On 13 September 2017, the Appeal Panel handed down its decision in relation to these two appeals - Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2017] NSWCATAP 187 (the principal decision).
In AP 17/04738, the owners, Mr Rekrut and Ms Scott, were the appellants and the builder, Champion Homes Sales Pty Ltd, was the respondent. In AP 17/09469, the builder was the appellant and the owners, the respondents.
The Appeal Panel's orders made on 13 September 2017 included order 7 which was in the following terms (see the notice of decision and [445] of the principal decision):
"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:
a. 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");
b. The claim for "Stormwater Detention System" dealt with at [139] to [182] of the Reasons;
c. The claim for "Damages for Failure to reach Practical Completion" dealt with [233] to [308] of the Reasons;
d. 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");
e. The claim for "Bushfire Construction Requirements: Water Supply for Fire Fighting", item 8.7 in the Scott Schedule."
Order 7 was intended to give effect to the Appeal Panel's decision to uphold certain grounds of appeal and to remit the related claims for redetermination in the Consumer and Commercial Division. At [7] of the principal decision is a summary of the outcomes of the appeals in respect of each of the 18 claims made in proceedings HB 13/66604. Those 18 claims are identified in the table at [40] of the principal decision.
Although claim 7, summarised in [40], was intended to be remitted for reconsideration by the Consumer and Commercial Division as foreshadowed in [7] and [244] of the principal decision, no order was made in order 7 to give effect to this aspect of the decision.
On 1 March 2018 the Registrar received an email from the owners, copied to the builder, which alerted the Appeal Panel to the problem in the following terms:
"Re : [2017] NSWCATAP 2017
Scott & Rekrut v Champion Homes
Pursuant to s63, Civil and Administrative Tribunal Act 2013 we ask that order 7a be amended, where underlined as follows:
The claim for Variation 10 - Hydraulic Design, Survey and Engineer Inspections and the PCA (SS) site inspections and the structural steel dealt with at [88]- [119] of the reasons for decision of 23 December 2016 (the reasons)
The structural steel variation was one which the Appeal Panel, in its reasons [241 - 244] said was to be remitted. Therefore the failure to include the item in Order 7 was clearly a slip or omission.
Given the the remitter is to be heard on 26 March, with our submissions in chief to be filed by Tuesday 6th March, we ask that this matter be attended to as a matter of urgency."
On 5 March 2018, the Registrar sent correspondence, by letter and email, to both the builder and the owners in the following terms:
"I refer to the orders made by the Appeal Panel, on 13 September 2017, in the matters AP 17/04738 and AP 17/09469 ("the Orders") and to the email sent by Mr Rekrut and Ms Scott to the Tribunal, and copied to you, on 1 March 2018. A copy of this email is attached.
Mr Rekrut and Ms Scott have requested that the Orders be amended, in order to rectify the omission of an order remitting the Structural Steel claim as foreshadowed in [244] (and [7]) of the Appeal Panel's reasons for decision but not reflected in the Orders as published.
Pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) No 2, the Appeal Panel or the President may amend the Orders if it is satisfied that they contain an "obvious error". In the circumstances, the Appeal Panel proposes to consider amending the Orders by inserting the following:
7 (a1) The claim for "Variation 12-Structural Steel" dealt with at [110] - [119] of the Reasons;
Should you wish to make any submissions to the Tribunal in relation to Mr Rekrut and Ms Scott's request, and the Appeal Panel's proposed amendment, please do so by 12 March 2018.
Any submissions by any party should also include submissions as to whether or not the party objects to this issue concerning the Structural Steel claim being dealt with on the papers and without an oral hearing.
No submissions have been received concerning the proposed amendment of the text of order 7 made on 13 September 2017. In addition, no party has opposed this issue being dealt with on the papers.
I am satisfied that this issue can be adequately determined in the absence of the parties and that an order dispensing with a hearing under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) is appropriate.
Section 63 of the NCAT Act provides:
"(1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member.
(2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct.
(3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where:
(a) there is an obvious clerical or typographical error in the text of the notice or statement, or
(b) there is an error arising from an accidental slip or omission, or
(c) there is a defect of form, or
(d) there is an inconsistency between the stated decision and the stated reasons."
As the President and the Member presiding at the proceedings, I am satisfied that there is an obvious error in the text of order 7 in the written notice of the decision and in [445] of the written statement of reasons. The error is that an order remitting claim 7, summarised in [40] as "Variation 12-Structural Steel - A claim for a refund of $6,388.70 for structural steel claimed in variation 12", was not made when it should have been made. It is clear from [7] and [244] of the principal decision that this is what was intended.
Accordingly, I shall direct the Registrar to alter the text of the notice of decision made on 13 September 2017 and of [445] of the statement of reasons for decision by inserting in both the following text in order 7 after paragraph a. and before paragraph b.:
"a1. The claim for "Variation 12-Structural Steel" dealt with at [110] - [119] of the Reasons;"
[2]
Orders
I order that:
1. A hearing in respect of the application under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) is dispensed with under s 50(2) of that Act.
I direct the Registrar:
1. to alter the text of the notice of decision made on 13 September 2017 and of [445] of the statement of reasons for that decision by inserting in both the following text in order 7 after paragraph a. and before paragraph b.:
"a1. The claim for "Variation 12-Structural Steel" dealt with at [110] - [119] of the Reasons;".
[3]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 15 March 2018