Taylor v Clientel Development Pty Ltd

NCAT Appeal Panel|2020-05-25

Corporation v Orr [2019] NSWCA 231 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Saqa v Kashro [2020] NSWCATAP 58 Staunton v Lotus Construction Pty Ltd [2016] NSWCATCD 64 Westpoint Management Pty Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253 C G Constructions Pty Limited v Hanson Constructions Materials Pty Limited [2017] NSWCATAP 130 Texts Cited: None cited Category: Principal judgment Parties: Bianca Taylor (Appellant) Clientel Development Pty Ltd (Respondent) Representation: Counsel: D K Ratnam for the Appellant

Solicitors: Coleman Grieg for the Appellant Birch Partners for the Respondent File Number(s): AP 20/06016 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 09 January 2020 Before: J Smith, Senior Member File Number(s): HB 18/46172 & HB 18/52740

A question of law

We will consider Ground 5 first as it is said to raise a question of law.
Ground 5 states: 'The presiding Senior Member erred in failing to give reasons why it was unreasonable for the Appellant Homeowner to recover the cost and damages as a result of the rectification of the claimed defective work.'
The requirement for a Tribunal Member to provide reasons are not in doubt having been discussed in detail by an Appeal Panel in Collins v Urban [2014] NSWCATAP 17 commencing at [43].
An Appeal Panel stated in Camilleri v Eastlake [2018] NSWCATAP 176 at [26]: 'It is correct that a failure to give reasons is an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279. However, the extent and content of the reasons required will depend upon the particular case and the issues under consideration: Moloney v Collins [2011] NSWSC 628. The duty does not require a court or tribunal to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings: Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58].'
At the same time, it is accepted that the reasons of a Tribunal Member are not to be subjected to detailed scrutiny in every respect. In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ) a case concerned with judicial review, the Full Court of the Federal Court said "[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error". This language was repeated with approval by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.
In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 the Court of Appeal considered, among other things, the obligations of a tribunal member to give reasons. At [66] - [68] the Court stated: 'In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 (Bisley). Whilst all decision makers, be they judges or tribunal members, should aspire to high quality decision making, an integral part of which is the formulation of clear reasons for decision (as Gleeson CJ explained extra-judicially in "Judicial Accountability" (1995) The Judicial Review 117 at 122), as Basten JA said in Resource Pacific at [48], "[t]ransparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality." His Honour's identification of separate parameters of quantity and quality is, with respect, a useful one. In terms of the former parameter, the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court or tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] per French CJ and Kiefel J (Wainohu). Thus even superior courts are not required to give reasons for every interlocutory decision: Wainohu at [56], [98], Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [42]; Lodhi v Attorney General (NSW) [2013] NSWCA 433; 241 A Crim R 477 at [29]; R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269 at [27]) and other aspects of decision making such as findings on pure credibility or matters that necessarily call for estimation or impression may require less or only allow for limited reasoning to be exposed: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 but cf. Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], Pollard at [65] and see the discussion in Resource Pacific at [48]−[58].'
Having regard to the principles referred to in the decisions referred to above, we will consider Ground 5. The Tribunal Member considered the appellant's case at [23] - [37], finding at [28] that the works were incomplete and defective in accordance with agreements in the Joint Scott Schedule which had been prepared by the parties' experts. He also recorded that the amount claimed by the appellant was $61,284.00. At [34] of the reasons the Tribunal Member stated that the appellant did not dispute that she sold the property the subject of the proceedings and at [35] that there was no reliance by her on a diminution in the value of the property.
At [66] - [82] of the reasons the Tribunal Member identified the issue to be that the appellant was claiming that there were defects in the work undertaken by the respondent leading to her claim for compensation. The Tribunal Member also referred to the fact that the appellant had sold the property without having carried out defect rectification and without being obliged to do so under the contract of sale.
The Tribunal Member then referred to the authorities that were relied upon by the parties and also to a decision of the Tribunal in Staunton v Lotus Construction Pty Ltd [2016] NSWCATCD 64. The Tribunal Member also referred to the High Court decision in Bellgrove v Eldridge (1954) 90 CLR. 613 and to the decision of the Court of Appeal in Cordon Investments Pty v Lesdor Properties Pty Ltd [2012] NSWCA.
At [73] of the decision the Tribunal Member made the critical finding that he was satisfied that it would be unreasonable for the appellant to recover the cost of the rectification of the defective work carried out by the respondent.
After having considered and referred to Staunton v Lotus Construction Pty Ltd, Bellgrove v Eldridge and Cordon Investments Pty v Lesdor Properties Pty Ltd which referred to and considered the decision of the Court of Appeal in Westpoint Management Pty Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253 at [79] - [81], the Tribunal Member provided the following reasons: 'In this case there is no intention of the homeowner to carry out any rectification work and there is no suggestion that there was any diminution in the sale price of the property as a result of the defects. The question however in determining the reasonableness or otherwise of compensation, as stated in Westpoint, is not whether or not the homeowner intends to carry out the rectification work but why the homeowner intends or does not intend to carry out the rectification work. In this case the homeowner does not intend to carry out the rectification work because she has no obligation to do so and has suffered no actual loss as a result of the defective work and no longer has access to the property. In those circumstances as stated in Westpoint achievement of the contractual objective is no longer relevant and it can hardly be found that the compensation for any rectification work that is necessary is also reasonable. Shortly stated I am satisfied that it would be unreasonable for the homeowner to receive compensation for defective work in circumstances where the homeowner has sold her property to a third party and has no obligation to rectify any building defects in the property and has no intention of carrying out any rectification work and no capacity to do so. To award compensation in those circumstances would create an unjust enrichment for the homeowner.'
In our view the Tribunal Member set out the necessary findings of fact relating to the sale of the appellant's residence in circumstances where she had not carried out defect rectification, was not required to do so and had not suffered a diminution of the sale price because of the existence of the defective building work carried out by the respondent. Then, after considering the relevant authorities, the Tribunal Member explained that he found that it was not reasonable for the appellant to recover damages for defective work because she had no obligation to carry out rectification work under the contract for the sale of the property, had no intention of doing so and no capacity to do so.
We find that the reasons provided by the Tribunal Member are clear as to the findings of fact made by the Tribunal Member, his discussion of the relevant law and the application of the relevant law to the factual material in order to determine the issues before him. We also note that the appellant does not contend that the reasons are wrong in law.
We reject the appellant's submission that the Tribunal Member failed to provide adequate reasons to support the finding that it was unreasonable for the appellant to recover the cost and damages arising from the defective work.

Application for leave to appeal - Against the weight of evidence

Grounds 1 and 2 were stated by the appellant's counsel to be that it was against the weight of the evidence for the Tribunal Member to conclude that the contract between the parties had been: 1. repudiated by the appellant; and 2. validly terminated by the respondent.
There is no challenge by the appellant to these findings on the basis that they are wrong at law, or that the reasons in support of the relevant findings are inadequate.
In Collins v Urban the Appeal Panel considered this ground for leave to appeal stating at [77(2)]: 'The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach'
In Saqa v Kashro [2020] NSWCATAP 58 an Appeal Panel stated at [25] in connection with an application for leave to appeal because the decision was against the weight of the evidence: 'When it is alleged that a decision maker gave insufficient weight to a relevant matter, deference must be given to the decision of the Tribunal below. Further, it is insufficient for a tenant to merely persuade an appellate body that it would have decided the matter differently: Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61, (Bathurst CJ and Leeming JA) at [13].'
The appellant and the respondent each ran a case that the other had repudiated the contract and that they had accepted the repudiation and terminated the contract.
The appellant's case that the respondent had repudiated the contract and that she had accepted the repudiation and terminated the contract was rejected by the Tribunal Member. There is no appeal against this aspect of the decision, either that it was wrong in law or that leave to appeal should be granted because it was against the weight of evidence, or on any other ground stated in cl 12 of Sch 4 of the CAT Act.
The Tribunal Member dealt with the termination of the contract at [38] - [55] of the decision.
Commencing at [50] of the reasons, the Tribunal Member considered the respondent's repudiation case. This consisted of the respondent's 23 July 2018 letter which was a notice alleging breaches of contract by the appellant, a notice requiring the payment of a progress claim, a notice suspending the works pursuant to clause 24 of the contract and a notice under clause 26 of the contract giving notice of default to the appellant stating that unless the default was remedied within 10 working days, the contract would be terminated. Finally, the 23 July 2018 letter gave notice pursuant to clause 27 of the contract that a dispute had arisen, and requested the appellant to meet with the respondent for the purposes of seeking a mutually satisfactory resolution of the disputes that had arisen.
At [50] the Tribunal Member found that it was not disputed that the appellant did not respond to the 'notice' and did not engage in discussions to resolve the dispute between the parties.
The Tribunal Member then referred to the respondent's solicitor's letter dated 7 August 2018 which replied to the appellant's solicitor's letter of 27 July 2018, and which denied that the respondent had repudiated the contract and asserted that it was the appellant who had evinced an intention no longer to be bound by the terms of the contract. The respondent's solicitor stated in the letter that the respondent accepted the appellant's repudiation and terminated the contract.
At [53] - [54] the Tribunal Member analysed the consequences of the appellant's failure to respond to the respondent's 23 July 2018 letter leading to the finding that there was a repudiation by the appellant giving the respondent the right to accept the repudiation and terminate the contract. At [53] and [54] the Tribunal Member stated: 'The failure of the homeowner to respond to the builder's letter of 23 July 2018 in circumstances where she was required by the contract to continue performance under it and also to attempt to resolve the dispute clearly evinces an intention to no longer be bound by the contract. Various breaches of the by the homeowner were alleged in the builder's letter of 23 July 2018. A mechanism was provided under the contract to discuss and come to some resolution about those allegations. The failure to do so, I am satisfied, did amount to a repudiation by the owner giving the builder the right to accept the repudiation and terminate the contract, which he did. I am therefore satisfied that the builder validly terminated the contract by his letter dated 7 August 2018'
The appellant's submissions in support of this Ground of Appeal refer us to wide range of evidence in support of the application for leave.
We are of the view that it is important to take account of the reasons of the Tribunal Member in connection with the termination issues that he was dealing with. First, he addressed the appellant's termination case finding that the appellant had not brought the contract to an end. As we have stated, there is no appeal, or application for leave to appeal against this finding.
Secondly, the Tribunal Member addressed the respondent's termination case as we have referred to at [29] - [32] above.
It is our view that the appellant's application for leave should be limited to the grounds stated in the Amended Grounds of Appeal and at the appeal hearing, as we have recorded them at [22], namely in relation to the findings made in accepting the respondent's repudiation case at first instance. Evidence which was in support of the appellant's termination case will have little relevance to those grounds, primarily for the reason that the parties' termination cases were different. The appellant's termination case was based upon the work carried out by the respondent not being in accordance with the contract, not complying with the Building Code of Australia or with the statutory warranties implied by the Home Building Act. The respondent's termination case was based on the appellant not responding to notices issued by it under the contract.
In addition, an application for leave to appeal on a discrete issue is not the occasion for the Appeal Panel to re-consider all of the evidence tendered at the hearing on the question of the termination of the contract. As stated in in Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]: 'An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.'
It is our view that the appellant's submissions in support of the application for leave to appeal referred to in Grounds 1 and 2 focus on the evidence relevant to her termination case and may support an application for leave to appeal that it was against the weight of the evidence for the Tribunal Member to conclude that the appellant had not brought the contract to an end, or that the respondent had not repudiated the contract. However no such application has been made.
We have not been referred to evidence which in its totality preponderates so strongly against the conclusion found by the Tribunal Member that the builder validly terminated the contract by its letter dated 7 August 2018 that it can be said that the conclusion was not one that a reasonable tribunal member could reach. In particular the evidence to which the appellant refers in her submissions does not address the matters referred to by the respondent in its letter dated 23 July 2018, such as to support a submission that the bases for the various notices contained in that letter were absent or in sufficient doubt, such that the decision found by the Tribunal Member was against the weight of evidence.
Leave to Appeal on Grounds 1 and 2 is refused.

Grounds 3 and 7

Counsel for the appellant stated at the Appeal hearing that these Grounds of Appeal were advanced as applications for leave to appeal.
Ground 3 states that it was: 'Against the weight of the evidence the presiding Senior Member held in concluding that the Respondent Builder had performed works to the value of $30,279.75 and was otherwise entitled to the entirety of that sum'
Ground 7, as amended, states that: 'The presiding Senior Member erred in failing to have regard to the expert evidence relied upon by the Appellant Homeowner and accordingly erred in failing to set off any amount the Respondent may have been liable to pay the Appellant set out in the Appellant Homeowner's application.'
We will proceed on the basis that Ground 3 is an application for leave on the ground that the conclusion reached by the Tribunal member was against the weight of evidence. Ground 7 although stated to be brought as an application for leave to appeal is, when properly understood, a ground of appeal based on a question of law. The basis of this ground must be that the Tribunal Member failed to consider evidence relating to defective work, to make the necessary determinations regarding the evidence and then set off against the amount found in the respondent's favour, any amount that may have been found in the appellant's favour for defective work in her application.
The Tribunal Member dealt with the issue of the value of the work carried out by the builder, but which was unpaid at [56] - [60] of the Reasons. He found that the parties' experts did not provide a valuation of the completed work. In those circumstances he accepted the respondent's calculation in the absence of submissions from the appellant. The respondent's submissions assessed the value of work carried out by reference to invoices rendered by it, leading to the Tribunal Member finding that the value of completed work was $30,279.75.
The Tribunal also found that there was no dispute that the appellant had paid the respondent $22,014.50, leading to the conclusion that the appellant owed the respondent $8,265.25 for work carried out ($30,279.75 - $22,279.75 = $8,265.25).
The appellant has not referred us to any evidence at all that would suggest that the evidence in its totality preponderated strongly against the finding that the value of completed work was $30,279.75.
Leave to appeal is refused in connection with Ground 3.
In the proceedings brought by the present respondent, the present appellant's Amended Points of Defence at [14(b)] sought to set off an amount of $61,284.00 being the amount of defective and incomplete work estimated by her expert in a Scott Schedule dated 20 January 2019.
The Tribunal Member did not have regard to this claim of set off in his reasons. In failing to do so, there was an error of law on the basis that the Tribunal Member was required to, but did not deal with the defence of set off. This may be described as a failure to exercise jurisdiction. In C G Constructions Pty Limited v Hanson Constructions Materials Pty Limited [2017] NSWCATAP 130 at [33] - [35] an Appeal Panel stated: 'In Prendergast at [13] the Appeal Panel identified, by reference to authority, a number of examples of questions of law that would qualify as such under s 80(2)(b) of the Tribunal Act. One such example arises where the Tribunal decision is made on a wrong issue or has posed the wrong question for determination. That may also be expressed as involving a circumstance where the decision-maker fails to engage with and determine the case that a party seeks to make. The authority cited for identifying an error of law of that kind is found in a number of decision of the High Court including Craig v South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58; Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [80]-[81]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]. In Miah the error of law of the kind that we have identified is described as a "constructive failure to exercise jurisdiction." In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088, Gummow and Callinan JJ (Hayne J agreeing) said at [24] that a failure to respond "to a substantial, clearly articulated argument relying upon established facts was at least" a failure to accord an applicant natural justice. A failure of that kind has also been described as a constructive failure to exercise jurisdiction (see, for example, MZAES v Minister for Immigration and Boarder Protection [2015] FCA 113 at [66]). Such a failure will constitute an error of law.'
We have had regard to the Joint Scott Schedule which was filed in the first instance proceedings. This document sets out the parties' experts' opinions of defective and incomplete work and their estimates of loss. It also sets out their conclave agreements which total $17,355.00, although it is difficult, if not impossible, to know the proportions of that amount which relate to defective work, or to incomplete work. The point to be made is that it is probable that the experts have agreed an amount for defective work, albeit that the precise amount agreed is not clear from the Joint Scott Schedule.
We have rejected Ground 5 of the appellant's Appeal that would have, if accepted, disturbed the decision of the Tribunal that the appellant repudiated the contract and that such repudiation was accepted by the respondent. A consequence is that the appellant's causes of action for the costs of completing work under the contract are no longer available to her. However her causes of action for breaches of contract or the warranties implied by s18B(1) of the Home Building Act remained intact. The Tribunal failed to determine the amount of defective work for the purposes of the appellant's defence of set off. We find that such a failure may be described as a constructive failure to exercise jurisdiction and as such amounts to an error of law.
For the reasons provided we allow the appellant's appeal raised in Ground 7 of the Amended Notice of Appeal and set aside the decision of the Tribunal in HB 18/52740.
Pursuant to s81(1)(e) of the CAT Act we remit the appellant's defence of set off at paragraph 14(b) of her Amended Points of Defence in HB 18/52740 to a Tribunal differently constituted since the Senior Member who heard the proceedings at first instance is presently unavailable to sit. The remittal will be for the purpose of the Tribunal Member determining the value of defective work carried out by the respondent and whether the amount, if any, found reduces or extinguishes the amount of $12,034.80 found in favour of the present respondent in HB 18/52740. The issue remitted is to be on the same evidence as was tendered at first instance with the exception that further evidence may be provided by the experts to clarify which of the items and agreements referred to in the Joint Scott Schedule relate to defective work.

Grounds 4 and 6

Counsel for the appellant stated that an application for leave to appeal was being made in connection with these grounds.
Ground 4 was that the Tribunal decision was: 'Against the weight of the evidence the presiding Senior Member erred in applying the relevant authorities and in so doing erred in denying the Appellant Homeowner the right to recover costs and damages for rectification and defective works carried out by the Respondent Builder'
This ground of appeal was not developed in oral submissions. In the appellant's written submissions this ground of appeal turns on the fact that the appellant sought to tender a statutory declaration on the morning of the hearing. That is a matter which the appellant has raised under Ground 6 of her Amended Notice of Appeal and which is dealt with below.
For the reasons which follow, the appellant has been unsuccessful in her application for leave to appeal based on Ground 6. It follows in our view that leave to appeal for Ground 4 must be declined because the appellant's submissions relating to the circumstances surrounding her attempt to tender a statutory declaration on the morning of the hearing are found to be insufficient to justify leave to appeal being granted.
Ground 6 is that: 'The presiding Senior Member erred in denying the Appellant Homeowner the right to rely on her lay evidence, including dealing with the quantification of damages sought'
Counsel for the appellant conceded that if we do not accept that the appellant's statutory declaration dated 7 November 2019 would be of assistance and if leave to admit the statutory declaration was not properly denied, there would be no evidence of damage sustained
The appellant's submissions refer to the fact that in the first instance proceedings counsel for the appellant conceded that she had sold the property on 5 August 2019, before the hearing. This was a significant factor in the Tribunal Member's decision.
The submissions in support of this ground turn on the appellant's statutory declaration dated 7 November 2019 which was not filed before the first instance hearing and was not tendered in those proceedings. The substance of the statutory declaration was the state of the appellant's health, the sale of the property and the fact that the appellant had some building work done by a third party contractor before the property was sold. At the hearing, the respondent's solicitor indicated that the tender of the document was opposed.
The transcript sets out the relevant exchanges which occurred early in the proceedings. At page 804 of the Appeal Bundle the transcript is recorded as: 'Counsel: Senior member I hate to raise this now but there is the statement that the applicant wishes to put on that will indicate the measure of reasonableness on the figure given by Mr Colecliff. In this respect, the expenditure required to bring the property to the standard that it could be put on the market and sold in view of the defects identified. I think that the figure that was expended in correction of the defects in preparing the property for sale goes some way to temper figure(s) that Mr Colecliff opines, and amongst other things too because no doubt we don't have a case about the reasonable measure of complete or incomplete works and that type of thing 'But Senior member, I think it is helpful to gauge the amount of money fully invoiced that was expended in order to enable selling of the property. On one view of things, that does affect the recovery because it was the actual figures spent. And if that can be traced, that gives the situation in a very different hue'. 'Respondent's solicitor: I had an unsigned statutory declaration emailed to me last night after 7 o'clock, I did not read it until this morning. I would be objecting to it if it is in the same form as it is in last night, it doesn't take the matter very far, there are there are no intentions to it, they are just bland statements, and my client is prejudiced by having to deal with that at such a late point. I point out to you that the contract is dated 5 August 2019, so the homeowner is well aware at least at that date and probably before that date of the work that she says was undertaken of the property without her knowledge and only seeks to put evidence on this morning. In the circumstances, I think it is irregular, it is unfair, it doesn't give us procedural fairness and is prejudicial to the presentation of our case.' 'Member: And in addition to that I don't see how advances your case Mr Tang. It may make life easier for me, but I don't think it does advance your case. I don't see how Mr Birch can get over that. If you want to talk to me about an adjournment to the matter to another day so that you can rely on that evidence, then you can talk to me about that, but think about proportionality, think about the cost of these proceedings to the parties and it is quickly, if it hasn't already, gone beyond what is already in dispute.' 'Counsel: most certainly Member: But I would be disinclined to allow you to now rely on you evidence particularly in relation to that issue which has been as Mr Birch says well known to the parties for some months now Counsel: I understand what has fallen senior member and I accept the views that you've just espoused on that'
Counsel for the appellant, at first instance, did not press for the tender of the appellant's 7 November 2019 statutory declaration. Nor when invited to do so, did he apply for an adjournment of the proceedings so that the statutory declaration could be tendered on the resumption of the proceedings. No doubt he had sound reasons for adopting the course that he did, an important factor being as the Tribunal member suggested, the proportionality of taking that course from a costs point of view. A further consideration may have been that the appellant in any event had evidence of the estimated costs of rectification of defects and completion of incomplete work in the form of its experts report and Scott schedule as well as the Joint Scott Schedule. However, the 7 November 2019 statutory declaration sought to introduce evidence of actual cost. In our view it was a matter for counsel to decide upon the importance of that evidence to the appellant's case.
Despite the comments of the Tribunal Member as to whether the statutory declaration advanced the appellant's case, it was for the appellant's counsel to decide whether the tender of the affidavit would be pressed, or whether the adjournment referred to by the Senior Member would be sought. As regards the comments of the Tribunal Member and the respondent's solicitor about the appellant's 7 November 2019 statutory declaration, we consider those comments to be soundly based because the appellant did not identify the work that she had carried out with any specificity, or annex documents from the contractors concerned describing the work. In addition she stated that the work carried out 'involved the rectification of some of the defects and completion of some of the works from' the respondent. (Emphasis added).
Although it is not stated, we assume that leave is sought for this ground of appeal on the basis that the decision of the Tribunal was not fair and equitable.
In circumstances where the appellant's counsel neither pressed for the tender of the statutory declaration, nor applied for an adjournment of the proceedings so that it could be tendered, we reject the application for leave to appeal on this ground.

Ground 8

This ground is that: 'The presiding Senior Member erred in failing to have regard to the principles in awarding costs orders in the Tribunal and wrongly awarded costs in favour of the Builder.'
The Tribunal decision of 9 January 2020 granted leave to the parties to file submissions in support of a costs application. Both parties filed cost submissions. On 13 February 2020 the Tribunal published its costs decision which required the present appellant to pay the respondent's costs in both applications on the usual basis.
The Tribunal Member set out the gist of each party's submissions.
He found that the amount in dispute in the combined proceedings was more than $30,000.00 and that Rule 38(2) of the Civil and Administrative Tribunal Rules 2014 applied. After considering the relevant authorities the Tribunal Member ordered the appellant to pay the respondent's costs in both sets of proceedings.
The appellant's submissions in support of this ground criticize the respondent's submissions in support of the orders it sought. It is submitted that the respondent's submissions merely recited the relevant authorities and did not make clear the basis on which costs should be ordered.
Given that we have upheld the appellant's appeal under Ground 7, we will set aside that part of the costs decision which related to the proceedings commenced by the present respondent, HB 18/52740. The decision on the costs of those proceedings should be remitted to the Tribunal Member who hears that part of those proceedings related to the appellant's defence of set off.
In connection with the costs decision relating to the proceedings brought by the appellant, in our view there is no merit in the appeal against that aspect of the Tribunal cost order.
There is no suggestion by the appellant that the costs decision was wrong at law. Nor is it suggested that the decision was against the weight of evidence, or that the process by which the costs decision was given was not fair and equitable.
In our view the appellant has not disclosed a basis for disturbing the Tribunal costs decision so far as it relates to the proceedings brought by the appellant. The fact that the respondent's cost submissions may have omitted to put forward certain matters is not in our view a sufficient reason to set aside the decision which was based on orthodox principles.
For the reasons stated, we set aside the costs decision insofar as it relates to the costs order in HB 18/52740. Otherwise the application for leave to appeal against the costs decision relating to HB 18/46172 is refused.

Orders 1. Ground 7 of the Amended Notice of Appeal against the 9 January 2020 decision in HB 18/52740 is allowed. 2. The decision dated 9 January 2020 in HB 18/52740 is set aside. 3. The appeal against the 13 February 2020 costs decision in HB 18/52740 is allowed. 4. The 13 February 2020 costs decision in HB 18/52740 is set aside. 5. The application for leave to appeal is refused and the appeal is otherwise dismissed. 6. HB 18/52740 is remitted to a differently constituted Tribunal to determine the appellant's defence of set off against the amount found in favour of the respondent. 7. The issue remitted is to be decided on the evidence tendered at first instance, with the exception that at the discretion of the Tribunal Member hearing the remittal, further evidence may be provided by the experts to clarify which of the items and agreements referred to in the Joint Scott Schedule relate to defective work. 8. The decision on costs in HB 18/52740 is also remitted to the Tribunal for redetermination. 9. Any costs application in these Appeal Proceedings must be lodged in the Appeal Division of the Tribunal and served on the costs respondent within 14 days of the date of these orders, either attaching or referring to any documents relied upon in support of the application. 10. The costs respondent is to lodge in the Appeal Division of the Tribunal and serve on the costs applicant its submissions in response to the costs application within 14 days after receipt of the application referred to in the preceding paragraph. Such submissions are to either attach or refer to any documents relied upon. 11. The costs applicant is to lodge in the Appeal Division of the Tribunal and serve on the costs respondent any submissions in reply within 7 days after receipt of the costs respondent's submissions. Such submissions are to either attach or refer to any documents relied upon. 12. Subject to the right of the parties to make submissions under section 50(3) of the Civil and Administrative Tribunal Act 2013 (which should be made in conjunction with the submissions referred to above), the Appeal Panel will determine any costs application on the basis of the papers lodged in the Appeal Division of the Tribunal.

Concluding remarks

Once it is accepted that the appellant's appeal has failed on all grounds except the failure of the Tribunal to consider the appellant's set off defence, with the consequent effect on the Tribunal costs decision, and that it is possible that defective work may be found in the appellant's favour, it is clear to us that the costs likely to be associated with the remitter will be out of all proportion to the amount in issue.
We urge the parties to consider a settlement of all the issues in the proceedings to prevent further costs being unnecessarily incurred.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 21 July 2020 - Counsel for Appellant corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2020

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Cases Cited (34)

Cited By (2)