Schach v Dowdy Constructions Pty Limited

1. The Appellant brought the application to the Tribunal in proceedings which were listed for hearing on 19 February 2024. The Respondent failed to appear. The hearing proceeded in the absence of the Respondent and orders were made requiring the Respondent to carry out work.
2. The Respondent brought an application to have the orders made on 19 February 2024 set aside. That application was successful, and the Tribunal made orders setting aside the February orders on 22 April 2024.
3. The proceedings were then listed for hearing on 22 August 2024 when orders were made by consent requiring the Respondent to carry out works in accordance with details set out in a joint report of experts. The orders also required the Respondent to pay to the Appellant the amount of $10,000 in respect of accommodation costs incurred by the Appellant. Directions were made for the parties to exchange submissions concerning costs of the proceedings. The Appellant lodged submissions in support of orders for costs in his favour and the Respondent opposed the proposed orders.
4. The Decision set out the submissions of the parties, and it is relevant to the appeal to make reference to the submissions as recorded in the Decision.
5. The Appellant's submissions may be summarised as follows:

(1) The claim by the Appellant (as applicant) was for an amount exceeding $30,000 and therefore r 38 of the Civil & Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules) applied and the successful party was entitled to an order for costs.

(2) Where proceedings are resolved without a hearing on the merits there is no successful party, save for three exceptions, citing Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 (Lai Qin).

(3) One exception concerns where both parties have acted reasonably, but a court or tribunal can be confident of the outcome or that a party would "almost certainly succeed". This case falls into that category.

(4) Alternatively, a costs order may be justified pursuant to s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) independently of the Lai Qin principles. Where s 60 applies the Lai Qin principles "must give way to s 60 where they conflict with s 60 or where s 60 imports additional considerations or principles, citing Roberts v The Owners - Strata Plan no 4393 [2023] NSWCATAP 119.

(5) The second exception under the Lai Qin principles is where one party has acted unreasonably, as a result of which "the Tribunal may have regard to known circumstances, not in dispute between the parties, without reviewing large swathes of evidence": Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84.

(6) The Appellant commenced the proceedings due to the failure of the Respondent to address issues raised by the Appellant in relation to water ingress to the property the subject of the contract for certain building works to be undertaken.

(7) The Appellant filed and served a report prepared by Emilio Calandro and the Respondent did not file any evidence nor participate in the proceedings, resulting in the orders made on 19 February 2024.

(8) As a result of the Respondent's application to have the February orders set aside, the Tribunal made further directions for the Respondent to file and serve expert material. There was a direction that upon the Respondent filing such material the parties were to provide a joint report.

(9) The joint report identified seven individual areas to be remedied.

(10) The Appellant (then applicant) submitted that the Respondent's conduct had been unreasonable and taken as a whole engaged the provisions of s 60(3)(b), (f) and (g) or the Tribunal's general discretion in s 60(2)-(3).

(11) The Appellant's submissions identified three reasons why the Respondent's conduct had been unreasonable. The first was that the Respondent had refused to undertake any works to the property. The second was that the Respondent had unreasonably prolonged the time taken to complete the proceedings by failing to appear at the hearing on 19 February 2024. The third was that the Respondent had unreasonably defended the proceeding.

(12) The Appellant's submissions included reliance upon s 60(3)(c) of the NCAT Act which provides that the Tribunal may have regard to the relative strengths of each parties' claims. The submissions also referred to the statement by McHugh J in Lai Qin that costs may be awarded where, although both parties have acted reasonably, one party was almost certain to succeed if the matter had been fully tried.

(13) The Appellant submitted that the Respondent had mounted no defence and that the expert report filed by the Respondent acknowledged the defective work. The Appellant maintained that the significant difference between the two experts was in respect to the methodology for repair and the costs involved. The Appellant submitted that because the experts agreed that there were seven areas of defects requiring rectification the Appellant was inevitably going to succeed if the matter had not been resolved by consent.

(14) The Appellant submitted that the Respondent had effectively capitulated.

1. The Respondent's submissions as recorded in the Decision may be summarised thus :the initial report submitted by the Appellant showed 45 items as defects. The Respondent engaged Awesim Consulting as their expert witness and Awesim narrowed 45 defects down to "seven main items" which both parties agreed with.
2. The Appellant/applicant lodged submissions in reply, and these may be summarised thus: the experts met in conclave in order to prepare the joint report and "agreed on most points with minimal matters to be resolved in respect to the proposed Scope of Works ".
3. The Decision then moved to the Tribunal's determination of the issues raised by the parties. At [28] the Tribunal determined that the amount claimed or in dispute in the proceedings exceeded $30,000 and that r 38 of the NCAT Rules applied, and that s 60 is not applicable. The Tribunal further held that as the proceedings were resolved without a hearing, the principles governing the question of costs are those outlined in Lai Qin. The Tribunal further stated that the "caveat" expressed by the Appeal Panel in Roberts v The Owners - Strata Plan no 4393 concerning the application of those principles where s 60 applies, has no relevance.
4. It is not clear to us what the Tribunal meant by the reference to the "caveat" expressed in Roberts v The Owners Strata Plan no 4393. In that decision the Appeal Panel stated that rule 38 may displace s 60 in certain circumstances and where that occurs ordinarily costs should be awarded to the successful party (see [59]). The Appeal Panel noted that where there was no success in the relevant sense because there was no adjudicated outcome the Tribunal's cost decision should follow "the settlement of proceedings rather than following a decision on the merits" [60]. The Appeal Panel added that in such circumstances the general position in the Tribunal is governed by the terms of s 60 [66] and the judgment of McHugh in Lai Qin must give way to s 60 where it conflicts with s 60 or where s 60 imports additional considerations or principles [66]. The Appeal Panel said that the "starting point" is s 60(1), namely that each party pays its own costs [81]. The decision in Roberts was not concerned with r38 (see [36]) and therefore we agree with the Tribunal's statement that that decision is not relevant to this dispute.
5. We interpose here to say that where r 38 applies, the Tribunal is given the discretion to award costs in the absence of special circumstances. The exercise of the discretion under r 38 is, in our view, not confined to the kinds of "special circumstances" referred to in s 60(3). In exercising its discretion under r 38, the Tribunal is obliged to indicate why it proposes an order other than that each party pay its own costs. The discretion may be exercised for the reasons explained in Lai Qin. This was acknowledged in the Roberts case - see [71].
6. The Tribunal stated that the application of the Lai Qin principles in circumstances where r 38 applies were considered by the Appeal Panel in BCA Constructions Pty Ltd v Arsovski [2024] NSWCATAP 31 at [85]- [121]. The Tribunal stated that the Appeal Panel in that case referred to another Appeal Panel decision, namely that of Bulloch v Linden Building Services Pty Ltd t/as Linden Constructions [2019] NSWCATAP 42. In Bulloch the Appeal Panel stated that the mere fact consent orders are entered into is insufficient to establish that one party would be almost certain to succeed if the matter had gone to a hearing.
7. The Tribunal at [32] set out an extract from the BCA Constructions case in which the Appeal Panel in that case stated that it is not sufficient that the Tribunal is almost certain that a work order of some type would have been made. If that were the applicable test, then any consent order for any work in proceedings where the amount claimed or in dispute exceeded $30,000 would result in an order for costs in favour of the owners. The Appeal Panel stated that the appropriate enquiry is that even if both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried so that the party should obtain the costs of the action.
8. The Decision referred to the Respondent's submission that it was only 7 of 45 defects alleged by the Applicant's expert, which were agreed by the Respondent's expert and formed the basis of the work order. The Tribunal then recorded that the Applicant in his reply submissions did not "specifically take issue with that proposition.".
9. The Tribunal stated that the applicant's submissions did not provide any "reasoned explanation" of why, if the matter had gone to a contested hearing, the applicant must have succeeded not only in obtaining orders in his favour, but also an order for costs. The Tribunal stated that the only reason it was said by the applicant that the Respondent's defence was unreasonable, was because the Respondent had agreed to rectify seven items. The Tribunal also noted that the orders made on 19 February 2024 required the Applicant to prepare further evidence concerning issues of water ingress referred to in six numbered items in the applicant's expert report and required the Respondent to repair 39 other items.
10. The Tribunal concluded that it cannot be said that the consent orders reflect the case that the Applicant was maintaining in February 2024 and that it cannot be said that the Respondent acted unreasonably in defending the case that the Applicant was maintaining.
11. The Tribunal also concluded that, "For the same reasons, that is that the applicant did not succeed in establishing the whole of the case he had been maintaining, it is not possible to say that the respondent capitulated by agreeing to the consent orders made on 22 August 2024" ([41] of the Decision).
12. The Tribunal went on to decide that it was not appropriate to make an order that the Respondent pay the Applicant's costs of the proceeding. Nevertheless, the Tribunal went on to make orders that the applicant should receive the costs thrown away by reason of the Respondent's failure to appear on 19 February 2024 including costs incurred in the application to set aside the orders made on that occasion.
13. In the result the Tribunal made orders to the following effect:

(1) The Respondent pay the Applicant's costs thrown away by reason of the setting aside of the orders made on 19 February 2024, including the costs of and incidental to the hearing on that date, and the costs of and incidental to the Respondent's application to set aside those orders.

(2) The Applicant's application for costs is otherwise dismissed.

1. The Notice of Appeal was lodged on 11 July 2025. The grounds of appeal may be summarised as follows:

(1) The Tribunal made an error of fact in its interpretation of the agreed consent orders relating to the scope of work.

(2) The Tribunal incorrectly stated that the Appellant capitulated as the Appellant's expert report showed over 45 defects whilst the agreement in the consent orders was for 7 defects to be remedied. This is not correct because the 7 defects included individual defect items in the Appellant's defects list and this occurred because the Appellant's expert had itemised all of the defects whereas the Respondent's expert bundled all the defects together.

(3) The decision to dismiss the balance of the costs was ill-conceived and against the evidence of the parties.

(4) The consequence of the error is that the Tribunal failed to properly exercise its jurisdiction in relation to costs, thereby denying the Applicant a "rightful costs order".

(5) In addition, the Notice of Appeal contended that the Decision was not fair and equitable. The Notice of Appeal states that the Appellant "was successful in the majority of their claim" whereas the Tribunal incorrectly stated that the Appellant had alleged 45 defects, but only 7 were the subject of the consent order.

(6) The Notice of Appeal also stated that the Decision was against the weight of evidence.

1. The Respondent filed a Reply to Appeal. It essentially stated that the Decision is supported by the Respondent.

1. In support of the appeal, the Appellant lodged submissions the effect of which may be summarised as follows:

(1) The consent orders entered into on 22 August 2024 incorporated all of the defects claimed by the Appellant grouped into seven categories. The Tribunal erred in its finding of fact and, as a consequence, failed to apply the relevant legal principles in determining the Appellant's entitlement to costs.

(2) The correct conclusion should have been that the Appellant had established the whole of his case, as reflected in the consent orders, that the Respondent had capitulated by agreeing to the consent orders and that the Respondent had acted unreasonably by agreeing to the consent orders at such a late stage in the proceeding.

(3) The discrepancy between seven defects as opposed to 45 defects arose because the Appellant's expert provided a detailed itemisation of each defect, whereas the Respondent's expert consolidated numerous items into broader categories. The submissions contain a table being an extract from page 4 of the Respondent's expert report (the AWESIM Report) that demonstrates how the AWESIM Report grouped the 45 items identified by the Appellant's expert into seven groupings.

(4) The Tribunal's finding that the Appellant did not contest the Respondent's position that only seven of the 45 items were agreed, is unfounded and inconsistent with the evidence. This misapprehension of fact led to the Tribunal drawing an erroneous conclusion that the scope of rectification was limited.

(5) The submissions acknowledge that r 38 of the NCAT Rules applies and that therefore the Tribunal has a general discretion to award costs.

(6) The "starting point" in exercising such discretion is that the "usual order for costs" is that a successful party should be entitled to an order for costs in their favour. We divert to make the comment that this submission is contrary to the conclusions of the Appeal Panel in the Roberts case referred to earlier.

(7) One of the factors that the Tribunal should take into account when exercising the discretion to award costs is whether by reason of the relative success of the parties on different issues an order for costs should be made.

(8) The submissions appeared to rely upon the principles set out in Lai Qin namely, that where there has been no determination on the merits, costs are generally not awarded but there are exceptions. The exceptions include where a party has litigated for a period and then surrenders or capitulates, where one party has acted so unreasonably as to justify an award for costs or where both parties have acted reasonably but a court or tribunal can be confident of the outcome or that one of the parties would "almost certainly" succeed.

(9) The Decision involved a material error of fact based upon a misunderstanding of the evidence and as a consequence the Tribunal failed to properly exercise its discretion in relation to the awarding of costs. The outcome in fact represented success of the Appellant's case.

1. The Respondent lodged submissions in response, and these may be summarised as follows:

(1) With reference to the Appellant's assertion that the seven groupings of defects set out in the joint experts report encapsulated "most" of the defects claimed by the Appellant's expert, the Respondent says that that submission is not sustainable. This is so for several reasons. The first is that there is no evidence before the Appeal Panel supporting the assertion or the table set out in the submission. The second is that the orders made ex parte on 19 February 2024 required the Appellant to prepare further evidence of water ingress which was referred to in six numbered items of the Appellant's expert report. It was not until the joint expert report was prepared that the various claims made by the Appellant were confined into seven groups. It follows that the input of the expert engaged by the Respondent was influential in forming the joint experts' report which led to resolution of the claims by the Appellant. The third reason is that, as observed by the Tribunal in the Decision the Appellant did not in reply submissions take issue with the Respondent's proposition that only seven of 45 defects were agreed. The fourth reason is that when the application was filed there were only three defects identified and the Appellant's claim was later considerably expanded.

(2) The Respondent submitted that the consent orders contained an agreed scope of works and that fact does not indicate that the Tribunal was bound to accept that had the matter proceeded to hearing matters would not have been contested and a similar outcome would have been reached. This was a statement of the principle set out in Bulloch.

(3) The Appellant initially provided two expert reports and after the second report, a joint expert report was prepared which narrowed the alleged 45 defects down into seven main groups. The Respondent submits that it was not possible to assess the nature and extent of the claim by the Appellant until the more detail expert report was provided by the Appellant which in turn led to the preparation of the joint experts' report.

(4) Given the way the expert's reports were prepared it cannot be said that the Respondent acted so unreasonably in the circumstances as to satisfy the requirements of Lai Qin.

(5) Where both parties have acted reasonably costs may be awarded where the Tribunal can be confident of the outcome or that one party would almost certainly have succeeded. This is not such a case.

(6) The Respondent does not oppose the orders made by the Tribunal at first instance.

1. The Appellant lodged submissions in reply which may be summarised as follows:

(1) The Appellant disputed the Respondent's assertion that there was no evidence to support the fact that the seven grouped defects correspond with the 45 individual defects. The Appellant submitted that the relevant evidence is contained in the table (incorporated into the Appellant's submissions in chief) and that the table is an extract from the Respondent's expert report.

(2) The Appellant submits that the outcome of the consent orders was precisely the relief sought in the application filed by the Appellant.

(3) The Appellant's submissions state that the consent orders demonstrated a significant resolution in favour of the Appellant as those orders addressed "the majority if not all of the defects claimed".

(4) The Tribunal failed to consider the reports filed in the proceedings and to accept that the grouping of the orders into seven separate headings did not in any way mean that the remaining items claimed in the Appellant's expert report, were not included in the works to be undertaken and the Tribunal erred in making an assumption that the Appellant was not successful in the claim.

1. At the hearing of the appeal Ms Graves, solicitor, appeared for the Appellant and Mr Nazarian for the Respondent. Leave for legal representation had previously been given at a directions hearing on 1 August 2025.
2. At the beginning of the hearing, we described to the legal representatives the documents that we had been provided with. Those documents, essentially consisted of the Decision, the Notice of Appeal and Reply and the written submissions summarised above. Ms Graves indicated that we should have a folder of material that had been filed in the proceedings at first instance. We responded that we had not been supplied with such a folder. A short adjournment occurred when we made investigations with the Tribunal's registry and were informed that there was no record of the receipt of a folder. Ms Graves indicated a copy of the folder had not only been lodged with the Tribunal but also a copy had been sent to the Respondent. A representative of the Respondent was present in the hearing room and Mr Nazarian obtained his instructions. The instructions were that no such folder had been received.
3. Ms Graves handed up an extract from the report of the Appellant's expert, that extract being a table of defects. Mr Nazarian did not object to the tender but did foreshadow objection to the tender of further evidence from the first instance proceedings on the basis that he was not involved in those proceedings and became involved only in relation to this appeal. He said that he may therefore be taken by surprise by the tender of further documents at the hearing.
4. Ms Graves then made an application for an adjournment of the hearing of the appeal. We rejected that application on the basis that it had been brought at a very late stage, that there was no confirmatory evidence of the service of the missing folder on the Respondent or lodgment at the Tribunal, and also because a delay in resolution of the appeal would add further burden on both parties in the form of additional legal costs.
5. Ms Graves then proceeded to make oral submissions, consistent with the written submissions earlier referred to. We note that the written submissions did not use language that required the reader to look for and read the expert reports or the consent orders.
6. Mr Nazarian stated that his client did not contest the accuracy of the extract in the schedule as contained in the Appellant's submissions and that he agreed that there was an error in paragraph 39 of the Decision. The error was that the Tribunal appeared to think that the Respondent's agreement to rectify seven items involved the suggestion that other items were not agreed.
7. Mr Nazarian's essential point in opposition to the appeal was that costs orders are discretionary, and the grounds of appeal do not demonstrate a proper basis for setting aside the exercise of the Tribunal's discretion.

1. This is an appeal from a decision concerning the awarding of costs. Therefore, it is an ancillary decision - see s 4(1) of the NCAT Act. An appeal from such a decision is regulated by s 80 of the NCAT Act. This means that the Appellant may appeal as of right on any question of law or, with leave on any other grounds. This position is in turn modified by the provisions of cl 12, sch 4 of the NCAT Act. Clause 12 provides:

12 Limitations on internal appeals against Division decisions

(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).

Note : Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds.

(2) Despite section 80(2)(b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if--

(a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010 , or

(b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order.

1. The Appeal Panel decision in Collins v Urban [2014] NSWCATAP 17 dealt at length with the requirements for the granting of leave in circumstances like the present appeal.
2. In the case of this appeal there was no reliance upon cl 12(1)(c) concerning new evidence, but rather reliance upon 12(1)(a) and (b) that respectively deal with decisions that are said not to be fair and equitable and with decisions made against the weight of evidence.
3. Clause 12 requires the Appeal Panel to be satisfied that the Appellant may have suffered a substantial miscarriage of justice. At [84] of Collins v Urban the Appeal Panel summarised the relevant principles to be applied when deciding whether to grant leave. Paragraph 84 of the decision in Collins v Urban states as follows:

84 The general principles derived from these cases can be summarised as follows:

1 In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

2 Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

1 issues of principle;

2 questions of public importance or matters of administration or policy which might have general application; or

3 an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

4 a factual error that was unreasonably arrived at and clearly mistaken; or

5 the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,

BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

3 In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.

1. In the case of this appeal we interpret the Appellant's submissions to be confined to the argument that the Decision displayed a factual error that was unreasonably arrived at and clearly mistaken. The other factors described in paragraph 84 of Collins v Urban are not relevant to the Appellant's appeal.
2. The Appellant's submissions do not expressly state whether the grounds are intended to raise questions of law or are grounds requiring leave. Insofar as questions of law are raised it is relevant that the decision to award costs is a discretionary decision and therefore can only be overturned where the principles described in House v The King (1936) 55 CLR 499 apply. The High Court stated that it must appear that some error has been made in the exercise of the discretion. One error identified by the High Court is a case where the judge or other decision-maker "mistakes the facts".
3. We now turn to the grounds of appeal.
4. Ground 1: the alleged error here is the one described earlier, namely that it is said that the Tribunal appears to have found as a matter of fact that the Respondent agreed to rectify seven items but that there were 45 items in contention. To the extent that the Tribunal can be said to have reached that conclusion, the Respondent admitted via its solicitor that that was an error.
5. However, we do not subscribe to the view that the Tribunal reasoned that the Appellant was unsuccessful in the majority of its claims. Paragraph 39 of the Decision records that the Respondent agreed to rectify seven items. The Tribunal then referred to the position on 19 February 2024 (when the ex parte orders were made) and the Tribunal noted that on that occasion there was an order made for the Appellant to prepare further evidence, with respect to six items. The Tribunal then said at [40] that the consent orders could not be said to reflect the Appellant's case, as argued in February 2024.
6. We interpret [39] and [40] to record the view of the Tribunal that the Appellant's evidence in February was not capable of achieving the orders later agreed by the Appellant without further evidence. Accordingly, it cannot be said that in February 2024 the Respondent was apprised of a case to which it ultimately capitulated. The Tribunal found that it could not be said that the Respondent acted unreasonably in defending the case [40].
7. The Tribunal then considered whether the Respondent had capitulated and said that for the "same reason" "it is not possible to say that the Respondent capitulated by agreeing to the consent orders made on 22 August 2024" [41].
8. The consent orders that were made on 22 August 2024 were orders for work to be undertaken as identified in the joint report of experts. The Decision in our view, in essence states that the Appellant's case was not fully identified until the preparation of the joint experts report and that therefore it cannot be said that the Respondent acted unreasonably or capitulated.
9. In short, we are of the opinion that the Tribunal found that the Appellant's case was not fully particularised not only by identifying defects but also the proposed scope of works until publication of the joint experts report and it was only then that the Respondent agreed to the consent orders. In other words, this was not a case where the party bringing the claim had articulated the nature of its claim (in this case, the identification of defects and appropriate work orders) and notwithstanding the expression of that claim the other party refused to agree to the proposed work orders until the hearing or on a day close to the hearing.
10. In our view ground 1 fails to the extent that it contends that the Tribunal failed to apply the "relevant legal principles". Indeed at [31] and [32] of the Decision the Tribunal referred to principles described in Bulloch and in BCA v Arsovski, and our view is that the Tribunal's approach was consistent with the principles extracted from those two appeal panel decisions.
11. To the extent that the ground asserts that the error arose out of a mistake by the Tribunal as to whether only 7 out of 45 defects had been agreed that mistake was not germane to the Tribunal's reasoning. An error of the kind referred to in House v King has not been established.
12. To the extent that ground 1 asserts an error of fact (not of law) leave is required and in our view the Appellant's submissions do not demonstrate that there may have been a substantial miscarriage of justice having regard to the criteria for granting leave as set out in Collins v Urban.
13. Ground 1 is rejected.
14. Ground 2: this ground essentially makes the same contentions as for ground 1 and for the same reasons ground 2 is rejected.
15. Ground 3: this appears to be a ground requiring leave as it is based upon the assertion that the Decision was against the evidence of the parties. However the criteria for granting leave has not been established. To the extent that this ground is a repetition of grounds 1 and 2 albeit expressed differently, ground 3 is rejected for the same reasons.
16. Ground 4: this ground only arises if one or more of grounds 1, 2 and 3 are upheld. As those grounds have been rejected this ground is also rejected.
17. Ground 5: this is a ground requiring leave. The criteria set out in Collins v Urban has not been addressed and it is not apparent to us that there may have been a substantial miscarriage of justice. This ground is rejected.
18. Ground 6: this ground is in substance a repetition of ground 3 and for the same reasons is rejected.
19. It follows from the above that we propose to make an order dismissing the appeal. We will make directions for submissions with respect to costs of the appeal.
20. The Appeal Panel makes the following orders:

(1) Appeal dismissed.

(2) If the Respondent seeks costs of the appeal, then the Respondent must file and serve submissions in support of an order for costs of the appeal to be paid by the Appellant within 14 days.

(3) Within 14 days thereafter, the Appellant must file and serve submissions concerning costs of the appeal in opposition to the Respondent's submissions.

(4) The submissions on costs should address whether the Tribunal may make an order dispensing with a further hearing concerning costs of the appeal and whether the Appeal Panel may determine costs of the appeal on the papers.

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.