Thandi Construction Solutions Pty Ltd v Singh

Ah Sam v Mortimer [2021] NSWCA 327

AHB v NSW Trustee and Guardian [2014] NSWCA 40

Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111

Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165

Allchin v Hunter Water Corporation [2025] NSWCA 253

Attia v Health Care Complaints Commission [2017] NSWSC 1066

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

Azzopardi v Tasman QEB (1985) 4 NSWLR 139

Bauskis v Liew [2013] NSWCA 297

BHP Billiton Ltd v Dunning [2013] NSWCA 421

Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734

Bobolas v Waverley Council [2016] NSWCA 139

Boreland v Brewis [2024] NSWCATAP 140

Carrano Investment Holding Pty Ltd v Siennamia Investments Pty Ltd [2022] NSWCA 262

Chalik v Chalik [2024] NSWCA 136

Chaudhary v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1339

Collins v Urban [2014] NSWCATAP 17

Commonwealth Bank of Australia v Kyriacou [2024] NSWSC 1557

CSR Ltd v Eddy (2008) 70 NSWLR 725; [2008] NSWCA 83

DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225

Dekkan v Picciau [2008] NSWCA 18

Donohoe v Alburario [2025] NSWSC 9

Dubois v R & B Bergin Pty Ltd [2011] NSWCA 309

Eastman v Nepean Blue Mountains Local Health District [2024] NSWCATAP 94

Ezekiel-Hart v The Council of the Law Society of the ACT (No 3) [2023] ACTSC 216

Gemi Nominees Pty Ltd v Chamoun [2024] NSWSC 926

GMI Construction Pty Ltd v Keshavarz [2024] NSWCATAP 68

Grozdanov v N & T Buildings Pty Ltd [2015] NSWCATAP 107

Harmony Stone Gallery Pty Ltd v Arjuria [2017] NSWCATAP 80

House The King (1936) 55 CLR 49; [1936] HCA 40

Hulme v Hulme [2023] NSWSC 299

Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174

Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390

LB v Secretary, NSW Department of Education (No 2) [2025] NSWSC 939

LB v Secretary, NSW Department of Education (No 2) [2025] NSWSC 939

Lucire v Health Care Complaints Commission [2011] NSWCA 99

Magjarraj v Asteron Life Limited [2009] NSWSC 1433

Marino v Di Blasio [2021] NSWCATAP 334

McGinn v High Court of Australia (No 5) [2025] FCA 975

McNeill v Clarence Valley Council [2025] NSWCATAP 184

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11

MPP Property Pty Ltd v Soliman Hospitality Pty Ltd [2021] NSWCATAP 90

NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559

Newton v Ellis [2012] NSWCA 106

O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77

Petrou v Vassiliadis [2025] NSWCA 174

Pholi v Wearne [2014] NSWCATAP 78

Powell v Christensen [2025] NSWCATAP 181

Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208; [1989] HCA 13

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

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Ros Commissioner of Police [2020] NSWCATAP 70

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

State of NSW v JR; State of NSW v Dickens; State of NSW v Jensen [2024] NSWCA 308

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TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178

Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204

Uy v Ng [2021] NSWSC 429

Wacker v Van Dyke t/as Vandyke Racing; Wacker v Dr Albany [2022] NSWSC 1020

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 5

Waters v Waghorn [2016] NSWCATAP 247

Wojciechowska v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Wojciechowska [2025] NSWCATAP 248

Wyman v Queensland (2015) FCR 464; [2015] FCAFC 108

1. This is an internal appeal under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) involving two decisions of the Tribunal in proceedings under the Home Building Act 1989 (NSW) (HB Act).
2. In this decision, any reference to "the builder" is a reference to the appellant; and any reference to "the homeowners" is a reference to the respondents.
3. On 7 March 2025, the Tribunal ordered the builder to pay the homeowners damages of $132,642 within 28 days for the cost of rectifying defective residential building work performed by the builder in breach of the statutory warranties under s 18B of the HB Act. The Tribunal also ordered that the builder pay the homeowners' legal costs of the proceedings as agreed or assessed, subject to either party making an application to vary the costs order.
4. The homeowners applied to the Tribunal to vary the costs order. On 30 June 2025, the Tribunal ordered that the builder pay the homeowners legal costs in the lump sum amount of $15,950.15.
5. The grounds of appeal focus upon the decision of 7 March 2025. No independent grounds of appeal are brought against the decision of 30 June 2025. If the appeal against the orders of 7 March 2025 succeeds and the decision is set aside, the ancillary costs decision of 30 June 2025 must also be set aside. If the appeal fails and is dismissed, the decisions of 7 March 2025 and 30 June 2025 will remain undisturbed.
6. The builder lodged and served a Notice of Appeal on 4 April 2025 from the decision of 7 March 2025. The appeal has been lodged within the requisite time period in r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules).
7. The builder lodged and served amended grounds of appeal, together with the documents it relied upon in the appeal, on 3 July 2025.
8. The homeowners lodged and served a Reply to Appeal, together with the documents and submissions they relied upon in the appeal, on 11 July 2025.
9. The builder's Counsel prepared written submissions dated 11 August 2025. Those submissions were provided to the homeowners and the Appeal Panel on 11 August 2025.
10. Although the builder's written submissions in support of the appeal were lodged and served beyond the time period specified in various procedural directions of the Appeal Panel (including an extension granted by Blake PM on 27 June 2025), the homeowners did not seek an adjournment of the appeal hearing on 11 June 2025.
11. The appeal was listed for hearing on 11 August 2025. Mr Tiliakos of Counsel appeared for the builder. Mr Tiliakos had only recently been briefed. The homeowners appeared in person self-represented.
12. At the appeal hearing on 11 August 2025, we indicated that if we granted leave to the builder to rely upon the submissions dated 11 August 2025, the homeowners would have the opportunity to apply for an adjournment. The homeowners stated they were ready to proceed even if we granted leave to the builder to rely upon the written submissions in the appeal. We determined it appropriate to allow the builder to rely upon the written submissions dated 11 August 2025, but gave the homeowners a period of time to read and consider the submissions before the commencement of oral submissions.
13. The documents of the builder included all the documentary evidence the builder had relied upon in the Tribunal proceedings.
14. The builder also sought to rely upon further evidence that was not before the Tribunal at first instance. That evidence was:

(1) An affidavit of Mr Baljit Singh, dated 16 July 2025.

(2) An affidavit of the builder's expert witness in the Tribunal proceedings, Mr Raihanul Islam, dated 15 July 2025.

(3) A witness statement of Mr Ming Ming Chen, dated 15 July 2025.

1. The documents of the builder included a transcript of the hearings.
2. No Appeal Panel orders were made during the procedural history of the appeal granting the builder a Stay of the money orders under s 43 of the NCAT Act. However, on 16 July 2025 the Appeal Panel noted that the homeowners would not take any steps to enforce the costs order made by the Tribunal on 30 June 2025 prior to the hearing of the appeal on 11 August 2025.

Background and the Tribunal Decision of 7 March 2025

1. In March 2023, the homeowners commenced Tribunal proceedings against the builder seeking orders that relevantly included damages for defective residential building work; incomplete building work; and for delay.
2. In the Tribunal proceedings, neither party was legally represented at any relevant time.
3. At the Tribunal hearings, Mr Baljit Singh, director, appeared for the builder. The homeowners were self-represented.
4. The parties had entered into a written contract for the construction of a new home on 5 February 2019. The builder asserted that practical completion had occurred in November 2019. The builder had not installed the kitchen. The builder asserted the homeowners had not selected the kitchen until February 2020, and the builder installed the kitchen in August 2020.
5. The homeowners asserted that the handover of the works by the builder occurred on 20 April 2021.
6. At [15] of Tribunal's reasons, it was noted that although at one time both parties had engaged Solicitors, it was clear that neither party had legal assistance in preparing their documentary evidence, which was "episodic and disjointed".
7. Both parties had engaged a building expert witness. The homeowners' expert was Mr Camenzuli, licensed builder, and structural engineering consultant. He prepared expert reports, and a Scott Schedule. The builder's expert was Mr R Islam, quantity surveyor with a degree in civil engineering. He prepared an expert report and a Scott Schedule.
8. The first day of the Tribunal hearing occurred on 8 April 2024. At [19]-[23] of the reasons, the Tribunal set out what occurred. The experts had not prepared a joint report setting out issues upon which they agreed and disagreed. The Tribunal directed the experts (both of whom were in attendance at the hearing) to confer.
9. The homeowners gave evidence and Mr B Singh was given the opportunity to question the homeowners. Mr B Singh gave evidence and the homeowners were given the opportunity to question Mr B Singh. The experts then commenced giving evidence. According to the Tribunal, at the end of the first day of the hearing the experts had dealt with 28 of the 78 defect items in the Scott Schedule.
10. The Tribunal, at the conclusion of the first day of the hearing, directed the experts to meet and prepare a joint expert report setting out areas of agreement and disagreement in respect of items 29-78 of the Scott Schedule. That joint report was to be lodged with the Tribunal by 6 May 2024.
11. The second day of the hearing was listed on 5 July 2024.
12. Paragraphs [24]-[42] of the reasons set out what occurred on 5 July 2024.
13. No joint expert report had been lodged with the Tribunal. Mr Camenzuli was in attendance. Mr Islam was not.
14. At the commencement of the hearing on 5 July 2024, the builder sought an adjournment. The Tribunal refused the adjournment application. The reasons state as follows at [24]-[30]:

"No further joint report was filed before the second day of the hearing on 5 July 2024. At the commencement of the second day of the hearing, Mr B Singh sought an adjournment. The owners opposed the adjournment. Mr B Singh tendered a medical certificate, which I marked Exhibit 1. That certificate stated:

"This is to certify that Mr Baljit Singh is currently having a medical condition and for the period 4 July 2024 to 5 July 2024 inclusive, he will be unfit to continue his usual occupation".

A certificate in those terms was quite insufficient to justify the adjournment of the hearing. The statement of Mr Singh was unfit to continue his usual occupation said nothing about his capacity to participate in the processes of the Tribunal.

In Bobolas v Waverly Council [2016] NSWCA 139, McColl JA with whom Simpson JA and Sackville AJA agreed, stated at [221]:

"A medical certificate relied upon to demonstrate a litigant is unable to attend court must address the 'critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the court and participating effectively in a court hearing'".

Mr B Singh sought to suggest he was not able to concentrate sufficiently to be able to fairly represent the respondent, but he produced no evidence to support that submission. The medical certificate (Exhibit 1) certainly did not do so.

Mr B Singh also stated that his mother had just been diagnosed with cancer and he had to see a doctor to arrange a vaccination in order that he would be able to travel to see her.

Again, no evidence beyond Mr B Singh's say so was advanced to support the suggestion that he needed to arrange a vaccination or that his need for a vaccination required the adjournment of the hearing.

In any event, I did not consider that, even if established, the need to arrange a vaccination would warrant the adjournment of the proceedings. I refused Mr B Singh's application for an adjournment and proceeded with the hearing."

1. Mr B Singh informed the Tribunal that he had not arranged for Mr Islam to attend the hearing. The reason given was that Mr B Singh disputed the qualifications of Mr Camenzuli to give expert evidence.
2. The Tribunal requested Mr Camenzuli return to the witness box and explain what had occurred in respect of preparation of a joint expert report. Mr Camenzuli stated there had been "difficulties," but a joint inspection of the property had occurred and a draft report had been prepared. Mr Camenzuli had sent a final draft of the joint expert report to Mr Islam "overnight," but had "not received sign off from Mr Islam."
3. The Tribunal adjourned the proceedings for 2 hours so that Mr Camenzuli could obtain a copy of the draft report. When the hearing resumed, Mr Camenzuli informed the Tribunal that he had "received confirmation from Mr Islam that the joint report was agreed" and Mr Camenzuli "produced a copy of an email from Mr Islam to that effect." The Tribunal stated that the joint expert report was admitted into evidence as Exhibit A.
4. At [36]-[41], the Tribunal stated what occurred when Mr B Singh questioned Mr Camenzuli. According to the Tribunal, Mr B Singh's questioning of the expert was "combative and confrontational. He frequently did not allow Mr Camenzuli to complete answers to his questions."
5. At [39]-[41], the Tribunal stated:

"Mr B Singh declared that Mr Camenzuli should have various documents including a copy of his Bachelor of Engineering degree with him at the hearing in order to verify his qualifications. When I indicated to Mr B Singh that I did not find that approach very helpful, he began shouting that Mr Camenzuli was not qualified and should not be permitted to give evidence.

Ultimately, Mr B Singh's behaviour escalated to the point that I informed Mr B Singh that I was going to leave the hearing room for a few minutes to allow him to calm down, and that if he was not able to control himself when I returned I would have him removed from the hearing. I then adjourned briefly.

When I returned to the hearing room Mr B Singh was not present. I proceeded with the hearing. Mr B Singh then entered the room, stated that he was not able to concentrate, and left the hearing. I continued the hearing in the absence of Mr B Singh. I was satisfied that Mr B Singh (and the builder as represented by Mr B Singh) had the opportunity to attend the hearing, but had elected not to do so, and that justice required the hearing proceed in his absence."

1. At [42], the Tribunal stated that Mr Camenzuli was suitably qualified to give evidence. Nothing in the cross examination by Mr Singh caused the Tribunal to doubt Mr Camenzuli's qualifications.
2. At [44]-[73], the Tribunal dealt with the homeowners' claim for delay damages. At [66], the Tribunal found that the building work was completed 47 weeks and 4 days after the contract completion date. At [70], the Tribunal found that the 5% of the contract price payable per week for delay was a penalty, and was void. Consequently, no liquidated damages were payable. The Tribunal then considered whether any delay damages were proved outside the contractual delay clause. At [72]-[73], the Tribunal found that the homeowners had not provided sufficient evidence to prove loss, and dismissed the delay damages claim.
3. At [74]-[208], the Tribunal dealt with the expert evidence in respect of defective and incomplete work, with reference to the each of the claimed items. The Tribunal set out the expert evidence and made findings. The Tribunal was satisfied that the builder had breached the statutory warranties under s 18B of the HB Act, and the cost of rectification work was $120,583 plus GST; and $132,642 inclusive of GST. The Tribunal did not accept every aspect of Mr Camenzuli's evidence and noted that Mr Camenzuli had not pressed certain defect and method of rectification issues after his conclave with Mr Islam and the completion of the joint expert report.
4. At [208]-[211], the Tribunal dealt with s 48MA of the HB Act. Under s 48MA of the HB Act, it is the "preferred outcome" that the builder who performed the work in breach of the statutory warranties under s 18B of the HB Act be ordered to rectify the defects under s 48O of the HB Act. The Tribunal found that a work order was not the preferred outcome, because the relationship between the parties had irretrievably broken down, and the conduct of Mr B Singh at the second day of the hearing "reinforced" the Tribunal's view that it was inappropriate to make orders that would require the parties to engage co-operatively to achieve rectification of defects.
5. At [213]-[216], the Tribunal dealt with the issue of costs. The Tribunal found that the amount claimed or in dispute in the proceedings exceeded $30,000. Consequently, r 38 of the NCAT Rules applied, and costs could be awarded without "special circumstances" under ss 60(2)-(3) of the NCAT Act being established. The homeowners were the successful party. The homeowners had provided some disbursement invoices, and the Tribunal determined it appropriate to order the builder to pay the homeowners' costs as agreed or assessed, but give the homeowners the opportunity to apply for a lump sum costs order.
6. As discussed previously, in a subsequent and separate decision, the Tribunal made a lump sum costs order in favour of the homeowners.

1. The builder advances two grounds of appeal.
2. Ground 1 involves the refusal of the Tribunal to grant the builder an adjournment on day 2 of the hearing. The submissions characterise the alleged error in different ways. Firstly, the builder submits there was a denial of procedural fairness by refusing the adjournment application. Secondly, the builder submits that the Tribunal refusing to adjourn was "not a reasonable exercise of discretion."
3. Ground 2 involves the admission by the Tribunal of the joint expert report on day 2 of the hearing and the hearing proceeding after Mr B Singh had left the hearing. The builder submits that admission of the joint expert report and continuation of the hearing was a denial of procedural fairness.

1. The affidavit Mr B Singh primarily contains information pertaining to the adjournment application on 5 July 2025.
2. Mr B Singh states that he sought an adjournment "due to my chronic sinusitis and my mother ... being severely sick at the time."
3. Paragraphs [10]-[20] of the affidavit deal with the medical condition of Mr B Singh's mother. According to Mr B Singh, his mother had been feeling unwell since approximately 2 weeks prior to 5 July 2024. On 4 July 2024 she had medical tests. According to Mr B Singh he was told by his mother's doctor that she suffered from stage 4 pancreatic cancer and had 3-4 weeks to live.
4. The affidavit attaches an ultrasound medical report. The ultrasound report is by Dr Rustogi and is addressed to Dr R Singh, general practitioner. The report is in respect of Ms Manjit Kaur. The report states: "Aggressive lesion in the pancreatic tail/presumably pancreatic adenocarcinoma measuring up to 50 mm with multiple liver metastases as outlined". The report states it had been "urgently faxed to the referrer."
5. Mr B Singh states that, upon receiving the diagnosis, his mother stated that she urgently wanted to travel to India to visit family members. Mr B Singh states he "stopped preparation" for the hearing, and focussed upon organising travel for his mother, with Mr B Singh accompanying her. Mr B Singh stated he needed to arrange to be vaccinated and book flights. The affidavit attached a Medicare immunisation history statement that he was immunised for hepatitis A typhoid on 8 July 2024; and a travel itinerary in the name of Mr B Singh with Air India for return travel to India between 10 July 2024 and 6 August 2024. The travel itinerary was issued on 4 July 2024. Mr B Singh did not provide a copy of that travel itinerary to the Tribunal on 5 July 2024.
6. Mr B Singh states (at [20]-[21]) that his mother's medical condition and urgently organising travel to India caused him "great stress" and his "chronic sinusitis flared up".
7. Mr B Singh states (at [22]) that "later" on 4 July 2024, he went to his general practitioner to obtain a medical certificate. Mr B Singh's general practitioner is Dr R Singh, the same doctor who had referred Mr B Singh's mother for an ultrasound. The medial certificate stated:

"This is to certify that Mr Baljit Singh is currently having a medical condition sinusitis and for the period 04/07/2024 to 05/07/2024 inclusive he will be unfit to continue his usual occupation".

1. Mr B Singh asserts that he "did not know" that the medical certificate required more detail, because he was "not legally represented."
2. At [24]-[26], Mr B Singh refers to having attempted to engage a Solicitor to act for the builder and appear on 5 July 2025 to make a formal adjournment application. According to Mr B Singh, the Solicitor informed him by text message that he was not available on 5 July 2025. Mr B Singh does not identify the Solicitor. Text messages are annexed to the affidavit.
3. The first text message is from the Solicitor, and is dated 30 May 2023. It states, "thanks for the call" and sets out the Solicitor's email address.
4. The next text message is from Mr B Singh to the Solicitor on 24 March 2024. It states: "I will call you tom (sic) for urgent NCAT hearing. Thanks Bajit."
5. There are no further text messages until 4 July 2024.
6. On 4 July 2024, the following exchange occurs:

Mr Singh: Please call me when you are free Thanks Bajit (2.34 pm).

Solicitor: Please email me the report (4.29 pm).

Mr Singh: Thanks (4.29 pm).

Mr Singh: Email sent. Thanks. Bajit (4.56 pm).

Solicitor: I'm sorry I can't do this by tomorrow. I'm on holiday all next week and I have too much work already for tomorrow (7.59 pm)

Mr Singh: Okay I will deal with NCAT tomorrow. I will seek an extension, let me know if you can take this work later on kindly reply with quote. Thanks for your early reply. Bajit (8.05 pm).

1. At [31]-[32], Mr B Singh asserts that at the hearing on 5 July he was "not given an opportunity...to tender documents in relation to my mother's diagnosis".
2. At [33]-[39], Mr B Singh refers to what occurred at the hearing on 5 July 2024. He asserts that he was is stress levels were "very high" due to his mother's medical condition; and that he became more stressed. Further, he was experiencing difficulty in concentrating due to his "chronic sinusitis." According to Mr B Singh, his stress level's "spiked" when there was a "discussion" about Mr Camenzuili's credentials. Mr B Singh asserts he left the hearing because he "couldn't handle" the stress and the symptoms caused by his "chronic sinusitis."
3. Mr B Singh asserts that he has now read the transcript of the hearing, and that the Tribunal should not have continued the hearing after he left and should not have admitted the joint expert report. He further asserts that his expert Mr Islam was "not given the opportunity to provide his views."
4. At [40]-[46], Mr B Singh makes extensive comments criticising Mr Camenzuli's qualifications, asserting they were not genuine. Mr B Singh asserts that he raised the issue of Mr Camezuli's alleged lack of qualifications to be an expert witness on the second day of the hearing, but the Tribunal "didn't want to entertain the idea" that Mr Camenzuli was not appropriately qualified. Mr B Singh asserts that he also raised issues regarding deficiencies in Mr Camenzuli's evidence on the first day of the hearing.
5. At [47]-[51], Mr B Singh asserts that Mr Islam did not have "reasonable access" to the premises to prepare his report, and the Tribunal should have adjourned the first day of the hearing, not just the second day.
6. At [52]-[72], Mr B Singh opines on certain defects found by the Tribunal, asserting that some of the work was not performed by the builder under the building contract; and other works were not defective. Mr Singh claims he would have given evidence to the Tribunal at the second day of the hearing on these issues had he been present.
7. At [73]-[75], Mr B Singh refers to the Tribunal having made an order for damages rather than a work order to rectify defects, and asserts that the Tribunal should have made a work order. However, we note that there is no ground of appeal that the Tribunal erred in awarding damages rather than making a work order, in the context ss 48MA and 48O of the HB Act. There is also no ground of appeal of apprehended bias.

1. Mr Islam's affidavit is brief, comprising of 15 paragraphs.
2. Mr Islam asserts that he did not have a reasonable opportunity to inspect the homeowner's property, having inspected it for "10-15 minutes" prior to the first day of the hearing, and the Tribunal did not allow him to elaborate on the first day of the hearing that he had been given insufficient access to the premises.
3. In respect of the second day of the hearing, Mr Islam briefly states that (a) he was not present on the second day of the hearing; and (b) he had reviewed the transcript of the hearing and believed the Tribunal should have adjourned the second day of the hearing.
4. Notably, Mr Islam provides no explanation as to why he was not present at the second day of the hearing; or any evidence pertaining to the preparation of the joint expert report that the Tribunal had directed the experts to prepare prior to the second day of the hearing.

Witness Statement of Ming Ming Chen dated 15 July 2025

1. Mr Chen states that he was the director of LJ Buildings Pty Ltd, a company engaged by the builder to perform tiling at the homeowner's property. He asserts that the tiling work was performed and that Harmandeep Singh was present and provided instructions regarding the tiling pattern.

1. The homeowners' documents and submissions included the expert reports from Mr Camenzuli they relied upon at the hearing and the joint expert report (in the form of a Joint Scott Schedule) of Mr Camenzuli and Mr Islam that was admitted into evidence at the hearing on 5 July 2024.
2. The written submissions of the homeowners assert the decision was fair and equitable and that the Tribunal made no legal errors. The homeowners also produced fresh evidence that was not before the Tribunal in respect their claim for delay damages, which was dismissed. That evidence involves rental expenses for temporary accommodation, and interest payments on their home loan.
3. Both parties had filed and served other documents and submissions in respect of the Stay application made by the builder; and a compliance directions hearing held due to the builder's non-compliance with Appeal Panel procedural directions that was held on 27 June 2025. That material was not sought to be relied upon in the appeal, and it is unnecessary to detail that material.

1. As discussed previously, the builder provided a transcript of the hearings on 8 April 2024 and 5 July 2024.

1. Mr B Singh was asked by the Tribunal whether he needed an interpreter, and he replied "No" (T:8/4/24:P1:L27-29).
2. The hearing proceeded in the manner summarised by the Tribunal in its reasons. Mr Camenzuli and Mr Islam attended the hearing, They, and the parties, had not complied with previous Tribunal directions for the preparation of a joint expert report setting out areas of agreement and disagreement.
3. The Tribunal directed the experts to confer and prepare a joint expert report. By the time of the lunch adjournment, Mr Camenzuli informed the Tribunal that there had been a "small number of agreements" between the experts, but there were still 70 defect items where the experts disagreed (T:8/4/24:P76:L16-26).
4. The Tribunal informed the parties and experts prior to the lunch adjournment that the expert evidence would commence immediately after lunch. The Tribunal also stated that if the expert evidence was not able to be completed the proceedings would be part-heard, which was the "unfortunate consequence" of the parties failing to ensure their experts had conferred and prepared a comprehensive joint expert report prior to the hearing (T:8/4/24:P77:L11-16).
5. The experts continued to confer and, by the time, the hearing recommenced, had prepared a partial joint expert report. Mr Camenzuli informed the Tribunal that there were now 56 "live issues" where the experts did not agree. The following exchange occurred T:8/4/24:P77:L39-40; T:8/4/24:P78:L1):

Tribunal: All right, thank you. So, Mr Islam, have you seen this?

Islam: Yes

1. The experts then gave joint expert evidence, with the parties being given the opportunity to question the experts on the defect items.
2. During the course of questioning, Mr Islam and Mr B Singh asserted that the homeowners had not provided reasonable access for Mr Islam to prepare a comprehensive expert report. The exchange occurs at T:8/4/24:P101-104.
3. Mr Islam asserted that he attended the homeowners premises on two occasions. On the first occasion, he was denied access. On the second occasion, he asserted the homeowners only gave access for a short period of time. The homeowners denied that they had not given reasonable access. Mr Islam had taken photographs, which he stated had not been included in his report. The Tribunal pointed out that Mr Islam had not stated in his report that he had not been given adequate access, and that was a matter an expert would be expected to identify pursuant to the NCAT Expert Witness Code of Conduct.
4. The following exchange occurred (T:8/4/24:P104:L17-39):

Tribunal: All right, so let's just look at this. So in para 3.1:

"I attended the property on 18 July 2023. I was provided access to the property by the applicant. I initially discussed the matters at issue with the applicant. I then conducted a visual inspection of the areas of the property required to form views about the matters alleged."

Not a word about not being given the access you required, Mr Islam. How can you turn around today and say "Look, I wasn't given the access I needed in order to form a view about this."

B Singh: First time he was denied access. Second time he was allowed.

Tribunal: That's not the point. Mr Islam, do you accept that you had the access you needed in order to form a view about the matters the subject of the Scott Schedule?

Islam: It think there was sufficient-

Tribunal: Yes, all right. I note that the only photographs included in the copy of the that have been provided to the Tribunal are in black and white and completely useless. Thank you, Mr Singh. We won't get any help from those. So Mr-

1. The questioning of the experts continued for a considerable period of time. At one point, Mr B Singh complained that the builder had not had the property inspected by further experts. The Tribunal pointed out that the builder had ample opportunity to have engaged experts other than Mr Islam, but had chosen not to do so.
2. At 4.20 pm, the Tribunal stated that there remained a large number of defect items to be considered. The Tribunal made procedural directions for the experts to confer and prepare a further joint expert report that dealt with areas of agreement and disagreement in respect of the remaining defect items in the Scott Schedule. The Tribunal made clear that the purpose of the further conclave was not for parties to adduce fresh evidence, but for the experts to further discuss their opinions and, if they could not agree, clearly identify the basis of disagreements about the issues of defects; method of rectification; and cost of rectification.
3. Mr B Singh sought that the expert conclave be on site. The homeowners submitted that a previous hearing had been adjourned because the builder had not prepared an expert report. Mr Camenzuli stated that he believed the conclave did not have to be on site. The Tribunal directed the experts to "meet" for the purpose of preparing a further joint expert report, but it was a matter for the experts to determine if the meeting was, or was not, on site. The Tribunal directed that if the experts determined an onsite conclave was appropriate, the homeowners would need to provide reasonable access.
4. The hearing concluded with the Tribunal making procedural directions for the parties experts to prepare a further joint expert report; for that joint expert report to be filed within 4 weeks; and for the parties to inform the Tribunal in writing of suitable dates for the next hearing, taking into account the availability of the experts.

1. The hearing commenced with the Tribunal enquiring whether Mr Islam was present. Mr B Singh stated that Mr Islam was not present. Mr B Singh sought an adjournment because he had "severe sinusitis and the other thing my mother got stage four cancer and she diagnosed yesterday so I'm just-I have to take her to India" (T:5/7/24:P1:L35-36).
2. The Tribunal enquired why Mr Islam was not present at the hearing. Mr B Singh stated that the reason was "we have suspicions about the qualifications of the builder expert and we lodged that" because Mr Camenzuli allegedly did not have a Bachelor of Civil Engineering.
3. The Tribunal enquired whether Mr B Singh had any medical evidence to support the adjournment application. Mr B Singh produced the medical certificate of his General Practitioner. The homeowners opposed the adjournment application.
4. The Tribunal enquired of Mr B Singh why a further joint expert report had not been filed with the Tribunal. The Tribunal also pointed out that Mr B Singh had not provided any reasonable explanation as to why Mr Islam was not present at the hearing. Mr B Singh stated he "didn't know" why a further joint expert report had not been finalised, but Mr Islam "did not email me yet" (T:5/7/24:P4:L26).
5. The Tribunal asked Mr Camenzuli about the preparation of the joint expert report (T:5/7/24:P5-7). Mr Camenzuli stated that he and Mr Islam had "met on site" and "we went through the details." According to Mr Camezuli, Mr Islam had agreed to prepare the joint report. Two to three weeks later Mr Camenzuli had not received the report, and emailed Mr Islam numerous times. Mr Islam promised the report a number of times. He then "sent a draft, which had errors." Mr Camenzuli returned a corrected draft to Mr Islam 5 days later, to be put into a "final format". As of 5.45 am that morning, Mr Islam had not emailed the further joint expert report to Mr Camenzuli.
6. The Tribunal then asked whether Mr Camenzuli had changed his opinion about defect items. Mr Camenzuli stated that there were "some reductions in my perspective." Mr Camenzuli stated he needed to obtain a copy of the draft further joint expert report, and could do so, but it would take approximately 2 hours.
7. The Tribunal then again asked Mr B Singh whether he could arrange for Mr Islam to attend the hearing. Mr B Singh replied, "I can't," but did not give any explanation why he could not arrange for Mr Islam to attend the hearing (T:5/7/24:P7:L21).
8. At T:5/7/24:P9-11 the Tribunal returned to the builder's application for an adjournment. Mr B Singh continued to assert that Mr Camenzuli was not suitably qualified to give expert evidence. The Tribunal told Mr B Singh he could make submissions on that issue. Mr B Singh referred again to his medical certificate. The Tribunal stated that it contained "no useful information at all." Mr B Singh referred to having "serious rhinitis and sinusitis" and that he "can't focus on things." Mr B Singh referred to his mother's illness. The Tribunal stated that he had sympathy for Mr B Singh, but enquired how the illness of Mr B Singh's mother prevented him from participating at the hearing. Mr B Singh responded that he was leaving for India with his mother "on the 10th" and "I have to get the vaccinations today". The Tribunal responded that Mr B Singh could do so during the lunch adjournment.
9. Further, Mr B Singh raised his lack of legal representation in support of the adjournment application. He asserted that "I tried to contact a lot of lawyers and they charge me a lot of money-$15,000, $13,000". He also stated that he had "contacted law access (sic) yesterday and there is no one there to help."
10. The Tribunal stated he was refusing the adjournment application. Mr B Singh then stated he may appeal to "the Supreme Court." The Tribunal stated that whether Mr B Singh decided to appeal was a matter for him.
11. The Tribunal then informed the parties that he had determined it appropriate to adjourn the hearing "for a couple of hours" until 11.30 am so that Mr Camenzuli could obtain a copy of the further joint expert report that he had sent to Mr Islam.
12. Mr B Singh continued to assert that Mr Camenzuli was not suitably qualified to give expert evidence and had provided "fake experience and fake qualifications."
13. At T:5/7/24:P12-17 the events immediately after the morning adjournment are disclosed. Mr Camenzuli had obtained the further joint expert report. Mr Camenzuli provided a copy of the report to Mr B Singh. Mr Camenzuli also provided email correspondence between himself and Mr Islam. Mr Islam had emailed Mr Camenzuli on the morning of 5 July 2024 stating that Mr Islam agreed with the report Mr Camenzuli had sent.
14. Mr Camenzuli then commenced giving evidence and Mr B Singh was given the opportunity to question him. Again, Mr B Singh stated that Mr Camenzuli was not suitably qualified. Mr B Singh referred to not being "in a state of mind that I can argue." Mr B Singh stated he was "not prepared" because "I make the enquiry with the department of fair trade (sic). They did not get back to me." Mr B Singh again referred to "not being in a state of mind where I can argue with anyone" and "mental torture."
15. At T:5/7/24:P19-27, Mr B Singh questioned Mr Camenzuli about Mr Camenzuli's qualifications and expertise. The transcript shows Mr B Singh was argumentative with both the Tribunal and Mr Camenzuil, and repeatedly asserted that Mr Camenzuli was not suitably qualified.
16. At T:5/7/24:P28-30, the Tribunal warned Mr B Singh that he needed to stop interjecting and demanding that Mr Camenzuli produce documents to verify his qualifications and experience. The Tribunal warned Mr B Singh that if his behaviour did not improve, the Tribunal would refuse to hear from him and the hearing may proceed in his absence. Mr B Singh stated he may leave the hearing
17. The Tribunal left the Bench for a short period of time. When the Tribunal returned Mr B Singh continued to assert that Mr Camenzuli was not qualified. The following exchange occurred, prior to Mr B Singh leaving the hearing room:

Mr B Singh: No, no, no, no. You can make your judgment. We've given you a medical because this guy is not qualified enough and you are not going to accept my-and the other thing that I'm not in a state of mind that I can argue with you.

Tribunal: Well, you can sit quietly and-

Mr B Singh: No, no, no. I can't sit quietly when some is not justifying I can-if you want, I can leave the evidence here-

Tribunal: I'm going to mark this as exhibit-

Mr B Singh: No, no, no. The thing is because he's not qualified. He does not have a degree. He does not have experience that he is-so-

Tribunal: Mr Singh.

Mr B Singh: No, no, no. Your Honour, I'm very sorry. I have to leave because I can't take a mental tourch (sic).

Tribunal: All right, thank you. Goodbye.

Mr B Singh: Yes.

Tribunal: The proceedings will continue in your absence.

Mr B Singh: The thing is because he's not qualified-

Tribunal: If you wish someone else to represent you, you can leave them behind and they can-

Mr B Singh: No, no. I can't because he's just taping-

Tribunal: All right. Thank you, Mr Singh.

Mr B Singh: So, he's not a qualified person because-

Tribunal: The matter will continue in your absence. Thank you.

Mr B Singh: Yes. We can leave the evidence here. That's it.

Tribunal: All right. Goodbye.

Mr B Singh: Thank you.

1. The hearing continued with Mr Camenzuli giving evidence. The Tribunal asked Mr Camenzuli a number of questions regarding the defect items, including the items that had been "not pressed" by Mr Camenzuli in the joint expert report that had been admitted on 5 July 2024 and to clarify Mr Camenzuli's opinion. The hearing concluded with further brief evidence from the homeowner Sukhpreet Kaur in respect of defect items 65, 68, 71 and 72.
2. The Tribunal also clarified aspects of the homeowner's evidence, including that the homeowners were seeking an order for damages rather than an order that the builder return to site and rectify defects. The Tribunal pointed out that the homeowners had not provided any evidence that they had incurred rental costs before moving into the house constructed by the builder pursuant to the contract between the parties.

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80 (2) of the NCAT Act.
2. An appeal is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
3. What is an error on a question of law was extensively discussed by the Appeal Panel in Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. An error on a question of law (if established) is an appeal made as of right and does not require leave. A mixed error of fact and law (if established) requires leave to appeal.
4. In Cusumano at [33], the Appeal Panel stated the categories of questions of law are "not closed"; and at [37] stated:

"What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51."

1. It is unnecessary for the purpose of this decision to set out all the examples of an error on a question of law that were discussed in Cusumano.
2. However, an error on a question of law may arise in the circumstances including the following:

(1) Failure to provide procedural fairness at the hearing (Donohoe v Alburario [2025] NSWSC 9 at [36]- [39] Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [60]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [41] (Gleeson CJ), [142] (Kirby J) and [170] (Hayne J));

(2) No jurisdictional power to make an order (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57; at [163] (Hayne J);

(3) A constructive failure to exercise jurisdiction, in the sense of a failure to consider a "substantial, clearly articulated argument relying upon established facts" that was within the jurisdiction of the Tribunal to determine (see e.g. Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]- [12] and [413]; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [1] and [9]).

(4) Applying the wrong legal principle (in isolation to the factual findings) which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]- [53] (Bimson)). However, the wrong application of the correct legal principles to the facts is an error of mixed fact and law for which leave to appeal is required under s 80(2)(b) of the NCAT Act (TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178 at [42]- [43] and the authorities cited therein).

(5) Making a factual finding where there was no evidence at all to substantiate the factual finding: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [91] per Hayne, Heydon, Crennan and Kiefel JJ. However, a wrong finding of fact does not amount to an error of law: Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 per Brennan J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at [83]-[89]. An erroneous finding of fact, including the drawing of an inference or the erroneous failure to find a fact or failure to draw an inference, which is perverse in the sense that it is contrary to the overwhelming weight of the evidence, is not an error of law: Azzopardi v Tasman QEB (1985) 4 NSWLR 139 at 155 per Glass JA.

1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in Cl. 12(1) of Sch. 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(1) The decision of the Tribunal under appeal was not fair and equitable; or

(2) The decision of the Tribunal under appeal was against the weight of evidence; or

(3) Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In Collins v Urban [2014] NSWCATAP 17 (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 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 the appellant establishes that it may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains discretion whether to grant leave under s 80(2) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong (BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19]; Pholi v Wearne [2014] NSWCATAP 78 at [32]).
2. The discretion to grant leave to appeal was discussed by the Appeal Panel in Collins v Urban at [82]-[84]. It is usually appropriate to grant leave only in those matters that involve issues of principle; questions of general public importance; an injustice which is reasonably clear, in the sense of going beyond what is merely arguable; or the Tribunal has gone about the fact finding process in such an unorthodox manner, or in such a way that it was likely to produce an unfair result, it would be in the interests of justice for it to be reviewed.

1. The builder's submissions dated 11 August 2025 state (at [57]) that Ground 2 raises an error on a question of law. The submissions in respect of Ground 1 do not clearly state whether an error on a question of law is raised or grounds that involve leave to appeal. The submissions at [56] refer to the refusal to adjourn constituting a "substantial miscarriage of justice", which arises if there is an error of mixed fact and law that requires leave to appeal.
2. At the appeal hearing, Counsel for the builder stated that Ground 1 involved leave to appeal; and Ground 2 was an error on a question of law. The requirement that leave to appeal is required for Ground 1 is consistent with the authorities in respect of refusal of adjournment applications, which involves an exercise of discretion, such that an appellant must demonstrate an error of a type in House v The King in the context of whether leave should be granted under s 80(2)(b) of the NCAT Act.

Admission of Fresh Evidence that Was Not Before the Tribunal

1. An appeal hearing under s 80(1) of the NCAT Act is a rehearing concerned with identifying error in the decision under appeal (including the conduct of the hearing) and is not a de novo hearing. Except when an Appeal Panel conducts a new hearing under s 80(3) of the NCAT Act, the rehearing under s 80(1) of the NCAT Act is on the materials before the Tribunal at first instance to determine whether the decision under appeal is the result of some legal, factual or discretionary error (McNeill v Clarence Valley Council [2025] NSWCATAP 184 at [29]- [31]).
2. A new hearing can be held if the Appeal Panel determines that the grounds of appeal warrant it: s 80(3)(a) of the NCAT Act.
3. If the appeal hearing is conducted under s 80(1) of the NCAT Act, there is a discretion to admit fresh evidence if it is in the interests of justice to do so. The Appeal Panel stated in Ros Commissioner of Police [2020] NSWCATAP 70 at [32]- [33]:

"32 There was a discussion of the issues dealing with the nature of internal appeals relevant to the receipt of further evidence in Yuen v Thom [2016] NSWCATAP 243 at [14]- [22]. Receiving further evidence on an appeal was further discussed in Lettau v Artwork Transport Pty Ltd [2017] NSWCATAP 14 affirming Yuen v Thom. We adopt the analysis in these cases. As such, having regard to the guiding principles under s 36 of the NCAT Act, the appeal in this case (which is not by way of a new hearing) is one akin to a rehearing, with the ability to receive further evidence if appropriate.

33 There are a number of other authorities which set out the principles on which the Appeal Panel might consider an application for admission of further evidence. Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision (BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]- [28]). Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant: BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]- [28]; Mielczarek v Commissioner of Fair Trading [2016] NSWCATAP 217; Building Professionals Board v Hans [2008] NSWADTAP 13. Any potential prejudice to the other party upon the receipt of further evidence is also relevant: Lettau v Artwork Transport Pty Ltd at [25]. Whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant: ZNX v ZNY [2020] NSWCATAP 41 at [25]."

1. We are not satisfied that any of the grounds of appeal warrant a new hearing under s 80(3) of the NCAT Act. Accordingly, the appeal hearing is conducted under s 80(1) of the NCAT Act.
2. In this matter, we are satisfied that it is appropriate to admit the affidavits of Mr B Singh dated 16 July 2025 and Mr R. Islam dated 15 July 2025, to the extent those affidavits are relevant to ascertain the circumstances in which the hearing was conducted; whether there was a denial of procedural fairness to the builder; and whether leave to appeal should be granted. We do not admit the witness statement of Mr Chen dated 15 July 2025, as it has no relevance to the grounds of appeal.
3. The homeowners' fresh documentary evidence regarding rental expenses and interest on their home loan is not admitted as it is not relevant to the grounds of appeal. The homeowners have not lodged any appeal from the decision of the Tribunal, and further evidence on an aspect of the decision where they were unsuccessful (delay damages) is otiose.

1. The builder submits that the Tribunal denied the builder procedural fairness by refusing to adjourn the second hearing day of the hearing in circumstances where the Tribunal knew, or should reasonably have known that:

(1) The builder was represented by its sole director Mr Singh.

(2) Mr Singh had "limited English language proficiency."

(3) The builder faced a substantial and technically complex claim of approximately $500,000 in which expert evidence was central.

(4) The builder did not have its expert available to give evidence.

(5) Mr Singh tendered a medical certificate that he was unfit for his usual occupation, and informed the Tribunal that he could not contrate sufficiently to engage with the procedure of the hearing.

(6) Mr Singh had not been provided with, and had not read, any joint expert report.

(7) Mr Singh was "confronted at the hearing" with the proposed admission of a joint expert report said to have been agreed that morning.

(8) Mr Singh was "cautioned" by the Tribunal about his conduct, and withdrew from the hearing after which the matter proceeded in his absence.

1. The builder submits that Mr Singh was at a "forensic disadvantage" because he was the sole director of the builder with limited English proficiency. Although the medical certificate did not contain "elaborate particulars," the proper approach is "evaluative, not mechanistic" and the Tribunal should have found that the hearing could not be conducted fairly without the granting of an adjournment to the builder.
2. The builder submits that to admit the joint expert report without Mr Singh being "given a genuine opportunity to read, digest and respond" to the report was a denial of procedural fairness.
3. The builder submits that there was no obvious prejudice or unfairness to the homeowners if the Tribunal granted an adjournment for a short period of time beyond "inconvenience and cost", but this was "outweighed by the prejudice to the builder in being required to proceed without its expert, without proper comprehension of the critical evidence, and with its sole advocate medically unfit".

1. It is uncontroversial that the Tribunal must conduct hearings in a procedurally fair way. There are a plethora of Appeal Panel decisions referring to procedural fairness that do not bear repetition. In Boreland v Brewis [2024] NSWCATAP 140, the Appeal Panel concisely stated at [65]-[67]:

65 "Procedural fairness requires that parties have an adequate opportunity to put their case and test the case against them. By s 38(5)(c) of the NCAT Act, the Tribunal is required to take "reasonably practicable measures" "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".

66 As Justice Basten stated in Italiano v Carbone & Ors [2005] NSWCA 177 at [88]:

"An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment," as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]:

'"A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations." at [37].'"

67 If it is established that there was a denial of procedural fairness, it must then be considered whether there exists a realistic possibility that the outcome of the decision could have been different had the error not been made (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [11]- [16] referring to Nathanson and Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54). Finding that a properly conducted application would have inevitably produced the same result is not done lightly: Stevanovski v CLK Plumbing Pty Ltd [2017] NSWCATAP 180 at [30]- [31]."

1. Determination of whether there has been a denial of procedural fairness involves consideration of whether there has been any "practical injustice" caused to the appellant by reason of the conduct that is asserted to constitute a denial of procedural fairness (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6; State of NSW v JR; State of NSW v Dickens; State of NSW v Jensen [2024] NSWCA 308 at [289]; Eastman v Nepean Blue Mountains Local Health District [2024] NSWCATAP 94 at [20]; Ah Sam v Mortimer [2021] NSWCA 327 at [22]; Italiano v Carbone & Ors [2005] NSWCA 177 at [88]; Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [80] Carrano Investment Holding Pty Ltd v Siennamia Investments Pty Ltd [2022] NSWCA 262 at [14]).
2. A party failing to take best advantage of the opportunity to be heard is not a denial of procedural fairness: Sullivan v Department of Transport (1978) 20 ALR 323 [1978] FCA 48 at 343; Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208; [1989] HCA 13 at 219-220 per Gaudron J; Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [61]; _CSR Ltd v Edd_y (2008) 70 NSWLR 725; [2008] NSWCA 83 at [39]; Attia v Health Care Complaints Commission [2017] NSWSC 1066 at [178]- [182].
3. The refusal to grant an adjournment may constitute a denial of procedural fairness if a party has been denied a reasonable opportunity to present its case (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [40]; Dubois v R & B Bergin Pty Ltd [2011] NSWCA 309 (Dubois) at [44]; Grozdanov v N & T Buildings Pty Ltd [2015] NSWCATAP 107 at [51]; Wyman v Queensland (2015) FCR 464; [2015] FCAFC 108 (Wyman) at [63]).
4. In Wyman, the Full Federal Court (North, Barker, and White JJ) stated at [63]:

"Nor, in our opinion, does framing the issue as one of denial of procedural fairness assist the Bidjara people. As noted, a failure to grant an adjournment can in some circumstances constitute a denial of procedural fairness. That circumstance will obtain if a party has been denied a reasonable opportunity to present its case. However, the matters to which I have referred indicate that that is not this case. The Bidjara people had been provided with a reasonable opportunity to prepare and present their case but, by their own action, had removed the possibility of doing so by legal counsel. It is to be remembered that procedural fairness requires that a party be given a reasonable opportunity to present a case: not every opportunity."

1. It may also be a denial of procedural fairness for the Tribunal not to raise with the parties independently that an adjournment may be sought (Italiano v Carbone & Ors [2005] NSWCA 177 at [112]). Further consideration of that principle is unnecessary in the circumstances of this appeal because Mr B Singh sought an adjournment, and was refused.
2. The builder's submissions cite Dubois at [43]-[46]. It is appropriate to set out [42]-[46], where Young JA (with whom Giles JA agreed) stated:

"42 As noted in the authorities collected as note s 66.45 in Ritchie's Uniform Civil Procedure NSW , particularly Maxwell v Keun [1928] 1 KB 645 and Bloch v Bloch [1981] HCA 56; 180 CLR 390, 395, whilst it is seldom that an appellate court will feel justified in reviewing a decision to refuse an adjournment, the Court has power to review such an order and in certain circumstances it is its duty to do so. It will be its duty to do so if the order made below will defeat the rights of the parties altogether or even where, at least without fault, a vital witness ceases to become available such as happened in Petrovic v Taara Formwork (Canberra) Pty Ltd [1982] FCA 208; (1982) 62 FLR 451, 461 (Full Federal Court). It is of little value to multiply examples.

43 As the Full Federal Court said in Petrovic at 460, it is not sufficient that the Court of Appeal considers that an adjournment should have been granted, the applicant must show that refusal of the adjournment produced, in the circumstances, an injustice. It must be remembered too, that the decision is a discretionary judgment.

44 "Injustice" is a coloured word with pejorative overtones. What is meant is that the refusal of the adjournment must not set up a situation where there is a likelihood that there cannot be a fair trial unless that factor is outweighed by prejudice to the opposing party.

45 In making the balanced judgment required, a judge must also take into account the public interest that the judicial process must be just, cheap, and quick.

46 Again this matter must be considered in a balanced way. Mr Romaniuk relied on what the plurality said in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, 214 at [102], that the objectives of the modern court rules do not require that every application for amendment (and by analogy, adjournment) should be refused just because it wastes costs and causes some delay. Whilst these are significant matters, they are not necessarily overriding considerations. I accept that submission."

1. In Dekkan v Picciau [2008] NSWCA 18, the NSW Court of Appeal (Basten JA with whom Hodgson JA and Tobias JA agreed) dismissed an appeal from a decision of the District Court to refuse an adjournment of a hearing. The adjournment sought occurred in circumstances where a legal representative was unprepared, and the appellant left the hearing due to medical reasons. At [41] it was stated:

"...If solicitors who are briefed to appear generally in proceedings act on such a basis, and can then successfully abort the hearing by withdrawing because they are ill-prepared, the administration of justice in a busy court could readily be manipulated by the party in whose interests it is to cause delay..."

"51 There is no doubt that the applicant was in an invidious position at the time of the trial. He was unwell and his solicitor was unprepared. However, it does not follow that the trial judge erred in refusing to adjourn the hearing. The failure of a lawyer to prepare for a hearing may provide the basis for a claim against the lawyer by his or her client, but, absent some particular justification, will not entitle a party to an adjournment to the prejudice of the opposing party. The belief on the part of a lawyer that his or her client was otherwise entitled to an adjournment, at least in the circumstances of this case, is insufficient. Were it otherwise, litigants would often be at risk of a forced adjournment because a manipulative adversary was deliberately unprepared."

1. When considering whether or not to grant an adjournment, the importance of the effect of the adjournment on the claims of other litigants and the public interest in achieving the most efficient use of Tribunal resources are matters to take into account: Newton v Ellis [2012] NSWCA 106 at [19]; Bauskis v Liew [2013] NSWCA 297 at [73].
2. In Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174, Ward JA referred to the relevant discretionary matters as follows (at [13]):

"The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court."

1. In Wacker v Van Dyke t/as Vandyke Racing; Wacker v Dr Albany [2022] NSWSC 1020 Schmidt AJ determined it appropriate to grant an adjournment of personal injury negligence proceedings, in which both parties were legally represented; there had been extensive case management preparation; and the hearing was listed for 10 days. The plaintiff suffered injuries when kicked by a horse he was unloading from his employer's trailer. The basis of the adjournment was late expert medial evidence that the plaintiff may have suffered a previously undiagnosed brain injury.
2. Her Honour drew the distinction between matters a party to litigation has control over, such as marshalling evidence to prepare its case, and those it does not.
3. Schmidt AJ stated at [51]-[59]:

"51 In Dekkan v Picciau [2008] NSWCA 18 an appeal against refusal of an adjournment was dismissed, even though the applicant was unwell and his solicitor unprepared. It was there explained that a lawyer's failure to prepare for a hearing may provide the basis for a claim against the lawyer by the client, "but, absent some particular justification, will not entitle a party to an adjournment to the prejudice of the opposing party." : at [51]. Further, that a lawyer's belief that the client was otherwise entitled to an adjournment, at least in the circumstances of that case, was insufficient. "Were it otherwise, litigants would often be at risk of a forced adjournment because a manipulative adversary was deliberately unprepared": at [51].

52 This was not such a case. Here there was a failure, but not deliberate unpreparedness. It resulted in a real, but uninvestigated possibility that Mr Wacker has suffered a brain injury, a matter of considerable importance in this litigation.

53 In Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309 consideration was given to an appeal against the refusal of an adjournment of a hearing, to which the parties had consented, when there were also problems with the investigation of the extent of the plaintiff's injuries, caused in two separate accidents.

54 It was concluded by Giles and Young JJA that the discretion had miscarried in that case, despite the considerations which arose from Aon and the Civil Procedure Act.

55 It was concluded that despite any understandable unhappiness with the frustration of the court's management system and previous delays in the proceedings, the overriding factor was ensuring there would be a fair trial: at [49]. Further, that while there were unsatisfactory aspects about the conduct of the case and dilatory conduct on the plaintiff's side, as there were here, the refusal of the adjournment had led to injustice.

56 That was explained to be "a coloured word with pejorative overtones. What is meant is that the refusal of the adjournment must not set up a situation where there is a likelihood that there cannot be a fair trial unless that factor is outweighed by prejudice to the opposing party.": at [44].

57 One of the real difficulties with refusal of the adjournment was that the problems which Dr Batchelor had discussed in her report, a possible deliberate attempt to distort the results of the testing she had attempted, would remain relevant to the determination of issues lying between the parties, even on the case advanced on the current pleadings. But without the investigation which she considered was required into whether Mr Wacker had suffered a hypoxic brain injury, given the other information she had to consider, which might help explain what had occurred. Such an injury could thus not only shed light on his approach to the testing, but on various issues in the proceedings including, importantly, as to Mr Wacker's credibility and reliability.

58 It was this outcome of refusal of the adjournment, the result of acknowledged error in preparation of the case, rather than anything which Mr Wacker has done or failed to do about pursuit of an investigation into a brain injury, which persuaded me that justice could not permit the adjournment to investigate that possibility to be refused.

59 That was the justification for the adjournment, absent in Dekkan, but present in Dubois and I am satisfied, also in this case."

1. The principles applicable to adjournments have been discussed by the Appeal Panel on many occasions. The authorities often make reference to O_'Neill v T and I Engines Pty Ltd_ [2015] NSWCATAP 77. In that matter, the Appeal Panel stated at [20]-[23]:

"20 In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, a unanimous High Court said:

"In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice."

21 That approach is applicable in this Tribunal. Section 36(1) of the Civil and Administrative Tribunal Act 2013 ('the Act') is in relevantly identical terms to s 56(1) of the Civil Procedure Act 2005, the provision considered in the Expense Reduction decision.

22 It follows that a number of principles apply to applications for an adjournment:

(1) matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above,

(2) an application for an adjournment should be seen as the exceptional rather than the ordinary course;

(3) where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment.

23 Further, there is the effect on the opposing party to consider. In Sayhoun v Owners Corporation Strata Plan 75123 [2014] NSWCATAP 112, an Appeal panel of this Tribunal said at [17], in terms we would adopt:

"We are satisfied that the respondent would be prejudiced if an extension of time were granted. That prejudice may be addressed by an award of costs, although we note the remarks of the plurality in Aon Risk Services Aust Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [100] that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants; and their approval (also at [100]) of Bowen LJ's statement in Cropper v Smith [1884] 26 Ch D 700 that: Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary."

1. A detailed summary of the applicable legal principles whether an adjournment should be granted is contained in Wojciechowska v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Wojciechowska [2025] NSWCATAP 248 at [3]- [11].
2. In Abdallah v Paco Nominees Pty Ltd [2025] NSWSC 1267, Payne JA dismissed an appeal from a decision of the Appeal Panel (Abdallah v Paco Nominees Pty Ltd [2024] NSWCATAP 259) where the Appeal Panel had dismissed an appeal against a decision of the Tribunal refusing an adjournment in HB Act proceedings. The Appeal Panel had summarised applicable principles regarding adjournment applications at [85]-[86]. Payne JA stated at [104]-[109]:

"104 I have concluded that the adjournment application which was allowed to be restated after the luncheon adjournment, was properly refused. Applications for leave to appeal relating to a question of practice and procedure (such as an adjournment decision) must be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited therein.

105 The Appeal Panel concluded, correctly, that there was no requirement to adjourn a proceeding to allow a delinquent party further opportunities to construct a case. It will be recalled a defence has not even been filed by the plaintiff, let alone any evidence beyond an expert report based upon an assertion made by the plaintiff. This is not a case where the plaintiff was denied a fair hearing, but simply one where the plaintiff failed to comply with directions for the service of documents and evidence, did not serve essential documents despite repeated orders to do so by made by NCAT, and did not comply with the generous further opportunities afforded by the Tribunal to prepare his case for hearing. The Appeal Panel referred, correctly, to the guiding principle to be applied per s 36(1) of the NCAT Act:

36 Guiding principle to be applied to practice and procedure

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick, and cheap resolution of the real issues in the proceedings.

106 Having failed to secure an adjournment of the final hearing, the plaintiff (on the Tribunal's findings of fact) gave instructions to his lawyers to withdraw, so better to improve his prospects of subsequently claiming a denial of procedural fairness. The Appeal Panel found the plaintiff engaged in a strategy that involved the plaintiff instructing his lawyers to withdraw if his application for an adjournment failed. It is to be noted that counsel for the plaintiff submitted as part of the adjournment application that "I'll make it absolutely clear, if the matter is forced on today, my client effectively has no defence". That submission tends in favour of the conclusion drawn by the Appeal Panel.

107 Decisions regarding adjournments are discretionary, and the grounds upon which such decisions may be challenged are confined to those grounds identified in House v The King (1936) 55 CLR 499. Particular caution must be exercised by appellate courts when asked to intervene in such decisions. As explained by the High Court in Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390 at 395 (Wilson J, Gibbs CJ, Murphy, Aickin and Brennan JJ agreeing) (at 395):

The decision whether to grant or refuse an adjournment lies in the discretion of the trial judge, and it is indeed seldom that an appellate court will feel justified in reviewing such a decision.

108 In Sali v SPC Ltd (1993) 67 ALJR 841; [1993] HCA 47, the majority of the High Court observed (at 843-844):

In Maxwell v Keun [1928] 1 KB 645, English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. ...

In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources, the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties ... What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.

(citations omitted)

109 Procedural fairness simply requires a party to be given a reasonable opportunity to defend the proceedings. The plaintiff was given a reasonable opportunity to defend the proceedings. There was no breach of procedural fairness. The particulars to this ground considered both separately and as a whole make clear that the plaintiff is not raising a question of law only. Rather, central to Ground 1 are arguments the plaintiff wishes to make about critical facts found against him by the Appeal Panel. This is not permissible in an appeal under s 83 of the NCAT Act."

1. In Allchin v Hunter Water Corporation [2025] NSWCA 253, the NSW Court of Appeal dismissed an appeal brought on procedural fairness grounds by an appellant who had terminated the instructions of his pro bono Solicitors during the course of a hearing; then made unsuccessful attempts to have the proceedings adjourned; and then absented himself from the hearing. At [67]- [73] the Court (Ward P; Payne JA; Griffiths AJA) emphasised the relevance of the mandate for the just, quick, and cheap resolution of the real issues in dispute and the demands on the court time of other litigants in considering whether to grant an adjournment.
2. In respect of adjournments based on the purported medical condition of a party, a medical certificate or report that does not identify the medical condition and provide details of how that medical condition affects the ability of a party to attend and participate in the hearing may, in the absence of any other evidence in support of the adjournment application, be insufficient.
3. The Tribunal's reasons cited Bobolas v Waverley Council [2016] NSWCA 139 (Bobolas) at [221] which states:

"A medical certificate relied upon to demonstrate a litigant is unable to attend court must address the "critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing."

1. That paragraph has been cited on many occasions, including Harmony Stone Gallery Pty Ltd v Arjuria [2017] NSWCATAP 80 at [38]; MPP Property Pty Ltd v Soliman Hospitality Pty Ltd [2021] NSWCATAP 90 at [41]; Marino v Di Blasio [2021] NSWCATAP 334 at [28]; Hulme v Hulme [2023] NSWSC 299 at [97]- [100]; Ezekiel-Hart v The Council of the Law Society of the ACT (No 3) [2023] ACTSC 216 at [10]; GMI Construction Pty Ltd v Keshavarz [2024] NSWCATAP 68 at [133]; Gemi Nominees Pty Ltd v Chamoun [2024] NSWSC 926 at [45]; Commonwealth Bank of Australia v Kyriacou [2024] NSWSC 1557 at [9]; and LB v Secretary, NSW Department of Education (No 2) [2025] NSWSC 939 at [59]- [64].
2. In Magjarraj v Asteron Life Limited [2009] NSWSC 1433, Barrett J, in the course of refusing an adjournment application during part-heard proceedings stated at [22]:

"All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed "medical condition," culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything."

1. In NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 (NAKX) Lindgren J stated at [6]:

"The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing."

1. In McGinn v High Court of Australia (No 5) [2025] FCA 975, Jackman J refused an adjournment application by a litigant who provided a medical certificate referring to unfitness for work due to dental surgery. At [2], His Honour stated:

"No further information is available to me as to what information was provided by Ms McGinn to Dr Wong as referred to in the medical certificate, what the "dental surgery" involved, whether it was pre-arranged, or any reasons for Ms McGinn's unfitness to attend work over a four-day period. It is well-established that what needs to be provided for a medical certificate to be meaningful is material that establishes why or how it is that the person suffering from a medical condition would be unfit for participation at a court hearing: NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [6] (Lindgren J), Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2] (Pagone J), SZWBK v Minister for Immigration and Border Protection [2017] FCA 1020 at [15] (Lee J). The medical certificate provided by Ms McGinn falls well short of that standard. In those circumstances I give the medical certificate very minimal weight."

1. In Chaudhary v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1339 Jackson J stated at [15]:

"The sole evidentiary basis for Mr Chaudhary's adjournment application was the medical certificate described above. While each adjournment calls for an exercise of discretion based on particular facts, it is instructive to note that in adjournment applications based on similar evidence, the Court has considered that 'what needs to be provided for a medical certificate to be meaningful is material that establishes why it is or how it is that the appellant suffering from a medical condition would be unfit for participation at a court hearing': Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2] (Pagone J); see also NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [6] (Lindgren J)."

1. In AHB v NSW Trustee and Guardian [2014] NSWCA 40 (AHB) the NSW Court of Appeal (Macfarlan JA with whom Gleeson JA and Leeming JA agreed) stated at [3]-[4]:

"3 AHB is an unrepresented litigant. Yesterday, he sent by email to the Registrar of the Court a medical certificate and a document indicating that a related matter in the Guardianship Division of the NSW Civil and Administrative Tribunal was adjourned on 28 February 2014 for a period of approximately eight weeks.

4 Based on these documents he sought an adjournment of the hearing fixed for today. In his email he says that he is "quite ill with influenza" but the medical certificate is inadequate to establish his unfitness to attend the hearing today. It simply states that AHB "is receiving Medical Treatment and is unfit for work/school from 5/03/2014 to 6/03/2014 inclusive due to a medical condition". The Court will not ordinarily act on such a formulaic document and will require an explanation on oath from the medical practitioner of the illness and the reasons for the applicant's inability to attend Court."

1. In Petrou v Vassiliadis [2025] NSWCA 174 (Petrou), the NSW Court of Appeal stated that AHB must be considered in its context. However, Petrou involved an appeal from a decision of Lindsay J to set aside orders made in the absence of a party, and did not involve medical evidence provided in an adjournment application. The Court (Stern JA and Free JA) in refusing leave to appeal, stated at [32]-[33]:

"32 The applicants' second contention is that Lindsay J erred in taking into account or giving inappropriate weight to the medical evidence relied upon by the respondent. The applicants rely upon the judgment of this Court in AHB v NSW Trustee and Guardian at [4]-[5] (Macfarlan JA, Gleeson and Leeming JJA agreeing). In that case an unrepresented litigant had sought an adjournment of a hearing in this Court, relying upon a medical certificate which simply stated that he "is receiving Medical Treatment and is unfit for work/school from 5/03/2014 to 6/03/2014 [the date of the hearing being 5 March 2014] inclusive due to a medical condition". In that context, Macfarlan JA said that:

"The Court will not ordinarily act on such a formulaic document and will require an explanation on oath from the medical practitioner of the illness and the reasons for the applicant's inability to attend Court."

33 Contrary to the applicants' contention, AHB v NSW Trustee and Guardian does not mandate that his Honour should have refused to place any weight upon the evidence relied upon by the respondent in support of his application to set aside the 18 November 2024 orders. Nor did that decision dictate how much weight the primary judge could or should attach to evidence in a particular form. Macfarlan JA was not purporting to describe a fixed rule of law about the manner in which medical matters must be proved. Each case will depend upon its own facts."

1. In our view, Petrou does not affect the principles identified in NAKX and Bobolas regarding the limited weight to be given to medical evidence in an adjournment application that does not identify the medical condition and how that condition affects the ability of a party to attend the hearing and present its case.
2. Examples of matters where a lack of cogent evidence medical evidence was a reason for refusing an adjournment application are Uy v Ng [2021] NSWSC 429 and LB v Secretary, NSW Department of Education (No 2) [2025] NSWSC 939.
3. In Powell v Christensen [2025] NSWCATAP 181 (Powell), the Appeal Panel at [64]-[65] granted leave to appeal from a refusal to grant an adjournment of a hearing based on medical evidence submitted by the appellant which referred to fitness for work. However, the only authority referred to regarding adjournment principles is Waters v Waghorn [2016] NSWCATAP 247 (Waters).
4. Waters dealt with fresh medical evidence that had been provided in the appeal which established the appellant was "at the requisite time, unfit either to make a cogent adjournment application or to attend and present her case" (Waters at [39]). The party did not appear, but the subsequent medical evidence provided in the appeal established that not only was she unfit to attend the hearing, but the extent of her medical condition also prevented her from making an adjournment application. In Waters, the Appeal Panel also referred to the distinction between events in the control of a party and those outside the control of the party in respect of whether there was a denial of procedural fairness (at [33]-[34]).
5. Powell did not consider or discuss the adjournment authorities referred to in our decision.

Was the Builder Denied Procedural Fairness By Reason of the Refusal of the Adjournment?

1. We are not satisfied that there was any denial of procedural fairness.
2. The builder bore the onus of persuading the Tribunal it was appropriate to grant an adjournment of the hearing on 5 July 2024.
3. The medical evidence relied upon by the appellant to support an adjournment application was clearly inadequate. It did not provide any cogent explanation as to how any medical condition of Mr B Singh affected his ability to participate in the hearing and represent the company. From the reasons of the Tribunal, it is clear that the medical evidence was considered, but given little weight. It was appropriate, and consistent with the principles referred to previously, for the Tribunal to take this approach.
4. In the appeal, Mr B Singh refers to the medical condition he suffered from at the relevant time as "chronic sinusitis." However, he has provided no fresh medical evidence to identify that he suffered from that condition on 5 July 2024; or, if he did suffer from that condition, how it affected his ability to participate at the hearing and present the case on behalf of the builder. The subjective opinion of Mr Singh in his affidavit of 16 July 2025 are not supported by expert medical evidence, and carry little weight.
5. Mr B Singh made repeated submissions to the Tribunal on 5 July 2024 that he was stressed, and under pressure. Litigation, particularly where a party is being sued for a significant amount of money, is stressful. However, self-represented litigants respond in different ways. As Sackville AJA observed in DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225 at [160]- [162]:

"160 There are many categories of unrepresented litigants. Some speak English while others do not or do so imperfectly. Some have little or no knowledge of court rules and procedures. Others have considerable experience of and knowledge about the judicial system. Those who have knowledge and experience sometimes pretend ignorance in order to gain what they perceive as an advantage in the litigation.

161 Many unrepresented litigants are polite and clearly honest when making statements or conveying information to the Court. Others may be aggressive and unpleasant in their demeanour. Some unrepresented litigants (like some witnesses) are quite prepared to make claims or accusations that have no evidentiary support or are even manifestly untrue.

162 Some unrepresented litigants, while not necessarily agreeing with unfavourable rulings or decisions, are prepared to accept them as the product of an independent and reasonably fair process. Others refuse to accept the legitimacy of any adverse rulings or decisions and are quick to attribute their lack of success to bias on the part of the judicial officers concerned and perhaps to dishonesty in others involved in the process. Litigants who refuse to accept decisions may be prone to making repeated attempts to reagitate claims that have been definitively rejected."

1. In this matter, it is clear from the transcript of the hearing that Mr B Singh did not react well when the adjournment application was refused, and asserted on many occasions that Mr Camenzuli was not suitably qualified. He also claimed Mr Camenzuli's qualifications were "fake." The Tribunal made it clear that Mr B Singh could question Mr Camenzuli on the issue of Mr Camenzuli's qualifications and could make submissions on this issue. Mr B Singh bears responsibility for the belligerent manner in which he questioned Mr Carmenzuli. The Tribunal conducted the hearing with fairness and restraint.
2. Mr B Singh raised with the Tribunal his mother's cancer diagnosis and travel to India. However, although he referred to "stage four cancer" he did not clearly tell the Tribunal that he was recently told that his mother only had a few months to live, despite his assertion in his affidavit that he had been given this information. The Tribunal acknowledged Mr B Singh's assertion that his mother had been diagnosed with cancer and that Mr B Singh needed to leave for India at short notice. There is nothing to indicate the Tribunal did not take those matters into account when determining not to grant the adjournment.
3. Further, Mr B Singh had the opportunity to provide further information about his mother's medical condition at the hearing. There is no reference in the medical certificate of Mr B Singh's General Practitioner (Dr Singh, who was also the treating doctor of Mr B Singh's mother) that Mr B Singh's mother had been diagnosed with a terminal illness, nor how that affected Mr B Singh's ability to participate at the hearing.
4. The builder's submissions refer to the builder being "self-represented" (i.e. represented by its director) and Mr B Singh having "limited English language proficiency."
5. However, it was the builder's choice not to obtain legal representation. The evidence contained in Mr B Singh's affidavit of 16 July 2025 only demonstrates an effort to obtain legal representation immediately prior to the hearing on 5 July 2024 other than brief text messages many months previously. The Tribunal proceedings had been commenced in March 2023, and 5 July 2024 was the second day of the hearing. The builder had ample opportunity to obtain legal representation or legal advice earlier in the proceedings if it was minded doing so.
6. In respect of any language difficulties, the submission of the builder in the appeal do not identify anything in the transcript of the hearing to indicate that Mr B Singh had any difficulties in comprehension that denied the builder a reasonable opportunity to present its case. Mr B Singh had explicitly stated at the commencement of the first day of the hearing on 8 April 2024 that he did not require an interpreter.
7. The builder had also failed to arrange for its expert Mr Islam to attend the hearing on 5 July 2024, despite knowing that the proceedings were part-heard and the experts would be giving further concurrent evidence on 5 July 2024. Mr B Singh did not adequately explain to the Tribunal on 5 July 2024, nor did he adequately explain in the appeal, why he did not arrange for Mr Islam to attend the hearing on 5 July 2024. Further, during the course of the hearing on 5 July 2024, the Tribunal adjourned for approximately 2 hours, which gave Mr B Singh a further opportunity to arrange for Mr Islam to attend the hearing and give evidence.
8. The builder failed to give a reasonable explanation as to why Mr Islam had not completed the further joint expert report prior to the hearing. Mr B Singh told the Tribunal that he had sent "emails" to Mr Islam. However, no such emails were provided in the adjournment application, nor have they been provided in the appeal documents. Mr B Singh clearly knew at the end of the first day of the hearing that the Tribunal had directed the experts confer and prepare a further joint expert report, which was to be filed by 6 May 2024 with both experts still being cross examined. No detailed evidence was provided as to what measures Mr B Singh had taken to ensure that the Tribunal's orders of 8 April 2024 that a further joint expert report be prepared and filed by 6 May 2024 were complied with. There was no evidence before the Tribunal, or in the appeal, that the delay in preparing the further joint expert report and attending the hearing was solely due to Mr Islam, and out of the control of the builder.
9. The evidence of Mr B Singh in his affidavit of 16 July 2025 that Mr Camenzuli was not suitably qualified or experienced, or that Mr Camenzuli was not truthful in his curriculum vitae, is given little weight. To the extent that evidence is relevant under cl 12(1)(c) of sch 4 of the NCAT Act, that evidence is not fresh evidence that Mr B Singh was unable to obtain prior to the hearing (Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]). Mr B Singh was given the opportunity to question Mr Camenzuli at the hearing regarding Mr Camenzuli's expertise and experience, and the Tribunal made clear to Mr B Singh that he could make submissions on that issue. The Tribunal explained in the reasons why it regarded Mr Camenzuli as suitably qualified and experienced to give expert evidence in the proceedings.
10. The evidence of Mr B Singh and Mr Islam regarding Mr Islam not being given a sufficient opportunity to inspect the premises is also given little weight. This issue was raised on the first day of the hearing. If the builder asserted that Mr Islam had not been given a reasonable opportunity to inspect the premises for the purpose of preparing an expert report, there was ample opportunity to raise this as an issue prior to the first day of the hearing on 8 April 2024 and seek further procedural directions regarding access, or an adjournment.
11. In any event, the Tribunal directed the experts to further confer and prepare a joint expert report, which gave Mr Islam a further opportunity to express the reasons why he agreed, or disagreed, with defect items 28-78. No denial of procedural fairness arises from the purported failure of the homeowners to give Mr Islam reasonable access for the purpose of the builder preparing an expert report. The transcript of the hearing does not support Mr Islam's assertion that he was "cut off" by the Tribunal and not given a reasonable opportunity to explain the circumstances in which he had prepared his expert report.
12. We will discuss the circumstances in which Mr B Singh left the hearing; the admission of the further joint expert report; and the continuation of the hearing in Ground 2 of the appeal. We are not satisfied that any denial of procedural fairness is established on that issue, for reasons we will set out in detail later in this decision.
13. When determining whether or not to grant the adjournment, the Tribunal also had to consider the procedural history of the litigation and the effect that an adjournment would have on the homeowners. The homeowners had arranged for Mr Camenzuli to be present at the hearing on 5 July 2024. There is nothing in the builder's submissions to indicate that the homeowners had not previously complied with procedural directions that had affected the conduct of the proceedings, other than the claim that Mr Islam had not been given reasonable access, with which we have previously dealt.
14. The homeowners had waited a considerable period for second hearing date (approximately 3 months) and the proceedings had been on foot for over 1 year. An adjournment would obviously have a significant impact upon them, particularly in circumstances where Mr B Singh was going to be overseas until August 2024. We do not accept the submission of the builder that any prejudice to the homeowners in adjourning the second day of the hearing would have been cured by a costs order.
15. Further, it is unlikely there could have been a "short" adjournment. Mr B Singh was going to be overseas until August 2024. Mr B Singh had not indicated another person could represent the company. Mr B Singh did not state he could appear by Audio-Visual Link from India if he was in India at the date of the next hearing. Mr B Singh did not state the builder was on the cusp of arranging legal representation who could appear at the next hearing. Further, there was no evidence given to the Tribunal as to when Mr Islam would be available to give evidence if the matter was adjourned.
16. As the party seeking an adjournment of HB Act proceedings that were part-heard, the onus was on the builder to obtain sufficient evidence and reasons to support the adjournment application. The builder had a reasonable opportunity to do so. Procedural fairness did not require the Tribunal to raise with Mr B Singh what further information or measures he could have taken to put forward a more cogent adjournment application: Chalik v Chalik [2024] NSWCA 136 at [67]- [72] per Bell CJ, Payne JA, Free JA.
17. As discussed previously, a decision to grant, or refuse, an adjournment is a discretionary decision that is not lightly disturbed on appeal. The principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505 are as follows:

"[i]t is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed ... It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."

1. We are not satisfied that, to the extent Ground 1 of the appeal involves an error on a question of mixed fact and law, any House v The King error is established. No inappropriate exercise of discretion has been demonstrated. None of the principles for granting leave to appeal identified in Collins v Urban are satisfied.
2. Further, the decision of the Tribunal to refuse the adjournment application of the builder did not constitute a denial of procedural fairness.
3. To the extent that Ground 1 of the appeal involves leave to appeal, leave is refused. If Ground 1 of the appeal is approached on the basis of a denial of procedural fairness constituting an error on a question of law giving rise to an appeal as of right, the appeal ground is dismissed, because no denial of procedural fairness is established.

Ground 2 - Admission of the Further Joint Expert Report at the Hearing on 5 July 2024 and the Continuation of the Hearing After Mr B Singh Left The Hearing

1. The builder submits that it was denied procedural fairness in circumstances constituting an error on a question of law.
2. The builder has failed to establish a denial of procedural fairness in respect of this ground of appeal.
3. The builder had a reasonable opportunity to consult with Mr Islam and ensure the further joint expert report was completed prior to the hearing, in accordance with the directions of the Tribunal.
4. At the hearing on 5 July 2024, the builder was given a reasonable opportunity to consider the report. As discussed previously, the Tribunal adjourned the hearing for approximately 2 hours so that Mr Camenzuli could obtain his version of the report. Mr B Singh could have used this time to consult with Mr Islam about the contents of the further joint expert report. If Mr B Singh failed to do so, he bears responsibility.
5. When Mr Camenzuli returned and the hearing recommenced, not only did Mr Camenzuli provide email evidence that Mr Islam agreed with version of the further joint expert report that Mr Camenzuli had sent him, but Mr Camenzuli provided a copy of the report to Mr B Singh.
6. However, Mr B Singh chose not to question Mr Camenzuli about the contents of the further joint expert report, nor did Mr B Singh seek any further time to read and consider the further joint expert report. Rather, he chose to question Mr Camenzuli about Mr Camenzuli's qualifications and expertise.
7. It was Mr B Singh who raised with the Tribunal he was going to leave the hearing. The Tribunal warned Mr Singh that the hearing would proceed if he left. In DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225, White JA stated at [82] and Sackville AJA stated at [172] that if an unrepresented party indicated during the course of a hearing that they were going to withdraw from participating in the hearing by leaving the hearing, "ordinarily" the trial judge should warn the litigant that the matter will proceed in their absence. There may be circumstances where this is not possible, such as a sudden withdrawal from the hearing room where the presiding judge or Tribunal Member does not have the opportunity to explain to the self-represented litigant that the hearing will proceed.
8. In this matter, the Tribunal clearly warned Mr B Singh that if he withdrew from participating in the hearing, the hearing would continue in his absence. Mr B Singh was told of the consequences, and withdrew from participating in the hearing in any event.
9. We are not satisfied Mr B Singh's withdrawal from the hearing and the decision of the Tribunal to continue the hearing was, in the circumstances, a denial of procedural fairness to the builder. It was the decision of Mr B Singh to withdraw from participating at the hearing, and the loss of the ability to make submissions was caused by his own conduct.
10. No denial of procedural fairness is established in respect of the manner in which the Tribunal admitted into evidence the further joint expert report. The Tribunal had directed the parties and experts provide such a report prior to the hearing. The builder had not arranged for its expert to appear, or provided any reasonable explanation to the Tribunal as to why its expert had not complete the joint expert report, or attended the hearing. The builder was provided a copy of the further joint expert report at the hearing. Mr B Singh had a reasonable opportunity to question Mr Camenzuli on the further joint expert report at the hearing; and make submissions on the further joint expert report, but his withdrawal from participation at the hearing deprived the builder of that opportunity.
11. We acknowledge that Mr B Singh may have been feeling unwell on 5 July 2024; and may have been further stressed by the recent serious illness of his mother. However, the builder had a reasonable opportunity to participate and the hearing and put forward its evidence and arguments. No denial of procedural fairness is established.

1. The builder has failed to establish that leave to appeal should be granted on the principles enunciated in Collins v Urban. In respect of ground 1 of the appeal, we are not satisfied that builder may have suffered a substantial miscarriage of justice due to the decision not being fair and equitable; or the decision being against the weight of evidence; or that there is significant new evidence now available that is not available at the hearing. We are not satisfied that the exercise of discretion to refuse the adjournment, and proceed with the hearing, breached any of the principles in House v The King. We are not satisfied there was any denial of procedural fairness.
2. In respect of ground 2, no denial of procedural fairness is established in respect of the decision of the Tribunal to proceed with the hearing and admit the further joint expert report into evidence in circumstances where Mr B Singh had voluntarily withdrawn his participation from the hearing.

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

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.