The Sydney Building Company Limited v Sinac

NCAT Appeal Panel|2018-09-06

Background

This is an internal appeal from decisions of the Consumer and Commercial Division of the Tribunal made 1 November 2016 and 2 May 2018.
The appellant undertook home building works for the respondent. The respondent made a claim for breach of the statutory warranties under the Home Building Act 1989 (the HB Act) in that she claimed that the work done by the appellant was defective.
The appellant asserted that the Tribunal did not have jurisdiction to hear the claim. That was because, the appellant submitted, the claim was not commenced within the time required by s 18E of the HB Act as in force as the time the proceedings were commenced. On 1 November 2016, the Tribunal constituted by Senior Member Briggs held that the Tribunal did have jurisdiction (the Jurisdictional Decision).
Subsequently, there was a hearing of the substantive claim in October 2017 and February 2018 before the Tribunal constituted by Senior Member Thode. On 2 May 2018, the Tribunal made orders that the appellant pay the respondent the sum of $186,611.85 (the Substantive Decision).
The appellant now appeals from the Jurisdictional Decision and the Substantive Decision, seeking leave to appeal in so far as that is necessary.

Procedural Directions in the Appeal

The hearing of this appeal first came before us on 6 September 2018. At that time, we considered that there were several issues which had not been properly ventilated in the submissions of the parties. We considered it would be of assistance to us if the parties specifically addressed certain questions. These questions included whether the Jurisdictional Decision was interlocutory or ancillary (affecting whether leave to appeal was required); whether an extension of time to appeal the Jurisdictional Decision was required and, if so, whether it should be granted; and some issues with respect to costs. We also perceived that the appeal would not finish in the time allocated that day.
We therefore made certain directions for the further preparation and hearing of the appeal. We allowed the parties to make further submissions on the matters raised.

The Notice of Appeal

By Notice of Appeal filed with the Tribunal on 30 May 2018, the appellant raises 10 grounds of appeal. It asserts that ground 1 (dealing with the Jurisdictional Decision), ground 2 (asserting that the Tribunal's finding as to water ingress along the western external wall of the respondent's property was without evidence to support it, or against the weight of the evidence), and ground 3 (concerning the adequacy of the Tribunal's reasons) each raise questions of law.
The appellant accepts that grounds 4-10 seek to challenge factual findings of the Tribunal and require leave to appeal.

Ground 1: The Tribunal erred in determining on 1 November 2016 that the Tribunal had jurisdiction to hear and determine the Respondent's application and in failing to find that the Respondent's application had been brought out of time

Is the Jurisdictional Decision an Interlocutory Decision or an Ancillary Decision?

The first issue to consider is whether the decision of the Tribunal on 1 November 2017 was an interlocutory decision or an ancillary decision. The characterisation of the Jurisdictional Decision will impact upon whether or not leave was required to appeal the decision (see s 80(2) of the Civil and Administrative Tribunal Act 2013 (the CAT Act) and the definitions of "ancillary decision" and "interlocutory decision" in s 4 of that Act). Leave is required to appeal from an interlocutory decision, but not from an ancillary decision on a question of law.
It must be said that the question of whether a decision of the Tribunal dealing with jurisdiction is an ancillary decision or an interlocutory decision and requires leave to appeal is not, on a construction of the aforementioned provisions of the CAT Act, as straightforward as it perhaps should be (see the discussion of these provisions in AOQ v Minister for Finance and Services (2016) 93 NSWLR 46 at [120]-[128] per Basten JA).
At the hearing before us, it was agreed between the parties that the decision was interlocutory. This characterisation is consistent with Basten JA's comment in AOQ v Minister for Finance and Services (2016) 93 NSWLR 46 at [127] that "the refusal of a summary dismissal application, albeit based on an alleged absence of jurisdiction, is almost certainly an interlocutory issue, falling within either par (h) or par (i) of the definition of interlocutory decision." We therefore do not need to traverse the issue further. The question remains, however, whether the appellant requires leave to appeal that decision (being interlocutory), and whether it needs an extension of time to do so.
We are of the view that this interlocutory decision, as to whether or not the Tribunal had jurisdiction to hear the claim, is one which affects the final result of the proceedings. Thus, the appellant was entitled to appeal that interlocutory decision in the appeal from the final orders made by the Tribunal: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at 483 [6] per Gaudron, McHugh and Hayne JJ). The appellant does not therefore require an extension of time to appeal that part of the Tribunal's decision. It is also arguable that the effect of the principle in Gerlach is that no leave to appeal is required.
If, however, we are wrong on that issue and by reason of s 80(2)(a) of the CAT Act leave is required to appeal the interlocutory decision of 1 November 2016, we would grant leave. We note that the restrictions in cl 12 of Sch 4 to the NCAT Act do not apply to the grant of leave to appeal on a question of law from an interlocutory decision of the Consumer and Commercial Division.
The principles to be applied when granting leave from interlocutory applications are to be derived from the principles applicable to leave applications in courts (Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35]). Those principles are set out in Champion Homes at [35] and include that leave should only be granted where there are substantial reasons to allow an appellate review; circumstances justifying leave may be an error of principle resulting in substantial injustice; and where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal.
The issue of the application of the limitation period in s 18E of the HB Act raises an important question of principle and the proper construction of the relevant statutory provisions. An error, if established, would result in substantial injustice. Further, the Jurisdictional Decision effectively determined the substantive rights of the parties. These are all factors which support the grant of leave.

The relevant statutory provisions

The next question to consider in relation to the Jurisdictional Decision is whether or not the Tribunal erred in concluding that it had jurisdiction as the proceedings were commenced within the time required by s 18E of the HB Act. To answer this question, it is necessary to consider the provisions of the HB Act as in force at the time the claim was lodged, namely 11 February 2016.
The relevant provisions are as follows: 18E (1) Proceedings for a breach of statutory warranty must be commenced within 7 years after: (a) the completion of the work to which it relates; or (b) if the work is not completed: (i) the date for completion of the work specified or determined in accordance with the contract; or (ii) if there is no such date, the date of the contract. 48K (7) The Tribunal does not have jurisdiction in respect of a building claim arising from a breach of statutory warranty implied under Part 2C if the date on which the claim is lodged is after the end of the period within which proceedings for a breach of the statutory warranty must be commenced (as provided by s 18E).
It is common ground that the quoted version of s 18E is the applicable version, noting that s 18E now prescribes a limitation period of 2 years or 6 years, depending on the nature of the alleged defect.
It is also necessary to refer to s 3B of the HB Act which was introduced by the Home Building Amendment Act 2011, but which applies retrospectively from 25 October 2011. That section relevantly provides: 3B The completion of residential building work occurs on the date that the work is complete within the meaning of the contract under which the work was done.

The chronology

On 8 August 2007 the appellant was contracted to carry out alterations and additions to the respondent's property. The contract price was $557,923.39. Relevant to the claim, the works to be undertaken included the installation of a new driveway and the extension of the lower storey of the premises, including the installation of storm water drainage in the sub-floor space near a proposed store room.
There were other renovations to the premises being undertaken by the respondent at the same time using other contractors.
An interim occupation certificate was issued on 15 December 2008.
The final occupation certificate was issued on 19 October 2009.
A notice of defective works was issued by the respondent on 5 February 2010.
Between February - June 2010, the appellant engaged in rectification works with respect to the alleged defects.
On 11 February 2016, the respondent filed her claim in the Tribunal.
In order for the application to have been commenced within the time required by s 18E(1) (as set out above), the Tribunal needed to be satisfied that the works were completed and that this occurred no later than 11 February 2009 (being 7 years before the proceedings were commenced). Alternatively, the Tribunal needed to be satisfied that the works were not completed and that there was a date for completion of the work specified or determined in accordance with the contract and this was a date no later than 11 February 2009.

Were the works complete and, if so, when?

At the 1 November 2016 hearing, the Tribunal held that it had jurisdiction to hear and determine the claim. It held: …the work of the contract was "incomplete" at a date later than 11 February 2009 by the [appellant's] admission. It finds that Completion of the contracted works is not an issue that relies upon external certification or occupation of the premises but simply on the definition of "completion". It relies upon the decisions of the NSW Court of Appeal in Owners of SP 64757 v MJA Group Pty Ltd [2011] NSWCA 381 and Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 921 June 2012 (sic) where the Court found the reference to "completion" in the contract was clear and unambiguous. (sic)
The Tribunal did not make a finding as to whether the work under the contract was ever completed.
The respondent relied in its written submissions upon an admission made by the appellant's director, Mr Paul McLean, in an email of 4 March 2010 that he had not completed the works. This may be the "admission" to which the Tribunal referred.
The appellant says, in its submissions in reply, that the work as a whole was never completed under the contract because, as agreed between the parties' experts, debris from the building works remained on site. However, it contends that the particular works the subject of these proceedings (drainage and driveway works) were complete prior to 11 February 2009 and that this is what mattered for the purposes of s 18E. In an affidavit dated 13 September 2018, Mr McLean gave evidence that the appellant had completed all the works the subject of the respondent's proceedings by 9 December 2008 and certainly before 11 February 2009. We note that, prior to the hearing on jurisdiction, Mr McLean's evidence was that practical completion occurred on 15 December 2008 and that he completed rectification works to the satisfaction of those involved in June 2010. At the Jurisdictional hearing on 1 November 2016, Mr McLean identified that, at 8 February 2009, "all items stand at 100 per cent, apart from the cedar panelling and two downpipes." In evidence given in re-examination at the hearing of the substantive claim in 18 October 2017, Mr McLean said that the works were 99.1 percent complete by December 2008 and the remainder was completed over the next couple of months.
The appellant submits that the Tribunal erred in not making a finding as to when the works the subject of the claim were complete. It says absent such a specific finding, the Tribunal could not properly determine when the time by which the proceedings were to be commenced.
We note that the appellant did not make the submission at the interlocutory hearing that, if the work was incomplete, the proceedings were out of time. The appellant's position was that the work was complete prior to 11 February 2009 and, for that reason, the proceedings were out of time.
In order to determine whether the Tribunal erred as the appellant claims, it is necessary to consider the proper construction of ss 3B and 18E of the HB Act and their application to the contract in this case.
Section 3B of the HB Act provides that completion of residential building work occurs on the date the work is complete within the meaning of the contract under which the work was done. Clause 8 of the contract between the parties provides that the work will be complete "when the contractor has finished the work in accordance with the contract documents and any variations, it is free from apparent defects, any damage of the kind referred to in Clause 19 has been repaired, and all rubbish and surplus material has been removed from the site." Here, as observed, the finding available on the evidence, and made, was that as at the time 7 years prior to the application being filed, the work to be done under the contract had not been finished. It was therefore not complete.
There was a question which occupied much time during the hearing, and which has been the subject of written submissions, as to the meaning of the phrase "completion of the work to which it relates" in s 18E(1)(a).
The appellant submits that the date of the "completion of the work to which it relates" means that the date of completion of the specific work the subject of the claims for the breach of statutory warranties. It relies on several authorities in support of its submissions, including Vero Insurance Ltd v Kassem [2011] NSWCA 381 ("Vero"), Owners Corporation SP 64757 v MJA Group Pty Ltd (2011) 81 NSWLR 426; [2011] NSWCA 236 ("MJA") and Owners SP 66375 v King [2018] NSWCA 170 ("King"). It says those authorities hold that the work in s 18E refers to the work the subject of the claims for defects. It also says that s 3B does not affect the meaning of s 18E(1)(a) because they are concerned with different things; s 3B provides for the date of "completion of residential building work" whereas s 18E(1)(a) is concerned with the "work to which it relates" and does not pick up the s 3B definition. In the appellant's submission, if the word "work" in s 18E(1)(a) was to be read as a reference to "residential building work" as used in s 3B, one would have expected the legislature to use that specific phrase.
The respondent takes a contrary view. She submits that the words "completion of the work to which it relates" in s 18(E(1)(a) are to be read subject to s 3B and refer to all of the work under the contract (not that work divided into discrete parts). In the respondent's submission, having regard to s 3B, the question is when the home building work was complete within the meaning of the contract under which the work was done. She says this is the plain meaning of s 3B as applied to s 18E. She says that if the appellant's construction is correct, it would be necessary to divide the work done under the contract into separate tasks to see which specific task(s) is (or are) the subject of a claim for breach of the statutory warranties and each would have different limitation periods. She submits this would give rise to an unworkable system which would make it very difficult to determine time limits for the commencement of proceedings.
In our view, s 18E(1)(a) of the HB Act is to be read subject to the operation of s 3B of that Act. The appellant's submission that the phrase "the completion of the work to which it relates" is quarantined from the operation of s 3B, which provides for the time of completion of residential building work, is not persuasive. The word "work" in s 18E(1)(a) is clearly a reference to "residential building work." Section 18A provides that Part 2C, of which s 18E forms part, applies to certain "residential building work." The statutory warranties in s 18B, to which s 18E refers, "are implied in every contract to do residential building work."
The word "it" in the phrase "the completion of the work to which it relates" in s 18E(1)(a) must refer to the "breach" (or alleged breach) of a statutory warranty (the only singular noun which proceeds it). Thus, s 18E(1)(a) effectively provided, at the relevant time: "Proceedings for a breach of statutory warranty must be commenced within 7 years after:… the completion of the [residential building] work to which [the breach] relates." By operation of s 3B, this is seven years after "the date that the work [to which the breach relates] is complete within the meaning of the contract under which the work was done."
We accept the appellant's submission that the plain meaning of the phrase "the work to which it [the breach] relates" is the specific work relating to the claimed breach of statutory warranty. If this were not the case, as the appellant submits, the words "to which it relates" would have no work to do. This is consistent with the decision of Stevenson J in Owners - Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1916 at [76]-[84]. The authorities on which the appellant relies are consistent with this construction. In MJA, the Court of Appeal (Young JA, Allsop P and Macfarlan JA agreeing) held at 433 [44]-[45] that "the date of completion of the work" in s 18E was to be determined as a question of fact, and that practical completion was a "relatively clear signpost" that the building works had reached completion. As this decision was handed down before the introduction of s 3B of the HB Act, it is not instructive in terms of the effect of s 3B on the construction of s 18E.
Section 3B was introduced after the hearing in Vero, but before the Court of Appeal handed down its decision. The Court (Campbell, Meagher and Young JJA) made no reference to s 3B. In considering the meaning of the phrase "the completion of the work to which it relates" in s 18E, Campbell JA referred to MJA (at [65]), and to Young JA's view in that case that the time at which work was completed, within s 18E, was a question of fact. His Honour continued (at [67]): Consistently with this authority, the limitation period concerning any particular item of damage would commence to run when the work to which the damage relates was completed. That is not necessarily the date on which the works as a whole were completed. MJA Group does not enable one to decide just how finely one subdivides the various tasks that went into the totality of the works, to identify "the work to which [a particular claim for breach of warranty] relates". However it accepts that at least completion of all the work done by the particular contractor or subcontractor who caused the defect can be completion of "the work to which it relates".
Again, this decision does not have anything to say about the construction of s 18E, read with s 3B. However, it indicates that, prior to the introduction of s 3B, the word "work" in the phrase "the work to which it relates" in s 18E(1)(a) did not necessarily refer to the works as a whole, but referred to the work to which the claim for breach of statutory warranty relates.
The appellant also relies upon Owners SP 66375 v King [2018] NSWCA 170. This case was, relevantly, concerned with s 18C of the HB Act ("Warranties as to work by others"). The appellant relied upon this case because it accepted MJA "as correct." We do not consider that the case was directly concerned with the correctness or otherwise of the construction of s 18E adopted in MJA and do not find it particularly instructive on this point. It dealt principally with the construction of s 18C of the HB Act and with the notional contract between a successor in title to a developer and the builder.
The respondent also relied upon comments made by Ward JA in King at [303]-[305], which were Young JA's reasoning concerning the construction of s 18C in MJA. We do not consider that these are determinative of the present constructional issue.
In our view, the effect of s 3B was to alter the operation of s 18E(1)(a) so that, at least where work is done under a contract, the time frame for commencing proceedings started to run from the date that the work the subject of the claim was complete within the meaning of the contract. Consistently with MJA and Vero, the time for completion of the particular item of work to which the breach relates must be considered under the contract. A contract may provide that completion of all the work to be performed under a contract occurs at one time, as the contract between the parties does in this case. However, a contract may also provide for the completion of discrete tasks at different times. In such a case, the effect of s 3B would be that each discrete piece of work would be complete at the time specified in the contract.
The respondent's contrary argument, that the division of work under a contract into discrete tasks is impracticable, is not a persuasive reason to depart from the clear textual meaning of s 18E(1)(a) and is inconsistent with MJA. The respondent also contended that the division of work done under a contract into discrete tasks would have the startling consequence that the full limitation period would only run from the completion of the first task. This followed, in the respondent's submission, from the principle that there is a single cause of action for breach of statutory warranties and not multiple causes of action in respect of different breaches or different defects (Honeywood v Munnings (2006) 67 NSWLR 466; [2006] NSWCA 215, Handley JA at [6]). We are not persuaded that this "startling consequence" necessarily follows from Honeywood v Munnings; however, if it does, we do not consider that this is a sufficient reason to depart from the clear meaning of the text of s 18E. In any event, where a contract provides that all the work under the contract is complete at the same time (as in this case), time will start to run from this completion date due to the operation of s 3B.
In this case the claim for defects in the application filed 11 February 2016 and in the points of claim which accompanied it, was for defective work in breach of the statutory warranties implied by s 18B of the HB Act carried out under the contract dated 8 August 2007. It is clear from the material served for the hearing of the claim that there were numerous defects alleged. Where as a matter of fact it was found that the work under the contract had not been completed by 11 February 2009, the particular work the subject of the claim for defective work was not "complete" within the contract (and thus within s 18E) given the terms of the contract. The works the subject of the claim, being the works to be performed under the contract, had not been completed within 7 years of the date the claim was filed.
The appellant also argued that, given that the Tribunal found the work was not complete, on a proper construction of s 18E, by reason of sub-section (1)(b), the Tribunal ought to have found that the claim was not commenced in time. That is because, it was submitted, if the work was not complete, the contract does not specify a date for completion of the works and s 18E(1)(b) requires the proceedings to have been commenced within 7 years of the date of the contract. It submitted that as the contract is dated, at the latest, 8 August 2007, the claim was lodged well out of time.
We agree that the Tribunal should, ideally, have expressly addressed the question of whether the work had ever been completed because, if it remained incomplete, s 18E(1)(a) would not apply. The respondent had filed an expert report by a Mr Hall (filed on 6 June 2016) which expressed the opinion that the works were incomplete. This was entitled "Expert Report: Defective and Incomplete Works." Further, the respondent made a statement on 15 June 2016 in which she stated: "Although the Builder claimed it had completed the Building Works I found numerous defective and incomplete items in the Building Works." Nevertheless, neither party submitted at the jurisdictional hearing that the works were not "complete" within s 18E. In her written submissions on jurisdiction dated 2 August 2016, the respondent maintained that the building works the subject of these proceedings "were not completed until after 4 March 2010." The respondent did not submit that s 18E(1)(b) applied but rather directed her submissions towards contesting the appellant's claim that the work was completed within s 18E(1)(a) by 11 February 2009.
The Tribunal did not err in finding that it had jurisdiction to hear and determine the claim. Ground 1 of the appeal is not made out.

Ground 2: The [Tribunal] erred at law in making a finding as to water ingress to the property along the western external wall of the property on the basis of defective building works by the Appellant by making findings of fact which were against the weight of the evidence; for which there was no evidence; or an incorrect or mistaken understanding of the facts

The written submissions of the appellant make clear that this ground is specifically aimed at the Tribunal's findings that the water ingress was caused by the appellant's defective works: namely on the issue of causation. It submits there is no evidence to support the Tribunal's findings to the contrary. We accept that, to the extent that it is claimed that the Tribunal made factual findings with no evidence to support them, this ground raises a question of law.
The respondent points out that the appellant does not deny that there was water ingress and that the Scott Schedule identifies the alleged defects relevant to the water ingress. The respondent identified the findings of the Tribunal (at [61]-[62] of the reasons dated 2 May 2018) relevant to this issue and attached a schedule to her written submissions dated 24 August 2018 which identified the relevant expert and other evidence which supported the Tribunal's findings. The experts called by the party disagreed on the cause of the water ingress. The Tribunal preferred the evidence of the respondent's expert. It was open for the Tribunal to do so.
A review of these items and the material referred to, clearly establishes that there was evidence before the Tribunal on which it could make its findings. We do not accept that Ground 2 has been made out.

Ground 3: Further or in the alternative, the Senior Member erred at law in failing to provide adequate reasons for the findings in respect of the ingress of water to the property.

We accept this ground raises a question of law.
The appellant argues that, in the alternative to ground 2, the Tribunal's reasons for its findings on the water ingress were inadequate. It says that the Tribunal simply noted and accepted Mr Hall's opinion (the expert called for the respondent) and failed to give reasons for doing so. It says the Tribunal failed to refer to a number of significant issues which were contradictory to Mr Hall's opinion. Nor did the Tribunal refer to or deal with a number of matters raised in written submissions after the hearing.
The obligation of the Tribunal to give reasons, and the nature of those reasons, was considered in Collins v Urban [2014] NSWCATAP 17 at [46]-[57]. This issue has also been canvassed in many Appeal Panel decisions since that time. See for example: Taylor v Joye [2018] NSWCATAP 309 where at [21] the Appeal Panel said: 21. It is not necessary for the Tribunal to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance, or are unsupported by any evidence: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443. As the Court of Appeal stated in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2], (adopted in Mifsud v Campbell (1991) 21 NSWLR 725): There are ample statements of this Court and of the High Court to express the duty upon judicial officers as to the giving of reasons. . . . In many cases, however, a judge may, in dealing with large bodies of evidence, be forced to economise in expression and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression. Judgment writing should not become a process that is oppressive and that produces unnecessary prolixity. Not every piece of evidence must be referred to. That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed and resolved.
In this case the Tribunal at [62] stated its conclusions on this issue. It must be noted that in the preceding paragraphs (from [39]-[57]) the Tribunal had set out and discussed each party's evidence. Further, at [56]-[62] the Tribunal made its findings and gave sufficient reasons for those findings which led to the conclusions at [62].
In accordance with the principles referred to in the authorities mentioned above, the Tribunal gave adequate reasons for its conclusion. Ground 3 is not made out.

Grounds 4-9 - Errors of Fact

These grounds do not raise questions of law and the appellant accepts it requires leave to appeal.
These grounds assert that the Tribunal made factual errors in many of its findings.
An analysis of the Tribunal's reasons in the Substantive Decision show that the Tribunal carefully reviewed the evidence before it on all of the issues the subject of the claim. It referred to the parties' submissions on those issues and then made findings based upon its assessment of the evidence and, where necessary, preferring the evidence of one party or witness to the other. It was plainly entitled to do so and there is nothing in the appellant's submissions which indicates any finding which was not available to be made.
In essence, the appellant seeks to re-agitate these issues on which it failed at the hearing. It is not, absent a proper reason, entitled to do so on appeal. There is no proper reason for it to do so here and it has not demonstrated that it should be given leave to appeal to set aside the factual findings made by the Tribunal.
Leave to appeal is refused for these grounds.

Ground 10 - The Senior Member erred in exercising the Tribunal's discretion given to it by s 48O of the Home Building Act 1989 (NSW) (the Act) in ordering the Appellant to pay the Respondent the sum of $186,611.85 rather than making a work order requiring the Appellant to carry out the rectification works pursuant to s 48MA of the Act

The appellant accepts it requires leave to appeal for this ground.
It seeks that leave based on fresh evidence it seeks to put before the Appeal Panel and that the decision of the Tribunal was not fair and equitable.
The appellant notes that one of the principal reasons a work order was not made was the appellant's impecuniosity at the time of the hearing. It complains that this was not raised at any time prior to the hearing. It says now that if it is allowed to rely on fresh evidence, namely an affidavit of Mr Graham McLean, it will provide certainty that if a work order is made the appellant has the financial wherewithal to complete it. The deponent is the father of Mr Paul McLean. He says he is prepared to pay $26,000 into the appellant's solicitors trust account to cover out of pocket expenses for the appellant to undertake works to rectify identified defects.
That affidavit was admitted by us, subject to relevance. The appellant accepts it could have had this evidence at the hearing but did not because this issue was not raised until the hearing. The appellant says it was raised late and in a manner that denied it procedural fairness.
It is apparent, however, that the issue was live in the mind of the Tribunal. It was the subject of an exchange between the Tribunal and the parties' legal representatives at the hearing as noted in the appellant's submissions. No evidence was then sought to be led to deal with the financial situation of the appellant.
The Tribunal deals with this issue at [84]-[91] of its reasons. The Tribunal notes the statutory preference for a work order. It noted the issues relevant to its discretion as to whether to depart from that preferred position, including the difference in the nature of the work necessary to rectify any defects according to the respondent's expert Mr Hall and Mr Paul McLean of the appellant.
The impecuniosity of the appellant was considered at [88]. It was but one of 4 factors taken into consideration by the Tribunal as being relevant to the exercise of the discretion. The others are listed at [89]. The appellant does not challenge the relevance of those other factors.
Even if we accept the new evidence of Mr Graham McLean, we do not think that the appellant has identified any relevant error in the exercise of the Tribunal's discretion as a whole (see House v The King (1936) 55 CLR 499). We note in particular the matters at 89, (3) and (4) which matters remain plainly relevant.
In the circumstances, we are not persuaded that the appellant should be granted leave to appeal on this ground.

Orders

The orders we therefore make are: 1. Leave to appeal granted in so far as is required for Ground 1. 2. Leave to appeal otherwise refused. 3. 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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 February 2019

Home Building Amendment Act 2011(NSW)

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