Unique Commercial Group Pty Ltd v Cusumano

NCAT Appeal Panel|2024-08-12

El Mohamad v Lin [2024] NSWCATAP 139 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 FSO v Secretary, Department of Education [2024] NSWCATAP 154 Hamod v State of New South Wales and Anor [2011] NSWCA 375 Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16 Hossain v Minister for Immigration [2018] HCA 34 Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 Jandson Pty Ltd v James [2021] NSWCATAP 274 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Johnson v Nachar [2024] NSWCATAP 135 Kramer v Stone [2023] NSWCA 270 Kudrynski v Orange City Council [2024] NSWCA 33 Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42 Macpherson v the Queen (1981) 147 CLR 512; [1981] HCA 46 McCann v Parsons [1954] HCA 70 Medical Council of New South Wales v Mooney [2024] NSWCA 180 Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration & Multicultural Affairs v Al Miahi [2001] FCA 744 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Orr v Cobar Management Pty Limited [2020] NSWCCA 220 Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 R v PL [2009] NSWCCA 256 Re the Adoption of Andrew and Alistair [2023] NSWSC 596 Renda v Wu [2016] NSWCATAP 238 S&G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6; [1995] FCA 707 Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 141 University of Wollongong v Metwally [1985] HCA 28 Williams v R (1986) 161 CLR 278; [1986] HCA 88 Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 Wollondilly Shire Council v Styles [2024] NSWCATAP 104 Texts Cited: Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) Category: Principal judgment Parties: Unique Commercial Group Pty Ltd (Appellant) Richard Cusumano (Respondent) Representation: Counsel: J Martin (Respondent)

Solicitors: Birch Partners Lawyers (Appellant) Corestone Lawyers (Respondent) File Number(s): 2024/00216473 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not assigned Date of Decision: 24 May 2024 Before: H Woods, Senior Member File Number(s): 2022/00395939

Background

The underlying proceedings concern the supply and installation of tiles at a residential property, pursuant to a contract entered into in 2012; and subsequent contracts that the Tribunal found were entered into in 2016 and 2020 concerning remedial works.
At first instance, the appellant (the then respondent) did not appear. The Tribunal determined the matter in favour of the respondent (the then applicant).
The appellant appeals on the basis that the Tribunal did not have jurisdiction to determine the claim, as the claim was lodged out of time.

Statutory framework

The Tribunal has jurisdiction to determine building claims which do not exceed $500,000: s 48K of the Home Building Act 1989 (NSW) (the Act). The definition of a "building claim" relevantly includes "a claim for - (a) the payment of a specified sum of money, or (b) the supply of specified services … that arises from a supply of building goods or services whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of building goods or services …": s 48A of the Act.
Section 18B of the Act contains statutory warranties. These are implied in every contract to do residential building work, by the holder of a contractor licence or a person required to hold a contractor licence. This includes a warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract: s 18B(1)(a) of the Act. By virtue of s 18B(1)(d) of the Act, there is also an implied warranty that "work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time."
Section 48K(7) of the Act provides that the Tribunal does not have jurisdiction in respect of a building claim arising from a breach of a statutory warranty 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). Proceedings for a breach of a statutory warranty must be commenced within the warranty period. This is six years for a breach that results in a "major defect" in residential building work or two years in any other case: s 18E(1)(b) of the Act.
A "major defect" is defined in the Act as "a defect in a major element of a building that is attributable to defective design, defective or faulty workmanship, defective materials, or a failure to comply with the structural performance of the National Construction Code (or any combination of these), and that causes, or is likely to cause - (i) the inability to inhabit or use the building (or part of the building) for its intended purpose, or (ii) the destruction of the building or any part of the building, or (iii) a threat of collapse of the building or any part of the building…": s 18E(4)(a) of the Act (emphasis added). Importantly for the appeal, a "major element" of a building is also defined in s 18E(4) and relevantly includes "waterproofing".
There is no power in the Tribunal to extend those time limits: Jandson Pty Ltd v James [2021] NSWCATAP 274 at [118]; S&G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 at [53].

First instance decision

The first instance proceedings were heard on 7 December 2023, with reasons delivered to the parties on 24 May 2024 (Decision).
The Tribunal accepted that the parties entered into a contract in 2012 for the appellant to supply and install tiles at the respondent's property: Decision at [32]. Further, the Tribunal accepted that within 12 months, there were issues "with calcification, drains lifting in bathrooms, drummy tiles and waterproofing issues associated with the tiling work": Decision at [36]. The Tribunal said at [37]: "The defective tiling had at least involved a problem with waterproofing and in the absence of any argument to the contrary, I am satisfied that it resulted in a major defect".
By the time the application was lodged in the Tribunal, the application would have been out of time, but there had been some intervening events. The Tribunal considered that its jurisdiction to deal with the matter depended on whether the parties had entered into subsequent contracts in 2016 and 2020: Decision at [66].
In the absence of the then respondent, the real question about whether the subsequent contracts were entered into turned on whether there was consideration passing between the parties.
The Tribunal said at [69]: "[The] relevant principle appears to me to be that a promise not to sue at all, that is, an abandonment of a substantive claim, is valuable consideration, if there be either liability or a bonâ fide belief of liability."
The Tribunal found (at [71]) that, in 2016: "it was open to the [then] applicant to commence proceedings against the [then] respondent for a breach of an implied warranty to perform the Tiling work with reasonable care and skill, and in the absence of any assertion of evidence to the contrary that any such claim would have been in respect of a major defect."
This was consistent with the Tribunal being satisfied that the appellant was liable under the claim.
The Tribunal was satisfied that the parties had indeed contracted in 2016 for the appellant to rectify defective tiling work "in consideration of the respondent agreeing not to commence proceedings in the Tribunal" against the appellant: Decision at [72].
The Tribunal determined that the further work performed by the appellant pursuant to the 2016 contract did not rectify the tiling issues and was in breach of warranties implied under s 18B of the Act that the work will be done with due care and skill: Decision at [74].
The question about consideration was also relevant with respect to the contract said to have been entered into in 2020 (the 2020 contract). The Tribunal determined (at [75]) that: "As of 2020, it was open to the [then] applicant to commence proceedings against the [then] respondent for a breach of an implied warranty to perform the work the subject of the 2016 contract with reasonable care and skill, and in the absence of any assertion or evidence to the contrary that any such claim would have been in respect of a major defect."
This was also consistent with the Tribunal being satisfied that the appellant was liable under the claim.
To provide certainty as to what the work under the 2020 contract would entail, SJN Building Consultants was jointly instructed as an independent expert to "identify the degree of the tiling problems and the appropriate rectification": Decision at [64(4)].
That report was prepared; and the tiling problems and the appropriate methods of rectification were identified in about mid 2021: Decision at [52]-[53].
The appellant undertook some further rectification work under the 2020 contract but ceased work in July 2022, with the scope of works contemplated by the report, and thereby the contract, incomplete: Decision at [58].
The Tribunal found that the work performed by the appellant in 2022 did not remedy the tiling issues which was in breach of the 2020 contract: Decision at [80].
The Tribunal was satisfied that the respondent's application in relation to the appellant's failure to perform the work pursuant to the 2020 contract was made within time: Decision at [81]. The Tribunal ordered the appellant pay the respondent $203,500 for the cost of removing and replacing the tiles throughout the property, based on unchallenged evidence as to what would be the reasonable cost of bringing the works in conformance with the appellant's contractual obligations: Decision at [83]-[84].

Principles concerning questions of law

Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that an internal appeal may be made, as of right, "on any question of law". Several propositions arise from the authorities: 1. Absent leave to appeal, the question of law is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Medical Council of New South Wales v Mooney [2024] NSWCA 180 (Mooney) at [97]. 2. The question of law should be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Kudrynski v Orange City Council [2024] NSWCA 33 (Kudrynski) at [48], Mooney at [97], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 (Wollondilly) at [28]. 1. As said by the Court of Appeal in Mooney at [95]: "Ground 4 is somewhat different. It maintained that NCAT had erred in 'failing to apply the correct test' and 'effectively reversing the onus of proof', as well as failing to consider various matters, thereby leading to the wrong decision. That ground is capable of giving rise to a question of law. However, it is desirable for a notice of appeal in an appeal which is limited to questions of law to identify with precision what the question of law is. As was said in a similar context, 'The questions of law are not to be distilled from the grounds of appeal': Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21]. It is after all the claimed existence of the question of law which founds an appellant's entitlement to appeal as of right. Put another way, the first thing the appellate court must do is determine whether it has jurisdiction, and it will have no jurisdiction to determine the purported appeal on the merits unless it discloses a question of law." 1. It is not possible by a mere drafting device of asserting error of law, to raise a question of law: Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. 1. A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]. 2. A "pure question of law" and "a question of law alone", and other variants, are synonyms: Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [12], [14], summarising Orr v Cobar Management Pty Ltd [2020] NSWCCA 220. 3. A "pure question of law" does not depend on facts not found, per Bathurst CJ and Bell P stating in Orr v Cobar at [48] and [109]: "[48] As was noted in Bass v Permanent Trustee Company Limited (1999) 198 CLR 334 at 358; [1999] HCA 9 at [52], some questions of law can be decided without any reference to the facts, or may proceed by reference to assumed facts. These are sometimes described as 'pure questions of law'. This was the terminology used, for example, by Leeming and White JJA in strictly confining a grant of leave to appeal in Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62 at [11]; see also Medical Council of New South Wales v Lee [2017] NSWCA 282 at [77]; and Violi v Commonwealth Bank of Australia [2015] NSWCA 152 at [66] and [125]. … [109] Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law'. They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts. The construction accords with the cases we have referred to at [48] and [70] above." 1. A party contending a "question of law alone" was wrongly decided, must identify the question in abstract terms. In R v PL [2009] NSWCCA 256 at [27], Spigelman CJ stated that a contention that a presiding judicial officer erred may involve a question of law alone if a stand‑alone legal proposition can be identified which was a "distinct and separate step in the reasoning process." In Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 (Bimson, Roads & Maritime), Beech‑Jones J at [40], quoted Gibbs CJ in Williams v R (1986) 161 CLR 278; [1986] HCA 88 at p 287: "... there is 'a question of law alone' if the question of law can be stated and considered separately from the facts which it may be connected in a given case." 1. The question of law must, self‑evidently, be a question of law and not depend on the answer. For example, a question which commences with, "whether it was open to find on the facts fully found" would raise a question of law if the answer was no; but not, if the answer was yes: Orr v Cobar Management Pty Limited [2020] NSWCCA 220 at [58]-[59] (Orr v Cobar). Accordingly, such a question does not raise a pure question of law. 2. A mixed question of fact and law is not a question of law: Bimson, Roads & Maritime at [39]. In Orr v Cobar Management, Bathurst CJ and Bell P said at [60]: "It is well established that a question of mixed fact and law is to be differentiated from, and is not, a 'question of law'. In Thomas v R, … Dixon J noted that a 'mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law'. Thomas was cited with approval in Iannella v French (1968) 119 CLR 84 at 114‑115; [1968] HCA 14; see also Williams v R (1986) 161 CLR 278 at 287 and 314; [1986] HCA 88; cf. Lavorato v R (2012) 82 NSWLR 568; [2012] NSWCCA 61 at [13]." 1. There is a distinction between an error of law and a question of law. A question may disclose an error of law, but not raise a question of law: Kudrynski at [42]; Orr v Cobar at [52]-[54]. By way of example: 1. The questions of whether facts as found necessarily fall within a statutory term or necessarily fall outside it, raise questions of law; whereas a question of whether it was open to find that the facts satisfied the statute may reveal an error of law but does not raise a question of law, because whether it was open may be a question of weight; and as identified above at [25(7)] is not "self‑evidently" a question of law, as it depends on the answer. 2. The question of whether there is no evidence to support the finding raises a question of law; in contrast, a mere error in the fact‑finding process does not: as explained by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (Azzopardi) at 156B-F. 1. An appeal is "on" any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid. Whilst the following cases were decided in a different context to the present, see Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353-354; [1990] HCA 33. 2. An appeal is against orders and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.
The review above demonstrates that great care must be taken in drafting a notice of appeal to ensure that it is apparent, on its face, that the ground of appeal raises a question of law. If not, leave to appeal is necessary.
Where, however, there is a question of law in substance, a court (and, it follows, an Appeal Panel) has discretion (to be exercised judicially and in the interests of justice) to direct its formal notification in an amended notice of appeal: Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [60]. In appropriate circumstances, the Appeal Panel may elect to waive the requirement to formally lodge an amended notice of appeal, given its mandate to act "with as little formality as the circumstances of the case permit … without regard to technicalities or legal forms": NCAT Act, s 38(4); Wollondilly at [19]. Where the party is not legally represented, a more generous approach is warranted: Kudrynski at [50]-[51]. This is an aspect of ensuring procedural fairness.
When dealing with self‑represented parties, the Appeal Panel has in many instances considered for itself whether a question of law is raised, applying John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [12]: Eastman v Nepean Blue Mountains Local Health District [2024] NSWCATAP 94 at [11], FSO v Secretary, Department of Education [2024] NSWCATAP 154 at [34], El‑Mohamad v Lin [2024] NSWCATAP 139 at [31], Johnson v Nachar [2024] NSWCATAP 135 at [14], Batshon v Suttons Motors Homebush Pty Limited [2024] NSWCATAP 114 at [19], Craig v Shallita [2024] NSWCATAP 112 at [16].

Prendergast

Prendergast identified some sources of questions of law. It has been cited many times by the Appeal Panel and by parties in submissions and has been judicially noted with apparent approval: C v W [2015] NSWSC 1774 at [43(b)]. However, it does not provide an exhaustive code and must be considered in light of the many authorities that have come since.
In Prendergast, the Appeal Panel identified the following questions of law, at [13], which are here summarised: 1. Whether there has been a failure to provide proper reasons. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account relevant considerations. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The formulations above are overly reductive. As the authorities above identify, it is necessary to state the question of law with precision.
To the above list might be added the following (some of which are nuanced aspects of the categories in Prendergast): 1. Whether the Tribunal drew inferences that were not available from the facts as found (an extension of item 7). As noted by the Full Court in Minister for Immigration & Multicultural Affairs v Al‑Miahi [2001] FCA 744 at [34], the "question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion." 2. Whether the construction of a statute or contract arrived at by the Tribunal at first instance was wrong in some identified way: Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50 at [66]. 3. Whether the Tribunal's decision was vitiated by bias, or a reasonable apprehension of bias, relates to and intersects with the fair hearing rule, and may encompass or be related to the procedural fairness question: Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) 643. 4. Whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice, that is, procedural unfairness. Alternatively, it may also constitute a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [6], [20]-[22] (Basten JA). 5. Whether the facts as found necessarily satisfied the statute or necessarily did not: Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139 at 156; Hope v Bathurst City Council (1980) 144 CLR 1 (Hope v Bathurst City Council) at pp 7 and 10; Australian Gas Light Co v Valuer‑General (1940) 40 SR (NSW) 126 at 138; Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42 at [9]-[13], [23(5)]. Though care must be taken where the statute uses words according to their ordinary meaning, as questions raised about the ordinary meaning of words may not raise pure questions of law: Orr v Cobar at [56] citing Hope v Bathurst City Council at p 7; Thomas v Naaz [2023] NSWCA 40 at [54]. 6. As to the distinction between a question of law and a question of fact, the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (Pozzolanic) at 287; [1993] FCA 456 identified five general propositions. These were extracted by the High Court in Collector of Customs v Agfa‑Gevaert (1996) 186 CLR 389 (Agfa‑Gevaert); [1996] HCA 36 at p 395: "1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. [Jedko Game Co Pty Ltd v Collector or Customs (NSW) (1987) 12 ALD 491; Brutus v Cozens [1973] AC 854]. 2. The ordinary meaning of a word or its non‑legal technical meaning is a question of fact. [Life Insurance Co or Australia Ltd v Phillips (1925) 36 CLR 60 at 78; NSW Associated Blue‑Metal Quarries Ltd v Federal Commissioner or Taxation (1956) 94 CLR 509 at 512; Neal v Department or Transport (1980) 3 ALD 97 at 107‑108; Jedko (1987) 12 ALD 491]. 3. The meaning of a technical legal term is a question of law. [Australian Gas Light Co v Valuer‑General (1940) 40 SR (NSW) 126 at 137‑138; Lombardo v Federal Commissioner or Taxation (1979) 40 FLR 208 at 215]. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law. [Life Insurance Co of Australia (1925) 36 CLR 60 at 79]. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law. [Hope v Bathurst City Council (1980) 144 CLR 1 at 7, per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264 at 277, per Sheppard and Burchett JJ.] In Pozzolanic, the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact. [Pozzolanic (1993) 43 FCR 280 at 288, citing Hope (1980) 144 CLR 1 at 8]." (Footnotes inserted as text) 1. In Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6; [1995] FCA 707, Hill J explained the fifth proposition of Pozzolanic at p 16: "The rule that a question of fact is involved in determining whether facts fall within the meaning of a word once that meaning is ascertained, may cause confusion. The confusion comes about because there are actually two related rules, the distinction between which is not always readily apparent. The first of these rules is generally expressed as being that where the facts have been fully found or there is no dispute as to the facts and the question is whether those facts necessarily fall within the description of a word or phrase in a statute, that will be a question of law. This is the sixth proposition enunciated by Jordan CJ in the Australian Gas Light Co case. The rationale for this principle is clear enough. If only one meaning is open but a tribunal arrives at a different meaning, underlying the Tribunal's conclusion must be an error of principle, that is to say, an error of law. The second related principle is that where the facts found are capable of falling within or without the description used in the statute, the decision which side of the line they fall on will be a decision of fact and not law. Such a decision will generally involve weight being given to one or other element of the facts and so involve matters of degree." (Emphasis added) 1. Whether the Tribunal made a jurisdictional error will often raise a question of law. However, as jurisdictional error may stem from myriad reasons, care must be taken to ensure the particular basis is raising a question of law. The High Court in Hossain v Minister for Immigration [2018] HCA 34 at [24] described jurisdictional error as: "an error in a statutory decision‑making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision‑maker purported to make it. To describe a decision as 'involving jurisdictional error' is to describe that decision as having been made outside jurisdiction." (Citations omitted)
Plainly, the categories are not closed.
In addition, because the list in Prendergast has been extensively referred to and cited, it is important to clarify the following: 1. There is an important difference between wrongly applying the correct principles and applying the wrong principles. The former may not raise a pure question of law, but the latter does: Bimson, Roads & Maritime at [40]-[45]. Applying the wrong principles evinces a misconstruction of the statute. 2. As set out in Prendergast, to say that considerations are "relevant" in the appellate context signifies that those considerations are mandatory having regard to the text and context of a relevant provision. Similarly, to suggest that a consideration is "irrelevant" signifies that it is prohibited by the subject‑matter, scope and purpose of the statute. These are factors in the exercise of a discretion: Minister for Aboriginal Affairs v Peko‑Wallsend Limited (1986) 162 CLR 24 at pp 39-40; [1986] HCA 40.
It has become commonplace for parties, and their lawyers, to simply copy from various items listed in Prendergast as questions of law and present them in a Notice of Appeal, without modification of clarification to meet the circumstances of the relevant appeal.
Commonly, that will be wrong.
What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen (1968) 118 CLR 186 at 194; [1968] HCA 51.
For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly at [28]-[32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A; see too: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [53]-[54], [109]-[114].
Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required.
In light of the above authorities, a question of law should be articulated with sufficient precision to allow an Appeal Panel to identify it as a pure question of law.

Principles regarding leave to appeal

Where the ground of appeal does not raise a pure question of law, the appellant may seek leave to appeal.
The principles governing an application for leave to appeal under the NCAT Act are well‑established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough, as a summary, to refer to Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28], where Gleeson JA (on behalf of the bench) said: "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong." (Citations omitted)
Further, as Basten JA said (White JA agreeing) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 (Hungry Jack's) at [9]: "... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice." (Citation omitted) 1. Hungry Jack's was cited approvingly in Amirbeaggi v Matrix Group Co Pty Ltd [2021] NSWCA 21 at [9].
With this in mind we turn to the Notice of Appeal here.

The grounds of appeal and extension of time

An internal appeal from a decision of this nature must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is later): r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW).
Here, the original Notice of Appeal was filed on 12 June 2024. The underlying decision was made on 24 May 2024 in the Consumer and Commercial Division. The original Notice of Appeal was filed within 19 days and therefore, in time. The grounds of appeal were stated as: "1. The Tribunal erred at law in finding: (a) The Tribunal had jurisdiction to determine the application; and (b) The parties made a separate oral enforceable agreement on an unknown date in September 2016 that Mr Abutta (presumably on behalf of the respondent) agreed to fix the tiling work [38(4)] in the Reasons; and (c) The parties made a separate oral enforceable agreement on an unknown date in 2020 that the Respondent agreed to fix the tiling work [76] in the Reasons."
The Notice of Appeal did not seek leave to extend the appeal to the merits.
On 26 June 2024, the appellant filed an Amended Notice of Appeal. The Tribunal gave leave for the appellant to rely on the new grounds, subject to reserving the respondent's right to object to an extension of time for any new grounds raised out of time.
In the Amended Notice of Appeal, the original grounds were wholly deleted and instead the grounds of appeal were encapsulated in a document headed "Attachment A". The new grounds were, in effect, as follows: 1. Ground 1 of that document reagitated the original ground that the Tribunal erred in determining it had jurisdiction and went further and identified that this was because time limits had expired. 2. Ground 2(a) contended that it was not open to the respondent to commence proceedings; which is another way of saying the time limits had expired. 3. Grounds 2(b) and 2(c) state that the Tribunal erred, acting contrary to s 18E(4), in "finding in the absence of any assertion or evidence to the contrary that any such claim would have been in respect of a major defect." As the appeal was ultimately advanced, it became apparent that this ground was intended to raise the question whether there was "no evidence" of a major defect. 4. Ground 3 concerned the later contracts (allegedly made in 2016 and 2020) and revisited grounds (b) and (c) of the original Notice of Appeal. 5. Ground 4 also raised limitation points. 6. Additionally, the appellant sought leave to appeal, if necessary.
On 18 July 2024, Principal Members Suthers heard an application for summary dismissal of the appeal, which was refused: see Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 141 (the Dismissal Decision). The essence of the application for summary dismissal was that the appellant was estopped or otherwise precluded from appealing on questions of fact, where it had made a forensic choice not to appear at the first instance proceedings. The Dismissal Decision (at [14]) noted that the appellant (who chose not to appear at first instance) would not likely be given the opportunity on appeal to lead further evidence which was available earlier (citing McCann v Parsons [1954] HCA 70) or raise new grounds (citing Coulton v Holcombe [1986] HCA 33 at pp 8-9 and University of Wollongong v Metwally [1985] HCA 28). These factors were relevant to the grounds concerning the formation of the 2016 and 2020 contracts. However, it was also noted in the Dismissal Decision at [15] that the above‑mentioned principles were unlikely to impede the appellant proceeding, as of right on a question of law, when prejudice might be remedied with a costs order. The Tribunal noted (at [16]) that the grounds that concerned there being "no evidence" for there being a major defect, might fall into that category.
The Dismissal Decision at [21] also raised other concerns in relation to the grounds of appeal, including a concern that the grounds of appeal had not been drafted with a sufficient eye to the questions of law. Further, the Dismissal Decision at [23] noted that the proposed grounds of appeal had fallen into the error, noted in Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13], of relying on the formula "error of law"; which did not expose the question of law, nor necessarily raise one. Even though the appellant was legally represented and the proposed grounds of appeal did not automatically attract a benevolent reading (as was the case in the authorities referred to above) as there were, in substance, arguable errors on questions of law, the summary dismissal application was refused.
Taking into account the Dismissal Decision, on 29 July 2024, the appellant filed a further "Attachment A" and seeks to rely on it.
The later Attachment A raises (amongst others) the following grounds: There was no evidence available to the learned Senior Member to determine there were any major defects with respect to the tiling works after the bathroom and balcony defects were rectified in early 2017; … [the] Decision the tiling issue constituted a major defect was so unreasonable that no reasonable decision-maker would make it."
Consonant with the principles outlined above, both of these raise pure questions of law. However, care must be taken with the second question that it does not disguise merits review. The other grounds, even as reframed, did not properly identify questions of law.
The appellant also continued to seek leave to appeal, if necessary, on the grounds that the Decision was not fair and equitable and/or in the alternative against the weight of the evidence. The appellant maintained that the injustice was reasonably clear and the errors go beyond what is merely arguable.
Ultimately, the appellant contended that as a result of these errors the Tribunal, contrary to the legislation, extended the statutory limitation period for the warranties.
The appellant submitted that, in essence, the case has not changed. The later documents merely provide further particularisation and precision.
The respondent submitted that the "no evidence" ground was not squarely raised in the original Notice of Appeal and an extension of time to rely on the new grounds was required.

Conclusion on whether an extension of time is necessary and leave to appeal

As the principles identified above establish, unless leave to appeal is granted, the subject matter of the appeal is the question of law. It follows that where, as here, the appeal is initially pressed solely on the basis of questions of law, if the questions of law have materially changed the original subject matter of the appeal will have been withdrawn and, in effect, a new appeal is filed. In such circumstances, the Appeal Panel considers that an extension of time is required, bearing in mind that s 65(3) of the Civil Procedure Act 2005 (NSW) has no application in the Tribunal.
Whether the appellant is entitled to rely on the grounds articulated in the latest "Attachment A" depends on whether they raise substantially new and different grounds to those originally filed; and if so, whether leave should be granted.
Even though the original grounds of appeal raised a question of jurisdiction, it was not until there was an expansion of those grounds and the filing of submissions in relation to the Dismissal Decision, that the precise questions of law could be discerned. Further, until the redrafting, it was not possible to discern that they were questions of law arising in the appeal and were pure questions of law that could be determined without delving into a fact‑finding exercise. In light of the principles identified above, particularly concerning the precision with which the grounds should be drafted, it cannot be said that the original notice of appeal raised the questions of law now relied on; even though it might be accepted that the original grounds of appeal intended to raise the same or similar issues as now relied on. Nor was leave to appeal sought in time.
An extension of time is therefore required.

Whether to grant leave to extend time

The Tribunal may grant an extension of time under s 41 of the NCAT Act. Section 41 of the NCAT Act relevantly provides: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
In Renda v Wu [2016] NSWCATAP 238, the Appeal Panel considered principles on extending time to appeal at [29]: "The Appeal Panel may extend the time in which to lodge an appeal even if the relevant period has expired: NCAT Act, s 41. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, the Appeal Panel noted at [21] that 'it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice.'"

Submissions regarding an extension of time

Here the appellant submitted that the appeal grounds have always raised questions of law, notwithstanding the initial lack of precision. Further, there is no relevant prejudice to the respondent. Further still, it was submitted that the appeal grounds should be read with a benevolent eye, as there should not be two standards in the Tribunal, one for legally represented litigants and another for litigants not legally represented. Finally, the appellant contends that it was awaiting receipt of documents from the proceedings at first instance before it could finalise the grounds (although it was candidly accepted that the appellant could have searched the Tribunal's file for the documents it required). The appellant's reply submissions state at [10]: "On 25 June 2024 (the day before the call‑over), Mr Birch wrote to the Owner's recently appointed solicitor, Mr Alameddine advising inter alia: On 3 June 2024, I emailed your client (then self‑represented) and requested, '[w]ith respect to the reserved decision, I note the Senior Member refers to your amended points of claim; Mr Nakhla's report and affidavits from Mr Nakhla, yourself and John Cusumano. You are requested to provide me with copies of all of the above documents, together with any other documents you relied upon at the hearing…' … In the absence of receiving those documents today, I propose to make application at the call‑over tomorrow for a direction requiring your client to provide those documents. I will also make application seeking leave to further amend my client's Notice of appeal in the event those documents (when finally produced) reveal any other grounds of appeal."
The respondent submitted that the Appeal Panel should place great weight on the appellant's forensic decision not to appear at first instance; and in those circumstances, leave to appeal and an extension of time should not be granted.

Determination on whether to grant an extension of time

Dealing with the appellant's submission concerning two standards first, we do not see that reading a notice of appeal drafted by an unrepresented litigant beneficially, whilst expecting a legal representative to draft appeal grounds with precision, raises two standards. At first blush it may seem so, but to read beneficially an unrepresented litigant's grounds is to ameliorate the prejudice that might otherwise be present, were a legally unrepresented party expected to draft a question of law.
Section 36(3) of the NCAT Act places a duty on parties, and their legal representatives, to co‑operate with the Tribunal to give effect to the guiding principle of resolving the real issues in the proceedings in a way that is just, quick and cheap. What that requires must be assessed against the ability of the parties, and their lawyers, to do so. A lawyer can be expected to apply their legal skills and training to provide grounds of appeal, or questions of law, which are drafted with a greater level of precision than someone without that skill and training. That proposition proceeds a fortiori where, as here, a party is only legally represented with leave of the Appeal Panel.
The Court's duty to ensure a fair trial was considered in Macpherson v the Queen (1981) 147 CLR 512 at pp 534, 546-547; [1981] HCA 46. In a Tribunal context, this is an aspect of procedural fairness. The duty to accord procedural fairness applies to all parties, represented or not: Bobolas v Waverley Council [2016] NSWCA 139 at [24]. What is required depends on the context and circumstances. Care must be taken to ensure that the Tribunal does not become the unrepresented party's legal advisor; nor provide them with an advantage because they are unrepresented: see the discussion in Re the Adoption of Andrew and Alistair [2023] NSWSC 596 at [13] and [14]; Renda v Wu [2016] NSWCATAP 238 at [62]. In Boulos v Martin (No 2) [2012] NSWCA 161, Wheely JA at [22]-[23] said: "[22] … there are not two laws to be applied where a litigant is unrepresented; one for the benefit of the unrepresented person and the other for the person who may have legal representation. [23] This Court does its best to extend every assistance it can within the bounds of propriety and fairness to unrepresented litigants and I believe we have done so in the present matter. The law however is constitutionally, and in every respect, to be interpreted the same way for all citizens whether they have the benefit of a lawyer or they do not."
The Tribunal's duty to an unrepresented party is to ameliorate disadvantage: Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [309]-[311]. The Tribunal's duty is to ensure the unrepresented party has information about practice and procedure.
The Court's duty (and it follows, a Tribunal's duty) to ensure a trial (or a Tribunal hearing) is fair applies equally to all parties: Re the Adoption of Andrew and Alistair [2023] NSWSC 596 at [13].
In any event, in an appropriate case, the Appeal Panel might give a represented party leave to redraft the grounds and extend time.
We give this submission no weight.
Turning next to the respondent's submission that the appellant's forensic decision not to appear at first instance to agitate its case should preclude leave being given to extend time, we agree that should be given significant weight.
Here, however, the appellant seeks to vindicate its position by pointing out that the Tribunal has not determined the application in an orthodox fashion. The grounds of appeal that raise questions of law were identified above. The appellant maintains, in essence, that there was "no evidence" to support any finding that there was a major defect and accordingly, the claims were out of time. This also sustains the "unreasonableness" ground.
A ground of no evidence is a contention that the Tribunal exceeded its authority by determining a matter irrationally or capriciously because there is no evidence to justify the conclusion: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at pp 367-368; [1990] HCA 33; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138. It goes to the nature of the Tribunal's task.
The grounds, in the limited respects discussed above at [53], raise pure questions of law that go to the Tribunal's jurisdiction. Further, the appellant put the respondent on notice that leave to amend the grounds of appeal may be sought once documents were received, and further still, prejudice (if any) may be dealt with by an order for costs. Accordingly, we will exercise our discretion to extend time for the appellant to rely on the grounds outlined at [53] above, which can, with little effort, be reframed into questions of law. In the circumstances, the appellant's forensic decision not to appear at first instance should not shut them out of appealing on those questions of law that go to the Tribunal's jurisdiction. However, we will not extend time to appeal in respect of the appellant's other grounds. In that regard, we consider the appellant's forensic decision to not participate in the proceedings at first instance, as well as its delay in identifying clear questions of law, weigh heavily against an extension of time.
We do not accept that the appellant was materially prejudiced because the respondent did not promptly provide it with material after the Tribunal's decision was made. As noted above, the appellant could simply have conducted a file inspection but, more importantly, it was not even asserted, let alone supported by evidence, that the respondent had not served the material in the first instance proceedings. In those circumstances, the appellant's inability to instruct its lawyers promptly is entirely unexplained.
We should also, briefly, identify why the other grounds are of insufficient moment to warrant an extension of time: 1. Ground 1 simply referred to what is clearly a typographical error in the Decision that had no bearing on the outcome; 2. Ground 2 is encompassed by the issues we have summarised above; 3. Ground 3 sought to challenge the Tribunal's finding that there was valid consideration for the contract entered into in 2016, but given the appellant's concession that it undertook remedial waterproofing works as a consequence of that contract, and the unchallenged evidence that all of its terms, whatever they may have been, were not complied with, this ground has little apparent merit. 4. The gravamen of grounds 4 and 5 is, in substance, also encompassed in the issues identified at [53].
We will not disturb the Tribunal's finding that there was a contract between the appellant and respondent entered into in 2016 that was breached by the appellant.

No evidence of major defects after 2017

In essence, the appeal turns on the appellant's contention that the Tribunal erred because it allowed a claim for breach of a statutory warranty under s 18B(1)(a) of the Act after the Tribunal's jurisdiction had ended by effluxion of time after the relevant works were completed.
As noted above, under the relevant legislation, a claim for a defect, other than a major defect, must be brought within 2 years. In respect of a major defect, the time limit is 6 years from completion of the work to which the warranty relates.
The only major defect suggested by the respondent, was what was loosely described as a "waterproofing issue". However, assuming at its highest that there was a major defect constituted by a waterproofing issue, there is no evidence that it continued after 2017.
The respondent's evidence (at first instance) concerned problems with the tiling throughout the house. This included a reference to there being "drummy tiles throughout" and "waterproofing issues". However, there were only two aspects of the evidence that referred to waterproofing: 1. The first was in respect of half the tiling on one outside balcony, where, wrongly, internal waterproofing had been used. This was described by the respondent as "a cause of the tiling problems". 2. The second was a problem with the linear drain in a downstairs bathroom.
Whilst there was a complaint about drummy tiles and calcification, we were not directed to any evidence that these issues were (other as mentioned in the previous paragraph) related to waterproofing issues.
The appellant undertook some works in 2016 and 2017 to remove half the tiles in the upstairs balcony and re‑do the waterproofing and installed new tiles. In November 2017 works were done to address the problems in the downstairs bathroom.
The respondent asserted in his evidence at first instance that the works did not fix the "tiling" problems. However, this does not provide evidence of ongoing waterproofing issues.
Mr Nakhla of SJN Building Consultants provided an expert report. However, the report addressed the works needed to fix the tiling issues by concentrating on the drummy tiles and the need to re‑tile the entire premises as it was impossible to match the existing tiles. There was nothing in his report that spoke specifically to fixing a waterproofing problem. The respondent submitted that to the extent that the report referred to gluing, silicone and grouting, that it indicated a waterproofing problem. However, viewed in context these references concern the scope of works, once all the tiles had been removed and replaced; and was not a reference to any underlying waterproofing problem.
Similarly, the quotes from Alanine Tiling Pty Ltd and Tannous Carpentry Service Pty Ltd each referred to the need to waterproof three balconies, but this was in the context of first removing all the tiles. There is no indication that the need to remove the tiles arose from anything other than the fact that the drummy tiles needed to be removed and could not be re‑matched and so all tiles needed to be replaced.
There was no evidence to support a finding that there was a problem with the waterproofing after 2017. In such a context, contrary to the Tribunal's decision, it was not "open to the [then] applicant to commence proceedings against the [then] respondent for a breach". Contrary to the Tribunal's decision, forbearance to sue was not valuable consideration for the 2020 contract, if the basis was actual liability as opposed to a bona fide belief in liability.
The Tribunal did not determine whether the respondent held a bona fide belief that a claim for major defects was open to him in 2020. It was not necessary to decide, given the findings of the Tribunal that it was open to the respondent to sue. Had the appellant raised the defence it now raises in the proceedings at first instance, the issue would necessarily have been one the Tribunal needed to determine.
We pause to note, without seeking to determine the issue, a finding that the respondent gave good consideration in 2020 based on forbearance to sue (due to a bona fide belief of liability on the appellant's part for ongoing major defects) in exchange for consideration that the appellant fix all the tiling defects, appears to be open.
Until that issue is decided, it cannot be determined one way or the other whether there was valuable consideration and that the whole of the claim under the 2020 contract was within time. The matter is to be remitted to determine that issue.

Disposal of the appeal

The appellant has made out the ground that there was no evidence before the Tribunal for a critical finding that there was a major defect in the tiling after 2017.
The appeal is allowed and the matter is remitted to the Tribunal, differently constituted, to determine: 1. Whether there was valuable consideration passing from the respondent for the 2020 contract; and 2. to make consequential orders based on that finding.
It is necessary for the matter to go to a fresh Tribunal member as the Tribunal, as originally constituted accepted the respondent's evidence at first instance and there might be an apprehension of bias if the same Tribunal were to hear the matter again this time with a contradictor who might want to challenge the respondent's evidence.
The issues now identified by the parties may require further evidence to determine justly. We will place no fetter on the lodgment of further evidence in the remitted proceedings, save that the evidence may only go to the issues remitted.

Costs

The appellant's decision not to appear at first instance, at least, failed to assist the Tribunal in avoiding error. The Appeal Panel will hear the parties in relation to costs of the appeal.
The parties are to file any written submissions in relation to costs within 14 days and are to reply to each other's submissions 7 days thereafter. Submissions are to include whether the parties consider that the issue of costs may be determined on the papers.

Orders

The Appeal Panel orders: 1. Time to appeal is extended until 29 July 2024 in respect of the grounds identified at [53] only. 2. The appeal is allowed in part. 3. Order 1 made 24 May 2024 in proceedings 2022/00395939 is set aside. 4. The matter is remitted to the Tribunal, differently constituted, to determine: 1. whether there was valuable consideration passing from the respondent for the 2020 contract; and 2. to make consequential orders based on that finding. 1. The parties are to file any written submissions in relation to costs within 14 days and are to reply to each other's submissions 7 days thereafter. Submissions are to include whether the parties consider that the issue of costs may be determined on the papers.

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: 16 October 2024

(2020) 103 NSWLR 479

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