Sydney Roof Construction Pty Ltd v Varga

CEO of Customs v AMI Toyota Ltd [2000] FCA 1343; (2000) 102 FCR 578

Collins v Urban [2014] NSWCATAP 17

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179; [1995] HCA 58

Devel Pty Ltd v Lewis; Lewis v Devel Pty Ltd [2021] NSWCATAP 395

Dwyer Building Group Pty Ltd v Spicer; Spicer v Dwyer Building Group Pty Ltd [2025] NSWCATAP 133

Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378

Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92

Kudrynski v Orange City Council [2024] NSWCA 33

Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220

Pholi v Wearne [2014] NSWCATAP 78

Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39

Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223

Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206; (2017) 95 NSWLR 597

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62

Zahrouni v Vesta Homes Pty Ltd [2023] NSWCATAP 49

1. This is an appeal brought by Sydney Roof Construction Pty Ltd (the builder) against a decision made in the Consumer and Commercial Division of the Tribunal, on 17 March 2025, that it pay Lazlo Varga and Kerry Whykes (the owners) compensation of $48,869.00. The compensation order was made in respect of the owners' claim for the costs of rectification to the owner's property on a renewal of earlier proceedings between the parties, which had previously been settled by the making of consent orders on 1 March 2024. The appeal does not challenge the full amount ordered but seeks to reduce it to $28,712.00.
2. Those consent orders (the consent orders) read:

1 By consent of parties, Consent orders are attached to the file.

Scope of works.

1 Protect surrounding surfaces.

2 Install full protection to perimeter of roof.

3 Remove and dispose of existing roof sheeting & Cappings.

4 Remove and re-use gutters and down pipes

5 Install additional roof insulation and sarking where required.

6 Provide tarp to cover roof over night

7 Install new lysaght Klip Lok 0.48 roof sheeting, capping and flashing.

8 Reinstall gutter and downpipes.

9 Install additional 2 downpipes.

10 Owner to connect new downpipes to stormwater.

11 Clean and tidy area affected by work.

12 Work to be in accordance with NCC, Manufacturer's specification and relevant standards.

13 Work to commence from 6 weeks from order.

14 Work to be completed within 4 weeks of commencement.

15 Work is subject to weather conditions, contractor to notify owner of weather delay within 1 day (of delay arising)

16 Once work is commenced on site it must continue to completion.

signed by both parties 1/03/24.

1. The renewal of the proceedings was made, following the builder undertaking those works, in accordance with cl 8 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). The owners alleged that work done by the builder was defective. A hearing took place on 6 March 2025 in which the Tribunal heard from all parties, and the owners' expert witness Mr Xue. In a written decision, dated 17 March 2025, the Tribunal accepted the owners' case, assessed the owners' damages at $48,869, and ordered the builder to pay the owners that amount in compensation (the decision).
2. On 5 May 2025 the Tribunal, when considering an application for costs of the proceedings made by the owners, made an order that builder pay the owners' costs fixed at $10,507.
3. On 14 April 2025 the builder filed a Notice of Appeal, within the time prescribed by r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules).
4. The builder has subsequently amended its grounds of appeal in an Amended Notice of Appeal filed on 12 May 2025. In it the builder challenged the amount it was ordered to pay the owners, arguing some of the defects it was ordered to pay for are additional defects, which were not the subject of the owners' original claim or the work order. In the event that it is successful on the appeal, it also challenged the costs made on 5 May 2025.
5. On 2 May 2025 the Appeal Panel, by consent, made an order staying the payment of $19,547 of the damages until further order on condition that the builder pay that amount in the owners solicitor's trust account. The builder was also ordered, by consent, to pay 60% of the owners' costs of the stay application.
6. The central issue in the appeal is whether the builder should be required to pay damages for the costs of replacing the aluminium roof at the premises. The appeal was listed for hearing before us on 29 September 2025. Both parties were legally represented. At the conclusion of that hearing we made the following orders:

1. The decision is reserved.

2. On or before 13-Oct-2025, the respondent is to file and serve submissions on the "relevant standards" referred to in par [12] of the consent orders of 1 March 2024 in proceedings 2023/00377524 and 2023/00370588, in particular as to whether the Fair Trading NSW Guide to Standards and Tolerances is incorporated by the consent orders. The submissions are to be limited to five pages.

3. The appellant may reply on or before 20-Oct-2025, such submissions being limited to two pages.

1. The "relevant standards" issue was one that had been raised for the first time by the builder in oral submissions in reply. It was the subject of argument, both as to its correctness and as to whether it could be argued in the appeal.
2. At the hearing it was agreed that the appeal against the Tribunal's costs order should be determined following the outcome of the substantive appeal, on which the costs decision is dependant. So too, the issue of costs of appeal. Both parties agreed that those determinations should be made without a hearing, on the papers, with the Appeal Panel to make orders for the filing of submissions on the costs issues once we reached a substantive decision.

"Any internal appeal may be made":

(a) "in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel", and

(b) "in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds".

1. Clause 12 of Schedule 4 to the NCAT Act states with respect to decisions made in the Consumer and Commercial Division - as is the case here - that:

"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)."

1. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also in taking into account an irrelevant consideration or not having regard to a relevant consideration. This includes not making a finding on a central issue that is required to be made out in order to claim an entitlement to relief: see CEO of Customs v AMI Toyota Ltd [2000] FCA 1343; (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179; [1995] HCA 58.
2. An appellant to an internal appeal brought under s 80(2)(b) of the NCAT Act must identify with precision a question of law said to be raised by the appeal: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. Whether a question is one of law must be approached as a matter of substance: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [62](6), [94], [203]; Kudrynski v Orange City Council [2024] NSWCA 33 at [50]. In Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Cobar) at [109], Bathurst CJ and Bell P (as the Chief Justice then was) said, with Garling, Johnson and Lonergan JJ agreeing:

"Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law.' They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts."

1. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [24]- [40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act. An appellant is required to identify a pure question of law which then becomes the subject matter of the appeal: Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]; Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [12], [14]; Cobar.
2. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting the leading case of Collins v Urban [2014] NSWCATAP 17. It is only if the decision is affected by sufficient doubt, to warrant its reconsideration on appeal, that leave will be granted. Usually, it is appropriate to grant leave where there is an issue of principle, a question of public importance or an injustice which is reasonably clear, and beyond what is merely arguable: Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206; (2017) 95 NSWLR 597 at [28]. As explained in Collins v Urban at [84], it is not sufficient merely to show that the Tribunal below was arguably wrong or that there was a bona fide challenge to an issue of fact.
3. The circumstances in which the Appeal Panel may grant leave to appeal from a decision made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act:

"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)."

1. The test of whether evidence was not reasonably available in cl 12(1)(c) is not considered by reference to any subjective explanation from the party seeking leave to rely on it, but by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained it: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23].
2. In Collins v Urban, the Appeal Panel stated at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where:

"... there was a 'significant possibility' or a 'chance which was fairly open' that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."

1. Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
2. An appeal is not an opportunity for a losing party to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

1. In the decision the Tribunal explained that the proceedings had been renewed by the owners, at [6], and quoted the text of the consent order which it was alleged had been breached: [3] and [5]. For the purposes of this appeal they are relevantly items 7, 8, 9 and 12 of the order. The Tribunal noted, at [7], that it heard sworn evidence from the male owner (Mr Varga), Mr Kumar on behalf of the builder, and Mr Xue, the owners' expert. It outlined the materials before it at [9] and [10], which included Mr Xue's expert report and one relied on by the builder, from Veritas Homes.
2. The Tribunal then outlined the party's respective positions.
3. Essentially, the owners said that the work done by the builder in accordance with the consent order was defective: see [11] and [12]. They had lost confidence in the builder as a result and were seeking a money order: [13]. They had engaged Mr Xue to provide a report in both "original proceedings and the renewal proceedings," which cost they wished to recover: [15]. Central to the owners' submissions was that a defect in the installation of the sarking, "means that the recommended remediation is the replacement of the roof": [18].
4. The Tribunal summarised Mr Xue's evidence at [16]:

"During the hearing, Mr Xue gave sworn evidence, including that:

(1) He is a licensed builder and registered surveyor; he has worked in the industry for around 20 years and has his own construction team currently engaged in five projects across Sydney.

(2) He was first contacted by the Owners in around July 2023, regarding defective roofing work.

(3) He attended the site on 12 July 2023 and prepared a report identifying various defects.

(4) He was then contacted around a year later in relation to concerns about rectification work.

(5) He attended the site on 05 September 2024 and produced a further report on 06 September 2024, a copy of which has been provided to the Tribunal.

(6) He has included both information about defects as well as incomplete work, and recommendations about the work required to remediate. Recommended work is accompanied by costings.

(7) He has attempted to engage in a conclave with the Builder's expert, and has left two voicemail messages with the number listed on the website for the Builder's expert, but has not received any call back."

1. The Tribunal summarised the builder's position thus, at [19]:

"19 The Builder argues that:

(1) The work required by the Consent Orders is substantially complete and not defective;

(2) While items 9 and 10 required by the Consent Orders are not complete, this is due to a failure by the Owners to provide information; and

(3) Given the above, the Builder has no liability to compensate the Owners."

1. When considering the builder's position the Tribunal with respect to the roof the Tribunal noted, at [21]:

"21 ... the Builder argued that the guttering is a "Triline Stiffened Back Gutter" (identified at the bottom right of the image in section [9.4] in the Owner's Expert Report) and that the profile or shape of this guttering is such that Mr Xue's own observations can be contradicted by measurements which and accompanying photographs which appear in the Builder's Expert Report. I have understood this as a complaint about the methodology Mr Xue has used to assess compliance with NSW Standards and Tolerances.

...

23 In his evidence, Mr Kumar stated that the reason for water ingress into the parts of the premises was due to the choice of design and building material made by the Owners. He stated, "we just did whatever they asked" and made a statement to the effect that if the roof was leaking, it was the Owners fault and not the Builders.

24 Mr Kumar also argued that leaks in the roof were not due to a problem with the sarking, but were instead due to insulation. He argued that for relatively flat roofs, when installing fascia there is a high risk of water ingress due to a capillary action. He referred to his written material in relation to this submission."

1. The Tribunal noted, at [25], that Mr Xue in his report had "agreed to be bound by the Expert's Code of Conduct that appears in NCAT Procedural Direction 3" which confers on experts an "overriding duty to assist the Tribunal impartially on matters relevant to the expert witness's area of expertise." The builder's expert had not.
2. At [28] the Tribunal quoted the renewal provision in cl 8 of Sch 4 of the NCAT of the NCAT and explained that:

"29 The nature of renewal proceedings has been addressed by the Appeal Panel in Zahrouni v Vesta Homes Pty Ltd [2023] NSWCATAP 49 including at [63] holding:

"[I]n proceedings involving the HB Act, the Tribunal is not empowered in renewal proceedings to consider defect claims that were not part of the original proceedings and are not items that have arisen as a consequence of the orders made in the original proceedings."

More generally, the principles relevant to determination of renewal proceedings, including what constitutes "appropriate" orders on renewal, has been considered by the Appeal Panel in Minifie v Maxwell [2020] NSWCATAP 30 at [38] - [40]."

1. The Tribunal then turned to consider whether the builder had complied with the consent orders. First, it found that the builder had not complied with point 8 of the consent order, "Reinstall gutter and downpipes" a matter that was admitted in part by the builder. The Tribunal found that failure was as described by Mr Xue in his report.
2. The decision continues:

"35 The Owner's Expert Report reaches significantly different conclusions to the Builder's Expert Report. I consider that the Owner's Expert Report must be given more weight because it meets the criteria set out in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [59]. It provides clear evidence of the scope and assumptions that form the basis for Mr Xue's work, the investigative process is discussed and where he has volunteered a finding that work described in the Consent Orders is defective or incomplete is generally supported by a clear explanation and/or photographic evidence.

36 By contrast, the Builder's Expert Report does not contend with the issues raised in the Owner's Expert Report and has not been prepared in a way that enabled me to understand the basis for the preparation of that report, nor the conclusions reached.

37 In forming this view, I've considered the photographic evidence which Mr Kumar relied on in relation to the overhand of the sheet roofing relative to the gutter. This photographic evidence is equivocal. The photographs appear to show that the roofing overhangs in at least some sections by less than 50mm. This supports the conclusion offered by Mr Xue including at 9.3 of the Owner's Expert Report.

38 I do not accept Mr Kumar's evidence that the Builder has simply indulged any design whim or choice made by the Owners. Mr Varga's evidence given at the hearing, which I accept, is that he is not an expert in this type of work. The Owners are, by operation of s 18B(1) of the HBA [Home Building Act 1989], entitled to expect that a Builder will perform work in a manner that meets applicable standards and is fundamentally fit for purpose. This is consistent with s 18F(1) of the HBA which provides for a mechanism whereby a builder can depart from such standards if they provide a written advice to a client. This is plainly to ensure clients are making properly informed decisions, and to ward off the prospect of unnecessary litigation. Such a disclosure has not occurred here.

39 I accept that the works required by the Consent Orders are defective as set out in Section 8 of the Owner's Expert Report and accept find that the Builder has failed to comply with the statutory warranties in ss 18B(1)(a) and (in respect of the downpipes) s 18B(1)(d) of the HBA.

40 In reaching the conclusion that the Builder has failed to comply with s 18B(1)(d) of the HBA, I am satisfied that the reasonable time for performance of the works was the time period agreed by the Builder in the Consent Orders."

1. The Tribunal went on the consider and reject the builder's submissions that any delay had materially contributed to by the owners, at [41], or was due to adverse weather, at [42].
2. At [43] to [53] the Tribunal considered what orders should be made and accepted that despite the provisions of s 48M of the Home Building Act 1989 (NSW)(the HBA) this was an appropriate case in which to make a money order for the amount claimed by the owners. The decision to make a money order is not challenged on appeal, although the amount ordered is.

1. In its Amended Ground of Appeal the builder cited two grounds of appeal relating to the substantive decision, with a third ground relating to the costs submission.
2. In its written and oral submissions the builder only agitated ground 1, which it said raised questions of law concerning whether the Tribunal's decision to allow the owners to recover damages for the defects to the aluminium roof, requiring its replacement:

(1) was beyond the power of the Tribunal on a renewal application;

(2) failed to take into account a relevant consideration, namely that the replacement was not raised at first instance; and

(3) took into account an irrelevant consideration, namely the replacement not being previously claimed?

1. Ground 2 is a corollary of ground 1. It claimed that that the Tribunal should not have awarded compensation to the owners as the amount awarded was for damage that was not the subject of their original claim.
2. We will deal with those grounds of appeal together.
3. Ground 3 relates to the costs appeal, which it was agreed will be the subject of separate consideration on the papers. As we understand it, the appeal against the cost order the Tribunal made against the builder is contingent on it being successful in the substantive appeal.
4. The builder also sought leave to appeal with respect to grounds 1 and 2 on the basis that the decision:

(1) was not fair and equitable; and

(2) was against the weight of evidence and involves a factual error unreasonable arrived at and clearly in error.

1. Further, in oral submissions in reply, the builder raised for the first time an issue concerning whether the builder's failure to comply with the "NSW Standards and Tolerances 2017" published by NSW Fair Trading (the NSW standards), and relied on by Mr Xue in his report, constituted a breach of the consent orders. Point 11 of the consent order required that builders work be "in accordance with NCC, Manufacturer's specification and relevant standards." The builder contented that the NSW standards were not a "relevant standard" for purposes of point 11. This, it submitted, raised a question of law concerning the interpretation of the consent order.
2. There gave rise to a preliminary issue concerning whether the builder should be given leave to raise the relevant standards issue and amend its grounds of appeal so late in the proceedings. As already noted, this issue only arose during the builder's oral submissions in reply.

1. An issue arose at the commencement of the appeal hearing, relating to whether the owners should be allowed to adduce on appeal evidence, being Mr Xue's original report on the roofing work dated 17 July 2023 (the original report), that had not been before the Tribunal when it made the decision. We dealt with that issue at the time. We refused to allow the report in evidence on the appeal. We reserved our reasons for doing so.
2. The original report is 135 pages long. It was emailed by the owners' solicitor to the Appeal Panel and to the builder's solicitor at 3:29pm on the day before the appeal hearing: a Sunday. The hearing commenced at 10:15am the next day. In the course of argument concerning whether the original report should be admitted in evidence on appeal, it was agreed that it had not been in the material before the Tribunal when it heard the renewal application. Whether it had been considered, or indeed filed, in the original proceedings leading to the consent orders being made was not known.
3. The owner's submitted that the original report contained material evidence concerning the nature of the original defects to the roof, which would aid them in further demonstrating that compensation for the replacement of the roof arose from a breach of the consent orders. The failure to file the report earlier, as required by the Appeal Panel's orders, was an omission.
4. The builder opposed the admission of the report on the basis that it was not in evidence before the Tribunal when it made the decision, and that the builder was taken by surprise by the late attempt to rely on the report, which counsel had not had time to digest, and would likely require an adjournment in order to do so. The owners responded that they only sought to rely on one aspect of the report, which would not take long to understand. The builder's counsel countered that it would be necessary to consider the whole of the report, to put it in a proper context.
5. In order to admit evidence on appeal that was not before the Tribunal when making the appealed decision, that evidence must not have been reasonably available at that time. In this case the report was written and available to the owners well before the renewal hearing. We therefore could not admit the report on that basis alone.
6. That decision was compounded by the extremely late notice of the owners' intention to rely on the original report (well after the time for filing had passed), its significant length, and the likelihood that the appeal would have to be adjourned if the report were placed in evidence, albeit with a costs order. As the majority observed in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, at [98]:

"Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of the proceedings... It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs".

1. As a consequence, we refused to admit the original report into evidence on the appeal at the commencement of the appeal hearing.

1. Next, is the preliminary issue concerning whether the builder should be given leave to argue the relevant standards issue and amend its grounds of appeal accordingly, so late in the proceedings. As already noted, this issue only arose during the builder's oral submissions in reply. It was not argued in the renewal proceedings, and does not appear in the amended grounds of appeal.
2. The parties were given an opportunity to make written submissions concerning these issues after the appeal hearing concluded.

1. The owners' submissions filed on 13 October 2025 address this. They submitted that in the renewal proceedings the builder argued, based on its own experts report and the evidence of Mr Kumar, its representative at that hearing, that the defect in the length of the aluminum roofing did not exist. Mr Xue's report, at par 9.3 spoke of an additional defect whereby the roof did not have the minimum 50mm fall over the gutter as specified in par 6.5 of the NSW standards. Both Mr Kumar, in evidence, and the Veritas report asserted that the fall of roof over the gutters varied in length between 50 and 55mm. Having failed in that argument, the owners now sought to assert, late in the appeal, that the consent order, particularly point 12, did not require compliance with the NSW standard which it was said it was not a relevant standard within the meaning of point 12. This, the owners countered, was impermissible at such a late stage of the proceedings.
2. Further, the owners submitted that consent orders must be construed in the light of the light of the factual matrix known to both parties at the time the consent orders were made. In the present case, Mr Xue gave evidence to the renewal hearing that he had prepared the original report before the consent orders were made, which report was relied on, and "was adopted as part of the work order" (consent order). Because the original report was not in evidence before the renewal hearing, or us on appeal, the owners argued that there was little or no evidence concerning the factual matrix known to both parties at the time the consent orders were made. As a result, the consent orders could not be properly construed without further evidence.
3. At this point in their submission, the owners indicated that they would not pursue this argument if the builder applied for the original report to be admitted as evidence in the appeal. The owners asserted that the only evidence before the renewal hearing as to the circumstances surrounding the making of the consent orders was that contained in the transcript and in Mr Xue's later report.
4. Next the owners addressed the question of whether the NSW standards were a "relevant standard" within the meaning of the consent order. They relied on statements made by the builder's representative, at the renewal hearing, conceding that the consent order providing that the roof was to be replaced was made because the roof had, at T 29.16:

... a 90 mil fall in the roof gutter. So which was definitely over 50 mil. or 65 mil. but we have to accept that, because we were talking on the books. If we're talking by books, then I was wrong, because roof sheet fall was more than 65 mil. and I have to accept that. I cannot cut the roof sheets because the risk of the corrosion. So there was no other option for me.

1. The owners' point is that the requirement of the NSW standard, that the roof sheet fall exceed 50mm, was accepted as one required by "the books" by the builder's representative at the renewal hearing, which should be understood as agreeing that the requirement of a minimum fall of 50mm is a "relevant standard" for the purposes of point 12 of the consent order.
2. Next the owners argued that, if they were wrong about that, the Tribunal nonetheless correctly found that the builder, in installing the new roofing, had failed to comply the warranty that that the work would be done with due care and skill and in accordance with the plans and specifications set out in the contract, which is implied by s 18B(1)(a) of the HBA.

1. The builder asserted that the issues of whether the NSW standard is a "relevant standard" for the purposes of point 12 of the consent order raised a pure question of law, which could be argued on appealed. The builder relied on the judgment of the Court of Appeal in Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57 at [37] where Leeming JA (Macfarlan and McCallum JJA agreeing) said:

"A new point cannot be taken on appeal where, had the issue been raised in the court below, evidence could have been given which "by any possibility" could have prevented the point from succeeding... If on the other hand there is a pure question of law, even one which was not even obliquely raised at first instance, there are occasions when it is appropriate to let that be advanced for the first time on appeal."

1. The builder asserted that only those materials that were before the Tribunal on the original application can be considered in interpreting the consent orders, relying on Herzfeld and Prince, Interpretation 2nd ed at [36.90] and [36.100]. Due to dearth of evidence concerning what materials were considered on the original application, the builder submitted the Appeal Panel could conclude that the term "relevant standard" in the consent order did not include the NSW Standard, which provided a guide not a standard.
2. The builder's submissions did not address the owner's invitation to have Mr Xue's original report submitted in evidence before us (which we had refused to allow) to help provide that context.

1. In Dwyer Building Group Pty Ltd v Spicer; Spicer v Dwyer Building Group Pty Ltd [2025] NSWCATAP 133 (Dwyer) an Appeal Panel considered how consent orders should be interpreted, at [79]-[80]:

"...Consent orders, like contracts, need to construed having regard to their text, context and purpose: As the majority explained in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 (Mount Bruce) at [47]:

"In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract."

Consent work orders should be read in the context of the proceedings they relate to and in the light of their purpose. That is usually, as here, to resolve proceedings between the parties. While we agree that the interpretation adopted by the Tribunal was a possible interpretation, the construction of orders should have regard to the context in which they were made . That was one in which proceedings were on foot, as is made plain by the orders themselves. The clear focus of the homeowner's proceedings was on the completion of the works. Both parties were legally represented. The homeowner had obtained an expert report. The consent order should be construed objectively in that context and have due regard to the fact that the order was intended to resolve the original proceedings. Such a construction leads to the order being one intended to complete the disputed works in accordance with the contract. It did not extend to or require the builder to revisit already completed works. The fact that the text of the order required the builder to "complete" the works made that clear. If the purpose was for the builder to rectify and remedy already completed works, one would have expected that to be stated explicitly, and likely the to be subject of specific agreement."

1. While it is possible to infer some of the circumstances relating to the original proceedings from the consent orders themselves, they are the only material before us relating to the original proceedings. If the issue as to the meaning of the term "relevant standards" in the consent orders had been raised by the builder in the renewal proceedings, it is probable that relevant evidence, providing greater background concerning the text, context and purpose of the consent orders in those proceedings, including the evidence before the original Tribunal, would have been adduced by both parties. The context provided by such evidence is a necessary aid to the interpretation of the consent orders.
2. In those circumstances the builder cannot now raise the new point on appeal when it will result in the owners being deprived of the opportunity to adduce evidence and materials relevant to the construction of the consent orders. Insofar as it is required, leave to further amend the builder's grounds of appeal to argue the "relevant standards" issue is refused.
3. It should be noted that this argument does not address the need for the roof to be replaced due to the inadequate sarking.

Ground 1 and 2 - Was the Tribunal's order for replacement of the aluminum roof on renewal beyond power?

1. As the original proceedings were heard in the Consumer and Commercial Division, they could be renewed under cl 8 of Sch 4 of the NCAT Act, if the builder did not comply with Tribunal's orders within the time specified in the work order. That clause provides:

"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.

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

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

1. There is no dispute that the proceedings were renewed on the application of the owners on the basis that the orders had not been complied with.
2. Ground 1 of the builder's appeal essentially contends that by finding that there was a defect in the replacement roof and ordering its further replacement the Tribunal exceeded it power under cl 8 of Sch 4, by making an order relating to a new defect that had not been claimed in the initial proceedings.
3. In Dwyer Constructions the Appeal Panel at [59]-[74] reviewed a series of cases which had considered the nature and extent of the Tribunal's powers to make orders under clause 8. These include Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98; Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299; Devel Pty Ltd v Lewis; Lewis v Devel Pty Ltd [2021] NSWCATAP 395 (Devel) and Zahrouni v Vesta Homes Pty Ltd [2023] NSWCATAP 49. In Devel at [64] the Appeal Panel said:

"... in proceedings involving the HB Act, the Tribunal is not empowered in renewal proceedings to consider defect claims that were not part of the original proceedings and are not items that have arisen as a consequence of the orders made in the original proceedings."

". Renewal proceedings are an enforcement mechanism which provides a remedy for non-compliance with Tribunal orders. They are restricted to claims relating to the consequences of the order in the original not being complied with. This will usually be the cost of undertaking the works specified in the work order. However, where other consequences have arisen as a result of that non-compliance (for example, water damage caused by defective waterproofing work), then the cost of rectifying that damage may be claimed in the renewal proceedings. However, renewal proceedings are not proceedings in which a new claim can be raised that was not raised in the original proceedings."

1. The builder submitted that, by ordering that it pay for the cost of replacing the defective roof, the builder having already replaced it once as required by the consent orders, the Tribunal exceeded its powers and failed to take into account that the defect requiring replacement had not "been claimed at first instance" and "had not been previously claimed". These submissions are based on the fact that in his expert report on the renewal of proceedings, at par 9.3, Mr Xue drew attention to a new or additional defect in the replacement roof, which defect was not the subject of the original claim which led to the making of the consent orders. The "additional defect" therefore had not been the subject of the owners' original claim relating to the roof, having arisen as a result of defective work in replacing the roof. The builder submitted that this was a new claim which the Tribunal did not have power to consider on a renewal of proceedings under cl 8 of Sch 4 of the NCAT Act. The builder submitted that this gave rise to a question of law.
2. We do not accept that is the case. The Tribunal accepted Mr Xue's report in preference to the report relied on by the builder giving clear reasons for doing so. The report concluded that the work done by the builder in replacing the roofing was defective in a number of respects. First, (at 8.3 and in photos 2 and 6 of 8.6) the sarking installed did not pass the facia board, with the result that the roof sheeting would have to be replaced so that new sarking could be installed, in order to ensure the roof was waterproof. The Tribunal noted, at [17] that the owners emphasised that this was their main concern and was the cause of needing to replace the roof. Secondly, Mr Xue found what he described at 9 as an additional defect, being the shortfall in the aluminum roofing over the gutters. The Tribunal was satisfied that these were defects in the work the builder was required to do under the consent order. It also found defects relating to the downpipes that are not disputed on appeal.
3. Given those findings by the Tribunal no question of law arises. The Tribunal found that the consent orders had not been complied with in the time specified by clause 4.1, and the proceeding had been renewed by the owners (as required by cl 4.2). That renewal was to be treated as a new application by the owner as required by cl 4.3, enabling the Tribunal to make any appropriate orders. This the Tribunal did by finding that the builder failed to comply with the statutory warranties "in s 18B(1)(a) and (in respect of the downpipes) s 18B(1)(d) of the HBA" and ordering the builder to compensate the owners for the cost of repairing those defects. There is no legal error apparent. The defects with the roofing found by the Tribunal on renewal, while not the same as the original defects with the roof which led to the parties agreeing to replace it, arose from the builder's remediation work on the roof, carried out under the consent order, being defective to the extent that the roof had to be replaced again. In those circumstances, the fact that the defective roof work, done pursuant to the consent orders, differed from the defective work to the same roof, which was the subject of the original claim, is immaterial. Cl 3 of Sch 4 allows proceeding to be renewed when an "order is not complied with within the period specified by the Tribunal". That was the case here. The Tribunal was then empowered "make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined." This, it did.
4. Further, the additional defect identified in Mr Xue's report was not the principal reason for his recommendation that the roofing be replaced: the inadequate sarking under the roof sheeting was. This was also the principal reason for the owners seeking the cost of replacement.

1. The builder in written and oral submissions focused on error of law grounds and did not address the issue of leave to appeal. We have nonetheless considered whether it is appropriate to grant leave to appeal on the grounds that the builder may have suffered a substantial miscarriage of justice because the decision:

(1) Was not fair and equitable.

(2) Was against the weight of evidence and involves a factual error unreasonable arrived at and clearly in error.

1. We have concluded that leave to appeal on either of those grounds should be refused because:

(1) We are not satisfied that the decision was not fair and equitable. The only error upon which the builder relies for this leave grounds is that the Tribunal wrongly considered the additional defects reported by Mr Xue. We have already explained why we reject that proposition and see no error of law in the Tribunal doing so. Similarly, we can see no error of fact.

(2) The conclusions reached by the Tribunal, with respect to the defective work done by the builder in undertaking the works under the consent order, were clearly open to it. There is no error evident in the Tribunal preferring the expert evidence of Mr Xue over that of the builder and its expert. The Tribunal provided clear, cogent and persuasive reasons for doing so. The decision is not against the weight of the evidence.

(3) Having reviewed the decision in detail we are not satisfied that the any of the matters complained of by the builder in grounds 1 and 2 give rise to a significant possibility, or a real chance, that the builder may have suffered a substantial miscarriage of justice because the decision was not fair or equitable or was against the weight of the evidence. There is no injustice apparent.

(4) The appeal does not give rise to a question of importance or matters of administration or policy which might have general application.

(5) There is no issue of principle at stake. The contention that defective work done pursuant to a consent order is not claimable on renewal if the same defect was not previously claimed, does not give rise to an issue of principle. It is without merit.

1. Leave to appeal is refused.
2. The builder's appeal fails.
3. There remains:

(1) The builder's appeal against the order made in the renewal proceedings that it pay the owners' costs fixed at of $10,507.00.

(2) The issue of costs of this appeal.

1. Given the result of the substantive appeal the builder may no longer wish to appeal the Tribunal's costs order. If that is the case, the builder should withdraw that appeal.
2. With respect to the costs of this appeal we note that the orders sought by the builder were that each party should bear their own costs, on the basis that the amount claimed or in issue in the appeal was less than $30,000 for the purposes of r 38A of the NCAT Rules. In any submissions the owners should address whether they accept that proposition.
3. We also note to pursuant to order 11A of the orders made by the Appeal Panel on 2 May 2025, the Tribunal's order for the payment of money was stayed to the extent of $19,547.60, which sum was to be paid into the trust account of the respondent's solicitor, to be released on the order of the Tribunal or by agreement. Given the outcome of this appeal, we will order that sum be paid to the respondents.

(1) Leave to appeal refused.

(2) Appeal dismissed.

(3) The sum of $19,547.60 held in the respondent's solicitors trust account is to be paid to the respondents.

(4) It is noted that the parties have consented to the issue of the costs of this appeal and the appeal against the costs order made by the Tribunal on 5 May 2025, being determined, without a hearing, on the papers to be provided by them.

(5) The appellant is to notify the Tribunal and the respondents within 14 days if it wishes to continue with its appeal against the costs decision made by the Tribunal, or whether it wishes to withdraw that appeal. If the appellant wishes to proceed with the appeal, the Appeal Panel will then make orders for the filing of submissions.

(6) If either party wishes to make an application for costs with respect to this appeal they shall file and serve an application with supporting submissions (not exceeding 2,000 words) and materials within 21 days of the publication of these reasons.

(7) The other party may file and serve submissions (not exceeding 2,000 words) and materials in response within 42 days of the publication of these reasons.

(8) Any submissions in reply (not exceeding 1,000 words) are to be filed and served within 49 days of the publication of these reasons

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.