable for the owners not to be awarded the claimed sum to finish work given the findings made. ( Claim $9,632.42)". This suggests, having regard to the wording of cl 12(1)(a) of Sch 4 to the NCAT Act, that leave to appeal is being, or should be, sought. In the relevant section of the notice of appeal form, however, leave to appeal in respect of this ground is not sought.
In our view, we should not refuse leave, if required, simply because it was not sought in the appropriate section of the form, especially if there is an obvious error in the decision of the Tribunal below which needs to be corrected and the basis for granting leave to appeal has been identified elsewhere in the notice of appeal. We are confirmed in this approach having regard to the requirements in s 38(4) of the NCAT Act to act with as little formality as the circumstances of the case permit and according to the substantial merits of the case without regard to technicalities or legal forms.
Thus, if leave to appeal is required, we are of the view that the Tribunal's conflating of the two claims does mean that in respect of these two claims the decision is not fair and equitable and as a result the owners may have suffered a substantial miscarriage of justice. We are thus enabled to grant leave to appeal under cl 12(1) of Sch 4 to the NCAT Act. To the extent required, we do so. The injustice of allowing this part of the decision to stand in the circumstances where the separate claims have not been properly dealt with is reasonably clear.
For these reasons, we grant leave, if required, and uphold the owners' appeal on their twelfth ground.
A difficulty then arises as to what consequences flow from this conclusion. Since the two claims have been improperly conflated, can the Tribunal's conclusion as to either claim be allowed to stand? It appears that the owners contend that the award of $8,832.02 should be left in place. This would only be appropriate, however, if we could be satisfied that the Tribunal below had fully considered claim 8.7 and had not confused any part of it with claim 8.5.6.
From the owners' submissions (for example at pars 87 and 89), it is apparent that they contend that claim 8.7 was for $8,832.02 for fire fighting equipment including the 30m fire hose reel and claim 8.5.6 was for $9,932.42 relating to the 5,500 litre tank and bringing the water supply to the existing house.
From the reasoning of the Tribunal at [196] to [202], it is not possible to conclude that the Tribunal was addressing only claim 8.7 and not a confusion of the two claims when it reached its conclusion at [202]. At [202] the Tribunal said: "The J & F original and amended design included the provision of the 5,500 litre tank to the existing dwelling as part of the building works to be carried out under the Contract. The Tribunal is satisfied that the provision of the 5,500 litre tank to the existing dwelling was part of the building works on which the builder quoted. The builder is liable for the cost of the provision of the fire fighting service which should have been completed by the builder. The Tribunal accepts the cost of these works at $8,832.02 as a reasonable cost of provision of the works and allows the owners claim."
The provision of the tank to the existing dwelling was manifestly part of what the Tribunal was including in the expression "these works", the reasonable cost of which it assessed at $8,832.02 (without any further explanation). Accordingly, we cannot accept the owners' submission that "the Tribunal then appears to have conflated both items awarding $8,832.02 for the fire fighting equipment and omitting the cost of the additional tank to the existing home."
Since the two claims appear inextricably mixed up in the Tribunal's reasons at [196] to [202], we believe the appropriate course as a result of our conclusion on the owners' twelfth ground is to set aside the Tribunal's decision in relation to the Item 15 claim. Item 15 should be acknowledged to have improperly conflated claims 8.5.6 and 8.7 (as identified in the 17 page conclave document). Both of these claims should be remitted for separate reconsideration by the Consumer and Commercial Division in accordance with the Appeal Panel's directions.

[73]

Builder's Ground 1 Consideration

As this ground was based on the contentions that the decision in question was against the weight of the evidence and was not fair and equitable, we shall treat it as involving an application for leave to appeal.
As both parties correctly agree, determination of whether there has been any overpayment entitling the owners to a refund can only be determined following a final reconciliation of all amounts paid versus all amounts claimed.
As has been noted above, in the present case it is not in dispute that the owners paid the builder $421,478.55. The payments are set out in the Debtor Statement. The charges which the builder made also total $421,478.55 and, subject to the agreed credit of $3,721.00 (explained above and at [130] of the Tribunal's reasons), are set out in the Final Statement.
We have already explained why these amounts overstate the amount charged and the amount payable under the contract when considering the owners' first ground of appeal.
The builder's charges in the Final Statement are all referable to the original Tender Amount, the two Tender Amendments, the 14 Variations and the 4 Contract Price Adjustments (whether or not the variations and adjustments were accepted by the owners). As a result, the basis for each amount charged can be examined.
At [133] of the Tribunal's reasons, the Tribunal held that the owners paid $8,000 on account of the additional $16,205 cost arising from the amended drainage plan. This figure of $16,205 is derived from Amended Contract Price Adjustment 3 which deleted the stormwater detention system as a provisional sum item and substituted a fixed sum which was $16,205 more than the original provisional sum allowance.
The Tribunal then continued that because the design, which was the basis for Contract Price Adjustment 3, was never built the "amount of $16,205 should have been reversed and the $8,000 either credited or returned." This is, however, what actually occurred as a result of Variation 11, whereby Contract Price Adjustment 3 was effectively undone and the original provisional sum allowance of $25,000 was replaced with a fixed sum charge of $20,912.00. In addition, Variation 11 was in fact taken into account in the Final Statement.
The Tribunal recorded at [133] the owners' contention that the builder's accounting was in error in that it introduced a fixed charge of $20,912 and should have taken the $8,000 paid into account and therefore the owners have been overcharged by that amount.
The Tribunal held that "[i]nstead $8,205 of the $16,205 was reversed and the $8,000 paid was not credited towards the final account. The ledger produced by the builder at the hearing supports the owners' contention."
In our view the Tribunal was wrong to conclude that: 1. the $8,000 paid was not credited towards the final account; and 2. the Debtor Statement supported the owners' contention.
From the copy of the Debtor Statement (set out above), it can be noted that the payment of $8,000.00 received by the builder on 17 May 2010 was credited in the owners' favour. The total paid by the owners up to 16 December 2010 shown in the receipts column of the Debtor Statement is $397,031.40. This included the $8,000 paid on 17 May 2010. This corresponds with the "Payments to Date" shown on the Final Statement, which was also $397,031.40. Thus, it follows that the $8,000 paid by the owners was in fact credited towards the amounts paid by the owners to date in the Final Statement, contrary to the Tribunal's conclusion.
For this reason, the Tribunal was also wrong to conclude that the Debtor Statement supported the owners' contention. The Debtor Statement and the Final Statement are consistent and demonstrate that the owners were not entitled to a refund of $8,000.00 as claimed in Item 8. That sum had already been credited in the owners' favour.
The Tribunal's reasoning and in the owners' submissions on this ground of appeal made the mistake of considering the charges and payments on a piecemeal basis rather than considering the overall position as disclosed in the Debtor Statement and the Final Statement.
The builder sought leave to appeal on the ground that the decision to award the owners a refund of the $8,000 was against the weight of the evidence and was not fair and equitable.
In our view, the builder might have suffered a substantial miscarriage of justice because the Tribunal's decision on the Item 8 claim was against the weight of the evidence having regard, in particular, to the Debtor Statement and the Final Statement together with the supporting documents. The Tribunal's decision can also be said not to be fair and equitable in the circumstances. Thus, our ability to grant leave to appeal under cl 12(1) of Sch 4 to the NCAT Act is enlivened. Since the injustice to the builder of allowing the Tribunal's decision concerning this Item 8 claim to stand is reasonably clear, we grant leave to appeal and uphold the builder's appeal based on its first ground. The Tribunal's order 1 made on 23 December 2016, in so far as it includes the sum of $8,000 based on the Item 8 claim, should be set aside.
The evidence concerning what amounts were charged and paid is not in dispute and is adequately set out in the Final Statement and the Debtor Statement together with the supporting documentation. Thus, the Appeal Panel is in a position to determine what order should be made in substitution for order 1 made by the Tribunal below to take account that the owners were not entitled to the $8,000 refund. We shall make orders accordingly when we dispose of the appeals as a whole.

[75]

Builder's Ground 3 - Item 14, the "As built plans and certificates" for which $8,600 was awarded

The builder's third appeal ground concerned the claim in Item 14 in respect of which the Tribunal awarded the owners the sum of $8,600 because of the builder's failure to supply certificates.
As set out in the annexure to the notice of appeal, this ground was to the effect that the Tribunal erred because "[o]n the evidence and on the decision made by the Tribunal certificates have been supplied" and yet the builder was obliged to make payment for failure to supply all certificates. As a result, the decision was against the weight of the evidence and not fair and equitable.
The Tribunal recorded the owners' claim at first instance as follows: [190] The owners say that there was agreement between the experts that the owners would be paid by the builder an amount of $8,600.00 if all the as built certificates and plans were not provided by the builder to the owners. As at the conclusion of the hearing the as built certificates and plans had not been given to the owners. The owners claim the amount of $8,600.00.
At [192], it was noted that the owners' expert identified the required certificates as those required in relation to conditions 43, 44 and 45 of the development consent which concern the stormwater detention system, the drainage works and stormwater management and disposal.
The builder's contention was recorded at [191] as follows: "The builder says that the owners claim is disingenuous as the "vast majority" of the certificates have been delivered to the owners and it is unconscionable to claim $8,600.00 when those documents have been supplied."
The Tribunal's findings in respect of this claim were as follows: "[193] It is not in dispute that builder has not provided the required certificates apart from one, being from Fodori for drainage. Fodori was unlicensed at the time the works were carried and their certificate is of no use. The certifier now appointed will not accept the Fodori certificate as it is for works carried out by an unlicensed contractor. [194] The amount of $8,600.00 was agreed by the expert appointed by the builder as the measure of damages where certificates required to satisfy conditions of development consent have not been provided. [195] The Tribunal is satisfied that the experts agreed that the measure of damages for not providing all the certificates required by the development consent is on the evidence before it, $8,600.00. The intention of the agreed amount was to compensate for the owners loss in not having all the certificates available to satisfy the requirements of the development consent. Whether one or all of the certificates were not available means the development consent conditions cannot be satisfied. For the builder to contend that the "vast majority" of the certificates that have been provided satisfies the need to provide certificates and as built plans is, to use the builder's description to the contra argument, in itself disingenuous. The Tribunal allows the owners claim for $8,600.00"

[78]

Builder's Ground 3 - Consideration

We shall deal with this builder's third ground of appeal as involving initially an application for leave to appeal.
Contrary to what is identified as the ground of appeal in the attachment to the notice of appeal, the builder did not submit that the certificates identified in [192] had been provided, apart from one produced by Fodori for drainage. It was not in dispute that Fodori was relevantly unlicensed and it was not contended that the Fodori certificate could be relied upon. In its submissions, the builder focused upon the fact that the sum of $8,600 was not a "lump sum" payable if any of the certificates was not provided, as the Tribunal apparently assumed. It is thus necessary to understand what the sum of $8,600 agreed by the experts was for.
The experts' agreement was recorded in the 17 page "Joint Memorandum of Experts Conclave", to which we have referred above. The agreement is not exactly as stated by the Tribunal at [195]. The handwritten agreement, signed by both experts, in respect of claim 8.5.5 "As Built Plans and Certification" was as follows: "Agreed if certificate(s) is not available and is required under the contract, then cost of such certificates as itemised in GLZA Report, Item 8.5.5 p. 27"
The certificates in question were identified in the 17 page document as those "required as set out in the Development Consent Part 43, 44 and 45". These were the certificates referred to at [192], which had not been provided.
On the experts' 2 page summary "Defects Position Post Conclave", also referred to above, the item "As built plans & Certs" has recorded against it in the column headed "Amount Agreed post conclave": "To be provided or else compensated to $8,600" (underlining added). It thus appears that the itemised cost in Mr Zakos's report, the GLZA Report, of the certificates required "as set out in the Development Consent Part 43, 44 and 45" totalled $8,600. If none of them was provided, the experts agreed that the cost would be $8,600. But if one or more was provided, the cost of the remaining certificate or certificates was to be as itemised in Mr Zakos's report.
It follows, in the light of this understanding of what is recorded in the 17 page document and the 2 page document, that the Tribunal was incorrect to conclude as it did at [195] that: "… The intention of the agreed amount was to compensate for the owners loss in not having all the certificates available to satisfy the requirements of the development consent. Whether one or all of the certificates were not available means the development consent conditions cannot be satisfied. For the builder to contend that the "vast majority" of the certificates that have been provided satisfies the need to provide certificates and as built plans is, to use the builder's description to the contra argument, in itself disingenuous. The Tribunal allows the owners claim for $8,600.00"
For this reason, we accept that the Tribunal below misunderstood the evidence of the expert's agreement. It does not follow, however, that the Tribunal's finding that the amount which should be awarded was $8,600 was in error.
The agreed position contained in the 17 page document and the 2 page document, was that, if each of the certificates referred to at [192] were not provided by the builder, the cost of obtaining all of those certificates was $8,600. The Tribunal found, and as we understood it it was not in dispute, that no certificates referred to at [192] that could be relied upon were supplied to the owners. We accept that the certificate by the unlicensed plumber was not a certificate that could be relied upon. Thus, the Tribunal was justified in awarding the total sum agreed by the experts to be the appropriate figure if none of the certificates in question was provided.
Accordingly, we do not accept that the Tribunal's decision was against the weight of the evidence for the purposes of cl 12(1)(b) of Sch 4 to the NCAT Act (see Collins v Urban [2014] NSWCATAP 17 at [77]). Nor do we accept that the builder may have suffered a substantial injustice because the decision was against the weight of the evidence. Consequently, our ability to grant leave to appeal is not enlivened, under cl 12(1) of Sch 4 of the NCAT Act.
Moreover, even if we did have power to grant leave to appeal in respect of this ground we would not do so as it does not appear to us to involve any issue of principle, question of public importance, an injustice that is reasonably clear or a factual error that was unreasonably arrived at or clearly mistaken. Nor did the Tribunal go about its task in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for the decision to be reviewed. See Collins v Urban [2014] NSWCATAP 17 at [84].
For completeness, we note that the builder has also argued that it was not required to provide the as built plans and certificates in question under the contract. To support this argument, it relied upon cl 7 and item 11 of Schedule 1 to the contract. We do not accept that those provisions relieve the builder of any obligation to provide as built plans and certificates.
Clause 7 of the contract relevantly provides: "7.1 The party named in Item 11 of Schedule 1 must obtain and pay for all building and planning approvals. … 7.3 If the owner is named in Item 11 of Schedule 1, the owner must both obtain and give the approvals to the builder promptly. 7.4 If the requirements of a statutory or other authority necessitate a change to the building works the builder must inform the owner of the change required and ask for a variation for the building works to comply with the requirements."
Item 11 of Schedule 1 is as follows: "Planning and building approvals (Clause 7) The person to obtain and pay for all planning and building approvals including engineering details & certificates, survey reports and certifications is: The Owner."
When cl 7 and Item 11 are read together, it can be seen that the "certificates" and "certifications" referred to in Item 11 are only those which are "planning and building approvals". Those are the "approvals" required by the builder before it can undertake the relevant building works. The "certificates" and "certifications" referred to in Item 11 do not include as built plans or certificates, which are the subject of the Item 14 claim. Accordingly, we reject the builder's submission that the provisions of cl 7 are applicable in respect of this claim.
For these reasons, we refuse to grant leave to appeal in respect of the builder's third ground of appeal and dismiss the appeal.

[79]

Summary of Conclusions on All Grounds of Appeal

In summary, our conclusions on both the owners' and the builder's grounds of appeal are as follows: 1. Owners' ground 1: Appeal upheld and, if required, leave to appeal granted. Order 1 made by the Tribunal should be set aside and the order in substitution should include an additional $10,000 as the owners were entitled to such a sum under the Item 1(a) claim. 2. Owners' ground 2: Refuse leave to appeal, appeal dismissed. 3. Owners' ground 3: No utility in deciding as the loss sought to be recovered on appeal was not suffered. 4. Owners' ground 4: Appeal upheld and, if required, leave to appeal granted. The claims in Item 5(a), (b) and (c) are to be remitted to be reconsidered by the Consumer and Commercial Division in accordance with the Appeal Panel's directions. 5. Owners' ground 5: Leave to appeal granted, appeal upheld. The claim in Item 7 is to be remitted to be reconsidered by the Consumer and Commercial Division in accordance with the Appeal Panel's directions. 6. Owners' ground 6: Appeal upheld. The claim in Item 11 is to be remitted to be reconsidered by the Consumer and Commercial Division in accordance with the Appeal Panel's directions. 7. Owners' ground 7: Not pressed at hearing. 8. Owners' grounds 8 and 9: Appeals upheld, if required, leave to appeal granted. The claim in Item 18 is to be remitted to be reconsidered by the Consumer and Commercial Division in accordance with the Appeal Panel's directions. 9. Owners' ground 10: Appeal dismissed. 10. Owners' ground 11: Not necessary or appropriate to decide as the claim in Item 18 is to be remitted for reconsideration. 11. Owners' ground 12: Appeal upheld, if required, leave to appeal granted. Order 1 made by the Tribunal should be set aside and the order in substitution should include a reduction of $8,832.02 as the award made by the Tribunal of this amount for "Water supply to Fire fighting hose" cannot stand and the claims in items 8.5.6 and 8.7 (as identified in the 17 page conclave document) are to be remitted to be reconsidered by the Consumer and Commercial Division in accordance with the Appeal Panel's directions. 12. Builder's ground 1: Leave to appeal granted, Appeal upheld. Order 1 made by the Tribunal should be set aside and the order in substitution should include a reduction of $8,000 as the owners were not entitled to any sum under the claim in Item 8. 13. Builder's ground 2: Not necessary to decide as the Tribunal's decision has already been set aside as a result of the appeal being upheld in respect of the owners' twelfth ground of appeal. 14. Builder's ground 3: Leave to appeal refused, appeal dismissed.

[80]

Orders

In determining what orders are appropriate in this matter, we have had regard to: 1. the reasons and conclusions set out above; 2. the undisputed fact that the builder has already paid the owners $63,586.59 in compliance with order 1 made on 23 December 2016; 3. order 1 made on 23 December 2016 is required to be set aside because of our conclusions on some of the grounds of appeal; 4. on the conclusions of the Tribunal below that we have not disturbed only $56,754.57 was payable by the builder to the owners; 5. further amounts may be awarded in the owners' favour by the Consumer and Commercial Division in respect of the claims we are remitting to the Division; 6. the amount of the parties' and the Tribunal's time that has been consumed in this matter is substantial and it would be in accordance with the guiding principle in s 35 of the NCAT Act to attempt to achieve a negotiated resolution of the remaining claims in the proceedings as soon as possible; 7. the parties have already had a very lengthy period in which to formulate their claims, adduce evidence and make submission and the hearing before the Tribunal at first instance extended over 4 days many months apart; 8. confining the parties in the remitter proceedings to the claims as formulated at first instance and to the evidence at first instance would assist to ensure that the time and effort already invested in these proceedings are not wasted.
Consequently, the Appeal Panel orders that: 1. The time for Champion Homes Sales Pty Ltd to lodge its notice of appeal in AP 17/09469 is extended to 27 February 2017. 2. Adam Rekrut and Sandra Scott have leave to appeal in AP 17/04738, where required. 3. Champion Homes Sales Pty Ltd has leave to appeal in AP 17/09469 in respect of the first ground of appeal. 4. The appeal in AP 17/04738 is allowed in part, but is otherwise dismissed. 5. The appeal in AP 17/09469 is allowed in part, but is otherwise dismissed. 6. Order 1 made on 23 December 2016 in proceedings HB 13/66604 is set aside and in substitution the Appeal Panel orders that, subject to order 10 below, Adam Rekrut and Sandra Scott are to repay to Champion Homes Sales Pty Ltd $6,832.02. 7. The following claims made in proceedings HB 13/66604 are remitted to the Consumer and Commercial Division to be reconsidered in accordance with the directions in order 8 below: 1. The claim for "Variation 10-Hydraulic Design, Survey and Engineer Inspections and PCA (SS) site inspections" dealt with at [88] to [101] of the reasons for decision of 23 December 2016 (the "Reasons"); (a1) The claim for "Variation 12-Structural Steel" dealt with at [110] - [119] of the Reasons; 2. The claim for "Stormwater Detention System" dealt with at [139] to [182] of the Reasons; 3. The claim for "Damages for Failure to reach Practical Completion" dealt with [233] to [308] of the Reasons; 4. The claim for "Water Supply to Original Residence", item 8.5.6 in the Scott Schedule attached to the Joint Memorandum of Experts Conclave in proceedings HB 13/66604 signed by Mr Dietrich and Mr Zakos (the "Scott Schedule"); 5. The claim for "Bushfire Construction Requirements: Water Supply for Fire Fighting", item 8.7 in the Scott Schedule. 1. The Appeal Panel directs that: 1. the claims referred to in order 7 above are to be reconsidered by the Consumer and Commercial Division on the evidence received by the Tribunal at first instance and without further evidence; 2. the hearing in the Consumer and Commercial Division of the remitted claims is to take place on a date fixed by the registry not before 20 October 2017 or such later date as Principal Member Harrowell determines under order 9 below; 3. on or before 6 October 2017 the parties are to prepare and provide to the Tribunal: 1. an agreed chronological bundle of all the primary documents in evidence before the Tribunal at first instance; 2. an agreed transcript of the proceedings before the Tribunal at first instance; 1. if the parties cannot agree on the bundle or the transcript referred to in direction 8(c) above: 1. Adam Rekrut and Sandra Scott are to provide to the Tribunal and to Champion Homes Sales Pty Ltd their chronological bundle of all the primary documents in evidence before the Tribunal at first instance and/or their transcript of the proceedings before the Tribunal at first instance on or before 6 October 2017; and 2. Champion Homes Sales Pty Ltd is to provide to the Tribunal and Adam Rekrut and Sandra Scott any additions or corrections to the bundle and/or transcript provided by Adam Rekrut and Sandra Scott on or before 13 October 2017; 1. the remitted claims are listed for directions before Principal Member Harrowell on 22 September 2017 at 9.15 am. 1. Under s 37(1) of the Civil and Administrative Tribunal Act 2013 (NSW) the Appeal Panel requires the parties to participate in a resolution process in respect of the claims referred to in order 7 to be conducted by Principal Member Harrowell in such manner as he thinks fit on or before 20 October 2017 or such later date as the Principal Member determines. 2. Order 6 above is not to take effect until the date specified for this purpose in the decision of the Tribunal disposing of the claims remitted to the Consumer and Commercial Division by these orders.