//
[2025] NSWCATAP 70
General information, not legal advice.
NCAT Appeal Panel
2025-04-08
G Blake AM SC, Principal MemberJ Gatland, Senior Member
Original judgment source is linked above.
Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165
Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50
Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734
Collins v Urban [2014] NSWCATAP 17
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Hunter v Transport Accident Commission [2005] VSCA 1; (2005) 43 MVR 130
Husseini v Girchow Enterprises Pty Ltd [2024] FCAFC 143
Impala Kitchens Pty Ltd v O'Donoghue [2025] NSWCATAP 49
John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61
Maclean v Brylewski [2023] NSWCA 173
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231
Ruthol Pty Ltd v Tricon (Australia) Pty Ltd [2005] NSWCA 443; (2005) 12 BPR 23,923
Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204
United Petroleum Pty Ltd v Lakiss [2025] NSWSC 248
Vella v Mir (No 3) [2020] NSWCATAP 17
Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54
Yuen v Thom [2016] NSWCATAP 243
2022/00394067 (formerly HB 22/56843); 2022/00442608 (formerly HB 22/05293)
(1) the money order of $30,241.96 in favour of Ms Betts;
(2) its claim for a money order for the balance owing under the building contract.
(1) the appeal should be allowed in part in relation to that part of the 1 October 2024 decision in which the Tribunal made a money order in favour of Ms Betts for the cost of rectification of the defective pergola; in that regard, the issue concerning whether the pergola was defectively constructed and the claim for rectification costs matter is remitted for reconsideration to the Tribunal;
(2) the appeal should otherwise be dismissed;
(3) there should be no order as to the costs of the appeal subject to the right of the parties to make an application to vary the costs order.
62 Tribunal to give notice of decision and provide written reasons on request
...
(3) A written statement of reasons for the purposes of this section must set out the following -
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal's understanding of the applicable law,
(c) the reasoning processes that lead the Tribunal to the conclusions it made.
(1) we have decided the threshold question of whether the appeal is on one or more questions of law;
(2) to the extent that the appeal is one or more questions of law, we have decided whether the Tribunal either answered that question or proceeded on an assumption concerning that answer, whether its answer or assumption was correct or incorrect, and whether that answer or assumption was material to the outcome, in the sense that it could have affected the outcome: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [41] (Beech-Jones J) citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 353 (Mason CJ); cited with approval together with other authorities in Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54 at [53]- [54];
(3) to the extent necessary, we have decided whether leave to appeal should be granted in accordance within the principles in Collins v Urban [2014] NSWCATAP 17 (Collins) at [76]-[84], and if so whether any relief should be granted in respect of any material error;
(4) we have decided the costs of the appeal, but have indicated granted leave to the parties to be heard on that question is necessary; and
(5) we have conducted a rehearing on the materials before the Tribunal to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error: Yuen v Thom [2016] NSWCATAP 243 at [14]- [22].
Question of law within s 80(2)(b) of the NCAT Act
"... there was a 'significant possibility' or a 'chance which was fairly open' that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." (emphasis in original)
(1) if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act;
(2) the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach.
"[24] It is not disputed that leave to appeal is necessary. In determining whether leave to appeal should be granted, something more must be demonstrated than that the primary judge's decision was arguably wrong. What is ordinarily required to be demonstrated is that the matter involves a question of principle or of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable. Moreover, where, as here, the decision the subject of the application for leave to appeal involves an exercise of discretion, what is required to be demonstrated is error in the House v The King sense." (citations omitted)
(1) Greg Wells (Mr Wells), who was a Director;
(2) Mitchell Friend (Mr Friend), who was a Project Manager;
(3) Ben Mudryk (Mr Mudryk), who was a Construction Manager.
The history of the proceedings at first instance
"(1) Wells Group NSW Pty Ltd [ACN 614817 122] is to pay Ngaire Betts the sum of $30,241.96 within 28 days of the date of these orders.
(2) Save in relation to Order 1 the application to the Tribunal by Ngaire Betts in proceedings 2022/0039 4067 is dismissed
(3) The application to the Tribunal by Wells Group NSW Pty Ltd [ACN 614817 122] in proceedings 2022/0044 2608 is dismissed.
..."
(1) set out the history of the Wells Group proceedings and the Betts proceedings ([1]-[6]);
(2) set out the evidence relied by the parties ([7]-[9]);
(3) found that the Tribunal had jurisdiction to determine both the Wells Group proceedings and the Betts proceedings ([10]);
(4) reviewed the current pleadings in the Wells Group proceedings and the current claim of Ms Betts in the Betts proceedings ([11]-[14]). This review included a reference to plans prepared in December 2020 (the December Plans);
(5) set out the issues to be determined ([15]);
(6) made findings that the building contract incorporated the plans prepared by Sorensen Design & Planning dated 4 April 2020 (the April Plans) and the Quotation dated 22 June 2020 of Wells Group (the Quotation), but did not incorporate the December Plans ([16]-[44]) including:
(a) a summary of the evidence of Mr Wells ([16]-[22]);
(b) a summary of the evidence of Ms Betts ([23]-[39]) which relevantly referred to:
(i) an email of Mr Friend to herself sent on 5 May 2021 referring to an attached a Notice of Practical Completion (the 5 May 2021 Friend email) ([39(2)]);
(ii) an email of Mr Mudryk to herself sent on 14 May 2021 at 11.08 AM referring to an attached a Notice of Practical Completion (the 14 May 2021 Mudryk email) ([39(4)]-[39(5)]);
(iii) an email of Mr Mudryk to herself sent on 19 May 2021 "requesting her to attend to the final payment and sign the negative variations set out in the email and accompanying the Practical Completion Letter" (the 19 May 2021 Mudryk email) ([39(6)]);
(c) findings in relation to the documents which made up the building contract ([40]-[44]);
(7) found that Wells Group had not achieved practical completion under the building contract and on 14 September 2021 repudiated the building contract ([45]-[60]) including:
"...
50 In his affidavit dated 2 March 2022 Mr Wells had given evidence that the final invoice dated 21 May 2021, upon which the claim as to Practical Completion was based, had included "negative variations" VQ06, VQ07, VQ08 and VQ09 for the following amounts:
51 Ms Betts said that she had never agreed to reduce these items. Mr Wells referred to a site meeting on 5 May 2021. However, promptly after the site meeting, on 6 May 2021 Ms Betts f had filed a complaint with NSW Fair Trading alleging:
"My HIA renovation contract was scheduled to be completed within 14 weeks. At week 37, my builder informed me that it was now impossible for him to complete a key component of the renovation."
52 Clause 1 of the Contract defined "practical completion" as when the building works are complete, except for minor omissions and defects, that do not prevent the building works from being reasonably capable of being used for their usual purpose. Ms Betts included a copy of the "Completion Inspection" report by the independent Building Certifier dated 23 June 2021. The works were described as "satisfactory" subject to "complete remaining approved works (carport bathroom) in accordance with approved plans, alternatively lodge a modified Construction Certificate to have these works removed."
53 The question that arises is whether, notwithstanding the issue of the "Completion Inspection" certificate from the certifier, Practical Completion had been achieved.
54 The plans building show that the garage which was to be converted into the studio had a square shape of approximately 4.5 m X 4.5 and directly adjoins the house. The conversion of the garage was the only significant indoor component of the Contract works. In her affidavit, Ms Betts gave evidence that she had intended to use the studio for a variety of purposes, including a Pilates/art studio, a home office and/or a separate self-contained guestroom. However she cannot presently use the studio as the flooring in the bathroom remains incomplete, the vanity has not been supplied installed (which means it cannot be used as an art studio as there is no sink,) the floor in the bathroom has been cemented over without installation of plumbing, and the flooring in the studio is yet to be laid. Plus, skirting and cornices are yet to be installed and the framing for the walls has not been done. It is evident the
...
57 In my opinion, the failure by Wells to complete the studio and the bathroom as was required by the Contract was more than a minor omission and defect. It was not absolved by the unilateral negative variations relied on by Mr Wells. For this reason, I find that Practical Completion in terms of the definition of that term in clause 1 of the Contract had not been achieved.
..."
(8) found that Ms Betts lawfully terminated the building contract ([61]-[66]);
(9) found that Wells Group was not entitled to the amount of the final payment on a quantum meruit ([67]-[69]);
(10) found that Ms Betts was entitled to damages of $30,241.96 for defective and incomplete work ([70]-[74]) including:
"70 Having regard to the Joint Expert Report and the evidence given by Mr Nisbett and Mr Shepherd my findings in relation to Ms Betts' claim in relation to defective and incomplete work are as follows:
As noted above the April Plans: contained an image of the roof of the pergola in alignment with the roof of the home, and, a note stating "PATIO STUDIO ROOF TO MATCH EXISTING".
The Quotation also referred to "re-roof over existing pergola and over studio." In my opinion, this claim is established. In the Joint Report Mr Nesbitt calculated the cost of rectification at $12,800.00. Mr Shepherd. Did not express an opinion on quantum. This claim will be allowed in the sum of $12,800.00 In his supplementary report Mr Nesbitt also identified a further defect in that the new eaves fascia had not been constructed in line with the existing eaves fascia. Given that I have allowed the defect in relation level of the pergola roof, I find that the claim defect in relation to the new eaves fascia, falls away.
...
74 Set out below is a Table summarising my findings in relation to the defective and incomplete items.
Allowance for supervision, overhead, Preliminaries and profit-33.5%
(11) found that Ms Betts was not entitled to liquidated damages ([71]-[72]);
(12) found that Ms Betts had not established her claims in relation to errors made by Wells Group in relation to variations and prime cost items ([73]-[74]);
(13) found that Ms Betts was entitled to a money order ([75]-[78]);
(15) set out the procedural orders for the determination of costs ([80]).
(1) in section 5A appeals against orders 1 and 3 of the 1 October 2024 orders;
(2) in section 5B sets out its grounds of appeal;
(3) in section 5C sets out the orders which it contends the Appeal Panel should make;
(4) in section 6B states that it is asking for leave to appeal.
(1) Applicant's Written Submissions dated 20 February 2025 (the Wells Group appeal submissions);
(2) Respondent's Outline of Submissions dated 4 March 2025.
(1) Appellant's Written Submissions dated 11 March 2025 (the Wells Group clause 21 submissions);
(2) Respondent's Supplementary Submissions dated 14 March 2025 (the Betts clause 21 submissions);
(3) Appellant's Written Submissions dated 17 March 2025 (the Wells Group clause 21 submissions in reply).
Whether the appeal is on one or more questions of law
"Part 5B. Grounds for Appeal
1. The learned Senior Member erred in finding that the appellant had not achieved practical completion (at [57] of the Judgment) in that the learned Senior Member failed to consider and apply clause 21 of the contract and only considered the definition of clause 1 of the Contract and failed to consider that the parties had complied with the procedure set out in clause 21 of the Contract.
2. The learned Senior Member erred in finding that the applicant failed to complete the works in that the Senior Member erred in:
2.1 finding that there was no corroborating evidence given by Mr Wells that it was not possible to "meet code";
2.2 relying on hearsay evidence given by the respondent (at [56] of the Judgment);
2.3 relying on hearsay evidence that was not put to the applicant in cross-examination.
3. The learned Senior Member erred (at [59] of the Judgment) in finding that the applicant was not entitled to issue its final invoice and was not entitled to payment for the works under the Contract.
4. The learned Senior Member erred in finding that the respondent had validly terminated the Contract.
5. The learned Senior Member erred in finding that the pergola was a defect in that the learned Senior Member failed to properly construe the "works" the subject of the contract and wrongly construed the "quote" which formed part of the Contract.
6. The learned Senior Member erred in finding that the respondent was entitled to liquidated damages.
7. The learned Senior Member erred in failing to consider the negative variations when calculating the quantum of the defects.
8. Orders 4 & 5 of the Judgment are in relation to costs and it has been proposed by the parties but is awaiting determination or it has been accepted by the Tribunal that these orders are adjourned pending withdrawal or determination of this Appeal. The Appellant says:
8.1 The costs of the proceedings at first instance can be determined following determination of this appeal by the Appeal Panel; or;
8.2 The costs of the proceedings at first instance can be remitted back to the learned Senior Member following determination of this appeal.
Part 6. Leave to Appeal
Question of Law
9A. Appeal ground 1 is on a question of law, that is whether the learned Senior Member applied clause 21 of the contract, dealing with practical completion, to determine whether practical completion had been achieved.
9B. Appeal ground 2 is on a question of law, that is whether the learned Senior Member took into account irrelevant considerations and failed to take into account relevant considerations in determining whether certain works could be completed and how that effected practical completion.
9C. Appeal ground 4 is on a question of law, that is, the proper construction of the contract."
(1) said ground of appeal 1 in substance raises the question of whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider the issue of whether practical completion within clause 21 of the building contract was reached;
(2) withdrew ground of appeal 2;
(3) said ground of appeal 5 raises the question of whether the finding of the Tribunal in the 1 October 2024 reasons at [70(4)] was against the weight of evidence and/or the proper construction of the building contract as to the works to be performed;
(4) accepted that ground of appeal 8 did not arise in the appeal as there was no costs decision.
"Clause 1. Interpretation
1.1 In this contract:
...
"building works" means the building works to be carried out, completed and handed over to the owner in accordance with this contract as shown in the contract documents and includes variations;
"contract" means the agreement between the builder and the owner set out in the contract documents;
"contract documents" means these general conditions, any special conditions, the plans, the specifications and other documents specified in Schedule 5
...
"date of practical completion" means the date that is deemed to be the date of practical completion under Clause 21 except where the date is determined 21 by dispute resolution (including litigation) then it is that date:
...
"notice of practical completion" means the notice given by the builder to the owner under Clause 21;
...
"practical completion" as when the building works are complete, except for minor omissions and defects, that do not prevent the building works from being reasonably capable of being used for their usual purpose;
..."
"Clause 21. Practical Completion
21.1 The builder must give the owner a notice of practical completion at least 5 working days prior to practical completion being reached.
21.2 The notice of practical completion is to:
(a) state the builder's assessment of the date of practical completion;
(b) state the date and time for the owner to meet the builder on the site to carry out an inspection of the building works; and
(c) have attached the builder's final progress claim.
21.3 The owner must meet the builder on the site for the inspection at the date and time stated by the builder in the notice of practical completion or at a date and time otherwise agreed with the builder and either:
(a) pay the amount of the final progress claim; or
(b) if the owner believes that the building works have not reached practical completion give the builder a written notice detailing anything to be date to reach practical completion.
21.4 lf the owner pays the amount of the final progress claim under subclause 21.3(a) the date of practical completion stated in the notice of practical completion is deemed to be the date of practical completion.
21.5 lf the owner gives the builder notice under sub-clause 21.3(b) of work to be completed:
(a) the builder must carry out any work required for practical completion and give the owner a further notice of practical completion; or
(b) if the builder does not agree that there is any further work to be carried out to reach practical completion the builder:
(i) must give the owner written notice rejecting the owner's notice. In this case, such a notice will also serve as notice of the matters in dispute for the purposes of Clause 35;
(ii) is not obliged to carry out any further work on the site while the dispute remains unresolved.
21.6 If the owner does not pay the amount of the final progress claim under subclause 21.3(a) or give the builder a notice under sub-clause 21.3(b):
(a) the amount of the final progress claim is deemed to be a debt due and owing from the owner to the builder;
(b) the date of practical completion stated in the notice of practical completion is deemed to be the date of practical completion; and
(c) the owner acknowledges the building works have reached practical completion.
21.7 On the owner paying the final progress claim, the builder must give the keys, certificates, warranty documentation and other documents pertaining to the building works to the owner."
(1) in the Amended Points of Claim of Wells Group dated 28 July 2023:
"...
3 It was a term of the Contract that:
i. the Respondent must give notice the Applicant notice of practical completion at least five working days prior to practical completion being reached (Completion Notice);
ii. the Respondent must meet the Applicant at the Property either at the time stated on the notice or at another time agreed;
...
3A On 21 May 2021, the Applicant served a Completion Notice on the Respondent.
...
5A On 25 May 2021, the Applicant arranged with the Respondent to meet at the Property in accordance with the term described in sub-paragraph 3(n)(ii).
..."
(2) in the Further Amended Points of Defence of Ms Betts dated 16 August 2023:
"...
3. In answer to paragraph 3 of the Claim:
...
(h) in answer to sub-paragraphs (I) - (n), the Respondent says the Contract applies in accordance with its terms and otherwise denies the balance of the sub-paragraphs.
3A. The Respondent denies paragraph 3A of the Claim.
...
5B. The Respondent denies paragraph 5A of the Claim.
..."
(1) in the Further Amended Points of Cross-Claim of Ms Betts dated 16 August 2023:
"...
Purported Completion
11. On or about 21 May 2021, the Builder:
(a) sent to the Owner a notice, purportedly pursuant to the Contract, notifying the Owner that practical completion "has been met" (PC Notice); and,
(b) sent to the Owner its Tax Invoice 0962 in the sum of $30,728.58, purportedly being its final progress claim under the Contract (Final Progress Claim).
Particulars
(c) Email from the Builder's Ben Mudryk dated 21 May 2021 at 5:00pm.
12. The PC Notice and Final Progress Claim were issued contrary to the terms of the Contract.
Particulars
13. On or about 28 May 2021, the Owner sent a notice to the Builder pursuant to clause 21.3(b) of the HIA Terms, disputing that practical completion had occurred and asserting that the Work is incomplete and defective.
14. The building works:
(a) have not reached the fourth and final stage specified by Item 4 of Schedule.2 of the HFA Terms:
(b) have not reached practical completion; and,
(c) are not actually complete.
..."
(2) in the Amended Defence to Points of Cross Claim of Wells Group dated 13 October 2023:
"...
11. The Applicant admits paragraph 11, but otherwise denies the scope of the works and contract as defined in the Cross Claim.
12. The Applicant denies paragraph 12.
13. The Applicant admits the Respondent sent a notice and otherwise denies the balance of paragraph 13.
14. The Applicant denies paragraph 14.
..."
(1) opening submissions relying on clause 21 (mistakenly referred to as clause 27) of the building contract (Tcpt, 21 March 2024, p 2.007.5-29):
"... And then to cut a long story short, on the 5th of May 2021 there was a site meeting. At that site meeting there were certain issues that needed to be attended to prior to practical completion being achieved. A list of those issues was sent by the builder to the homeowner on the 5th of May 2021 and that's at page 930 of the tender bundle. Following that, the final remainder balance sorry a balance of money was paid to the builder. The builder attended site, completed those items listed and on the 14th of May 2021 in an email which is at page 928, advised that the works were complete save for some works which were unable to be completed because of the Building Code of Australia and sited clause 40.2 of the contract dealing with that and attached to that email a letter notifying practical completion. Ms Betts responded in a series of emails where she indicated we say that she had agreed to practical completion. She indicated she would sign practical completion but was too sick to do so at the time. On the 21st of May 2021 the builder attended the site on the last occasion, undertook the final works and then subsequently issued the notice of practical completion and the final invoice and that final invoice was in the sum of $30,728.58.
SENIOR MEMBER ARCHIBALD: What was the amount? 30...
A JUSTICE: $30,728.58. And that's the amount of the claim on this application, although having said that, I'll come to it in a moment, it's now been reduced and that invoice relevantly is at, there's a number of the copies but the best copy is at tender book 592. There was at that stage no notice given to the builder about rejecting practical completion or in accordance with clause I think it's 27 of the contract. On 28 May a notice of default was given by the homeowner outlining some issues with prime cost and provisional sum items as well as delay which again is not an issue in these proceedings. Subsequently an invoice, a revised final progress claim was issued on the 15th of June 2021 in the sum of $28,488.54 making certain adjustments for the issues raised in the correspondence and that document is at tender bundle page 604."
(2) closing submissions relying on clause 21 of the building contract (Tcpt, 17 April 2024, pp 2.160.19-2.161.21):
"MR A JUSTICE: Now, so the builder's case is that it seeks some of its final payment, which is if you have a look at the chronology issued on the 28th of June I think it is 2021. No. 15th of June 2021 at page 604 in the amount of $28,488.54. There is an issue about practical completion. If I can just take you back to. Well, some would say there's an issue. The Defendant raises practical completion as an issue. Practical completion is dealt with at clause 27. And I'm sorry this isn't as thorough as one might like.
SNR MEMBER IAN ARCHIBALD: That's alright. What was that page?
MR A JUSTICE: It is page. Sorry. My apologies. Not clause 27, clause 21. And it's on 512. Practical completion.
SNR MEMBER IAN ARCHIBALD: Okay. Right.
MR A JUSTICE: The builder must give the owner a notice of practical completion. At 21.1, notice of practical completion five days prior to practical completion being reached.
SNR MEMBER IAN ARCHIBALD: Right.
MR A JUSTICE: Now in the transcript at page. I'll just get this up here. At page 144 of the transcript you'll see that evidence was put to Ms Betts about her receiving notice of practical completion on the 5th May, the 14th of May and 19th of May. And that's commencing at about line 23.
SNR MEMBER IAN ARCHIBALD: Okay.
MR A JUSTICE: Page 144 of the transcript. And above that you'll see commencing at page 142. Sorry I withdraw that. Commencing at page 141, about line 21, cross-examination of the meeting of the 5th of May and then an email of the 5th of May with a notice of practical completion. And the relevant transcript pages are in those dates. The relevant transcript pages are also referred to in the third column of the chronology that I handed up for each of ...
SNR MEMBER IAN ARCHIBALD: Okay.
MR A JUSTICE .... the 5th, the 14th and the 19th, And you'll see that, if one goes back to, if one goes back to paragraph 21.1, and the note, having given notice at least five working days prior, there were three, on three occasions notices were given prior. There was a list of defects that were agreed to be rectified.
SNR MEMBER IAN ARCHIBALD: Yeah.
MR A JUSTICE: And that's in those emails. I think that's on the 19th and, sorry on the 5th of May and on the 14th of May.
SNR MEMBER IAN ARCHIBALD: Right.
MR A JUSTICE: On the 2l of May they were rectified. And you'll see 21.2 has been complied with when one looks at those emails and the notices, 21.3 the owner must meet the builder on site for inspection. And there were two meetings. There was one of the 5th of May and one of the 14th May. There was meant to be another meeting. And there was another meeting scheduled but that was cancelled. Initially it was meant to be on the 21st of April if I'm not mistaken, that was cancelled and put back seven days and then cancelled by Ms Betts. Now the builder carried out the works that were identified to be carried out in the list of items. And under 21.5, at 21.6, the owner has not paid the amount and it is a debt due and payable. ..."
(1) notwithstanding that there was unnecessary reference to the 5 May 2021 Friend email, the 14 May 2021 Mudryk email and the 19 May 2021 Mudryk email in the Wells Group opening and closing submissions at the hearing at first instance, this issue was clearly raised on the pleadings in each of the Wells Group proceedings and the Betts proceedings;
(2) there was no analysis by the Tribunal in the 1 October 2024 reasons as to whether each of the sequential steps under clause 21 was carried out by Wells Group and Ms Betts as the case may be, and as to why there was no deemed practical completion within clause 21.6(b);
(3) the reference by the Tribunal in the 1 October 2024 reasons at [52] to the definition of "practical completion" in clause 1.1 of the building contract did not engage with clause 21;
(4) the evidence of Ms Betts in relation to the 5 May 2021 Friend email, the 14 May 2021 Mudryk email and the 19 May 2021 Mudryk email in the 1 October 2024 reasons at [39(2)]-[39(6)] was irrelevant to the question of whether practical completion within clause 21 was reached in view of the fact that the first step within that clause was taken on 21 May 2021.
Whether the error in answering the question of law was material to the outcome
Whether practical completion within clause 21 of the building contract was reached
(1) which was in the following terms:
"As I have stated in my previous email, we had labour on your site today (Friday 21st May) to complete all remaining items as requested.
The only item outstanding is 2 pieces of balustrade glass which will be installed by COB Tuesday 25th May.
See attached the following items:
Item 1 - notice of practical completion in accordance with clause 21 Practical Completion of the HIA contract signed 25th June 2020
Item 2 - Final Claim - In reference to clause 21.3 of the HIA contract signed 25th June 2020 I have requested we meet onsite as of today's date 21st May 2021 to sign off our notice of practical completion, after giving the stipulated 5 days' notice referenced in clause 21.1, however you have requested we meet onsite next Thursday 27th May instead to finalise practical completion in which I agree to this date.
Item 3 - Tax invoice in reference to the final claim, payable as per the terms and conditions
Item 4 - negative variations showing how we came to the deducted amount for the final claim
Please ensure that you have read and understand the attached.
I have been more than reasonable to get a resolution to completing your project and I feel that we need to agree to what has been attached so we can both move on and stop this unwarranted stress on the both of us.
Can you please let me know a time next Thursday that we can meet up to conclude this and ill endeavour to clear my schedule to meet."
(a) Notice of Practical Completion of Wells Group dated 21 May 2021 (the 21 May 2021 Wells Group notice) which was in the following terms:
"In accordance with NSW Residential Building Contract for Renovations and Additions dated the 25/06/2020, as per clause 21. Practical Completion, Wells Group NSW PTY LTD are notifying the client that practical completion has now been met (excluding glass balustrade down the stairs which will be getting installed on Tuesday the 25/05/21). Following on from this practical completion notice dated the 21/05/21 we will issue our final progress. Wells Group NSW PTY LTD are requesting that the client signs and returns this document agreeing that practical completion has been met and the defect liability period has commenced. On behalf of Wells Group NSW Pty Ltd I would like to that (sic) you for your business."
(b) Final Claim entitled "Final Progress Claim No. 5 -21st May 2021" which contained a summary with four attachments;
(c) Invoice Number INV-0962 dated 21 May 2021 for $30,728.58 inclusive of GST (the 21 May 2021 Wells Group invoice) which was relevantly in the following terms:
"This invoice is for the Final Progress Claim No:05 as per the Final progress claim template emailed to the client on the 21/05/21.
This claim Is for the completion of Stage 4, as well as negative variations VQ06, VQ07, VQ08 and VQ09."
(d) Variations VQ06, VQ07, VQ08 and VQ09 each dated 5 May 2021 (which are summarised in the 1 October 2024 reasons at [50]).
(1) which was in the following terms:
"Please refer to the attached letter.
I can confirm that I will not meeting with Custom Built today at 1pm as previously planned.
My apologies for the inconvenience."
(2) Which attached the notice dated 28 May 2021 of Ms Betts to Mr Wells (the 28 May 2021 Betts notice) which was in the following terms:
"CLAUSE 27. SUBSTANTIAL BREACHES BY BUILDER - NOTICE OF DEFAULT
References:
A. HIA Contract dated 25 June 2020
B. Custom Built Quote 1152 dated 22 June 2020
C. Sorensen Final Plans drawn 14 December 2020
Clause 19. Delays and Extensions of Time
1. Renovation work commenced at my property on the 13th July 2020 with a contractual period of 14 weeks with Wells Group Pty Ltd trading as Custom Built. Without explanation or notice under Clause 19, my renovation is incomplete at week 46 and 32 weeks or 8 months, overdue.
Clause 21. Notice of Practical Completion & Incorrect Advice given to HBCF
2. On the evening of 21st May 2021, I received an email from Custom Built advising they were giving me 5 working days Notice of Practical Completion by COB 26 May 2021 of my renovation at [address omitted] Nelson Bay.
3. Accordingly, under the provisions of Clause 27 of the HIA Contract, the contracted work has not been completed in accordance with References A, B and C. Specifically, the contracted work in the existing garage where the space was extended to create a large studio.
4. Additionally, I received an email from icare HBCF on Monday, 24 May 2021 at 8:39am, where it says "Your builder has told us that your residential building project covered by a Home Building Compensation insurance policy issued by icare HBCF as detailed below is now complete". This is untrue nor has a A Notice of Practical Completion been signed by either party.
Clause 20. Prime Cost and Provisional Sum Items
5. I have made numerous written and verbal requests for paperwork to be raised or amended regarding variations to PC Items. I have email requests that are over 8 months old that were never actioned prior to the next progress payment. Custom Built recently justified their perceived right of non-disclosure to me last week because the earlier Progress Payment has already been made. This is concerning and suggests the builder has either deliberately stalled or at the very least, negligently failed to manage variations before Including unauthorised prices to be included in the next Progress Payment. Their failure to provide evidence under HIA Clause 20 constitutes a Breach by the Builder.
6. The following are examples of outstanding PC irregularities that must be examined:
a. Around August/September last year, Aaron Phillips discussed the possibility of changing the steel beam to another product. I was told that it might be more expensive but "it would look better than steel" and when they came back with a price, I was told "it costs more but "(we) are happy to wear the cost". The budget for the PC item was $3300 (inc GST). I was never shown an image of what the item looked like or what the new product was made of. I was just concerned that the item had to be engineered to accommodate the weight of the pergola. I subsequently discovered that the new beam is a far inferior product to steel and the actual cost was approximately $677.38 (ex GST) and have quotes by NHS Pty Ltd to corroborate this.
b. In early 2021, I had a telephone conversation with Mitchell Friend specifically to discuss the beam, I asked him would they be issuing a variation since the beam product had changed from steel? He informed me that there "was no point since the price hasn't been varied and (we) are going to absorb that cost as we discussed earlier". I also asked about other price variations where I was owed credits and he told me "don't worry, it will all get sorted at the end".
c. PC Item 17.2 of Quote 1152 - I rang Stegbar to check on the status of my studio window delivery date, I was informed that Custom Built had not finalised the order with payment. At the time, Custom Built had walked off my job and I was unsuccessful in having a phone call returned. So the 29th October 2020, I paid the full price of $2360 (Inc GST) so the studio window could be delivered before Christmas as it had a 7 week production wait period before delivery. Even after many conversations subsequent to the delivery and installation of the window, I'm not aware that a credit variation has been raised.
NSW Fair Trading
7. The following are complaints lodged with NSW Fair Trading and their references are in conjunction with Clauses 17 and 35 when no reasonable explanation was provided by the builder:
a. NSW Fair Trading file number 10388117;
b. NSW Fair Trading file number 10388810;
c. NSW Fair Trading file number 10397334;
d. NSW Fair Trading file number 10397349;
e. NSW Fair Trading tile number 10397377;
f. NSW Fair Trading file number 10400283;
g. NSW Fair Trading file number 10400075:
h. NSW Fair Trading file number 10583268;
i. NSW Fair Trading file number 10599922; and
j. NSW Fair Trading file number 10601861.
8. Greg Wells has refused all attempts by NSW Fair Trading to communicate either in writing or verbally and NSW Fair Trading have issued letters to this fact of each file accordingly.
Requested Administrative Actions to Custom Built
9. Request that an internal audit be conducted by Custom Built against actual expenditure for all PC Items and all the necessary documentation be drafted for signature accordingly.
10. In accordance with Clause 20 Prime Costs and Provisional Sum items, I insist that full disclosure is provided to me and all evidence of expenditure far each PC Item is given in both hardcopy and softcopy form, within 10 working days.
11. Once full disclosure of actual spend on all PC items has been established, variations amended accordingly. There are legitimate out of pocket expenses and counter claims that need to be discussed.
Position of Owner
12. So to confirm, I will not sign the Notice of Practical Completion for the reasons detailed above, nor do I interpret that our agreed contract allows for the Stage 4 invoice to be issued UNLESS "Completion of Project" has been made as stipulated by the builder on Page 5 of the Contract.
13. Finally, I have been incredibly patient and entirely helpless to get Custom Built to honour the Contract, including a period of over 12 weeks where no work was undertaken on the site. There has been no explanation given to me why my renovation is now at 46 Weeks since the renovation work began that was a 14 Contractual Build. 32 Weeks over schedule on a small home renovation is negligent and appears to be vindictive, deliberate and incompetent.
14. Failure to disclose or to complete the contractual work by the builder by within the next 10 working days (COB 11 June 2021) to remedy the breaches, will result in Ending the Contract.
15. Accordingly, given the previous lack of ability by the builder to mediate between myself or even NSW Fair Trading, I have had no other option but to lodge proceedings with the NCAT in anticipation that Custom Built refuses to disclose expenditure on PC Items or completes the contracted work. Initially, I am seeking orders for full disclosures for all PC Items, an agreed end of contract price and out of pocket expenses paid plus another builder of my choice completes the renovation and minor defects at your expense."
(1) the 21 May 2021 Wells Group notice complied with the requirements of clause 21.2, save that no time was agreed, but a date (Thursday 27 May 2021) was set out with an invitation to agree upon a time;
(2) a date and time for the meeting pursuant to clause 21.3 was then agreed between the parties. That meeting was to occur at 1pm on Friday, 28 May 2021;
(3) clause 21.3 contains one condition precedent, the attendance at a meeting, and thereafter two mutually exclusive alternatives: payment of the final invoice or provision of a detailed list of works required to be undertaken. On a natural and ordinary reading of clause 21.3 the failure of the condition precedent by Ms Betts (to attend the meeting) means that no notice under clause 21.3(b) can be given. To find that a notice could so be given would be to entirely ignore the chapeaux of clause 21.3 and give that no work to do. As Ms Betts neither paid the invoice nor provided a notice under clause 21.3(b), clause 21.6 is enlivened and there is a debt due and owing to it;
(4) the 28 May 2021 Betts notice should not be accepted as a notice under clause 21.3(b) for the following reasons:
(a) it is entitled "Clause 27 Substantial Breach by Builder - Notice of Default", which does not purport to be made under clause 21.3(b);
(b) the only reference to clause 21 is in the heading above paragraph 2 which states "Clause 21. Notice of Practical Completion & Incorrect Advice given to HBCF". This cannot be construed as a response "detailing" works to be done;
(c) paragraph 2 sets out the fact of the provision of a notice of practical completion. Paragraph 3 appears to accept practical completion and Ms Betts is giving notice of a dispute setting out the grounds of breach pursuant to clause 27.3, being the alleged failure to complete the "contracted work" in accordance with the contract, the quote and the December Plans (which were not part of the contract documents);
(d) a demand to complete the works was made at paragraph 14; however, those works were wider than the study and bathroom and included cement render and other items in the December Plans that were not part of the contract works as found. It could not be accepted that a valid notice requires work to be completed outside the scope of the contracted works;
(e) the work said to be required is in the most vague terms. It is not detailed and does not meet the requirement of clause 21.3(b) detailing the work needed to be completed to achieve practical completion.
(1) the 21 May 2021 Wells Group notice purported to state that practical completion had been met as at the date of the notice (qualified by the subsequent statement that further work would be done on the following Tuesday to complete the installation of a glass balustrade). The notice also failed to appoint the date and time for Ms Betts and Wells Group to meet. As such the notice did not comply with sub-clauses 21.1 and 21.2;
(2) sub-clause 21.3 meets the description as being a procedural term in the light of the tripartite classification of contractual terms as a means of deciding the consequences of breach as explained in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61 (Koompahtoo LALC) at [49], [68];
(3) the failure to meet does not have any consequences for the purposes of sub-clauses 21.4 and 21.5. If the owner pays the amount of the final progress claim under sub-clause 21.3(a), the date of practical completion stated in the notice is deemed to be the date of practical completion. However, if the owner gives the builder a notice pursuant to sub-clause 21.3(b), the provisions of sub-clause 21.5 are activated and the builder must either carry out any further work required for practical completion or give the owner written notice rejecting the Owner's notice and thus trigger a dispute for the purposes of clause 35;
(4) the 28 May 2021 Betts notice met the requirements of sub-clause 21.3(b). While the notice is expressed to be one associated with breach by Wells Group of clause 27, the body of the notice establishes that it also related to clause 21. The heading halfway down the page gave the notice its context using the heading "Clause 21. Notice of Practical Completion and Incorrect Advice Given to HBCF". Paragraph 3 of the notice stipulated that "the contracted work has not been completed in accordance with references A, B and C. Specifically, the contracted work in the existing garage where the space was extended to create a large studio";
(5) Wells Group was under no illusion as to the work it needed to complete as that was the subject of its so-called "negative variations".
(1) Ms Betts submission that the failure to meet does not have any consequences for the purposes of sub-clauses 21.4 and 21.5 flies in the face of the maxim "no [wo]man shall take advantage of his[/her] own wrong" as explained in Ruthol Pty Ltd v Tricon (Australia) Pty Ltd [2005] NSWCA 443; (2005) 12 BPR 23,923 at [20];
(2) the contractual entitlement to give a notice under clause 21.3(b) only arises from clause 21.3. If the owner breaches clause 21.3 by cancelling an agreed meeting and failing to reconvene, at the very least, the owner should not be allowed to profit from that breach. In those circumstances, the 28 May 2021 Betts notice should not be read to be a notice under clause 21.3(b). The consequences of the Ms Betts breach is clause 21.6 applies.
"[151] The task of construction to be undertaken in cases such as this was elucidated in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37, with French CJ, Nettle and Gordon JJ stating at [46]-[51] (citations omitted):
[46] The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.
[47] In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.
[48] Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.
[49] However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.
[50] Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties' statements and actions reflecting their actual intentions and expectations.
[51] Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption "that the parties ... intended to produce a commercial result". Put another way, a commercial contract should be construed so as to avoid it "making commercial nonsense or working commercial inconvenience"."
(1) it should be reasonably understood as stating Wells Group's assessment of the date of practical completion within clause 21.2(a) as being either 21 May 2025 or 25 May 2025, and so was not given to Ms Betts at least five working days prior to practical completion being reached as required by clause 21.1;
(2) it did not state the date and time for Ms Betts to meet the representative of Wells Group on the site to carry out an inspection of the building works as required by clause 21.2(b);
(3) the requirement for strict compliance is indicated by the word "must" in clause 21.1 as well as the importance of the date of practical completion in the building contract:
(a) it is the date of commencement of the defects liability period of 13 weeks as specified in clause 24.1;
(b) the observance of the time stipulation of at least five working days prior to practical completion being reached is important to give the owner an opportunity to prepare a written notice detailing anything to be date to reach practical completion within clause 21.3(b).
Whether Wells Group should be granted leave to appeal, and if so whether any relief should be granted in respect of any material error
Whether Wells Group should be granted leave to appeal
(1) having regard to s 62(3) of the NCAT Act and the observations in Orr at [55], the Tribunal failed to provide adequate reasons for the finding of in the 1 October 2024 reasons at [70(4)] that Ms Betts' claim in respect of the pergola was established. In making the finding "In my opinion, this claim is established" after referring to the April Plans and the Quotation, the Tribunal did not set out either the findings on material questions of fact or the reasoning processes that led to this conclusion;
(2) Wells Group may have thereby suffered a substantial miscarriage of justice because order 1 of the 1 October 2024 orders so far as it includes the cost of rectification of the pergola and consequential allowances was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act on either approach identified in Impala Kitchens at [67];
(3) it is appropriate to exercise the discretion to grant leave to appeal under cl 12(1) of Sch 4 of the NCAT Act in respect of this ground of appeal as the finding of in the 1 October 2024 reasons at [70(4)] that Ms Betts' claim in respect of the pergola was established clearly did not meet the standard for a written statement of reasons specified in s 62(3) of the NCAT Act.
Whether Wells Group it is entitled to any relief
(1) the "North Elevation" which depicts the pergola at the same height as the roof of the dwelling on each side;
(2) the "3D Views" which contain two images of the dwelling which each depicts the pergola at the same height as the roof of the dwelling on each side.
(1) under the heading "Specifications and Inclusions":
"Inclusions
The construction of 2 x tiled decks constructed from timber, studio room and leveling the floor, garage slab, bedding to bathroom, supply and install vanity and re-roof over existing pergola and over studio, All inclusions are as per the line items within the quote"
25.1 Corrugated C/Bond Roofing inc flash, Cap, D/Pipes etc over studio
25.2 New perspex over patio area"
(1) the following description of the pergola (being item 4) by Mr Nisbet:
"I inspected the patio pergola and observed that it has been installed approx. 500mm below the level of the existing roof pitch with a polycarbonate roof covering as depicted in my Reference photos: 24 to 33."
(2) the opinion of Mr Nisbet, after referring to the December Plans, that the pergola is defective because it does not comply with the building contract;
(3) the opinion of Mr Shepherd that the pergola is not defective.
38 Costs in Consumer and Commercial Division of the Tribunal
(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.
(2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if -
...
(b) the amount claimed or in dispute in the proceedings is more than $30,000.
38A Costs in internal appeals
...
(2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.
"[28] Clause 38 gives the Tribunal a wide discretion to make an order for costs. It does not specify the factors the Tribunal must take into account in exercising the discretion, although the discretion to make such an order must be exercised judicially: see, for example, Ruddock v Vadarlis [2001] FCA 1865 at [9].
[29] Where an application has been heard and determined on the merits and Clause 38 applies, the appropriate starting point for the exercise of the discretion is not that the parties are to pay their own costs. Rather, it is the well-established position at common law; that is, that the purpose of making a costs order is to provide compensation to the party in whose favour the order is made for the expense the party has been put to in prosecuting or defending legal proceedings. In general terms, this means that a party who is successful is entitled to an order for costs in its favour, subject to exceptions generally involving misconduct on the part of that party: Latoudis v Casey [1990] HCA 59; [1990] 170 CLR 534; Oshlak v Richmond River Council [1998] HCA 11.
[30] In BNT Constructions Pty Ltd v Allen [2017] NSWCATAP 186 the Appeal Panel, having set aside a costs order made in the Consumer and Commercial Division, decided to re-exercise the costs discretion. Clause 38 was the applicable costs provision in that case. At [67] the Appeal Panel noted the following principles relevant to the exercise of the discretion:
(1) the starting point is that a successful party should be entitled to an order for costs in his favour;
(2) an award of costs is by way of an indemnity and not as punishment;
(3) there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party;
(4) the factors to be considered are not to be confined as to do so would constrain the general discretion;
(5) the relative success of the parties on different issues and the time taken to determine them may be relevant;
(6) the nature of the proceedings is relevant;
(7) the proper exercise of the discretion requires a decision maker to do justice between the parties and to exercise the discretion having regard to relevant considerations and in a manner which is not arbitrary and capricious.
[31] Generally, costs are awarded in favour of the successful party based on the outcome of the proceedings as a whole, without differentiating between particular issues on which the party may not have been successful. That said, a different costs order may be made if the losing party succeeds on significant issues: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [31]- [36]; Sydney Ferries v Morton (No 2) [2010] NSWCA 238 at [10]-[12]. The dollar amount of a particular claim does not determine its dominance in the proceedings. Rather, regard must be had to all of the work involved in prosecuting and defending the parties' various claims, including but not limited to the time taken up at the hearing.
[32] In Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256; (2011) 288 ALR 385, Campbell JA (with Macfarlan JA and Young JA agreeing) held at [107] that an issue or group of issues is "clearly dominant" when it is clearly dominant in the proceedings as a whole. In that case, the approach by counsel to analysing the percentage of costs between the parties - counting the proportion of paragraphs and pages devoted to each factual topic - was held at [84] to be "a highly artificial way of proceeding" which gave "a false air of mathematical precision".
[33] In relation to separable issues, a successful party's entitlement to the whole of the costs of the proceedings should not be discounted to allow for another party's success in a separate issue that played a very minor part in the proceedings as a whole: Macourt v Clark (No 2) [2012] NSWCA 411 at [7]. Further, in Hawkesbury District Health Service Ltd v Chaker (No 2) [2011] NSWCA 30 at [14], the Court of Appeal held that the severability of one issue on which the successful party failed is not, without more, sufficient to warrant departure from the general approach. The exercise of discretion will often depend upon matters of impression and evaluation: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [11]."
(1) whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider the issue of whether practical completion within clause 21 of the building contract was reached, and if so whether the Tribunal made a material error in its finding that practical completion was not reached;
(2) whether the Tribunal failed to give adequate reasons for its finding that Ms Betts' claim in respect of the pergola was established, and if so whether Wells Group is entitled to relief.
(1) The appeal is allowed in part and otherwise dismissed.
(2) Order 1 made by the Tribunal on 1 October 2024 is set aside.
(3) The issue of whether the pergola is defective and the cost of rectification of the pergola if found to be defective is remitted to the Tribunal as originally constituted for reconsideration on the basis of the evidence before the Tribunal at first instance and such further evidence as the Tribunal may allow.
(4) There is no order as to the costs of the appeal.
(5) If any party wishes to make an application to vary order (4) above (the costs application):
(a) the applicant is to lodge and serve the costs application, including submissions limited to three pages and any evidence in support, within seven days of this decision;
(b) the respondent to the costs application is to lodge and serve any submissions limited to three pages and any evidence in response within 14 days of this decision;
(c) the applicant is to lodge and serve any submissions in reply limited to two pages within 21 days of this decision;
(d) the parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the costs application being determined on the papers. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the costs application.
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.
Wells Group Pty Ltd
Betts [2025] NSWCATAP 70
(2020) 103 NSWLR 479
(1990) 170 CLR 321
(2020) 275 FCR 385
(1995) 184 CLR 163
(2005) 43 MVR 130
(2007) 233 CLR 115
(2001) 206 CLR 323
(2015) 256 CLR 104
(2019) 100 NSWLR 578
(2011) 288 ALR 385