The Owners-Strata Plan No 102171 v Ceerose Pty Ltd; Zone Q Milsons Point Development Pty Ltd v Ceerose Pty Ltd; Ceerose Pty Ltd v Southern Cross Climate Control Pty Ltd

Australian Super Developments Pty Ltd v Marriner & Ors (No 2) [2015] VSC 315

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6

Burmeister v AMDE Construction Pty Ltd t/as GJ Gardner Homes Sydney North [2025] NSWCATCD 132

Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34

Cappello v Scrivener (No 2) [2021] NSWSC 1

De L v Director-General Department of Community Services (NSW) (1997) 190 CLR 207; [1997] HCA 14

Goodman Fielder Consumer Foods Pty Ltd v Graincorp Foods Australia Pty Ltd [2020] NSWSC 706

In the matter of Sunnya Pty Ltd [2024] NSWSC 137

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Kapila v Monument Building Group Pty Ltd (No 2) [2025] NSWSC 1506

Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141

Mendonca v Tonna [2025] NSWCA 112

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.

New Cap Reinsurance Corporation Ltd v AE Grant & Ors, Lloyd's Syndicate No. 991 [2009] NSWSC 950

Pafburn Pty Ltd v The Owners-Strata Plan No 84674 [2024] HCA 49

PCCEF Pty Ltd v Geelong Football Club Ltd [2018] VSC 258

Randall v City of Canada Bay Council (No 3) [2015] NSWSC 1397

Roberts v Goodwin Street Developments Pty Ltd [2023] NSWCA 5

Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36

Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1; [2012] VSCA 232

Strata Plan 92450 v JKN Para 1 [2022] NSWSC 9

Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners-Strata Plan No 64807 [2023] NSWCA 188

Thandi Construction Solutions Pty Ltd v Singh [2026] NSWCATAP 7

The Owners - Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66

The Owners - Strata Plan No 62713 v Liberant [2022] NSWCATAP 80

The Owners-Strata Plan 61233 v Arcidiacono (No 2) [2019] NSWSC 18

The Owners-Strata Plan No 102171 v Ceerose Pty Ltd; Zone Q Milsons Point Development Pty Ltd v Ceerose Pty Ltd; Ceerose Pty Ltd v Southern Cross Climate Control Pty Ltd [2025] NSWCATCD 137

The Owners-Strata Plan No 81376 v Dyldam Developments Pty Ltd [2025] NSWSC 438

Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471

Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) (2007) 239 ALR 724; [2007] FCAFC 41

Zone Q Milsons Point Development Pty Ltd (Second Respondent)

Southern Cross Climate Control Pty Ltd (Respondent)

Zone Q Milsons Point Development Pty Ltd (Applicant)

Case Number 2022/00400982; Case Number 2023/00385628; Case Number 2023/00414656

1. This decision is an ancillary decision to the substantive decision. It is an application by The Owners-Strata Plan No 102171 (owners corporation) to re-open the concluded hearing to make further submissions on the issue of remedial orders.
2. This decision is to be read in conjunction with the substantive decision, which was published on 20 November 2025 (The Owners-Strata Plan No 102171 v Ceerose Pty Ltd; Zone Q Milsons Point Development Pty Ltd v Ceerose Pty Ltd; Ceerose Pty Ltd v Southern Cross Climate Control Pty Ltd [2025] NSWCATCD 137).
3. In this decision, The Owners-Strata Plan No 102171 is referred to as "the owners corporation". Ceerose Pty Ltd is referred to as "the builder." Zone Q Milsons Pont Development Pty Ltd is referred to as "the developer." Southern Cross Climate Control Pty Ltd is referred to as "the sub-contractor."
4. The substantive decision is extensive. It comprises of approximately 144 pages. It deals with 3 related proceedings involving the Home Building Act 1989 (NSW) (HB Act).
5. In summary, the owners corporation sued the builder and the developer for rectification of defective air-conditioning and ventilation system works to common property. The owners corporation's cause of action was breach of statutory warranties under s 18B of the HB Act. The owners corporation brought its proceedings within the 2-year limitation period that covers all breaches of s 18B of the HB Act. The owners corporation did not sue the builder and developer under s 37 of the _Design and Building Practitioners Act 2020 (_NSW) (DBP Act).
6. The developer sued the builder for breach of contractual indemnity provisions.
7. The builder sued the sub-contractor for breach of contract; and for breach of the statutory warranties under s 18B of the HB Act. However, the builder's claim against the sub-contractor was outside the 2-year period for breach of statutory warranties in respect of non-major defects, but within the 6-year period for "major defects" (ss 48K(7) and 18E of the HB Act).
8. The Tribunal dismissed the developer's proceedings against the builder; and dismissed the builder's proceedings against the sub-contractor.
9. In respect of the owners corporation's proceedings, the Tribunal found in favour of the owners corporation in respect of most of the breach of statutory warranty defect items.
10. However, it dismissed a number of the claims by the owners corporation because the owners corporation had failed to provide sufficient evidence to make a work order under s 48O of the HB Act.
11. In respect of the defect items which were dismissed due to inadequate rectification evidence (i.e. insufficient scope of work evidence to make a sufficiently clear work order) the critical inadequacy involved the failure of the owners corporation to provide evidence of a registered design for the rectification work under the DBP Act.
12. The owners corporation's expert, Mr Warner, had identified that a registered design under the DBP Act was required for the rectification work he proposed, and his scope of works would be finalised after a registered design was obtained. His scope of works was a "rectification concept" that was dependent upon a registered design being prepared by a suitably qualified professional under the DBP Act as first step and his scope of works would then be finalised by reference to that design.
13. In late November 2025, after publication of the substantive decision, the owners corporation wrote to the Tribunal seeking leave to re-open its case to make further submissions on the operation of the DBP Act. The owners corporation submitted that the DBP Act did not apply, and so the orders of the Tribunal were flawed because there was no requirement for a design under the DBP Act.
14. Notwithstanding that the owners corporation did not file a miscellaneous orders application; the Tribunal determined it appropriate to list the matter for argument on whether the hearing should be re-opened.
15. The Tribunal published procedural directions on 24 November 2025 for the parties to file and serve an outline of submissions prior to the listing of the proceedings on 4 December 2025.

1. The owners corporation's written submissions are dated 3 December 2025.
2. The owners corporation's submissions are summarised as follows:
3. The Tribunal has the power to grant leave to a party to re-open its evidence and arguments after a decision has been published under s 38(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act): Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners-Strata Plan No 64807 [2023] NSWCA 188 at [160]- [162]. The Tribunal should do so to give effect to the guiding principle for the just, quick and efficient resolution of the real issues in dispute under s 36(1) of the NCAT Act, and if failing to do so "would simply have delayed, at greater expense to the parties and the Tribunal, the final resolution of an issue".
4. The principles for whether the Tribunal should grant leave to re-open were recently considered in Burmeister v AMDE Construction Pty Ltd t/as GJ Gardner Homes Sydney North [2025] NSWCATCD 132 at [75].
5. The owners corporation was not seeking to adduce new evidence, or be heard again on an issue, or the Tribunal "change its mind." The relevant principles for re-opening are:

(a) There has been inadvertent error.

(b) There has been a mistaken apprehension of the facts and the law (to the extent the law as applied to the facts was not considered).

(c) The misapprehension cannot be attributed solely to the neglect or default of the party seeking to re-open.

(d) The owners corporation is not seeking to reagitate arguments already considered.

1. The final occupation certificate for the strata building was issued on 24 August 2021, and was in evidence before the Tribunal. Once the final occupation certificate was issued the date of completion became "a matter of law" (The Owners-Strata Plan No 81376 v Dyldam Developments Pty Ltd [2025] NSWSC 438 at [89]).
2. The owners corporation relies on cl. 3 of sch. 1 of the DBP Act. According to the owners corporation, "regulated designs" do not apply where:

(a) The regulated building work is authorised to be carried out by a construction certificate or a complying development certificate. The owners corporation refers to Tab 20-p 1475 of the Joint Tender Bundle.

(b) Some of the regulated building work authorised to be carried out by the certificate has commenced before 1 July 2021. The owners corporation again refers to Tab 20-p 1475 of the Joint Tender Bundle.

(c) All of the regulated building work authorised to be carried out by the certificate has not been completed by that day. The owners corporation refers to Tab 24-p 1976 of the Joint Tender Bundle.

1. The owners corporation submits that: "All three of the above elements are satisfied in the present case on the evidence already available before the Tribunal. Thus, if the regulated designs are not legally required, an expert's opinion on the topic is irrelevant."
2. The owners corporation remains in the statutory warranty period under s 18B of the HB Act for "major defects" under s 18E of the HB Act; and may also have a potential cause of action under s 37 of the DPB Act. However, the builder and developer would not be prejudiced by the Tribunal reconsidering the decision, because:

(a) The owners corporation can appeal the decision to the Appeal Panel of the Tribunal under s 80 of the NCAT Act in any event.

(b) The owners corporation can commence fresh proceedings for breach of statutory warranties and/or under s 37 of the DBP Act.

(c) The owners corporation "going through the standard appeal process" would "simply delay, at greater expense to the parties and the Tribunal, the final resolution of an issue in circumstances where his matter has already received extensive judicial consideration."

(d) If the Tribunal grants leave to re-open, and subsequently finds that rectification works do not require a design under the DBP Act, "the OC considers the appropriate course would be for the parties to confer and propose consequential orders, or any difference between the parties as to appropriate consequential orders."

1. The written submissions of the builder dated 1 December 2025 are summarised as follows:
2. The Tribunal does not have the power to re-open the case and is functus officio. The decision in Sunaust Properties can be distinguished. In Sunaust, Basten AJA relied upon the passage at [7]-[8] by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 (_Bhardwa_j). The relevant passage should be interpreted that after a decision has been published, the power to re-open is limited to the resolution of 2 questions, being (a) whether the Tribunal has discharged its statutory functions; and (b) whether the enabling legislation permits that course. The power only arises if there is a jurisdictional error and it involves "a central issue to be determined" that was not determined.
3. The matter on which the owners corporation seeks to re-open (the operation of cl 3 of sch 1 of the DBP Act) is not a jurisdictional error and it is not an error where the Tribunal failed to discharge its statutory duties.
4. Cl 3 of sch 1 of the DBP Act does not apply. It involves a transitional regime during a small window of time in respect of work commenced prior to the introduction of the Act but not completed at the time the Act came into force.
5. Further, a design is still required as under cl 3(3) of sch 1 of the DBP Act submission of a design to the Secretary is required "in the approved way...before an occupational certificate is issued".
6. If the Tribunal does have the power to re-open, it should decline the application in any event. The owners corporation's submission that to allow it to re-open is preferrable to an appeal "is likely to invite further, not less, litigation." The Tribunal gave clear reasons for its decision. The owners corporation had a clear opportunity to make submissions on the DBP Act at the hearing, and provide a clear and certain scope of works.
7. If the Tribunal grants leave to re-open the owners corporation's it should also grant leave to the builder to re-open its case against Southern Cross Climate Control Pty Ltd, because "if the Tribunal is considering reopening consideration of its original findings as to all items, then it will be necessary to consider if the evidence establishes that those previously excluded items are major defects within the meaning of s 18E HBA". The builder seeks an extension under s 41 of the NCAT Act of the time period under r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) to file an internal appeal under s 80 of the NCAT Act until 28 days after the Tribunal determines the owners corporation's application to re-open.
8. The owners corporation should pay the builder's costs of the application to re-open.

Zone Q Milsons Point Development Pty Ltd ("the developer")

1. The written submissions of the developer dated 3 December 2025 are summarised as follows:
2. The developer makes the same submission as the builder that the Tribunal can only re-open a matter that is the subject of a final decision on the basis of the principles in Bhardwaj. The developer submits that the power to re-open identified in Sunaust is "strictly limited to circumstances where there has been a constructive failure to exercise jurisdiction."
3. There was no constructive failure to exercise jurisdiction. The Tribunal considered the owners corporation's breach of statutory warranty claims under s 18B of the HB Act, and found that the owners corporation had not provided sufficient evidence for the Tribunal to make the orders sought. The Tribunal is functus officio and has no power to re-open the case.
4. Any appropriate remedy by the owners corporation is an internal appeal under s 80 of the NCAT Act, rather than a re-opening of the case.
5. If the Tribunal were to re-open, the owners corporation's argument regarding cl 3 of sch 1 of the DBP Act would fail in any event. Rectification work involves new "building work" under s 4 of the DBP Act as s 4(c) defines "building work" as "the repair, renovation or protective treatment of a building". The decisions in Roberts v Goodwin Street Developments Pty Ltd [2023] NSWCA 5 at [189]; Pafburn Pty Ltd v The Owners-Strata Plan No 84674 [2024] HCA 49 at [53]- [54] and [63]; and Strata Plan 92450 v JKN Para 1 [2022] NSWSC 958 support the proposition that "building work" under s 4(1) of the DBP Act includes fresh work to rectify defects. The work will be performed in 2026. It does not fall within the savings and transitional provisions in cl 3 of sch 1 of the DBP Act, which involves work commenced, but not completed, prior to the commencement of the DBP Act. A registered design is required for the rectification works that were proposed as requiring a design by Mr Warner, and the Tribunal's decision is correct.
6. If the Tribunal has the power to re-open, it should refuse to re-open. The owners corporation relied on Mr Warner's evidence; knew he had said that certain works required a design under the DBP Act; and failed to make any submissions on the issue of the DBP Act. To allow the owners corporation to now "impeach its own expert" after an unfavourable judgement "violates the principles of case management and finality established in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27."
7. If re-opening is granted, it should be strictly limited to the application of the DBP Act to items M2, M11, M13, M15 and M22. The owners corporation should pay the developer's costs thrown away by reason of the re-opening.
8. The developer submits that if the application to re-open is dismissed, the time period to lodge an internal appeal should be extended to "preserve the parties appellant rights."

Southern Cross Climate Control Pty Ltd (the 'sub-contractor')

1. The written submissions of the sub-contractor dated 3 December 2025 are summarised as follows:
2. The Tribunal has the power to re-open under s 38(1) of the NCAT Act if it is satisfied that it has failed to address one of the real issues in the proceedings before it: Basten AJA in Sunaust at [160].
3. The Tribunal has already addressed the issue of whether a design is required for certain rectification work in the context of determining whether a work order should be made under s 48O of the HB Act. No appropriate basis has been established by the owners corporation to re-open.
4. If the Tribunal grants leave to re-open, it should be limited to the discrete issue of whether regulated designs under the DBP Act are required for some of the defect items found by the Tribunal in the owners corporation's proceedings against the builder and the developer. Leave should not be extended to the builder's proceedings against the sub-contractor. The findings made by the Tribunal in dismissing the builder's proceedings against the sub-contractor are discrete from the findings made in the owners corporation's proceedings against the builder and the developer, as (a) they involve the issue of "major defects" under s 18E of the HB Act; and (b) they are not dependent on whether a design under the DBP Act is required.
5. If the Tribunal grants leave to re-open, the owners corporation should pay the costs of the sub-contractor.

1. The matter was listed for an interlocutory hearing on 4 December 2025. Mr Bambagiotti of Counsel appeared for the owners corporation. Mr Cameron, Solicitor, appeared for the builder. Mr Wathukarage of Counsel appeared for the developer. Ms Sainsbury, Solicitor, appeared for the sub-contractor. The parties appeared by audio-visual link.
2. The oral submission of the parties reflected their written outlines of submissions. However, the owners corporation identified that the defect items that were affected by the application to re-open were: M2; M3; M4; M9; M11; M13; M14; M15; M16; M17; M19: M22; M24; and M25.
3. In addition to its written submissions, the oral submissions of the owners corporation included the following arguments:

(a) The Tribunal undertook a "mistaken apprehension of the law." The oral submissions emphasised that the owners corporation was not seeking to adduce new evidence, but was seeking to put forward a legal argument in respect of the operation of cl. 3 of sch. 1 of the DBP Act.

(b) It "had not been apparent" until the Tribunal's published reasons of the importance the Tribunal placed on the opinion of Mr Warner that designs under the DBP Act were required for some of the rectification works.

(c) It would be in the interests of justice for the Tribunal to grant leave to re-open and consider the owners corporation's argument in respect of the operation of cl 3 of sch 1 of the DBP Act, as this would obviate appeal proceedings which, if successful, would likely result in the proceedings being remitted back to the Tribunal for the Tribunal to consider the operation of cl 3 of sch 1 of the DBP Act in any event. If the Tribunal determined that cl 3 of sch 1 of the DBP Act did not apply, the owners corporation would have internal appeal rights from that decision.

(d) There are no decisions that deal with c. 3 of sch 1 of the DBP Act.

1. It is unnecessary to set out the oral submissions of the other parties, as they broadly conformed with their written submissions.

1. Some of the parties have submitted that the Tribunal should extend the time period to file an internal appeal by reason of the application to re-open.
2. The Tribunal at first instance does not have the power to invoke s 41 of the NCAT Act to extend the time period to file an internal appeal to the Appeal Panel under s 80 of the NCAT Act and r 25 of the NCAT Rules. If an appeal is filed out of time, it is the Appeal Panel who considers whether an extension of time should be granted, applying the well-established principles in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. The explanation for an extension (if an appeal is filed, and if an extension is sought) will be the application by the owners corporation to re-open and the disposition of that application. Whether an extension will be granted, if that issue arises, is not a matter for further consideration or comment.
3. It is appropriate to briefly set out the salient provisions of the DBP Act that the parties have referred to and are relevant to the application to re-open.
4. The relevant provisions of Part 2 of the DBP Act involving regulated designs and building work commenced on 1 July 2021.
5. Section 4 of the DBP Act states:

4 Building work

(1) For the purposes of this Act, building work means work involved in, or involved in coordinating or supervising work involved in, one or more of the following -

(a) the construction of a building of a class or type prescribed by the regulations for the purposes of this definition,

(b) the making of alterations or additions to a building of that class or type,

(c) the repair, renovation or protective treatment of a building of that class or type.

(a) prescribe additional work that is building work for the purposes of this Act, and

(b) exclude work from being building work for the purposes of this Act.

(3) In this Act, a reference to a building (including a building as defined in Part 4) includes a reference to part of a building (including a building element).

1. Under s 9 of the DBP Act, a registered design practitioner must provide a design compliance declaration for any building works as defined in the Act. Under s 12 of the DBP Act, the design practitioner must submit a design compliance declaration in the NSW planning portal before work commences. Under s 15 of the DBP Act, a building practitioner who completes building work must provide all reasonable steps to ensure each regulated design is prepared by an appropriately registered design practitioner and all designs have a design compliance declaration.
2. Reg 12 of the Design and Building Practitioners Regulation 2021 (NSW) (DBP Regulation) identifies the type of buildings that "building work" is prescribed under s 4(1)(a) of the Act. Reg 13 of the DBP Regulation excludes certain works from the definition of "building work" under s 4(1) and (2)(b) of the DBP Act. However, no submission is made that Reg 13 of the DBP Regulation is applicable to the circumstances of this matter.
3. Schedule 1 of the DBP Act contains savings and transitional provisions. Clause 3 states as follows:

3 Regulated building work - commenced

(1) This clause applies to regulated building work if -

(a) the regulated building work is authorised to be carried out by a construction certificate or a complying development certificate, and

(b) some of the regulated building work authorised to be carried out by the certificate has commenced before 1 July 2021, and

(c) all the regulated building work authorised to be carried out by the certificate has not been completed by that day.

(2) The following requirements of the Act do not apply to the regulated building work or any design in relation to the regulated building work -

(a) provisions requiring regulated designs to be prepared for the regulated building work, including requirements for compliance declarations,

(b) provisions requiring a person to be registered to carry out the regulated building work,

(c) provisions requiring a building compliance declaration to be prepared for the regulated building work.

(3) The building practitioner for the regulated building work must provide copies of all designs relied on to carry out the regulated building work -

(a) to the Secretary in the approved way, and

(b) before an application is made for an occupation certificate for a building to which the regulated building work relates.

Maximum penalty - 1,500 penalty units for a body corporate or 500 penalty units for an individual.

(4) A principal certifier must not issue an occupation certificate for a building to which the regulated building work relates unless satisfied that all designs required to be provided to the Secretary under this clause have been provided.

1. Section 38 of the NCAT Act relevantly states as follows:

38 Procedure of Tribunal generally

(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

...

1. In this matter, the salient issue is the power to re-open in s 38(1) of the NCAT Act. It is unnecessary to address other specific statutory powers of the Tribunal to change orders or reasons; or set aside decisions; or reinstate proceedings.
2. Applications to re-open a case and put forward fresh evidence or legal arguments usually arise in circumstances where the application to re-open is made before judgement is entered (e.g. Randall v City of Canada Bay Council (No 3) [2015] NSWSC 1397; Goodman Fielder Consumer Foods Pty Ltd v Graincorp Foods Australia Pty Ltd [2020] NSWSC 706; Alexakis v Masters [2022] NSWSC 1256).
3. In this matter, the application to re-open has occurred after judgment and reasons have been delivered. The only issue to be determined by the Tribunal (other than the application to re-open) is the ancillary issue of costs. The Tribunal proceedings are not "part-heard" in the sense that final substantive orders have yet to be entered. This application does not involve a situation where reasons were given, but final orders had yet to be entered; or the operation of the decision had been stayed. The decision had taken effect pursuant to s 61 of the NCAT Act.
4. In Sunaust, the Appeal Panel dealt with an appeal by Sunaust, a caretaker of a strata scheme building. In October 2020, the caretaker had taken proceedings against the owners corporation in the Supreme Court for unpaid monies under the agreement; and the owners corporation cross claimed on the basis that the owners corporation had been overcharged and there was no legal basis for the claimed charges.
5. In December 2020, the owners corporation commenced Tribunal proceedings. The owners corporation had sought certain orders against the caretaker under s 72 of the Strata Schemes Management Act 2015 (NSW) (SSM Act), including termination of the agreement. The caretaker argued that its agreement was not covered by s 72 of the SSM Act. The Tribunal found the agreement was covered by s 72 of the SSM Act. The Tribunal ordered that the caretaker agreement be terminated and for the sale of two lots owned by the caretaker in the strata scheme.
6. The caretaker appealed to the Appeal Panel. There were 3 grounds of appeal. The first two grounds involved the jurisdiction of the Tribunal under s 72 of the SSM Act. The third ground was that the Tribunal had erred by taking into account matters regarding the charging of fees and performance of works by the caretaker that it had no jurisdiction to consider under cl 5(7) of sch 4 of the NCAT Act by reason of the previously commenced Supreme Court proceedings (which remained on foot).
7. The Appeal Panel allowed the third ground of the appeal and remitted the proceedings back to the Tribunal. It did not deal with the first two grounds of the appeal, finding that it was unnecessary to do so. The owners corporation then wrote to the Appeal Panel and the caretaker seeking to have the first two grounds determined, as they were central to whether the Tribunal had jurisdiction at all, irrespective of cl 5(7) of sch 4 of the NCAT Act. The owners corporation submitted the Appeal Panel had the power to determine the outstanding appeal issues under s 63 of the NCAT Act.
8. The Appeal Panel invoked s 63 of the NCAT Act to issue a second decision "on the papers" that dealt with grounds 1 and 2 of the appeal. Grounds 1 and 2 of the appeal were dismissed. The caretaker appealed on the basis that the Appeal Panel did not have the power to issue a second decision dealing grounds 1 and 2 of the appeal and, additionally, if the Appeal Panel did have the power determine grounds 1 and 2 in the second decision, it had made errors of law in dismissing grounds 1 and 2.
9. The Court of Appeal (Meagher JA, Stern JA, and Basten AJA) dismissed the appeal, but there was a difference of opinion as to the power of the Appeal Panel to make the second decision. Stern JA found that s 63 of the NCAT Act was wide enough to allow the Appeal Panel to engage in the second decision dealing with grounds 1 and 2. Basten AJA (with whom Meagher JA agreed) found at [158] that s 63 of the NCAT Act involved the following powers:

"While the criteria of engagement in s 63 and r 36.17 are similar, their mode of operation is not. Rule 36.17 is authority for the court to correct a mistake or error; s 63(1) provides a different mechanism of operation, namely by the Tribunal, or a single member of a multimember panel, directing the registrar to alter the text of a statement of reasons. Section 63 is not consistent with the exercise of discretion on the part of a member potentially changing the outcome of a determination. Yet it is clear that the course undertaken by the Tribunal following its July decision was to exercise the substantive powers conferred upon it in order to determine an appeal. The October decision did not purport to be an alteration to the text of the July decision; it was a new decision. It involved the determination of grounds of appeal going to the question of jurisdiction, which had not been addressed in the earlier decision. It was 70 paragraphs in length."

"Accordingly, to the extent that the Appeal Panel considered that it was exercising a power under s 63 of the Tribunal Act, it was, as the applicant submitted, in error. However, though in error as to the source of its powers, it was not in error in thinking that it had the relevant powers.

In the absence of any indication in the Tribunal Act that the Appeal Panel is not able to reopen a decision once pronounced, there will be circumstances in which it may do so and, indeed, circumstances where it should do so. Such a power will fall within the breadth of the procedural powers conferred on it under s 38. Where the Tribunal is satisfied that it has failed to address one of the real issues in the proceedings before it, it may (and perhaps should) reopen the proceedings in order to give effect to the guiding principle set out in s 36 of the Tribunal Act.

Failure to deal with issues raised by an appeal may be described, in terms relevant to the exercise of the supervisory jurisdiction of the Supreme Court, as a constructive failure to exercise the Tribunal's jurisdiction. The relevant principle was stated, at least in part, by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj, [5] in the following terms: [6]

"7. In Chandler v Alberta Association of Architects [7] Sopinka J, speaking for the majority in the Supreme Court of Canada, pointed out that, as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision because it has changed its mind, or recognises that it has made an error within jurisdiction, or because there has been a change of circumstances. However, the Court held that the principle of functus officio should not be strictly applied if the tribunal has failed to discharge its statutory function and 'there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation.'

8. The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid [in Ridge v Baldwin [8] ], reconsider the whole matter afresh?"

The conclusion that the power to reopen the earlier decision was not only available, but was also the appropriate course in the present case, flows from the obligation imposed by the guiding principle in s 36(1) to facilitate the just, quick and cheap resolution of the real issues in the proceedings, applied to the exercise of the power to reopen. It is true that in the present case the issue of jurisdiction was squarely raised by the applicant in its appeal to the Appeal Panel, and that it was the owners corporation which sought to have the question of jurisdiction resolved. However, as explained above, had the Appeal Panel failed to resolve that question, it would simply have delayed, at greater expense to the parties and the Tribunal, the final resolution of an issue which was undoubtedly central to the application before the Tribunal and was then unresolved.

Accordingly, although not based on the power under s 63, the reopening decision made by the Appeal Panel was clearly correct. Reliance on s 63 of the Tribunal Act was an immaterial error which warranted a grant of leave to appeal, but not upholding ground 1. The applicant's contention to the contrary must be rejected."

1. In Bhardwaj, the Immigration Review Tribunal had dismissed an application for an administrative review of a visa cancellation at a hearing where the visa holder did not appear. The Tribunal had overlooked (and not dealt with) an application the day before the hearing for an adjournment. The visa cancellation was affirmed on the basis that Mr Bhardwaj had not provided any information that the visa cancellation was unfair or inappropriate.
2. Mr Bhardwaj's agent wrote to the Tribunal immediately after the decision pointing out the application to adjourn, which had not been considered. The Tribunal scheduled a new hearing, and after hearing evidence from the vias holder, made orders to revoke the visa cancellation. The Minister unsuccessfully appealed the Tribunal decision to the Federal Court and then the Full Federal Court on the basis that the second Tribunal decision was functus officio. The Minister then appealed to the High Court.
3. The High Court dismissed the appeal. Paragraphs [7] and [8] of Gleeson CJ's decision have been previously cited. There are other relevant paragraphs that explain the interaction with the doctrine of functus officio and the power of a Tribunal to make a fresh decision. Gleeson CJ stated at [11]-[15]:

"To say that a tribunal has considered an application, reached a conclusion, and informed affected parties of its decision, is to make a statement of fact. But the legal consequences of that fact depend upon the Act; and the answer to a question about those consequences may depend upon the purpose for which the question is asked. The answer to the question whether a legally effective decision has been made may depend upon the kind of legal effect that is under consideration, and upon further facts as to what was done, or not done, following the communication of the decision.

In Leung v Minister for Immigration and Multicultural Affairs[8], Finkelstein J, discussing the effect of decisions that are invalid in that they can be impugned for jurisdictional error, or on certain other grounds, said[9]:

"There is no doubt that an invalid administrative decision can have operational effect. For example it may be necessary to treat an invalid administrative decision as valid because no person seeks to have it set aside or ignored. The consequence may be the same if a court has refused to declare an administrative decision to be invalid for a discretionary reason. In some circumstances the particular statute in pursuance of which the purported decision was taken may indicate that it is to have effect even though it is invalid or that it will have effect until it is set aside."

I would accept that it is inconsistent with the scheme of the Act to conclude that the Tribunal, upon being persuaded that it has denied procedural fairness, at any time after it has made or purported to make a decision, and regardless of what a person affected by the decision has done or failed to do, may treat that decision as legally ineffective and consider afresh the matter that was originally before it. In Re Refugee Review Tribunal; Ex parte Aala[10], it was held that a failure to accord procedural fairness by the Refugee Review Tribunal resulted in an excess of jurisdiction sufficient to attract prohibition under s 75(v) of the Constitution. It was also held that the remedy of prohibition was discretionary. The relevant legislation denied to the Federal Court power to set aside the Tribunal's decision on the ground of the denial of procedural fairness, and this Court's power to set the decision aside on that ground was discretionary. It follows that, at the time the decision was made, it was inaccurate to say that it was completely without legal effect.

In the present case there was a denial of procedural fairness; but there was more to it than that. There was an error of the kind described as "error in fact" in the context of proceedings by writ of error: the non-fulfilment or non-performance of a condition precedent to regularity of adjudication such as would ordinarily induce a tribunal "to stay its hand if it had knowledge, or to re-open its judgment had it the power."[11] The Act, in Pt 5 Div 5, prescribed the procedures according to which the Tribunal was required to conduct its review of the delegate's decision. If the Tribunal was not prepared to decide in the respondent's favour on the written material before it, then s 360 required that it give the respondent an opportunity to appear and give evidence and present arguments. The Tribunal set out to give the respondent such an opportunity. It intended to follow the statutory procedure. As a result of an administrative slip, it denied the respondent the opportunity that he wanted to have, and that the Tribunal intended to give him. And, in consequence, it dealt with the matter in the belief that the respondent had nothing to say by way of explanation of the conduct that had resulted in the cancellation of his visa. The Tribunal, through an administrative error, failed to implement its own intention, and failed to comply with the statutory requirement to give the respondent an opportunity to be heard. In its reasons for its "decision", the Tribunal merely noted the delegate's decision, and observed that nothing had been put before it as to why the decision was unfair or inappropriate. That did not amount to the conduct of a review. The Act provided, in s 353, that the Tribunal, in reviewing the delegate's decision, was not bound by technicalities or legal forms and should act according to substantial justice. When it learned of its own administrative error, the Tribunal recognised that it had not performed its functions and proceeded to do so.

In those circumstances, it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate's decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act."

1. Gaudron and Gummow JJ stated at [41]-[44] and [51]-[55]:

"It was not disputed by the Minister that the September decision was made in circumstances in which Mr Bhardwaj was denied a reasonable opportunity to answer the case against him. It, thus, involved a breach of the rules of natural justice and may be set aside by this Court pursuant to s 75(v) of the Constitution[26]. Further, as was contended on behalf of Mr Bhardwaj , the September decision was not a "decision on review" for the purposes of ss 367 and 368 of the Act.

The function of the Tribunal was to conduct a review of the delegate's decision in accordance with the Act. In particular, the Tribunal was required to give Mr Bhardwaj an opportunity to attend the hearing, to give evidence and put argument. And it is implicit from the terms of s 368(1) detailing the matters to be recorded in the written statement embodying a decision that the Tribunal was to reach a decision only after considering the evidence and the argument advanced against the cancellation of Mr Bhardwaj 's visa.

The failure of the Tribunal to give Mr Bhardwaj a reasonable opportunity to present evidence and argument had the consequence that it did not reach a decision after considering evidence and argument against the cancellation of his visa. That being so, it follows that the Tribunal did not conduct a review as required by the Act and the September decision was, thus, not a "decision on review" for the purposes of ss 367 and 368 of the Act.

To say that the September decision was not a "decision on review" for the purposes of ss 367 and 368 of the Act is simply to say that it clearly involved a failure to exercise jurisdiction, and not merely jurisdictional error constituted by the denial of procedural fairness. Either of these grounds would entitle Mr Bhardwaj to have the September decision quashed by this Court as an incident of relief by way of mandamus or prohibition under s 75(v) of the Constitution. This notwithstanding, the question whether the Tribunal could disregard its September decision depends on the scheme of Pts 5 and 8 of the Act[27]. To understand that scheme, it is necessary to say something as to the nature of an administrative decision.

...

There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all[33]. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.

The view that a decision involving jurisdictional error does not prevent the decision-maker from correcting that error by making a later decision has been accepted by the Supreme Court of Canada. Thus, in Chandler v Alberta Association of Architects, Sopinka J, with whom Dickson CJ and Wilson J concurred, said:

"As a general rule, once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances ...

To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law."[34]

In the same case, his Lordship cited[35] with approval a statement by McLachlin J that:

"as a matter of logic and on the authorities ... a tribunal which makes a decision in the purported exercise of its power which is a nullity, may thereafter enter upon a proper hearing and render a valid decision"[36].

In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct. As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s 33(1) of the Acts Interpretation Act.

The Act and jurisdictional error

There being no provision of the Act which, in terms, purports to give any legal effect to decisions of the Tribunal which involve jurisdictional error, as did the September decision, it is necessary to consider whether, nevertheless, the Act should be construed as impliedly having that effect. The only provisions of the Act which might conceivably sustain that implication are s 476(1) which limits the grounds upon which the Federal Court may set aside a Tribunal decision, s 478(1) which requires that applications for judicial review be made within 28 days and ss 485(1) and (3) which expressly provide that the Federal Court has no jurisdiction with respect to judicially-reviewable decisions other than that conferred by Pt 8 of the Act.

It may be accepted that, if the provisions referred to above require the Federal Court to treat a decision involving jurisdictional error as having legal effect until set aside, they require the Tribunal to do the same. In this respect, it would be odd, to say the least, if the Tribunal could do what the Federal Court cannot. Conversely, if the provisions in question do not require the Federal Court to treat a decision involving jurisdictional error as having legal effect until set aside, there is nothing in the Act to indicate that the Tribunal is required to do so."

1. In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 (Dyason), the High Court dealt with an application by a party to vacate a judgement and re-open. The High Court had delivered its decision and reasons but had not formally entered judgement. The appellant sought to vacate the decision and re-open the appeal hearing on the basis that it had not been heard on three issues.
2. The High Court refused the application (by majority), but all judges accepted that the power to re-open existed. Brennan J stated at [1] and [4]:

"This Court has undoubted jurisdiction to recall a judgment which it has pronounced, at least prior to the formal entry of the judgment, if the judgment has been pronounced against a person who, without fault on the part of that person, has not had an opportunity to be heard as to why that judgment should not be pronounced ((20) State Rail Authority of N.S.W. v. Codelfa Construction Pty. Ltd. (1982) 150 CLR29; Wentworth v. Woollahra Municipal Council (1982) 149 CLR672, at p 684). The jurisdiction is exercised sparingly for it is important to bring litigation to finality in this Court ((21) The approach of Courts from which an appeal lies is not so strict, for it may be preferable to recall an unperfected but erroneous judgment rather than allow it to stand until it is quashed on appeal: see, for example, In re Harrison's Share under a Settlement (1955) Ch 260, at pp 282-284). Nevertheless, natural justice would be denied if, in a case in which the stated conditions are satisfied, the judgment were not vacated.

...

"It is one thing to reopen an appeal after judgment if the Court has reached a conclusion by adopting a proposition of fact or law which the unsuccessful party has not had an opportunity to argue. In that event, natural justice is denied and it can be said that the Court's jurisdiction to hear and determine the matter is not exhausted. But that is not the present case. Here the ground on which the appeal was determined had been argued in the Courts below and had been the subject of submissions in this Court. The appeal was determined after it was fully heard. That being so, I find no jurisdiction to set aside the judgment already pronounced merely because it is submitted by the unsuccessful party that, on further argument, the Court would be satisfied that it had reached the wrong conclusion in law..."

1. Dawson J found the appellant had had a reasonable opportunity to put forward its appeal arguments, and the "exceptional step" of reopening a judgment pronounced by the court was unwarranted.
2. Mason CJ stated at [2]-[4]:

"...The exercise of the jurisdiction to reopen a judgment and to grant a rehearing is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant's part, he or she has not been heard. It is true that the jurisdiction is to be exercised with great caution ((2) Wentworth v. Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672, at p 684; State Rail Authority of N.S.W. v. Codelfa Construction Pty. Ltd. [1982] HCA 51; (1982) 150 CLR 29, at p 38.), having regard to the importance of the public interest in the finality of litigation. It is equally true, as this Court said in Wentworth v. Woollahra Municipal Council ((3) (1982) 149 CLR, at p 684), that:

"(g)enerally speaking, it will not be exercised unless the

applicant can show that by accident without fault on his part he

has not been heard."

3. But these statements do not exclude the exercise of jurisdiction to reopen a judgment which has apparently miscarried for other reasons, at least when the orders pronounced have not been perfected by the taking out of formal orders. So much was acknowledged by Brennan, Dawson, Toohey and Gaudron JJ. in Smith v. N.S.W. Bar Association (No.2) when their Honours said ((4) [1992] HCA 36; (1992) 66 ALJR 605, at p 608; [1992] HCA 36; 108 ALR 55, at p 60.):

"if reasons for judgment have been given, the power is only

exercised if there is some matter calling for review".

It is sufficient to give three examples. In In re Harrison's Share under a Settlement ((5) (1955) Ch 260), orders were set aside following a decision of the House of Lords which overruled authorities on the basis of which the orders had been made. In New South Wales Bar Association v. Smith ((6) Unreported, 4 July 1991.), the New South Wales Court of Appeal reconsidered orders previously made in view of an argument that the Court had mistakenly assumed that particular evidence had not been given at earlier hearings ((7) The Court of Appeal refused to set aside its orders but an appeal to this Court was successful). And, in Pittalis v. Sherefettin ((8) (1986) QB 868), a judge recalled orders the day after they were made upon determining that he had "erred in a material matter in his approach to the case" ((9) ibid., at p 880. The Court of Appeal upheld the decision to review the matter, though disagreeing with the judge's ultimate conclusion.).

4. These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases."

1. However, in Dyason the power that the High Court exercised was its inherent jurisdiction (which is different to the statutory powers of a Tribunal) and Mason CJ referred to the fact that there was no right of appeal from a decision of the High Court.
2. Dyason has been referred to in many decisions. It has been referred to in the context of the specific statutory power to set aside judgments or orders that have been made irregularly, illegally or against good faith (e.g. r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR)); or the power to apply to set aside a judgment or order before it is entered (r 36.16(1) of the UCPR); or the power to set aside or vary a judgement or order after it has been entered (r 36.16(2)-(3B) of the UCPR); or in respect of the inherent jurisdiction of superior courts to re-open; set aside; or vary.
3. In De L v Director-General Department of Community Services (NSW) (1997) 190 CLR 207; [1997] HCA 14, Toohey, Gaudron, McHugh, Gummow And Kirby JJ referred to Dyason, and stated at 215 (citations omitted):

"The power of this Court to reopen its judgments or orders is not in doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded "on a misapprehension as to the facts or the law"[16], where "there is some matter calling for review"[17] or where "the interests of justice so require"[18]. It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required "without fault on his part"[19], i.e. without the attribution of neglect or default to the party seeking reopening[20]. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case[21]."

1. In Mendonca v Tonna [2025] NSWCA 112, the NSW Court of Appeal (Kirk JA and Price AJA) stated at [1]:

"This judgment concerns a motion seeking re-opening of an earlier decision. The core purpose of judicial power is to quell disputes. In the nature of things, many litigants are unhappy with the result of proceedings. In some cases such litigants will exercise a right to appeal or seek leave to appeal. However, some litigants, commonly unrepresented, find it difficult to accept that a court has ruled against them and approach that court asking it to re-open its decision. Such applications often manifest the subjective certitude of the litigant that any court which properly understood and considered their contentions could not possibly reject them. Of course, in some cases there is due cause to re-open judicial decisions. It is possible, for example, that the court in question has simply overlooked some argument that was made or some evidence that had been drawn to attention. But such cases are rare. This is not one of them."

1. In Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) (2007) 239 ALR 724; [2007] FCAFC 41 the Full Federal Court refused an application to re-open and put forward a fresh legal argument (but not fresh evidence) where judgement had been given, but entry of the orders was stayed until the application to re-open was heard. Accordingly, the Court had power to vary or set aside the judgement and orders and re-open the hearing under O 35 r 7 of the Federal Court Rules . French and Kiefel JJ referred to Dyason, and at [10] stated that circumstances warranting a reconsideration of a decision were "various", but the must be "exceptional", including circumstances not attributable to the moving party, such as a denial of procedural fairness; a failure to consider a critical fact; or a failure to consider a direct and binding authority.
2. In PCCEF Pty Ltd v Geelong Football Club Ltd [2018] VSC 258 (PCCEF), the Supreme Court of Victoria (Croft J) dealt with an application to re-open a case; plead a new cause of action; and tender further evidence after the court had delivered judgement and gave reasons.
3. The court identified at [11] that the "threshold issue" was whether the court, having made final orders and given reasons, was functus officio. At [11] the court referred to the principles pertaining to finality of orders in Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 at 224-225. To re-open a case and reconsider the orders made, the power must arise from "the text of the governing statutes and any express or implied powers to be seen therein."
4. The court was not satisfied that s 49 of the Civil Procedure Act 2019 (Vic) gave the court a general power to "revisit its own orders" (at [13]-[14]). The court stated at [15]-[16]:

"What is more, there is high authority for the specific proposition that Courts do not have jurisdiction to permit a party to re-open its case after judgement where the basis of the application to reopen is an error for which the applicant is responsible. As Mason CJ stated in Autodesk Inc v Dyson (No 2) (1993) 176 300; [1993] HCA 6 at 300:

What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.

This statement seems to apply squarely to the present case, with the prima facie effect that the present application must be dismissed for want of jurisdiction.

Senior counsel for the Defendant also made reference to the earlier judgments of Barwick CJ and Gibbs J in Bailey v Marinoff (1971) 125 CLR 529' [1971] HCA 49 as well to a decision of this Court in Lollis v Loulatzis & Anor (No 3) [2008] VSC 231 that predated Burrell v The Queen by a little over a month, all of which are concordant with the position set out in Burrell v The Queen

...

Nor have more recent decisions detracted from this position. In Commonwealth v Davis Samuel Pty Ltd (No 1) [2017] ATSC 2 Refshauge ACJ noted the general rule that once a court has pronounced judgment and final orders are perfected, the Court which made those orders is functus officio, and its powers to reconsider the subject matter of the proceedings is at an end, before identifying several limited exceptions, being the slip rule, the right of appeal, and where the judgment is a nullity".

1. Croft J found at [22] that the circumstances of the reopening application, which was made after judgement was entered and reasons given, did not fall within any of the exceptions to allow the reopening or reconsideration of the case and there was no jurisdiction to make the orders sought.
2. However, at [23]-[56], Croft J made findings that, if the court did have jurisdiction to re-open, it would have been declined for discretionary reasons in any event. The court referred to a number of authorities, including Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 (Nweiser); Australian Super Developments Pty Ltd v Marriner & Ors (No 2) [2015] VSC 315 (Marriner) and Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1; [2012] VSCA 232 (_Spotligh_t).
3. In _Marrine_r, Sloss J stated at [70]:

"Where, as here, reasons for judgment have actually been delivered and all that remains is the making of final orders for the entry of judgment and costs, truly exceptional circumstances would be required to be demonstrated before the case could be re-opened. Furthermore, the application would be required to satisfy the court that there was no lack of reasonable diligence on its party to bring forward the recently obtained evidence: Commonwealth Bank of Australia v Quade (1991) 178 CLR 138 at 141."

1. In Spotlight, the Victorian Court of Appeal stated at [17]:

"There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgement reserved, to be reopened. The need for finality in litigation is one."

1. Croft J found it was not in the interests of justice for the plaintiff to be granted leave to re-open the case, including that the plaintiff had failed to establish exceptional circumstances.
2. Marriner was appealed to the Victorian Court of Appeal (Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141). The Court (Tate ACJ, Kyrou and Ferguson JJA) stated at [185] (citations omitted):

"Where a case has been closed and judgment reserved, exceptional circumstances will be required for a court to allow the case to be reopened. This rule applies with even greater force where reasons for judgment have already been delivered but final orders have not yet been made. The rule is necessary to ensure finality in litigation and the efficient administration of justice, and to avoid a reopened hearing being 'bedevilled by arguments about ... the scope of the re-opened proceeding'."

1. In The Owners-Strata Plan 61233 v Arcidiacono (No 2) [2019] NSWSC 1876 (Arcidiacono), Henry J dealt with an application to reopen and adduce further evidence about the location of a sewer line and stormwater pipes after Her Honour had delivered judgment and reasons dismissing an application for certain easements.
2. At [16]-[20] Henry J set out the principles for an application to re-open. The legal authorities referred to included Nweiser; Marriner; Spotlight; and Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36. Her Honour did not address the issue of functus officio, and implicitly accepted that the court had the power to re-open even after judgement was entered and reasons given.
3. At [37]-[41], the court found that it was not in the interests of justice for the plaintiff to be granted leave to re-open and adduce further evidence. At [43]-[46] the court stated:

"I accept 71 York Street's submission that the likely prejudice to the defendants if leave to re-open could, to a large extent, be dealt with by an appropriate costs order. But lack of prejudice to a defendant from the grant of leave to re-open is only one factor to be taken in to account in the exercise of the Court's discretion.

It is only in exceptional cases that the Court will exercise its discretion and grant leave to re-open where a party has, by its own conduct, failed to adduce the evidence it needed to establish its case: Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141 at [185].

On balance, I do not consider this to be an exceptional case. 71 York Street's claims for easements for drainage and sewerage under s 88K were squarely argued, albeit in a summary and high level fashion. There is no error on the record. The evidence sought to be adduced by 71 York Street if leave to re-open is granted is of a nature that was reasonably obtainable at the time of the hearing and, if the case is contested again, may not necessarily lead to a different result.

I am also of the view that it would not be consistent with the public interest in maintaining the finality of litigation and the just, quick and cheap resolution of the real issues in the proceedings if 71 York Street was to be granted the opportunity to correct the defects that the Principal Judgement identified in this case after the reasons have been delivered."

1. In Kapila v Monument Building Group Pty Ltd (No 2) [2025] NSWSC 1506, Richmond J refused an application by a party to reopen a case and adduce further evidence after judgement had been entered and reasons given, but before final orders had been entered. Richmond J referred to Mason CJ's decision in Dyason at [15] and the importance of the finality of litigation at [26]-[28]. His Honor refused leave to re-open.
2. In the course of the decision Richmond J also cited the decision of Barrett J in New Cap Reinsurance Corporation Ltd v AE Grant & Ors, Lloyd's Syndicate No. 991 [2009] NSWSC 950, which involved an application to re-open after judgement was given but before final orders were entered, where it was stated at [20]:

"It seems to me that these principles, as they apply in a case such as the present, can be summarised in one basic proposition, namely, that a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal) should allow re-opening after judgment where it is obvious to that judge that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court. What is highly undesirable is that the first instance judge should be cast in the role of hearing what amounts to an appeal against his or her own decision..."

1. In Burmeister v AMDE Construction Pty Ltd t/as GJ Gardner Homes Sydney North [2025] NSWCATCD 132, Robertson PM summarised the applicable legal principles when there is an application to re-open to adduce further evidence and make submissions after the hearing had concluded and the decision was reserved, but before the final decision and reasons had been given.
2. At [75] the Tribunal stated:

The principles applicable to an application to reopen a case after hearing were set out in the extract from the decision of Clarke JA in Urban Transport Authority v Nweiser cited by the applicants, and in the decision of Williams J in In the matter of Sunnya Pty Ltd [2024] NSWSC 137 at [18]- [20]:

"18 [T]he principles to be applied in determining the application ... were recently summarised by Stevenson J, with reference to relevant authorities, in Cappello v Scrivener (No 2) [[2021] NSWSC 168]. I respectfully adopt his Honour's summary, which it is convenient to set out in full:

'[46] The principles upon which the Court acts when faced with an application to reopen are settled. Those principles are that:

(a) the overriding question is whether the interests of justice are better served by allowing or refusing the application;

(b) the power to grant leave should be exercised with great caution having regard to the public interest in maintaining the finality of litigation and, generally speaking, should not be exercised unless the applicant can show that by accident without fault on his or her part, he or she has not been heard;

(c) classes of cases in which leave may be granted include, but are not limited to where:

(i) fresh evidence, unavailable or not reasonably discoverable before, becomes known and available;

(ii) there has been inadvertent error;

(iii) there has been a mistake in the apprehension of the facts; and

(iv) there has been a mistaken apprehension of the law.

(d) the jurisdiction is not to be exercised for the purpose of reagitating arguments already considered by the Court.

(e) nor is leave to be granted "simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it have been put;"

(f) what must be shown is that the Court has "apparently proceeded according to some misapprehension of the facts or the relevant law and that that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing;" and

(g) where, as here, the case has been closed, and judgment reserved and delivered, exceptional circumstances must be shown.'

19 Stevenson J's summary of principles is consistent with the judgment of Brereton J (as his Honour then was) in Chao v Chao (No 2) [[2008] NSWSC 612], on which the plaintiffs and the He Parties relied. After referring to the discretion to grant leave to re-open even after the Court has reserved judgment, and stating that the ultimate question is whether the interests of justice are better served by allowing or rejecting the application to re-open, Brereton J said:

'It is relevant to consider whether prejudice would be occasioned by the late introduction of the evidence to the other party. It will also be relevant to consider the materiality of the proposed additional evidence, and whether it could by reasonable diligence have been discovered before, or at least any explanation for its not having been adduced earlier. If there was a deliberate decision made not to call the evidence when it ought to have been called in the ordinary course of proceedings, that will typically tell decisively against allowing a reopening, although there is no hard and fast rule requiring the Court to reject an application even where the decision not to call a witness or tender a document was a deliberate one.'

20 The NZ Parties relied on the judgment of Henry J in Goodman Fielder Consumer Foods Pty Ltd v Graincorp Foods Australia Pty Ltd [[2020] NSWSC 706]. Her Honour's summary of the applicable principles in that case is also consistent with Stevenson J's summary extracted above. After referring to the four classes of case identified in paragraph (c) of Stevenson J's summary, Henry J said:

'[47] Other factors that are relevant to consider on an application for leave to re-open to adduce further evidence and which bear on the interests of justice, include:

(a) the importance, relevance and probative value of the proposed new evidence to the issues in the case;

(b) the likely prejudice to the other party if the application is allowed, including the delay to completion of the proceedings and consequential costs;

(c) the public interest in the finality of litigation, with the consequent expectation that parties will present their evidence and submissions at one hearing;

(d) the public interest and the interest of the parties that the proceedings will be conducted efficiently and expeditiously, thereby minimising delay and expense;

(e) whether the occasion for calling the further evidence ought reasonably to have been foreseen; and

(f) any delay in making the application.'" [Footnotes omitted

1. The first issue is whether the power to re-open after a final decision with reasons has been entered and taken effect under s 61 of the NCAT Act is limited to the circumstances in Bhardwaj, or is more expansive.
2. Basten AJA in Sunaust did not express a complete and unambiguous view on the issue. At [160] it is identified that the Tribunal has the power to re-open under s 38(1) of the NCAT in appropriate "circumstances". The circumstances identified are those in Bhardwaj at [7]-[8]. In those paragraphs, Gleeson CJ refers to the principle of functus officio not being strictly applied if a Tribunal has failed to "discharge its statutory function" and there is a statutory power that allows for a re-opening (or redetermination).
3. Basten AJA does not clearly state that the principles in Bhardwaj are the only basis that the Tribunal may allow a re-opening after a final decision has been made and reasons given. It was unnecessary for His Honour to do so. In Sunaust, the Appeal Panel had clearly engaged in a constructive failure to exercise jurisdiction by not determining grounds 1 and 2 of the appeal, which were central to the issue of the jurisdiction of the Tribunal in the remitted proceedings (or, in the words of Gaudron and Gummow JJ in Bhardwaj, committed a jurisdictional error of the type that caused the decision to be a nullity such that the duty to make a decision remained unperformed).
4. In this matter, the Tribunal is satisfied that there is no obvious error of a type identified in Bhardwaj that would cause the Tribunal to grant leave to re-open. There was no obvious failure to exercise jurisdiction. The Tribunal's substantive decision considered whether the owners corporation had proved breach of statutory warranty under s 18B of the HB Act; and, when breach had been proven, whether the evidence was sufficient to make a rectification order under s 48O of the HB Act. There was no obvious failure to provide procedural fairness. The owners corporation had ample opportunity to put forward its evidence and arguments. Its own expert had identified that some of his "rectification concepts" for defects were predicated upon a design by a registered practitioner under the DBP Act. The owners corporation had ample opportunity to make a submission that the evidence of its expert Mr Warner should be disregarded (or given no weight) on the issue of whether a prior design was required under the DBP Act to provide the basis of Mr Warner's "rectification concept" by reason of cl 3 of sch 1 of the DBP Act
5. The failure of the owners corporation to put forward that submission at the hearing is not an obvious denial of procedural fairness. Procedural fairness involves a reasonable opportunity to be heard, not every opportunity to be heard (Thandi Construction Solutions Pty Ltd v Singh [2026] NSWCATAP 7 at [129]- [132] and the authorities cited therein). There is no potential jurisdictional error of the decision that would cause it to be a nullity (in whole or part) under the principles in Bhardwaj.
6. Sunaust leaves unresolved the ambit of the power under s 38(1) of the NCAT Act to grant leave to re-open, particularly in circumstances where judgment has been given (with reasons) and final orders entered (other than ancillary costs orders).
7. The Tribunal, unlike the High Court and the Supreme Court of NSW, does not have inherent jurisdiction as a superior court. Its jurisdiction arises from the powers it is given under statute. The Tribunal must determine, by reason of statutory interpretation principles, the ambit of its power to re-open under s 38(1) of the NCAT Act.
8. In respect of jurisdiction conferred by statute, the Appeal Panel stated in The Owners - Strata Plan No 62713 v Liberant [2022] NSWCATAP 80 at [118]:

"It is inappropriate to make implications or impose limitations upon the grant of jurisdiction and powers which are not found in the express words: "Shin Kobe Maru" v Empire Shipping Inc [1994] HCA 54; (1994) 181 CLR 404 at 421. A similar approach was taken by White J (as his Honour then was) in Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 at [79] and following when considering the powers of the Tribunal under the Agricultural Tenancies Act 1990 (NSW)."

1. The Tribunal is satisfied that although it does not have the inherent jurisdiction of a superior court, the power under s 38(1) of the NCAT Act (which includes the power to re-open) should be exercised consistently with the powers of the Supreme Court of NSW to re-open and the powers referred to in the Federal Court and High Court decisions set out previously. There is no appropriate reason to adopt a narrower approach, nor should Sunaust at [160] be construed as supporting a narrower approach under s 38(1) of the NCAT Act.
2. The applicable principles are summarised by Stevenson J in Cappello v Scrivener (No 2) [2021] NSWSC 168 (and adopted in In the matter of Sunnya Pty Ltd [2024] NSWSC 137). Those principles were referred to in the context of the Tribunal's power to re-open in Burmeister.
3. The Tribunal is satisfied that those principles extend to applications to re-open after a final decision has been made, reasons given, and orders entered. The Tribunal has set out previously a number of decisions where it was accepted that there is a power to re-open after a decision has been made, reasons given, and orders entered.
4. The Victorian Supreme Court in PCCEF took a different approach. That decision was appealed, but not on the issues involving the application to re-open.
5. However, the preponderance of NSW, Federal Court and High Court authorities supports the proposition that there is a power to re-open after judgement and reasons are given and final orders made that is beyond the limited scope in _Bhardw_aj.
6. The second issue is whether the Tribunal should exercise its discretion to grant leave to re-open, and for the owners corporation to put forward its argument that rectification of the defects in the strata building found by the Tribunal do not require a design under the DBP Act.
7. The Tribunal deals with the matters identified in Burmeister as follows:

Fresh evidence, unavailable or not reasonably discoverable before, becomes known and available

1. This does not apply. The owners corporation asserts it seeks leave to make a legal argument based on existing evidence. The Tribunal will refrain from referring to the principles dealing with an application to re-open to adduce fresh evidence, and focus on the principles applicable to re-opening to put forward a fresh legal argument based on existing evidence.

1. Although inadvertent error is not clearly set out in its written submissions, the oral submissions of the owners corporation are to the effect that it inadvertently failed to raise the operation of cl 3 of sch 1 of the DBP Act, rather than it not being raised due to a deliberate strategic decision.

There has been a mistake in the apprehension of the facts

1. There is no alleged mistake as to the apprehension of the facts.

There has been a mistaken apprehension of the law

1. The owners corporation submits that the Tribunal mistakenly apprehended the law, because the Tribunal failed to apprehend the operation of the savings and transitional provisions in cl 3 of sch 1 of the DBP Act. The owners corporation made the ambiguous submission that the importance of the DBP Act only became apparent to the owners corporation after the decision and reasons of the Tribunal were published.
2. If there has been a mistaken apprehension of the law, it was, at the very least, substantially caused by the owners corporation. The legal authorities referred to by the Tribunal in the substantive decision make clear that the owners corporation not only had to provide sufficient evidence to prove a breach of statutory warranties; it also bore the onus of providing sufficient evidence for the Tribunal to make a rectification order that was sufficiently clear, certain and unambiguous under s 48O of the HB Act. It was the owners corporation's own expert who had referred to the requirement for a design under the DBP Act.
3. Further, it is unclear that there has been a mistaken apprehension of the law. In the application to re-open, the apparent strength of the legal argument of the owners corporation is a matter to consider.
4. The owners corporation submits that because there was a construction certificate or complying development certificate for the strata building before 1 July 2021; some of the regulated building work for the strata building had been commenced prior to 1 July 2021; and all of the regulated building work authorised to be carried out by the certificate had not been completed by 1 July 2021, then:

(a) The provisions of the DBP Act regarding regulated designs do not apply.

(b) The provisions requiring a person to be registered to carry out the regulated building work do not apply; and

(c) The provisions requiring a building compliance declaration do not apply.

1. However, what the Tribunal was dealing with in this matter is not the completion of the original strata building works authorised by the construction certificate or complying development certificate, but fresh works in 2026 to repair building defects in the work completed by August 2021. It is far from obvious that cl 3 of sch 1 of the DBP Act applies to fresh works to rectify defects, considering the definition of "building work" in s 4 of the DBP Act.
2. If the owners corporation's interpretation is correct, arguably all strata buildings where work to construct the strata building commenced, but was not completed, prior to 1 July 2021 are exempted from the requirements identified in cl 3(2) of the DBP Act for fresh work to repair defects in the completed strata building, irrespective of the magnitude of the repair work.
3. The Tribunal is cognizant that what it is considering in this application is only the threshold test whether to grant leave to re-open, not the final argument as to the operation of cl 3 of sch 1 of the DBP Act if re-opening is granted. However, it cannot be said that there is a clear and obvious misapprehension of the law because it is not clear and obvious that the owners corporation's interpretation of cl 3 of sch 1 of the DBP Act is correct. Further, as the builder submits, even if the owners corporation is correct, it appears the requirement under cl 3(3) of sch 1 of the DBP Act still applies to fresh repair work.

Is the jurisdiction being exercised for the purpose of reagitating arguments already considered?

1. The owners corporation did not put forward an argument regarding the operation of cl 3 of sch 1 of the DBP Act at the hearing. The issue for consideration by the Tribunal was whether there was sufficient evidence to make an appropriately clear, certain and unambiguous work order under s 48O of the HB Act. The owners corporation's own expert raised the issue in the context of his evidence of "rectification concepts" which the owners corporation relied upon. Even if the specific argument about cl 3 of sch 1 of the DBP Act was not put forward, the owners corporation did put forward an argument that the Tribunal should accept the scope of works for the relevant defects based on Mr Warner's evidence.

Has the Tribunal proceeded according to some misapprehension of the facts or the relevant law and that that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing?

1. The owners corporation in its submissions did not adequately explain how any purported misapprehension of the law by the Tribunal was caused by the Tribunal, as distinct from the owners corporation failing put forward its argument about the operation of cl 3 of sch 1 of the DBP Act at the hearing. It was not submitted that the submissions of any other party caused the Tribunal to misapprehend the relevant law.

The likely prejudice to the other parties if the application is allowed, including the delay to completion of the proceedings and consequential costs

1. The builder and developer will be prejudiced if leave is granted to re-open. Not only will further time be taken to conclude the hearing at first instance, but there will also be further delay in performance of rectification work which affects the builder and developer as well as the owners corporation.
2. The owners corporation submits that it can (and likely will) file an appeal to the Appeal Panel under s 80 of the NCAT Act in any event. However, if the Tribunal grants leave to re-open, not only can that decision be appealed, but the eventual final decision can also be appealed. Although costs orders can be made against the owners corporation to deal with the further costs involved if the proceedings are re-opened, this does not completely absolve the prejudice. In any event, as Henry J identified in Arcidiacono the ability to make a costs order is only one discretionary matter for consideration.
3. Further, the owners corporation submits that, if leave to re-open is granted and the Tribunal finds that, by reason of cl 3 of sch 1 of the DBP Act no design is required for any of the fresh rectification works, the Tribunal should order the parties to confer and agreed to orders that reflect the reasons of the Tribunal. This would cause further delay and expense.

The public interest in the finality of litigation, with the consequent expectation that parties will present their evidence and submissions at one hearing

1. The public interest in the finality of litigation weighs strongly against granting the application to re-open in the circumstances of this matter. The authorities previously refer to stress the importance of this principle where the application to re-open is made after a final decision and reasons have been given.

The public interest and the interest of the parties that the proceedings will be conducted efficiently and expeditiously, thereby minimising delay and expense

1. This principle weighs strongly against the granting of the application to re-open in the circumstances of this matter.

1. There was no delay in making the application after the decision was published. However, the owners corporation could have made the application to re-open whilst the decision was reserved.

1. There are no exceptional circumstances. A legally represented party, who bore the onus of proving breach of statutory warranties and the appropriate remedial orders, failed to put forward an argument at the hearing that the DBP Act did not apply despite its own expert referring to the operation of the DBP Act when opining upon the proposed rectification works. That does not constitute exceptional circumstances.

1. Having weighed the relevant discretionary matters, the owners corporation has failed to establish leave should be granted to re-open. Accordingly, the application to re-open is dismissed.
2. The submissions of the owners corporation make clear that, if the application to re-open is refused, it will likely appeal to the Appeal Panel of the Tribunal under s 80 of the NCAT Act. All parties have the right to appeal, and there is no criticism of the owners corporation if it invokes its rights.
3. However, as the Tribunal pointed out to the parties on 4 December 2025, there is clear benefit to parties resolving disputes and avoiding the uncertainty and expense of ongoing litigation. As Leeming JA stated in The Owners - Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66 (which involved a strata building defect dispute that went from the Tribunal; to the Appeal Panel; then to the Supreme Court; and back to the Appeal Panel) at [172]:

"I cannot conclude without making an obvious observation. Putting to one side legal costs, the dispute between the parties is in relatively small compass. Much of the material adduced before NCAT was not tendered in this Court, and so I am poorly placed to express a view about the work which is involved. Even so, it would not surprise me if each side's legal costs to date exceeded the amount at stake. Those legal costs will only grow following the outcome of this further appeal. So too will the distraction of decision-makers in the Owners Corporation, Raysons and its insurer, all of whom must have better things to do with their time, while the litigation continues. There is a great deal to be said for the parties making every effort to compromise their dispute without the need to spend further time and money, much of which will be irrecoverable, in relitigating the issues."

1. If there is further Appeal Panel litigation, it would be prudent for the parties and their legal representatives to heed the perspicacious observation of Leeming JA.

1. The Tribunal has yet to determine the issue of costs in the substantive proceedings, and by reason of this ancillary application by the owners corporation, the procedural timetable for the parties to make costs submissions requires amendment.
2. In circumstances where the Tribunal is to consider the issue of costs in any event, it is appropriate for the costs of this application to be considered with the costs of the substantive proceedings, so that appropriate costs orders as set out one decision.
3. The Tribunal reserves the issue of costs of the application to re-open, with that issue to be part of the consideration of the costs application(s) in the substantive proceedings. The Tribunal's previous timetable for costs submissions is amended to give the parties further time.

(1) The application by The Owners-Strata Plan No 102171 to re-open is dismissed.

(2) Costs of the application to re-open are reserved, and are to be determined with the costs of the substantive proceedings.

(3) Time for compliance with order 7(a) of the Tribunal dated 20 November 2025 is extended to 14 days from the date of this decision.

(4) Time for compliance with order 7(b) of the Tribunal dated 20 November 2025 is extended to 28 days from the date of this decision.

(5) Time for compliance with order 7(c) of the Tribunal dated 20 November 2025 is extended to 35 days from the date of this decision.

(6) Orders 7(d),(e) and (f) of the Tribunal dated 20 November 2025 are affirmed.

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.