On 6 July 2017 the primary member made orders finding, in summary, that the written home building contract signed on 6 January 2015 between the appellant as owner and the respondent as builder had not been determined and remained on foot, that the builder was to return to the site to complete incomplete works and rectify defective works with completion of those works no later than 30 November 2017, and that the builder was to give the owner credit of $10,600 against the contract sum.
Provision in the orders was made for costs submissions. There is an indication in the written submissions on appeal that costs submissions were made but any costs orders made (or yet to be made) by the primary member were not the subject of appeal before us.
The amended notice of appeal filed 12 September 2017 challenged each of the orders made by the primary member except for the credit to the owner.
The original notice of appeal was filed one day late calculated on email notification of the primary decision and reasons to the owner: Civil and Administrative Tribunal Rules 2014 (NSW) (CATA Rules) rule 25(4)(c). No objection to an extension of time for that day was made by the builder. We would in any event have granted that extension under Civil and Administrative Tribunal Act 2013 (NSW) (CATA) s 41. There was no relevant prejudice to the builder from that short extension.
On hearing of the appeal the challenge to the findings of the primary member (at [7]-[8], [53]-[65]) and order that the contract had not been determined and remained on foot was not pursued.
This is not surprising because the primary document on which the appellant owner relied on appeal was a document that expressly referred to matters on that day as a variation to the contract, as found by the primary member. That document could not stand as in any way determinative if the contract to which it was expressed to be a variation had ended in September 2015 (the owner did not press a determination or repudiation after that date).
That primary document was a handwritten record of an agreement made on 10 December 2015 at an onsite meeting attended by the owner, her solicitor, the builder and a Fair Trading inspector ("the settlement agreement").
The complete copy of the settlement agreement was sought to be placed before the Appeal Panel. The relevant part read: "Variation regarding incomplete work and defective work discussed and observed I [the builder] will provide a sum of $30,000 to be paid by 24/12/15 to [the owner] No further work is to be conducted as per agreement. I am aware if I don't pay [the owner] will make a claim of $50,000 at the Tribunal." The record was signed by each of the owner, the builder and the inspector.
At the primary hearing the photocopy of the settlement agreement had been chopped off in the photocopying on the left hand side. No one had sought to substitute a proper copy. Relevantly, the word "No" before "further work" was chopped off.
On the basis of the evidence before him, including the form of the settlement agreement before him, the primary member found (at [9]-[14], [24], [63], [65]-[68] and [76]-[79]) that s 48MA of the Home Building Act 1989 (NSW) (HBA) applied as the preferred outcome of a work order because the builder had not been given the required contractual defects notice, the builder said he was ready, willing and able to complete the work order, said he thought he could do so which amounted to an opinion that he could complete the works, and he should be given the opportunity to do so. Such opportunity had not occurred between September and December 2015 after the owner re-took possession of the site on 11 September 2015.
This rejected, as the primary member recorded (at [65]), the owner's submission that the builder's actions demonstrated "his inability or unwillingness to complete the works and therefore demonstrate he is unlikely to perform any agreement or order to complete and rectify the works" which is the precise subject matter of consideration under s 48MA in the exercise of discretion as to remedy under HBA ss 48MA and 48O.
The primary member accordingly made the work orders that are the subject of appeal by exercising his discretion under s 48MA to adopt the preferred outcome stated in that provision (a work order).
At the appeal hearing four grounds of appeal that were said to be errors of law by the primary member were abandoned, and correctly so, because they relied upon (in essence) failure to take into account the correct form of the settlement agreement and that simply was not the document in evidence before the primary member.
A remaining error of law pressed as an appeal ground was that the primary member failed to give consideration to the terms of the settlement agreement and/or failed to give any or any adequate reasons for making a work order.
Additionally, the owner sought leave to appeal on an alleged error of fact in the primary decision, putting forward contentions based on each ground under CATA ss 80(2)(b) and Sch 4 para 12(1) to support a finding of substantial miscarriage of justice that would justify exercise of discretion to grant leave: Collins v Urban [2014] NSWCATAP 17.
Thus, it was contended that the primary decision was not fair and equitable because, despite the truncated settlement agreement being the form in evidence, the parties at primary hearing in their written evidence, and in the cross-examination of each party, did not refer to the settlement agreement as requiring further work, only payment, and that if the $30,000 payment was not made by Christmas Eve 2015 then the owner would seek compensation in the Tribunal.
It was further contended that the primary decision was not fair and equitable because it was made without regard to the "true terms of the settlement Agreement".
It was further contended that the primary decision was against the weight of evidence because the parties at primary hearing in their written evidence, and in the cross-examination of each party, did not refer to the settlement agreement as requiring further work, only payment. Again, it was introduced as part of this contention (or as supplemental or complementary to it) that the "actual terms of the Settlement Agreement" (underlining in quoted part) made it clear there was no provision for further work in the settlement agreement.
Finally, the owner contended that there was "significant new evidence that is now available that was not reasonably available at the time of the hearing". Relevantly, that was an affidavit of the owner that she did not notice the words cut off the photocopy of the settlement agreement in evidence before the primary member. (The building inspector's affidavit simply confirmed the complete form of the settlement document, which was not novel.)
It seems to us that none of the owner's contentions makes out a ground for a finding of a substantial miscarriage of justice or the exercise of discretion to grant leave, or a finding of the remaining error of law for which the owner contends.
Dealing with the grounds required as the first step in establishing a basis to exercise discretion by a grant of leave, the written and oral evidence sought to be relied upon does not detract from the direct documentary evidence before the primary member. The fact that work was not mentioned in that written and oral evidence cannot found an inference contrary to the terms of the document to say that the primary member's findings were not fair and equitable, or against the weight of evidence, before him.
Further, the affidavits sought to be read on appeal provide an explanation for the mistake in the evidence at primary hearing but cannot change the inescapable fact that the correct form of the document was available at the time of the primary hearing.
Turning to the remaining question of law, there is no basis for an error of law in reasoning that did not take into account material that was not before the primary member or, as already said, that did not contradict directly the document in evidence before the primary member.
As to the adequacy of the primary member's reasons for making a work order, the following emerges.
The settlement agreement did not vary the contract so as effectively to substitute the terms of the settlement agreement, whatever they were, for the contract. In its own terms it operated as a "variation" to the contract.
On the form of the settlement agreement before the primary member, it did not restrict - indeed, expressly provided for - further work by the builder. The only variable was payment of a concessionary amount by a specified date compared with the amount that would be claimed in the Tribunal, and no commitment about seeking further work to be done. Not paying the optional concessionary amount of itself was not a basis, or a sufficient basis, for exercising discretion against a work order.
Even on the owner's contention based on the correct form of the settlement agreement, if the $30,000 was paid by Christmas Eve that would be the end of the matter with no further work required to be done by the builder. If the $30,000 was not paid by Christmas Eve 2015 then the owner would claim $50,000 in the Tribunal, again with no further work required to be done by the builder.
That of itself could not exclude the statutory requirement under HBA s 48MA to consider a work order, although the parties' agreement would be a factor in exercise of the statutory discretion as to remedy. It would not be a decisive factor.
But the owner did not claim $50,000 in the Tribunal. She claimed $179,000 later reduced to $117,000 (and found by the primary member to be under $50,000 in value of work to be done) and said that the contract to which the settlement agreement was an express variation had been terminated in September 2015. That could only have been on the basis of the settlement agreement not limiting the scope of claims in the Tribunal if it was not performed by the builder.
Once the scope of claims concerning the contract and state of works was opened up by the form of the owner's claim in the Tribunal, there was no basis for the settlement agreement or conduct in relation to it (given the optional performance nature of the agreement) restricting the exercise of the primary member's discretion under s 48MA. No effective basis other than the settlement agreement has been raised on appeal by way of challenge to the exercise of the primary member's discretion whether or not to make a work order.
The primary member's reasons for adopting the statutory preference under s 48MA have been set out above. They are in our view correct whatever the form of the settlement agreement and are certainly within the range of reasonable outcome in the exercise of discretion on form of relief under ss 48MA and 48O.
There is a further reason that the appeal should be dismissed that was canvassed before us in argument. Once the primary member found that the contract had not been terminated, it was not possible for general law contract damages to be awarded for incomplete or defective work which was the only form of relief sought by the owner at first instance: Little v J&K Homes PL [2017] NSWCATAP 84, explaining and applying at [20]-[23] Brewarrina Shire Council v Beckhaus Civil PL [2005] NSWCA 248 at [65]-[69]. The same conclusion is inevitable before us once there was no challenge to the findings of the primary member that the contract remained on foot.
The appeal must therefore be dismissed.
On 22 September 2017 the Appeal Panel stayed the work order, access order, completion date order and payment order pending the appeal decision. There is no evidence before the Appeal Panel on this hearing as to the status of any attempt to gain access to do the ordered work and the status of response to any such attempt to gain access prior to 22 September 2017. In those circumstances, the Tribunal will extend the time for performance of the work order by the period of 3 months to account for the period since imposition of the stay plus provision for a month industry hiatus at Christmas but there is no basis on which the Tribunal can deal with the period prior to the stay.
The builder sought costs of the appeal. There is no reason that costs should not follow the event where this is an appeal from a Consumer and Commercial Division decision and the amount claimed and in dispute in the proceedings is more than $30,000: CATA s 60; CATA Rules rules 38, 38A. We do not see the need, as was sought in argument, for further submissions on costs. The builder's open offer canvassed in argument in substance did no more than seek to maintain the primary outcome uncompromised.
[2]
Orders
1. Grant extension of time for filing of the appeal to and including 4 August 2017.
2. The appeal is dismissed.
3. The stay granted by the appeal panel of orders 2, 4, 5 and 6 made on 6 July 2017 is lifted on and from publication of these reasons and date of these orders and order 5 made on 6 July 2017 is varied to read "The works are to be completed no later than three months after date of publication of reasons and making of orders by the Appeal Panel in AP 17/34593 Thacker v Bonham".
4. Order that the appellant pay the respondent's costs of the appeal as agreed or assessed on the ordinary basis.
[3]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
[4]
Amendments
09 January 2018 - typographical error on coversheet
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Decision last updated: 09 January 2018