Su v Winning Builders Pty Ltd

Mania v NSW Land and Housing Corporation [2022] NSWCATAP 376

Precise Builders (NSW) Pty Ltd v Jones & Krel [2018] NSWCATAP 112

Latoudis v Casey [1990] HCA 59; [1990] 170 CLR 534

Oshlack v Richmond River Council [1998] HCA 11

1. On 13 June 2024, I published orders and reasons in this proceeding (Primary Decision).
2. In the Primary Decision, I made an order under s 48O(1)(c) of the Home Building Act 1989 NSW (HB Act) for the respondent (Builder) to carry out rectification works at the applicants' (Owners') residence in Ermington NSW. The rectification works the subject of the work order (order 2), were more particularly described in Annexure B of the Primary Decision, and the terms and conditions of the work order were as set out at [194(1) - (4)] and in Annexure A of the Primary Decision.
3. Should the Builder not comply with the work order, the Owners became entitled to renew the proceeding in accordance with Clause 8 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 NSW (NCAT Act) - see [194(4)] of the Primary Decision.
4. On 4 October 2024, the Owners lodged an application to renew the proceeding (Renewal).
5. In their Renewal, the Owners seek a money order (HB Act, s 48O(1)(a)) in lieu of the work order, being order 2 made on 13 June 2024.

1. The parties led expert evidence as regards the reasonable cost of the rectification works as defined in Annexure B of the work order - Gordon Xue (Mr Xue) from Tyrells Building Advisory in the Owners' case, and Steven Alexander (Mr Alexander) from Steve Alexander Pty Ltd in the Builder's case.
2. Mr Xue and Mr Alexander gave evidence in joint session at the Renewal hearing on 7 August 2025. It became apparent that the parties' experts could agree on many items as per their Joint Report prepared for the hearing, which became Exhibit 2, and then to the extent the experts could not agree on certain items, the parties themselves compromised their positions and agreed upon rectification costs.
3. After the hearing, the parties agreed on a total amount of $284,475.66 as the quantum of the rectification works the subject of the work order - see the Statement of the Parties' Agreed Quantum bearing date 19 August 2025, signed by the solicitors for the Owners, and the Builder, respectively.
4. In that way, the issues narrowed considerably during, and in the immediate aftermath of, the Renewal hearing, such that the only issue left for me to determine is whether, as the Owners' advocate, a further work order should be made, rather than a money order for $284,475.66.

The Builder's Non-Compliance with the Work Order of 13 June 2024

1. The Builder was required at its own expense to cause an appropriately licensed third-party remedial builder to undertake the rectification works set out in Annexure B of the Primary Decision and for the works to comply with all applicable standards and codes as requested by an Inspector (Primary Decision [194(1)]). The scope of rectification works as set out in Annexure B of the Primary Decision was largely guided and informed by the work of the Owners' expert, George Dahrie (Mr Dahrie) from Noviion Engineering. By the terms of the work order, Mr Dahrie was appointed as the Inspector, to inspect the performance of the rectification works at various 'hold points' (Primary Decision [194(2)]), and further, to adjudicate upon any disputes between the parties as regards an extension of time to complete the rectification works.
2. Pertinently, the terms of the work order at Annexure A of the Primary Decision, stated:

(1) The Respondent must complete the Rectification Works within 6 weeks. The said period for completion of the Rectification Works is to commence 28 days after the date of these Orders.

(2) The Respondent will be entitled to a reasonable extension of time in the event of delays to the Rectification Works where the cause of the delay is beyond the Respondent's reasonable control. The Respondent must take all reasonable steps to minimise any delay to the Rectification Works. Any claims for extensions of time must be notified in writing to the Applicants within 7 days and any dispute as to extensions to be determined by the Inspector.

1. There is no doubt that the Builder did not comply with the work order of 13 June 2024 within the time required (i.e., to complete the rectification works by 22 August 2024); or otherwise, by extension of time in accordance with the procedure referred to in (2) above.

The Legislative Framework for the Owners' Renewal of the Proceeding

1. The renewal provisions in respect of the Consumer and Commercial Division of the Tribunal are as set out in Cl 8 Sch 4 of the NCAT Act, as follows:

8 Renewal of proceedings in respect of certain Division decisions

(1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.

(2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.

(3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act.

(4) When proceedings have been renewed in accordance with this clause, the Tribunal:

(a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or

(b) may refuse to make such an order.

(5) This clause does not apply if:

(a) the operation of an order has been suspended, or

(b) the order is or has been the subject of an internal appeal.

1. The right of renewal proceedings is engaged when the original order is not complied with within the period specified by the Tribunal (cl 8(2) of Sch 4) and then the purpose of the renewal proceedings is to determine what other appropriate orders the Tribunal could have made when the matter was originally determined and not to reconsider the substantive merits of a claim: see Akratos v Papadopoulos [2016] NSWCATAP 139 at [36]; Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 at [51] (Blessed).
2. Considering the Builder's non-compliance with order 2 made on 13 June 2024, the Tribunal's renewal mechanism was clearly engaged when the Owners lodged their Renewal Application on 4 October 2024, being a lodgement date within the time required by the NCAT Act (see Cl 8(2) of Sch 4).
3. Renewal proceedings are an additional, simple, and practical method of enforcing and promoting timely compliance with Tribunal orders: Blessed at [26] agreeing with the Appeal Panel decision in Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 at [83].
4. The meaning of the expression "other appropriate order under this Act or enabling legislation" was considered by the Appeal Panel in Blessed at [31] - [53]. The Appeal Panel's analysis considers the four (4) criteria expressed in Cl 8(4) (a) for making a renewal order, as follows:

(1) (1) the order is "other" than the order originally made,

(2) (2) the order is "appropriate",

(3) (3) the order is one that the Tribunal "may make ... under [the NCAT] Act or enabling legislation",

(4) (4) the order is one "as [the Tribunal] could have made when the matter was originally determined".

1. More recently, in Mania v NSW Land and Housing Corporation [2022] NSWCATAP 376 (8 December 2022) (Mania) the Appeal Panel emphasised that the order made on renewal must be different in some material respect.

1. In the Renewal of the proceeding by the Owners, the Builder seeks a work order on the same terms and conditions as the Primary Decision, i.e., order 2 and [194] and Annexures A and B, except that:

(i) The time for completion for completion of the 'Rectification Works' as that phrase is defined in [194(1)] of the Primary Decision, is to commence 28 days after the date of orders made in the Renewal of the proceeding, and

(ii) The requirement that the Builder will maintain a valid contractor's licence in accordance with the requirements of the HB Act for the duration of the Rectification Works (see 'Licensing Requirement' in Annexure A of the Primary Decision), be removed.

1. The Builder's two (2) principal arguments are: firstly, that the work order of 13 June 2024 was itself unreasonable as to its terms and conditions especially regarding the Time for Completion of the rectification works and the Builder's Licensing Requirement; and secondly, that the Builder has a reasonable explanation for delay.
2. As written evidence for the hearing of the Renewal, the Builder relied upon:
   • The Statutory Declaration of the Builder's sole director, Jimmy Philip Yuen (Mr Yuen), dated 7 February 2025, with Attachments A to F: see Exhibit 1 for the hearing of the Renewal, hereinafter referred to as the Tribunal Book (TB) comprising 2 volumes of 923 pages, at TB 657 - 683,
   • The Affidavit of Mr Yuen dated 23 April 2025, with Annexures A to K, at TB 727 - 905, and
   • The Affidavit of the sole director of Standard Australia Builders Pty Ltd, Lijie Ma (Ms Ma) dated 4 June 2025, with Annexures A to E, at TB 910 - 924.
3. The Builder augmented its written evidence with submissions following the Renewal hearing - Closing Submissions dated 11 September 2025 with a Chronology, and Submissions in Reply dated 30 September 2025.
4. As regards explanation for delay, the written evidence for the Renewal (as contained in the TB - Exhibit 1) refers, relevantly, to the following events and correspondence:
   • On 13 June 2024, Mr Yuen contacted a third-party builder, Mr Tony Catton, with whom he communicated up until 24 June 2024 when Mr Catton confirmed he could not carry out the rectification works the subject of the work order,
   • In or about late June 2024, Mr Yuen's son contacted Ms Ma, and met with her on 9 July 2024,
   • On 13 July 2024, Mr Yuen and Ms Ma inspected the Owners' Ermington property by arrangement with the Owners,
   • Shortly thereafter, Ms Ma became ill and could not be contacted up until 28 August 2024,
   • On 19 August 2024, Mr Yuen sent an email to the Owner, Baoling Zhao (also known as Pauline) seeking an extension of six (6) weeks for Ms Ma to complete the rectification works,
   • On 20 August 2024, the Owners' lawyers responded on the Owners' behalf, noting that the extension of time request should be adjudicated upon by the Inspector, Mr Dahrie, with the costs of the adjudication to be paid by the Builder,
   • On 28 August 2024, the Builder received an email from Ms Ma confirming some conditions on which she would agree to do the rectification works,
   • On 15 October 2024, the Builder's then lawyer prepares a draft agreement which subsequently (on 18 October 2025) Ms Ma said she would not sign because her solicitor must prepares the building agreement at the Builder's own cost,
   • On 6 December 2024, the Builder's then lawyer wrote to Mr Dahrie asking that he informs the lawyer of the submissions the Inspector requires to determine the Builder's extension of time request; to which Mr Dahrie replied on the same day, that he will determine the request when the Builder pays his fee of $1,000 (such fee being paid to the Inspector on 10 December 2024),
   • On 10 February 2025, the Builder's lawyer wrote to the Inspector to inform him that his instructions are that Ms Ma had agreed to undertake the rectification works and can commence the works on 20 February 2025 and then complete the works 6 weeks thereafter,
   • On 11 February 2025, Mr Dahrie refused the Builder's requested extension.
5. For its argument about the reasonableness of the terms and condition of the work order, the Builder submitted that the crux of the Renewal of the proceeding concerns an inability on the Builder's part to cause the rectification works to be started by a third-party remedial builder within 28 days of the work order, and that this timeframe was never realistic.
6. In respect of the Builder's Licensing Requirement for the terms and conditions of the work order, the Builder further submitted that in circumstances where the Builder must engage a third-party remedial builder to carry out the rectification works, the Builder should not then be required to maintain its own valid contractor's licence for the duration of the rectification works. In this respect, the Builder relied upon Precise Builders (NSW) Pty Ltd v Jones & Krel [2018] NSWCATAP 112 (Precise Builders), where the builder in that case did not have a licence, yet the Appeal Panel had renewed the work order.

1. The Owners relied upon the following written evidence:
   • The Affidavit of Bao Ling Zhao affirmed 16 September 2025, with Annexures A to I, at TB 618 - 645,
   • The Affidavit of Clyde Welsh (Mr Welsh) dated 4 October 2025, with Annexures A to C, at TB 646 - 656,
   • The further Affidavit of Mr Welsh dated 18 February 2025, with Exhibit CW-2, at TB 684 - 726.
2. Further, the Owners tendered a Licence search of the Builder (Exhibit 3) which showed that the Builder's licence had expired on 2 August 2025.
3. The Owners augmented the written evidence with written submissions on the renewal application dated 9 September 2025 and written submissions in reply dated 26 September 2025 attaching a copy of the printed terms and conditions of the Owners' Home Warranty Insurance Policy (HWI Policy) with the Builder.
4. In essence, the Owners submitted that the appropriate order within Cl 8 of Sch 4 of the NCAT Act, is a money order in the agreed quantum (i.e., $284,475.66), to be in substitution for the work order of 13 June 2024, and moreover, that the Builder should not be afforded a further opportunity to engage a third-party remedial builder to carry out the rectification works.
5. In his written submissions the Owners' counsel argued that there are various reasons why this is not a case where the appropriate order on the Renewal is a further work order, as follows:

(a) The Owners are left with a dwelling where rectification works ought to have been completed by 22 August of last year and with effectively no works being carried out almost a year later,

(b) The Builder's explanation for the delay is inadequate in circumstances where:

• The Builder took more than one month to meet the proposed remedial builder on site,
• The Builder took more than two months to obtain high level terms from the proposed remedial builder,
• The Builder took more than 4 months to obtain a draft contract from the proposed remedial builder, and
• The Builder took almost 7 months to pay a deposit to the proposed remedial builder,

(c) The ailment of Ms Ma of the proposed remedial builder which apparently affected her during late July and August 2024 does not provide an adequate explanation for the Builder's failure to comply with the work order in the 10 weeks afforded to it to do so,

(d) The Builder did not ensure that the remedial builder commenced any substantive rectification works in the 10 weeks afforded to it under the work order,

(e) The Builder allowed its own licence to lapse in breach of the express terms of the work order,

(f) The Builder and the remedial builder each failed to carry out even the most basic tasks identified by Mr Xue that one would ordinarily expect a builder to carry out when faced with a work order for remedial/rectification works, e.g., becoming familiar with the site,

(g) The proposed contract with the remedial builder does not comply with the requirements of Part 2 Division 1 of the HB Act,

(h) Notwithstanding that the work order was made 16 months ago, there is no evidence that the Builder has signed a binding contract with the proposed remedial builder, or that the proposed remedial builder has obtained insurance under Part 6 of the HB Act,

(i) There is no clear evidence that the Builder has the capability to pay the proposed remedial builder to the completion of the rectification works,

(j) A further work order is inconsistent with the Tribunal's guiding principle (NCAT Act, s 36(1)) in that it will inevitably lead the parties into further dispute if it is not complied with, such that it is only an order to pay money on the Renewal which will resolve the parties' disputes without the risk of further litigation.

1. I find that a further work order should not be made and that an order to pay money in the amount of the agreed quantum of $284,475.66 is the appropriate order under the NCAT Act on the Renewal of the proceeding by the Owners and under the relevant enabling legislation, the HB Act, in s 48O(1)(a).
2. An 'other appropriate order' within Cl 8(4)(a) of Sch 4, whether made under the NCAT Act or other enabling legislation, requiring the same work to be done but by a later date, is not materially different and has the effect of relieving a party from original obligations (at least as to time) and not enforcing the original order which has not been complied with according to its terms. Nor does it promote finality to proceedings in the Tribunal: see Mania at [34] - [35]. The Appeal Panel (Mania at [36] - [39]) then said, relevantly:

36. Further, in so far as a date change is required, there is adequate provision to address such a need by s 41 of the NCAT Act. This section gives the Tribunal power to extend time. Also, in respect of residential tenancy proceedings, s188 of the RT Act may permit variation of the December orders.

37.Otherwise, enforcement in connection with a work order is usually achieved by making a suitable award for compensation, where such relief is available. Such an award permits the person in whose favour an order has been made to engage and pay for others to perform the required obligation sought to be enforced.

38. In making these observations, we leave for separate consideration whether a different work order could be made, for example, in circumstances where work done under the original order was defective and itself required to be rectified.

39. Otherwise, a party in whose favour an order has been made by the Tribunal must look to other means of enforcement provided in the NCAT Act or the relevant enabling legislation. The fact these other means of enforcement may be more complex is not a basis for interpreting Sch 4 cl 8 in a manner that permits other orders to be made that are not properly seen as a means of enforcing or ensuring compliance with the original orders.

1. This is not a case where a different work order could be made because works carried out under the original order may have been defective. In fact, no substantive works have been carried out by a remedial builder on behalf of the Builder under the original order. The authorities to which the Builder refers in its submissions such as Precise Builders, which were decided before Mania, do not assist the Builder's case for a further order.
2. Indeed, for the work order of 13 June 2024, insofar as a date change for completion of the rectification works may have been required by the Builder, it is not the case that the Builder applied for an extension of time in accordance with the terms of the work order, when it became aware of the delay. On the Builder's own evidence, such delay arose during the period 13 July 2024 to 28 August 2024, when it is said that Ms Ma, the principal of the proposed remedial builder, was ill and uncontactable. If, in fact, Ms Ma was uncontactable during that period, the Builder did not apply for an extension of time, and further, the Builder did not request an adjudication from the Inspector, Mr Dahrie, even after Mr Yuen had received an unfavourable response to his email of 19 August 2024 from the Owners by their lawyers.
3. While it is accepted that Ms Ma's illness during July/August 2024 was outside the Builder's control, it is also the fact that the Builder did not source a different third-party remedial builder at that time. Materially in this respect, the Builder led no evidence for the Renewal hearing that Ms Ma was the only third-party remedial builder available or that sourcing third-party builders was an especially onerous task. In fact, the Builder's written evidence for the Renewal hearing revealed that the Builder had only contacted two third-party remedial builders and then took only limited further action. In consequence, almost no works whatsoever have been carried out by the Builder to date to satisfy the terms of the work order.
4. Nor did the Builder adduce any evidence to establish that a proposed third-party remedial builder and the Builder had signed a building contract compliant with the HB Act and that a proposed third-party remedial builder had obtained insurance under Part 6 of the HB Act.
5. Furthermore, I am unpersuaded by the Builder's arguments about the terms and conditions of the work order of 13 June 2024 being unreasonable. The matters that the Builder now raises about it being difficult to find a third-party remedial builder, were put to me in written submissions following the hearing of the original proceeding. Ultimately, I rejected the Owners' submissions before I made the work order with the terms and conditions at [194(1) - (4)] and in Annexure A, for the reasons stated in the Primary Decision at [82] - [91]. Absent any appeal, they cannot be reagitated now. Rather than exercising its rights whether under the terms of the work order which would be to seek an adjudication from the Inspector as regards any disputed extension of time request, or to lodge an internal appeal to the Tribunal's Appeal Panel in respect of my decision on the terms and conditions of the work order, especially as to Time for Completion, or as to the Builder's Licensing Requirement, the Builder waited so that the Time for Completion ran its course, and waited for the Owners to lodge their Renewal Application. In my view, such conduct (or inaction) on the Builder's part demonstrates a cavalier approach generally to compliance with the terms and conditions of the Tribunal's work order and is certainly not consistent with the Builder's obligation (NCAT Act, s 36(3)) to cooperate with the Tribunal in giving effect to its guiding principle.
6. The Owners advocated for the Builder's Licensing Requirement to be included in the work order made. I accepted the Owners' position by including such a clause in Annexure A of the Primary Decision. There is no doubt that the Builder's advocacy in this respect was deliberate. I am satisfied such a clause was necessary, because it ensures that the Owners can still make a claim under the Owners' HWI Policy without the additional expense of a proceeding to wind up the Builder. In any case, as indicated above, the Builder was afforded an opportunity to make submissions on the issue prior to the work order being made and then did not appeal the terms and conditions of the work order when made.

1. I accept the Owners' submissions generally that the Builder should not be afforded a further opportunity to engage a third-party remedial builder to carry out the rectification works.
2. In the circumstances, I find that the appropriate order within Cl 8 of Sch 4 of the NCAT Act, is a money order in the agreed quantum (i.e., $284,475.66), to be made in substitution for the work order of 13 June 2024.
3. Both parties seek orders for their costs of and incidental to the Renewal of the proceeding, although neither has yet provided written submissions on the issue of costs.
4. As the amount claimed in the proceeding exceeds $30,000, r 38 of the Civil and Administrative Rules 2014 NSW, and not s 60 of the NCAT Act, applies in relation to costs. This means that special circumstances do not need to be established for a costs' order to be made. The usual rule in relation to costs, applies, i.e., that costs 'follow the event', absent some disentitling behaviour by the successful party: Latoudis v Casey [1990] HCA 59; [1990] 170 CLR 534; Oshlack v Richmond River Council [1998] HCA 11
5. The Builder has been unsuccessful in its submission for the Renewal hearing that there be a further work order. The Builder has also been unsuccessful in opposing the Owners' application for an order to pay money in the agreed quantum of the rectification works. In such circumstances, I am satisfied that the Builder should pay the Owners' costs of and incidental to the Renewal of the proceeding on the ordinary basis as agreed or as assessed in accordance with the applicable costs' assessment legislation.
6. I have given the parties an opportunity to apply for a different costs order.
7. For the foregoing reasons, I make the following orders and directions:

(1) The application of the respondent, Winning Builders Pty Ltd (Builder) for a further work order, is refused.

(2) The application of the applicants, Jian Yu Su and Bao Ling Zhao (Owners) pursuant to Clause 8 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 NSW for an order to pay money in substitution for the work order made on 13 June 2024, is granted.

(3) Order that the Builder is to pay the Owners $284,475.66 within 28 days of the date of these orders.

(4) Order that the Builder is to pay the Owners' costs of and incidental to the Renewal of the proceeding, on the ordinary basis, as agreed or as assessed.

(5) Order 4 is suspended, and the following orders take effect if any party seeks costs orders different to order 4 (an alternative costs order).

(6) The party seeking an alternative costs order (the costs applicant) is to file and serve its costs application and a brief submission (no more than 3 A4 size pages) in support of the application within 14 days of the publication of these orders.

(7) The costs respondent(s) is/are to file and serve any submissions (no more than 3 A4 size pages) in response to the costs' application within 14 days thereafter.

(8) The costs' applicant is to file and serve any submissions in reply (no more than 2 A4 size pages) within seven days thereafter.

(9) The parties' submissions on costs are to address whether the Tribunal should make an order under s 50(2) of the Civil and Administrative Tribunal Act 2013 NSW dispensing with a hearing as to costs, such that the issues in dispute as to costs are to be determined on the basis of the papers lodged with the Tribunal by the parties in accordance with these orders and directions.

(10) If more than one party applies for an alternative costs order, the parties are to file an indexed and paginated costs bundle at the end of the submission period.

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.