Veroc Pty Ltd v Evaross Pty Ltd

NCAT Appeal Panel|2016-05-23|Before: Mr J

Solicitors: King Christopher & Associates - Appellant Peter Merity - Respondent File Number(s): AP 16/12532 Decision under appeal Court or tribunal: NCAT Jurisdiction: Consumer & Commercial Division Date of Decision: 10 November 2015 Before: P Boyce, Senior Member File Number(s): HB 13/62098 HB 14/36216

Background

This is an internal appeal from decisions of the Consumer & Commercial Division of the Tribunal made on 10 November 2015 and 9 February 2016. At those times there were before Tribunal two proceedings. In HB 13/62098, the respondent to the appeal (Evaross) as home owner of a residential property in Mudgee, New South Wales, claimed damages from the appellant (Veroc), a building company, originally in the sum of $163,975.52 later amended to $300,000.00. In HB 14/36216 Veroc sought payment from Evaross of the sum of $23,931.28 said to be outstanding and due to it under the contract for building works at the property.

The Appeal

By Notice of Appeal filed 14 March 2016, Veroc appeals from the decision of the Tribunal on 9 February 2016 and 10 November 2015. Insofar as the appellant seeks to appeal from the decision of 10 November 2015, it is common ground that an extension of time is required. The respondent does not oppose such an extension and we formally grant that extension pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (the CAT Act).
At the hearing of the appeal Veroc sought leave to amend the Notice of Appeal by adding a ground in respect to the 9 February 2016 decision, namely, that the Tribunal erred in that it failed to give reasons or adequate reasons for its finding that the quotes obtained by Evaross conform to order 7 of the Consent Orders by setting out the work required to complete the Building Works so that certification can be obtained. Evaross opposed that leave but we do not think any prejudice is caused to Evaross by reason of the amendment. The additional ground is no more than an additional legal argument alleging an error in the reasons of the Tribunal already being debated before us. The amendment was foreshadowed in Veroc's submissions dated 14 April 2016, dealt with by Evaross in its submissions in response and the proposed amended ground was set out in an amended Notice of Appeal appended to Veroc's submissions in reply filed 10 May 2016. We allow the amendment to the Notice of Appeal.
The Notice of Appeal contains numerous grounds of appeal. At the hearing of the appeal Mr Young, counsel for Veroc, explained that the appellant's case was set out in summary form in [2]-[4] of the appellant's outline of submissions in reply filed 10 May 2016. Rather than repeat the very lengthy grounds of appeal as set out in the Notice of Appeal, it is convenient to set out those paragraphs, and the paragraphs which immediately follow to understand the bases of the appeal: Overview of Grounds of Appeal in light of the Respondent's Submissions 2. To be clear, the primary basis for Veroc's attack on the decisions below is that the Tribunal found, without adequate reasons and in the absence of adequate evidence, that the three quotes supplied by Evaross should be accepted, averaged and then paid by Veroc, when the Tribunal should not have so found on the absence of evidence, as a result of which, on a proper construction of the Consent Orders, the Tribunal should have dismissed the relisted application under Consent Order 7 and left the parties to their rights under the legislation, whether by way of reinstatement application or otherwise. 3. These grounds, being, essentially, "no evidence", "no reasons" and "errors of construction" grounds, are found in Grounds of Appeal B5 and B6 (including the proposed amended Ground B6, discussed below), with supplementary "errors of construction" grounds at Appeal Grounds B1 to B4. 4. Given the circuitous procedural history of the dispute, including the various interlocutory hearings, which involved various findings, orders and directions of the Tribunal (e.g. on 5 November 2015, 15 November 2015 and 8 December 2015) which had a bearing on the way the final Determination of the issues on 9 February 2016 was made, which findings included the errors of construction, Veroc has also raised these "errors of construction" grounds at Grounds of Appeal A1 to A4. 5. In the Respondent's Submissions at [13], the respondent submits that the submission of Veroc that, if there are not 6 quotations complying with the Consent Orders, the tribunal should have not made the orders it made, is not a ground set out in the Notice of Appeal. The ground is contained in Ground B5. While Veroc submits that there must be 6 quotations complying with the Consent Orders, it also submits that, even if the Tribunal is able to rely only on the three quotations provided by Evaross, those quotations themselves did not comply, as a result of which the Tribunal should not have made the orders it made. 6. The "jurisdictional errors" alleged by Veroc (see the opening words of Appeal Grounds A and B) are characterised as such by the Appellants not because the Tribunal does not have jurisdiction within the meaning of section 48 of the Home Building Act 1989 (NSW) or section 29 of the Civil and Administrative Tribunal Act 2013 (see the Respondent's Submissions at [17]) but because the findings are based on an erroneous construction of the Consent Orders where those Consent Orders, subject to the terms of the Consent Orders and any application to reinstate the proceedings, finally determined all issues in the proceedings. In those circumstances, where the Tribunal went beyond the proper construction of the Consent Orders, the Tribunal acted beyond power, or jurisdiction. The Tribunal's jurisdiction was determined by the Consent Orders and, if the Tribunal misconstrued them, it went beyond jurisdiction.

The appellant's submissions

It was made clear by counsel for the appellant that it accepts that the Building Works required to be done by order 1 of the Consent Orders of 21 May 2015 were not done. It was also made clear that the appellant does not submit that the Tribunal had no jurisdiction to make each of the orders it did on 21 May 2015.
The appellant contends that if there had been non-compliance with the Consent Orders, the Tribunal ought to have dismissed the proceedings with the consequence that the respondent ought to have made a renewal application. It submits that the Tribunal was functus officio after 21 May 2015 and could not determine any dispute about the proper construction of the Consent Orders. It submits that the orders the Tribunal made thereafter go beyond the proper construction of the Consent Orders and, in any event, it did not properly construe those orders.
The appellant the submits that the Tribunal could not untangle any mess created by the wording of order 7 of the Consent Orders because all those orders allowed was the Tribunal to average out the calculation of quotes if, and only if, it had before it six quotes which complied with the terms of that order. The appellant accepts, however (somewhat inconsistently with its submission that the Tribunal was functus), that the Tribunal could determine whether it had before it six quotes which complied with the terms of that order.
The appellant submitted that when the Tribunal determined that it only had three quotes before it which complied with order 7, but still went on to average out the quantum of those quotes so as to reach the figure awarded to the respondent, it went beyond its power.
The appellant submits that the Appeal Panel should set aside the orders made by the Tribunal and dismiss the proceedings. It submits that it will still be open to the respondent to file a Renewal Application pursuant to clause 8 of schedule 4 of the Act.
Alternatively, the appellant submits that the quotes put before the Tribunal by the respondent did not comply with the requirements of order 7. Further, the appellant submits that at [25]-[35] the Tribunal failed to give any or any adequate reasons as to why the quotes provided by the appellant failed to comply with order 7 but the quotes provided by the respondent did so comply.

The respondent's submissions

The respondent submitted that the Tribunal obviously had power to construe the Consent Orders for the purposes of assessing whether or not the parties had complied with those orders so as to enliven the respondent's right to apply for the money order. Further, the Tribunal's construction of the Consent Orders was manifestly correct.
The respondent submitted that in respect to the quotes required by order 7 of the Consent Orders the Tribunal was obliged to undertake the averaging exercise only in respect to the quotes "so obtained". Only a quote which complied with the requirements of order 7, that is quotes that set out from appropriately licensed builders what was necessary to complete the Building Works and obtain certification, was a quote "obtained". Thus, it was submitted, the Tribunal determined there were only three quotes "so obtained" and was thus correct in averaging out those three quotes to arrive at the figure to be paid by way of the money order.
Further, the respondent submitted that if there was any room for ambiguity in the construction of the Consent Orders the appellant cannot rely on its own failure to put before the Tribunal properly constructed quotations from builders as required by order 7 to complain that the Tribunal erred. In support of that submission it cites Alexander James Pty Ltd v Pozetu Pty Ltd [2015] NSWCATAP 228.
Alternatively, the respondent submits that even if its other submissions are wrong, the Tribunal had jurisdiction and was entitled to treat the respondent's application for a money order as a Renewal Application.
The respondent also notes that on 8 December 2015 the Tribunal made directions in anticipation of the hearing on 9 February 2016. At that time, the appellant made no objection to the manner in which the proceedings were being conducted, or with the Tribunal undertaking the course they did. Indeed, the same could be said for the absence of objections by the appellant to the previous directions made by the Tribunal following the 20 May 2015 Consent Orders. Indeed, on 10 November 2015, the appellant made submissions to the Tribunal to request it to interpret orders 1 and 2 of the Consent Orders to work out the scope of the Building Works. In these circumstances, the respondent submits that the appellant cannot now complain about these issues.
In respect to the quotations before the Tribunal, the respondent submits that the Tribunal's assessment of and conclusions in respect to the inadequacy of the appellant's quotations and the adequacy of the respondents quotations is correct. It submits that the reasons of the Tribunal of 9 February 2016 are clear and adequate as to why it reached the conclusions it did.

Did the Tribunal have jurisdiction or power to act as it did following the making of the Consent Orders?

The first question to consider is whether the Tribunal had jurisdiction or power to act as it did following the making of the Consent Orders in May 2015. That is, was the Tribunal able in light of the dispute between the parties to construe the Consent Orders and then determine whether or not they had been complied with so as to entertain and determine the respondent's application for a money order pursuant to order 7 of the Consent Orders?
In our opinion the Tribunal clearly had such jurisdiction or power. We do not think that the Consent Orders immediately determined the proceedings as they expressly contemplated further steps to be taken in the proceedings if certain things did not occur. Those orders had set out the agreement reached between the parties. That agreement provided for the Building Works to be undertaken and certified in so far as the works could be certified. The appellant does not dispute that the Building Works were not completed by it.
The agreement as embodied in the Consent Orders (order 7) also provided that, in the event the Building Works were not completed and certified by Mr Bassingthwaite, each of Veroc and Evaross would obtain 3 quotations from appropriately licenced builders to complete the building works and obtain certification. In such circumstances, Evaross would make an application for a money order for the average sum of "the quotations so obtained". Veroc consented to the Tribunal making such a money order. In respect to the consent of Veroc to the making of a money order in the sum of the average of the 6 quotations so obtained, it was submitted in writing by Veroc that this meant that following the receipt of the quotations, no money order could be made unless and until Veroc then consented. That submission was not pressed at the hearing and Mr Young conceded, correctly in our opinion, that properly construed, the consent of Veroc had already been given to Evaross obtaining a money order if the other requirements of order 7 had been met.
It can be seen therefore, that the agreement as embodied in the Consent Orders contained the mechanics of how the proceedings were to be determined in accordance with the terms of the agreement reached by the parties on 21 May 2015. This included the application for a money order in favour of Evaross in the circumstances which happened, namely that the Building Works were not completed and certified. Each part had liberty to apply to the Tribunal with respect to the implementation of the orders, a matter which of itself indicates that the parties knew that it may be necessary to approach the Tribunal with respect to the implementation of the Consent Orders.
As it turned out, there was a dispute about the meaning of order 1 and 2 of the Consent Orders. It was Veroc which sought to have the Tribunal resolve that dispute (presumably pursuant to the liberty to apply reserved by the Consent Orders). Each party made submissions and the Tribunal resolved that dispute. As the respondent submits, having in effect enlivened the Tribunal's jurisdiction to deal with that dispute, Veroc cannot now complain that the Tribunal had no jurisdiction to do so.
The same can be said about the Tribunal determining the application for a money order. The Consent Orders plainly provided that such an application would be made if the Building Works were not completed and certified. It is not disputed by the appellant that the Building Works were not completed by it as required by the Consent Orders. In order to determine that application the Tribunal had jurisdiction to consider and average the quotes obtained by the parties. That was the mechanism agreed to by the parties to calculate the sum to be paid to Evaross. In our opinion, in dealing with that application, the Tribunal had jurisdiction to determine all issues, including whether the quotes presented by the parties for the calculation of the amount to be paid satisfied the terms of order 7, necessary for it to finalise and dispose of the matter. We reject the appellant's submissions to the contrary.
It should also be noted that the Consent Orders reflected an agreement reached between the parties, evidenced in writing and signed by them. Pursuant to s 59 of the CAT Act, the Tribunal may make such orders as it thinks fit to give effect to any agreed settlement reached by the parties if, as in this case, such agreement is in writing and signed by or on behalf of the parties and the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or that is consistent with the terms of the agreed settlement. In our opinion, in making the orders it did, the Tribunal was giving effect to the terms of the agreed settlement. There is no question it otherwise had the power to make those orders.
We therefore reject the submission that the Tribunal was functus officio once it had made the Consent Orders. In taking the steps contemplated by the orders to assess the quotes for the purposes of averaging them to calculate the quantum of the money order, the Tribunal was not revisiting its decision because it had changed its mind, nor was it undertaking a fresh decision because it had recognised an error within its jurisdiction (see the discussion in Minister for Immigration v Bhardwaj (2002) 209 CLR 597 at 603-604 per Gleeson CJ). In our opinion, in acting in the manner it did in dealing with the parties contentions as to the proper construction of the Consent Orders and in considering whether the quotes provided were as required by the Consent Orders, the Tribunal was discharging the functions conferred upon it by the CAT Act to make orders to give effect to the terms of the agreed settlement.
If we are wrong on that, in our opinion, the respondent's submission that the application for the money order ought be treated as a Renewal Application should be accepted. Clause 8 of Schedule 4 to the Civil and Administrative Tribunal Act 2013 provides: 8 Renewal of proceedings in respect of certain Division decisions 1. If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. 2. If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. 3. The provisions of this Act apply to a notice lodge in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. 4. When proceedings have been renewed in accordance with this clause, the Tribunal: 1. may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or 2. may refuse to make such an order…
The Tribunal is to act with as little formality as the circumstances of each proceedings permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s 38(4) CAT Act. In this case, there can be no doubt that the parties understood, at then time of the making of the Consent Orders, that if the works required to be done were not undertaken in accordance with those orders, the respondent would be entitled to a money order based on the average of the complying quotes provided by the parties. In such circumstances, to hold that the respondent is not entitled to pursue that course because it did not file a renewal application would be to disregard the effect of the agreement of the parties as embodied in the Consent Orders on a technicality. This is particularly so having regard to the fact that the appellant did not object at any time prior to this appeal to the Tribunal taking the course it did. If the respondent was as a matter of technicality required to file a Renewal Application, we are prepared to accept that the matters necessary to be considered by the Tribunal in determining the quantum of the money order payable to the respondent (the consent to such a money order already having been given by the appellant), would have been effectively the same as it undertook in this case. That is, the Tribunal would have had to consider the nature and content of the quotes and decided whether they were "from appropriately licenced builders to complete the Building Work and obtain certification"… That is exactly what the Tribunal did. We would not uphold the appeal on the basis that the Tribunal ought to have insisted that the respondent file a Renewal Application.
We also reject the appellant's submission that unless there were 6 quotes before it, the Tribunal could not undertake the averaging exercise. Such a construction would mean that the appellant could frustrate the whole of the application for a money order by, for example, not submitting any quotes at all or quotes that it knew did not comply with the Consent Orders.
The parties had agreed and were obliged to place before the Tribunal, for the purposes of calculating the sum of the money order, quotes by appropriately licenced builders for the completion of the Building Works. We agree with the submission of the respondent that a proper construction of the orders is that a quote obtained by the parties must be a quote that was from an appropriately qualified builder to complete the Building Works so as to enable those works which were capable of being certified, to be certified. If the appellant did not do so, it would be a perverse result that, as it submits, the proceedings should be dismissed and the respondent forced to try to bring fresh proceedings.

Did the Tribunal err in finding that the appellant's quotes did not comply with order 7?

The next question to consider is whether the Tribunal erred in concluding that the 3 quotes provided by the appellant did not comply with order 7 of the Consent Orders.
The Tribunal's reasons for reaching its conclusions on this issue can be found in its reasons and orders of 9 February 2016, in particular at [23]-[27]. There the Tribunal considered each of the 3 quotes obtained by the respondents (at [23]) and the appellant (at [24]). The Tribunal then said: 25. The intent of Consent Order 7 is that the Building Works are to be completed by licenced contractors so that the Building Works may be certified. The scope of works prepared by Barsons (sic) sets out the works that need to be carried out. The builder has failed to carry out those works. If Barnsons is to structurally certify the works as the parties agreed in the consent orders then the work needed to be done is as set out in the scope of works. The quotes obtained by the home owner conform to the work required to complete the works so that certification can be obtained. 26. The quotes obtained by the builder are deficient as they have not been prepared in conformity with the intention of the Consent Orders and are limited to merely carrying out repair work to the verandah without reference to the work required to satisfy the condition that it must be done in accordance with Barnsons scope (specifications) in order to obtain Barnsons structural certification. In addition, the quote from Stotts is not from an appropriately licenced contractor. It may be that Stotts have also breached the provisions of the Home Building Act in that they hold themselves out to carry out residential building work when unqualified to do so. The Tribunal makes no findings in this regard. For those reasons the quotes obtained by the builders cannot be relied upon for use in the formula for averaging the cost of all six quotes to determine the amount of the order for the payment of money. 27. As a result the Tribunal determines that the only quotes capable of being used for averaging for the purposes of Consent Order 7 are the quotes obtained by the home owner. The average of those three quotes is $241,884.00.
The appellant submits that the reasons given by the Tribunal were not adequate and made without proper evidence. In the alternative, it submits that the quotes obtained by the respondent were not quotes in accordance with Consent Order 7 and could not be used to undertake an averaging exercise in order to calculate the amount of the money order payable by the appellant to the respondent.
We reject the submission that the Tribunal's reasons on this matter were not adequate. In Collins v Urban [2014] NSWCATAP 17 at [57] the Appeal Panel considered several authorities dealing with the nature and extent of the duty of the Tribunal to give reasons. Relevantly, it was said that the content and detail of the reasons for decisions to be provided will vary according to the nature of the particular matter the subject of the decision. The authorities indicate that the decision maker is not required to address and reconcile every contradiction or inconsistency in the evidence, or to give lengthy or elaborate reasons. What is necessary is that the essential ground or grounds upon which the decision rests should be articulated.
In this case, in our opinion, the Tribunal gave adequate reasons. It considered each of the quotes provided by each of the parties and compared them to the requirements of the Consent Orders, namely, quotes from suitably licenced builders to complete the Building Works and obtain certification. It adequately explained why the quotes from the respondent were acceptable and why those of the appellant were not. True it is that the appellant had served quite detailed submissions on this point and that the Tribunal did not engage specifically with those submissions, but it did not need to as long as the reasons for it reaching its conclusions exposed, as they did, the essential grounds for the conclusions it reached.
Further, we do not accept the "no evidence" ground, namely that the Tribunal's findings on this issue were made without evidence. The Tribunal had before it the quotes for each party and was able to assess whether they were in accordance with what was required having regard to the terms of those orders. We reject the appellant's submissions otherwise.
In our opinion, the conclusion of the Tribunal that the appellant's quotes were not as required by the Consent Orders, was open to it and should not be disturbed.
The appellant also submits that the 3 quotes provided by the respondent did not in fact comply with the terms of Consent Order 7. It submits that the 3 quotes do not quote a price "to complete the building works" rather they quote a price to do all of the works from scratch. It submits that to comply with the Consent Orders, the quotes were required to specify what works had been done and then price the works that needed to be done so as to comply with the original specification and provide certification. It submitted that none of the quotes provided by the respondent identified these matters with any clarity. It also submitted that the fact that each of the quotes is for an amount greater than the original claim (which was for $163,975.52) means that "it flies in the face of reality" that these quotes could be to complete the Building Works. It submitted that in those circumstances, the Tribunal ought to have found that the 3 quotes provided by the respondent did not comply with Consent Order 7 and dismissed the proceedings.
The respondent disputes that the original claim was as stated by the appellant. It submits that the original claim was in fact for $300,000.00 as set out in the amended points of claim filed 22 April 2014. It further submits that it is incorrect to say that a substantial amount of the work that was to be done, had in fact been done. It notes that the certification work of Mr Bassingthwaite referred to incomplete work and that there was ample evidence of incomplete or poorly performed worked which needed to be done. It submits that there are no errors in the Tribunals reasons or the conclusions that it reached.
We do not accept the appellant's submissions. It is clear from the amended points of claim that the amount of the claim was, as the respondent submitted, $300,000.00. In any event, the evidence before the Tribunal supports the respondent's submissions that work undertaken by the appellant was incomplete or defective. Even if the quotes to complete the work were for an amount in excess of the original claim (which we do not accept), this alone would not dictate a finding that the quotes could not be for work to be done necessary to complete the Building Works. There may be range of reasons why the amount of the quotes may be higher than the original claim: the effluxion of time and increase in prices for labour and materials and the necessity to undertake remedial works of work already undertaken which could effectively mean the work needs to be done again are just two.
We are of the opinion that the appellant has not established that the Tribunal erred in it conclusion that the three quotes provided by the respondent were in accordance Consent Order 7 and that it was entitled to average those quotes to reach the amount payable by way of the money order. We would therefore dismiss the appeal.

Orders with respect the $23,931.28 held in trust

Consent Order 5 provided that Mr & Mrs Dalton (in effect on behalf of the respondent) pay into the trust account of Mr Peter Merity, solicitor for the respondent, the sum of $23,931.28 on or before 29 June 2015. That order was complied with. As we understand it, the amount represented an amount outstanding under the building contract from the respondent. It was the subject of proceedings HB 14/36216 brought by the appellant against the respondent.
Consent Order 6 provided that within 7 days of receipt of the certification from Barnsons, that amount would be paid to the appellant. There has been no certification of the work and, as there has now been a money order made in favour of the respondent and the appellant has failed in its appeal, the question arises as to what is to be done with this amount.
On 19 April 2016 the Appeal Panel made orders that the decision of 9 February 2016 be stayed on certain conditions dealing with the payment of the amount ordered by way of money order being paid into Mr Merity's trust account in instalments.
At the hearing, the Appeal Panel asked that the parties have discussions as to how the amount of $23,931.28 be treated and, if there was agreement, file consent orders. We have received correspondence from the solicitors for each party. Unfortunately there is no final agreement as to the form of consent orders, however, there appears to be substantial agreement as to how the amount is to be paid.
On 23 June 2016 the solicitors form the respondent sent a letter to the solicitors for the appellant. That letter referred to an email from the solicitors for the appellant dated 6 June which enclosed draft orders as to how the money held in trust should be dealt with. We do not have the 6 June email or the orders attached to it.
The letter of 26 June attached orders singed by the solicitor for the respondent which were apparently the same as the draft orders emailed on 6 June save that order 4 of the 6 June proposed orders was deleted.
The orders sent on 23 June provided that: 1. Order 6 of the Tribunal in proceedings HB 13/62098 and HB 14/36216 ("the Tribunal Proceedings") is vacated. 2. Order 1(a) of the Appeal Panel dated 19 April 2016 be varied so that the final instalment payment of $21,884.00 shall be paid to the respondent out of the money held, pursuant to order 5 on 21 May 2016 in the Tribunal Proceedings, in the trust account of Peter Merity Solicitor Pty Limited. 3. The balance of the money held pursuant to Order 5 made on 21 May 2015 in the Tribunal Proceedings, in the trust account of Peter Merity Solicitor Pty Limited, being $2,047.28, be paid forthwith to the Appellant.
On 30 June 2016 the Appeal Panel received an email from the solicitors for the appellant which enclosed proposed orders. Those orders are the same as the proposed orders of 23 June signed by the solicitors for the respondent save that they include an order 4 which provides that "in the event that the order of the Tribunal made on 9 February 2016 is set aside by the Appeal Panel, the amount in orders 2 and 3 shall be paid or repaid as directed by the Appeal Panel".
On 30 June 2016 the Appeal Panel also received a letter from the solicitors for the respondent which stated that they did not agree with the orders proposed by the appellant. It maintained that the orders that should be made are those set out in the proposed consent orders of 23 June 2016.
In the circumstances, whilst we do not know what the proposed order 4 of the orders sent by the email from the solicitors for the appellant on 6 June provided for, as the first three orders dealing with the money are exactly the same, we are prepared to make those orders. The parties are in agreement about that save for the appellant seeking to allow the Appeal Panel to make different orders if the appeal was allowed and the orders made by the Tribunal were set aside. That will not be the outcome of the appeal. As such, we will make orders in accordance with those in the orders sent by the solicitors for the respondent on 23 June 2016.

Costs

Each party seeks costs of the appeal. The respondent in its submissions dated 28 April 2016 seek those costs on an indemnity basis. However, as the appellant points out in its submissions in reply dated 6 May 2016, there is no basis set out for that submission. The appellant submits that costs should be the subject of separate submissions after the appeal is determined. We agree.
We will order that if any party wishes to make submissions as to costs of the appeal, they should each file and serve written submissions of no longer than 5 pages within 14 days from the date of publication of these reasons.

Orders

For the above reasons, the orders we make are: 1. The appeal is dismissed. 2. Order 6 of the Tribunal in proceedings HB 13/62098 and HB 14/36216 ("the Tribunal Proceedings") is vacated. 3. Order 1(a) of the Appeal Panel dated 19 April 2016 be varied so that the final instalment payment of $21,884.00 shall be paid forthwith to the respondent out of the money held, pursuant to order 5 on 21 May 2016 in the Tribunal Proceedings, in the trust account of Peter Merity Solicitor Pty Limited. 4. The balance of the money held pursuant to Order 5 made on 21 May 2015 in the Tribunal Proceedings, in the trust account of Peter Merity Solicitor Pty Limited, being $2,047.28, be paid forthwith to the Appellant. 5. If either party wishes to make submissions with respect to costs of the appeal, they should file and serve written submissions, no longer than 5 pages, within 14 days from the date of publication of these reasons.

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

Amendments 26 August 2016 - Amended spelling of Respondent's name. Inserted 'not' in [46] at line 4. 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: 29 May 2018

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