Yang v Oppidan Homes Pty Ltd

Introduction

1. These are appeals from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) dated 20 March 2015 (the Decision). In the Decision, the Tribunal considered two applications, namely: 1. Application HB 12/32522, which was an application made by Ms Tao (Ellen) Yang against Oppidan Homes Pty Ltd. 2. Application HB 12/37224, which was an application by Oppidan Homes Pty Ltd against Ms Yang.
2. In these reasons, the Appeal Panel will adopt the same nomenclature used in the Decision, and refer to Ms Yang as "the Owner", and Oppidan Homes Pty Ltd as "the Builder".
3. For the reasons appearing in the Decision, the Tribunal: 1. Dismissed the Owner's claim. 2. In the Builder's claim, ordered the Owner to pay the Builder the sum of $68,097.00.
4. Subsequent to the Decision, on 12 August 2015, the Tribunal published amended reasons (the Slip Rule Decision) pursuant to s 50 of the Consumer Trader and Tenancy Act 2001 (CTTT Act). In those reasons, the Tribunal varied the amount that the Owner was to pay the Builder, increasing the amount payable from $68,079.00 to $76,542.87.00.
5. Both the Owner and the Builder appealed by respectively filing: 1. Appeal AP 15/49779, which is the Owner's appeal in respect of both matters before the Tribunal. 2. Appeal AP 15/51898, which is the Builder's appeal in respect of both matters before the Tribunal.
6. For the reasons that follow, the Appeal Panel makes the following orders: 1. In the Owner's Appeal, AP 15/49779 the Appeal Panel makes the following orders: 1. The appeal is upheld for the limited purpose of reducing the amount payable by the appellant by $47.00; 2. Order 2 made on 12 August 2015 in HB 12/37224 is set aside and in its place the Appeal Panel makes order 3 below; 3. The appellant (Tao Yang) is to pay the respondent the sum of $76,495.87 within 60 days of these orders; 4. The appellant is to pay the respondent's costs of the appeal as agreed or as assessed pursuant to the provisions of the Legal Profession Uniform Law Application Act 2014 subject to the fact that the amount which the appellant is required to pay will be 80% of the amount assessed. 1. (2) In the Builder's appeal, AP 15/51898, the Appeal Panel orders that the appeal is dismissed.

Background

1. The background to the appeals is found in the Decision.
2. The disputes between the parties concern the building of a residential home by the Owner on the Owner's property in Pymble. A standard HIA NSW residential building contract for new dwellings was executed by the parties on 30 September 2012 (the contract).
3. The Decision found that the contract did not provide for progress payments, but the Builder submitted progress payments to the Owner from time to time. The Owner paid those claims, until she received progress claim number 7, in the amount of $277,273.00, at which point the Owner alleged the Builder had overcharged her for the building works.
4. The Owner filed application HB 12/32522 against the Builder on 15 June 2012. She sought payment of $49,900.00 and alleged that the Builder had made a false claim and overcharged for provisional sum items and variations. She also alleged the Builder refused to rectify defects.
5. The Tribunal dismissed the Owner's application.
6. The Builder filed application HB 12/37244 against the Owner on 17 July 2012. It alleged that the Owner had breached cl 15.5 of the contract by failing to pay the final progress claim, and sought payment of $116,427.00.
7. The Tribunal allowed the Builder's claim in part, ordering the Owner to pay $68,097.00 within 60 days, which sum in the Slip Rule Decision was increased to $76,542.87.

The Owner's Notice of Appeal

1. The Owner appeals in respect of both the Decision and the Slip Rule Decision.
2. By her Notice of Appeal filed 27 August 2015, the Owner identifies many grounds of appeal. These grounds may be considered in three groups: 1. Factual errors made by the Tribunal including: 1. failing to refer to the evidence (ground 1 of Annexure A to the Notice of Appeal); 2. clerical errors in calculation (ground 5 of Annexure A to the Notice of Appeal); 3. making a decision not consistent with some of the Tribunal's findings of fact (ground 11 of Annexure A to the Notice of Appeal); 1. A poor reasoning process or inadequate reasons including: 1. a failure to provide a reasoning process, and inadequate reasons (ground 2 in Annexure A to the Notice of Appeal); 2. a failure to set out the applicable law (respectively grounds 3 and 6 in Annexure A to the Notice of Appeal); 3. failing to consider the evidence (ground 4 of Annexure A to the Notice of Appeal); 4. a failure to apply the contractual terms fairly against both Owner and Builder (ground 7 in Annexure A to the Notice of Appeal); 5. sometimes finding that a lack of response sufficient for a finding of fact against the party that did not respond (ground 8 in Annexure A to the Notice of Appeal); 6. inconsistent findings for preferring the evidence of one party over the evidence of another party (ground 9 in Annexure A to the Notice of Appeal); 1. In addition, the Owner submits that the Tribunal "breached the principle that justice must be seen to have been done" (ground 10 in Annexure A to the Notice of Appeal).
3. The remaining grounds of appeal identified by the Owner, namely that: 1. The Tribunal gave a decision on 20 March 2015 (ground 12 in Annexure A to the Notice of Appeal) and made amendments to the decision of 20 March 2015 pursuant to s 50 of the CTTT Act (ground 13 in Annexure A to the Notice of Appeal), 2. The Tribunal published a decision pursuant to s 50 of the CTTT Act on 12 August 2015 (ground 14 in Annexure A to the Notice of Appeal), are simply statements of fact. They are not properly to be considered as grounds for setting aside or varying the decisions which are the subject of the appeal.
4. Particulars of the various errors of the Tribunal alleged by the Tribunal are then set out at pars [16] to [36] of Annexure A to the Notice of Appeal.
5. In summary, those paragraphs state: 1. The finding in par [26] of the Decision that the Owner was provided with a copy of the contract some time prior to the date of signing was not supported by the evidence and against the weight of evidence. 2. The rejection of the Owner's claim to be entitled to protection under the Contracts Review Act was not supported by reference to evidence, not supported by a reasoning process against the weight of evidence and that the Owner was entitled therefore to protection provided by the Contracts Review Act. 3. The finding that the date of commencement was 23 February 2011 (par [33] of the Decision) was against the weight of evidence. 4. The findings relating to extensions of time generally were against the weight of evidence. 5. The findings relating to the extension of time for the "industry shutdown" (par [34] of the Decision) was not in accordance with cl 9 of the contract, and there was no basis on the evidence upon which the Tribunal could make the finding. 6. In relation to the finding in par [36] of the Decision that there was no dispute about progress claims in general was not supported by the evidence or by the reasoning process that led to that finding. 7. There was no basis for any finding against the Owner by reason of the non-payment of progress claim 7, and therefore no basis for the consequential orders concerning the builder's entitlement to suspend the works or to an extension of time, or to interest on progress claim 7. 8. There was no explanation for the finding in par [37] of the Decision that progress claim 7 claimed in error an amount of $44,000.00 in excess of the correct amount. 9. In the light of agreements reached between the parties, there was no requirement for an assessment of the claims within progress claim 7. 10. In the circumstances the only extensions of time to be allowed should have been the 44.8 days referred to in par [38] of the Decision and the 28 days referred to in par [39] of the Decision. 11. The findings against the evidence of the Owner and the credit of the Owner was not supported by any reasoning or reference to evidence. 12. There was no consideration of the evidence on behalf of the Builder having regard to the Builder's claim of $39,600.00 for "piers" (which was allowed at $18,330.00), or the Builder's two different claims under progress claims 2 and 7. 13. In relation to the finding at par [46] of the Decision that the date for practical completion was 23 May 2012 there was no consideration of the evidence concerning a meeting held on 24 April 2012. 14. In relation to the finding at par [56] of the Decision that the Owner is entitled to no more than $1.00 per day for delay costs, that finding is not supported by reference to evidence or any reasoning process and failed to consider the evidence of the Owner. 15. The finding that the Builder was entitled excavation costs (pars [57(1) - (4)] of the Decision) was against the weight of evidence. 16. Errors were made in pars [57(5) - (7)] of the Decision and in pars [42] - [56] of the Slip Rule Decision in the consideration of the Builder's claim concerning the claim by the Builder in respect of extra piering;. 17. In relation to the Builder's claim for allowances for expenses in relation to windows, doors and fly screens, the Tribunal made an allowance without giving reasons. 18. Errors were made in the calculation of interest. 19. No reasons were given for the finding that the evidence of Mr Cohen and Mr Gill was to be preferred to the evidence of Ms Yang.
6. In addition, the Notice of Appeal repeated in general terms many of the above grounds as a basis for leave being granted and, in particular, the Owner asserted that there was a substantial miscarriage of justice because the Decision was not fair and equitable and was against the weight of evidence.

Costs

1. The Owner also seeks an order that the Builder pay the costs of her appeal.

Builder's Reply to Owner's Notice of Appeal

1. The Builder submits, relying on the authority of Collins v Urban [2014] NSWCATAP 17, that the Owner has not established any basis on which leave to appeal should be granted. In addition, the Builder submits that: 1. The Owner's claims the Tribunal's findings failed to consider the evidence, or were against the weight of the evidence, are unfounded. 2. The Owner's claims that the Tribunal made clerical errors in calculation are based on a fundamental misunderstanding of accounting principles. 3. There is no basis for the Owner's claim that the Tribunal misinterpreted the contract. 4. Save for an error in the calculation in relation to defective air-conditioning (the subject of the Builder's appeal AP 15/51898), the Owner's appeal should be dismissed.

The Owner's submissions

1. The Owner submits that the Tribunal made various errors of law described below.

The commencement date of the contract

1. The Tribunal found at par [33] of the Decision that the commencement date for construction was 23 February 2011. The Owner submits that the Tribunal erred and should have found that the commencement date was 27 October 2010.
2. The Owner submits that, in determining the commencement date, the Tribunal failed to have regard to the fact that the commencement of the construction (albeit by a demolition firm paid by the Owner) was construction work provided for by the contract "and acted as the date factually from which the contractual obligations under the contract commenced". She submits that the Tribunal erred in its reliance on cl 8.1 of the contract, and ignoring the provision of the contract dealing with the work which was to be undertaken within 40 weeks. It is submitted that "Demolition and Site works" formed part of the works included in the contract.
3. The Owner submits that, as the work was included in the time provided to complete the construction, it was both factually and legally incorrect for the member to treat the demolition, which needed to occur, as separate from the work undertaken by the Builder, and to treat the whole of the time while approval for variations to the design were obtained as excluded from the time in which the Builder was required to demolish and construct the new house under the contract.
4. The Owner submits that her evidence on this matter should have been accepted, and that there are substantial consequences for the date of practical completion, including findings as to extensions of time for performance of the contract, and the Owners claim for damages.
5. In oral submissions, Counsel for the Owner said that cl 8.1 of the contract provided that the Builder is to commence the building works within 20 working days after the later of either the day the Builder receives all necessary building permits and planning approvals for the building works, or the Owner satisfies all of the requirements of cl 4. Clause 4 requires the Owner to provide to the Builder certain documents, described as "essential matters". Counsel submitted that the necessary approvals to commence the work had been obtained and received by the Builder in the form of a construction certificate which enabled the Builder to commence the works. The Decision found that the construction certificate was issued on 21 October 2010 (par [2] of the Decision).
6. The Owner submitted that the calculation of the commencement date affects the calculation of the final date for completion. The final date for completion should be reduced by the period from 27 October 2010 to 23 February 2011. That would result in a finding that the Builder was in default and failed to complete the work on time. As a consequence, the Owner submits the builder was not entitled to interest on amounts not paid.
7. The Owner further submits that the Member, in finding other extensions of time in favour of the Builder, did not have regard to the contractual terms and evidence. This submission refers to: 1. The claim from 9 June 2011 for an extension of time of 18 days which was allowed at 25.2 days; 2. The claim from 27 September 2011 for 14 days which was allowed at 19.6 days; 3. The claim for delays due to window issues of 15 days made on 21 July 2011 which was allowed at 21 days; 4. The claim for delay due to "the industry slowdown" of 5 weeks which was allowed notwithstanding that the actual delay was only 4 weeks.
8. However, in her submissions in Reply, the Owner indicated she did not press the first of these. Accordingly, it does not arise for consideration in this appeal.

The dispute about progress claims

1. The Owner submits that the Tribunal erred in finding that that there was no dispute about progress claims because "the owner was content to receive such claims and, at least for the first six such claims, to pay them" (par [36]). The error claimed is that the Tribunal failed to determine whether or not progress claim no. 7 was valid. In failing to do so, the Tribunal erred because "the consensual payment of the preceding progress claims does not establish the contractual entitlement". The Owner submits that the determination by the Tribunal of the Builder's right to give a progress claim was essential to the determination of the Builder's right to suspend the building works for non-payment under the contract.

The "right to damages for breach of the obligation to complete the construction in accordance with the contract"

1. The Owner submits that the Tribunal misdirected itself as to the calculation of liquidated damages and its failure to award general damages (which included loss occasioned because the Owner was unable to occupy the house).

Contract Sum

1. The Owner submits that the Tribunal erred in determining the deductions which were required to be made to the contract sum and variations which were to be added. The Owner submits that the Tribunal made errors in its treatment of: 1. Demolition work undertaken by the Builder: The Owner submits that the Tribunal included an amount of $10,556.00 for items which if carried out were carried out without her knowledge or agreement. The Owner also submits that there was no determination by the Tribunal of the construction of the contract having regard to the issue of the classification of the work that was claimed as part of the provisional sum that permitted the conclusion which the Tribunal came to. The Owner submits that the Tribunal either misunderstood the Owner's submissions or ignored the words used in the contract. Alternatively, the Owner submits that the Tribunal's reasons are inadequate. 2. The piers: the Owner submits that the Tribunal failed to give an appropriate credit for the sum of $34,056.00 which was paid.
2. The Owner submits that it follows that the Builder's entitlement to interest as found by the Tribunal was in error if she is successful in respect of any of the points of appeal.

Contracts Review Act

1. In relation to her Contracts Review Act claim, the Owner submits that the Tribunal erred in law by disregarding the pressure "amounting to duress" alleged by her. She alleged she retained the Builder as a result of such pressure. In relation to the Builder's claim, "through its related company Oppidan Design Pty Ltd", to copyright over the building plans, the Owner submits that this was illegal conduct prohibited by s 47 of the Trade Practices Act 1975 and contrary to rights acquired by the Owner to a licence in respect of the plans for which she had paid.
2. The Owner submits that the Tribunal was in error in finding that it was a usual and reasonable business practice for a home designer to claim copyright over designs plans and drawings. Counsel for the Owner relied upon the decision of the Court of Appeal in Torpey Vander Have Pty Ltd v Mass Constructions Pty Ltd [2002] NSWCA 263 at par [13] for the proposition that the engagement for reward of a person to produce material capable of being the subject of copyright carried with it the implied permission to use the material for the purpose for which it was contemplated that it would be used. In short, the Owner submits that she had acquired a licence to use the plans and the Tribunal was in error in concluding that it was usual and reasonable for the Builder to claim copyright and to implicitly deny that the Owner had a licence to use the plans.
3. Finally, the Owner submits that where there is a difference in the evidence of the Owner and her witnesses, and the evidence of the Builder and its witnesses, on the other hand, the evidence of the Owner should be preferred having regard to the Builder's "many errors, over charges [and] unjustified claims". She also submits that the Builder's claims should not be accepted, unless supported by independent objective evidence.

Oral Submissions

1. Many of the above matters were addressed in oral submissions by the Owner's counsel, Mr DeBuse. Where necessary, we make reference to these submissions in our reasons below.

The commencement date

1. The Builder provides submissions based on the evidence before the Tribunal and the findings of the Tribunal as to why the Owner's submissions should be rejected. In summary, it submits that: 1. The Owner did not challenge the fact that the actual building work could not commence until the amended design had been approved following the approval by Council of the Owner's application pursuant to s 96 of the Environmental Planning and Assessment Act 1979. The Builder submits that the Owner merely claimed that the demolition, erection of security fencing and placement of bales of straw by the Builder established the commencement date as 27 October 2010. 2. Separating demolition from construction work has no impact on the question as to whether it was possible to commence construction before the approval of the s 96 application. The fact that the construction certificate included demolition did not negate the fact that actual building work could not commence until the s 96 application had been approved. 3. The demolition work was taken out of the contract and placed entirely under the control of the Owner and paid for directly by the Owner. 4. The Builder relies upon the findings in par [33] of the Decision that the Tribunal agreed with the Builder's submissions which were to the effect that the Owner engaged a demolition contractor to do the demolition, that the Builder had no involvement in the demolition and that the works which the Builder was required to undertake could not start until 2011. In short, the Builder contends the Member was correct in determining that the contract period commenced on 23 February 2011.

Extensions of time

1. In summary, the Builder submits that: 1. The Owner has overlooked that extension of time claims were made in "working days" and that for the purpose of calculating the extended date for practical completion it was necessary to convert the "working days" to "calendar days". 2. The submission of the Owner that the Tribunal gave no reasons as to to extension of time determinations and that the determinations were excessive is not correct. The Builder submits that the Tribunal accepted the evidence of the Builder on this issue, and noted that the Owner had provided no persuasive evidence to the contrary.

The dispute about progress claims

1. The Builder submits that the Owner, by her conduct in paying the first six progress claims, waived any right to receive claims on the basis of stages and was estopped from denying the Builder's entitlement to make claims progressively. In addition, the Builder submits that as the Owner does not challenge the Tribunal's finding that the Owner did not pay the full amount of progress claim no. 7 and that the suspension lasted for 47 days. The Tribunal did not err in granting the Builder an extension of time of 47 days for the suspension of the works.
2. The findings of the Member (that the Owner was content to receive and pay progress claims, that the Builder was entitled to make progress claims and that the Owner was required to pay them) meant that the Member did not err in granting the Builder an extension of time of 47 days.
3. The Builder's counsel also submitted that the Owner knew, notwithstanding that the contract does not so provide, that the Builder would submit monthly progress claims, and that the Owner knew that she would have to pay them monthly. The Builder submits that based on the Owner's evidence it was open to the Member to find that the Owner was obliged to pay progress claims monthly.

Right to damages

1. In summary, the Builder submits: 1. Contrary to what was claimed at first instance, the Owner is now contending that the occupation certificate was irrelevant to her contention that she was unable to occupy the house; at first instance this was central to her claim for general damages. 2. The Tribunal did not fail to determine the Owner's claim for general damages, this being dealt with at pars [47] and [58] to [61] of the Decision. 3. Otherwise, the Builder provides submissions based on the evidence before the Tribunal and the findings of the Tribunal as to why the Owner's submissions on this issue should be rejected. Essentially the Builder says that the Owner took certain works out of the contract and any delay in being able to occupy the house was due to her delay in completing the works for which she was responsible.

The contract sum

1. The Builder rejects the submission of the Owner that there was a paucity of evidence of the work undertaken by the Builder and provides detailed references to the evidence before the Tribunal. The Builder also submits that the Owner's submission as to "ambiguity" in the description of the work "does not make sense" and, in any event, the Tribunal did not identify any such ambiguity.

Demolition work

1. The Builder provides submissions based on the evidence before the Tribunal and the findings of the Tribunal as to why the Owner's submissions on this issue should be rejected. In essence, the Builder submits that the contract included a provisional sum of $29,000.00 for demolition, that demolition was later taken out of the contract (requiring a deduction of $29,000.00), but the Builder was entitled to and did claim for the amount spent on excavation and site works totalling $18,434.00. The Builder submits that the final allowance of $11,623.00 for demolition is correct.

Air conditioning

1. The Builder submits that, save for the inadvertent omission of GST in the Decision, the Tribunal's analysis was correct. The Builder submits that, unfortunately, in the Slip Rule Decision the Tribunal erred when it accepted "the erroneous principle of accounting put forward by the Owner". This error resulted in an erroneous finding that there was a credit due to the Owner of $15,699.50.

The piers

1. The Builder submits that the Owner's submissions on this issue are not clear, and that it appears that the Owner contends that the Tribunal erred in not giving her credit for previous payments of $34,056.00 and calculated "GST on GST" in finding that the Builder was entitled to $18,330.00 in respect of a variation for the piers. The Builder submits that the Owner appears to be saying that, instead of a finding that an amount of $18,330.00 should have been paid to the Builder, the Tribunal should have found that the Owner was entitled to a refund of $17,392.36. Detailed and lengthy submissions follow (pars [31] to [40]), and the Builder submits that the Owner is "plainly wrong" on this issue, that the Decision is correct, albeit for the wrong reasons.
2. The Builder's submissions then address matters which "although not cited as a [ground of appeal]", the Owner appears to submit were made by the Tribunal without evidence. These matters are described as "compliance with the contract as to variations", and "late provision of subcontractor's invoice".
3. In relation to the variations, the Builder submits that, with the exception of the piers, all variations were accepted by the Owner. In relation to the piers, there was evidence relied on by the Builder which was accepted by the Tribunal, that there was compliance with cl 17 (which deals with variations) of the contract and it was appropriate to allow the amount for the piers.
4. In relation to the late provision of the subcontractor's invoice, the Builder submits that the invoice was produced "long before the hearing".

Interest

1. Save for one matter, the Builder provides submissions based on the evidence before the Tribunal and the findings of the Tribunal as to why the Owner's submissions on this issue should be rejected. The Builder concedes that the Tribunal made "another slip", in that at par [57] he found an interest amount of $6,005 in relation to windows and doors, but at par [60] transcribes the figure of $6,500 in the final reconciliation and calculation of interest.

Contracts Review Act claim

1. The Builder submits that the Tribunal dealt with "pressure and duress" at par [30] of the Decision, and further submits that there was positive evidence before the Tribunal that the Owner entered into the contract voluntarily and not under any duress. The Builder also provides submissions as to why the Tribunal did not err in not finding that there was a breach of s 47 of the Trade Practices Act.
2. The Builder submits that the "general proposition" of the Owner that the Appeal Panel should re-evaluate the evidence should be rejected, and that the suggestion that the Owner's evidence should be preferred over the Builder's evidence because of "totally extraneous factors" is "outrageous".

Inadequate Reasons

1. The Builder's counsel submitted that the Owner's appeal should not be upheld on the basis that the Decision contained inadequate reasons because the Decision satisfied the requirements of s 62(3) of the Civil and Administrative Tribunal Act NSW 2013 (the Act).
2. The Builder's counsel referred to the High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. That case concerned the obligation of the Refugee Review Tribunal to give reasons as required by s 436(1)(c) of the Migration Act. That section required the Tribunal to give the reasons for its decision and to set out the findings on any material questions of fact, and to refer to the evidence or other materials on which the findings of fact were based. Counsel for the Builder submitted that the decision of the High Court is authority for the following principles: 1. If there are no statutory constraints imposed then what comprises a material fact is a matter for the decision maker alone to determine (see pars [115] and [216] of Yusuf). 2. What the applicant thinks is a "material fact" is irrelevant (par [216]). 3. There is no duty on the decision maker to make findings on every question of fact (pars [9], [67] and [68]). 4. There is no duty on the decision maker to make findings on all issues of law and the evidence before the Tribunal. 5. The only duty is to include findings on what the Tribunal considers to be "material findings of fact" (pars [34] and [68]). 6. Any failure to make a finding on an issue is not a failure to observe the required procedures, or a breach of the requirements for reasons (pars [35] and [77]). 7. It is not open to a Court to determine what fact was a material fact and should have perhaps been addressed. That is merits review, not judicial supervision and is impermissible (par [216]).
3. Builder's counsel submitted that these principles must be borne in mind in considering the Owner's submissions that the Decision and the Slip Rule Decision both displayed inadequacy of reasons. In essence, the Builder's Counsel pointed out that the Member was obliged to only make findings on facts which he considered to be material and was not obliged to make findings on facts which he did not consider to be material or necessary for his decision.
4. In conclusion, the Builder submits that the Owner's appeal should be dismissed.

Owner's submissions in reply

1. The Owner has made lengthy submissions in reply and we summarise below the salient submissions.

Commencement Date

1. The Owner submits that the date of commencement of the construction work and from which the contractual obligations with respect to time were to be calculated, cannot be determined by the facts relied on by the Builder as "they do not establish the commencement date for the purpose of the contract". The Owner submits that whether the Builder could commence (by which she means the Builder had the requisite permissions to commence) is, she submits, different from the question of whether it could or not undertake any particular task in its programme. Whether the Builder could or could not undertake further tasks, other than commence, is to be determined by subsequent conduct under the contract, but the ability to commence arises from an assessment of whether it could undertake work that was part of the construction work under the contract which it did "(ie demolition by others etc)" and which the Builder was obliged to do.

Extensions of time

1. The Owner submits that the question as to the entitlement for extensions of time is a matter of the construction of the contract in light of the facts and not a response to a question in cross examination. The Owner claims that a concession made in cross examination relied on by the Builder was not based on the actual facts but on an incorrect understanding of the legal effect of the contract.

Progress claims

1. The Owner submits that the timing of payment only became an issue when the Builder issued a fresh invoice and sought payment of an invoice in which it had not given credit for amounts paid and overcharged.

Demolition work

1. The Owner provides further explanation of the inadequacy of the reasons of the Tribunal on this issue. The Owner submits that no "logical process" was demonstrated in the Decision. The Owner submits that the Member was required to make findings about invoices which had been tendered as to whether the invoiced work was work which was included in the scope of works or whether it was provisionally allowed. However, such findings were not made.

Contracts Review Act claim

1. The Owner provides some additional authorities to support her claim that she was entitled to an implied license to use the plans prepared by Oppidan Designer Homes Pty Ltd. She submits that the existence of an implied license to use plans in her circumstances is or should be known to any person professing to design homes for a fee: Blair v Tomkins [1971] 1 All ER 468; Torpey Vander Have Pty Ltd v Mass Constructions Pty Ltd [2002] NSWCA 263. She further submits that the Tribunal's dismissal of illegal conduct and the denial of her contractual rights is both an error of law, or alternatively an error of mixed fact and law in respect of which leave to appeal is justified.

The Builder's submissions

1. The Builder's submissions are incorporated in its Notice of Appeal.
2. The only matter (apart from the calculation of interest) which the Builder raises on its appeal is the allowance made by the Tribunal in favour of the Owner in respect of air conditioning, namely $5,436.00. The Builder submits that the figure was correctly calculated from an "accounting point of view", but that the "only slip" the Tribunal made was to omit to add GST. In the Slip Rule Decision, instead of amending the amount to $5,980.00, the Tribunal amended the amount to $15,699.50.
3. The Builder submits that the Tribunal erred in accepting the Owner's submissions, which were predicated on a lack of understanding of a fundamental principle in relation to progress claims in building contracts. The Tribunal accepted the Owner's submission that the Builder's accounting in the final progress claim did not take account of the receipt of $8,100.00 in progress claim no. 5, but only of the reimbursement. The Tribunal found that the Builder still had to account for the full $15,000.00. The Builder submits that the Tribunal erred in this respect: the receipt of $8,100 (or any other amount previously paid), was taken into account in the figure of $863,958.00 which was deducted from the original contract sum in the final progress claim. The Builder submits at [11]: The simple principle is that by deducting previous payments, the Builder only effectively receives the amount assessed in the final account. It is incorrect to say that the Builder receives the gross amount assessed for air conditioning in the final account, plus the gross amount received in previous progress claims. It does not work that way. [The Tribunal] has been drawn into accounting error by the owner's misconceived submissions.
4. The Builder also submits that the Tribunal erred in its formulation of the final orders made, in that it did not take into account the requirement of the contract for interest to accrue at the specified rate up to the date when payment is made.
5. The Builder submits that it suffered a substantial miscarriage of justice in the way in which the matter was decided, in that it was deprived of a chance that was fairly open to it of achieving a better outcome than that which occurred: Mraz v The Queen (1955) 93 CLR 493.
6. The Builder submits that leave to appeal should be granted as its appeal involves: 1. Issues of principle governing accounting in progress claims in contracts. 2. An injustice which is reasonably clear, and 3. A factual error what was unreasonably arrived at and clearly mistaken.

The Owner's Reply and submissions

1. In its Reply the Owner submits that the findings of the Tribunal in the Slip Rule Decision were correct and that, as the Builder's appeal involves a question of fact, leave to appeal should be refused.
2. The Owner submits that it relies on its submissions in her own appeal, and her original submissions on the slip rule application.
3. The Owner responds at some length to par [11] of the Builder's submission, which is set out above. In conclusion, the Owner states that: The accounting treatment advanced by the Builder assumes that it was agreed that the amounts credited or paid were to be treated in the manner for which the builder contends but the Builder assumes but does not address the actual dispute which is to whether the amount claimed by the Builder were additional or not.

Builder's submissions in reply

1. The builder submits in reply that the parties had reached agreement in respect of the original contract sum, payments to date, agreed variations, agreed defective works and agreed allowances. These figures totalled $60,085.00 as recorded in par [66] of the Decision, and that figure was amended to $59,995.00 in the Slip Rule Decision.
2. The Builder submits that the parties effectively asked the Member to adopt the figure of $59,995.00 and then to make findings with respect to the remaining issues in dispute namely one variation, three allowances and claims for damages which findings would have the effect of adding to or subtracting figures from the adopted figure of $59,995.00. The Builder submits that the Tribunal adopted this approach as recorded in par [67] of the Decision and par [62] of the Slip Rule Decision.

Slip Rule Decision

1. We think it necessary to make some comments about the Slip Rule Decision. The Slip Rule Decision records that following the Decision being published, the solicitors for the Owner made an application to the effect that there had been a mistake made in the calculations concerning the amount payable by the Owner to the Builder. The Owner's application was made pursuant to s 50 of the CTTT Act, being the applicable legislation in relation to these proceedings, which had commenced in 2012.
2. In summary, s 50 provides that if, after the making of a decision, the Tribunal is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the notice or statement in accordance with the directions of the Tribunal. Section 63 of the Act is to similar effect.
3. In the Decision, the Tribunal found that the sum of $13,330.00 was due to the Builder for additional piering. The Decision also found that the sum of $5,436.00 was to be allowed in favour of the Owner for air-conditioning. The Owner's slip rule application submitted that the correct allowance in respect of piering was that the Owner should have been given an allowance of $40,104.00 and, in respect of air-conditioning, that the Owner should have been given an allowance of $15,856.00. On the other hand, the Builder submitted that the allowance made for additional piering in the Builder's favour of $13,330.00 was in error and that the correct allowance in favour of the Builder should have been $18,330.00. The Builder also submitted that interest calculations were mistakenly calculated: the allowance for interest in favour of the Builder which was $5,246.00 in the Decision should have been $21,591.00.
4. In the Slip Rule Decision (which ran for 20 pages) the Tribunal in dealing with the slip rule application changed some of the figures previously decided.
5. In dealing with the air-conditioning item the Member, in our view, made fresh findings. For example, in par [40] of the Slip Rule Decision the Member found that the Builder's accounting in the final progress claim did not take account of the receipt of $8,100.00 in progress claim 5.
6. In respect of the adjustment for additional piering, par [45] of the Slip Rule Decision contains fresh findings that the amounts charged for piering were included in progress claims 1 and 2 and in par [51.] The Member appears to have made fresh findings concerning "the evidence, reasoning and calculations" argued for by the Owner.
7. Section 63 of the Act provides: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where: (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons.
8. We are of the view that the slip rule should not be used as a vehicle for the reopening of a decision which has already been published to the parties. There may be an exception in a case where all parties consent to a reopening. In our view, the slip rule mechanism should be limited to the subject matter expressly referred to in s 63 namely for the correction of obvious errors, and should not be a vehicle for revised or fresh findings of fact.
9. In this respect, we note the following. 1. In Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 McHugh JA (at 449) referred to the inherent power of the Courts of Common Law and the Court of Chancery to correct any clerical mistake or error in a judgment or order if it was the result of an accidental slip or omission (referring to Lawrie v Lees (1881) 7 App Cas 19 at 34-35). His Honour there noted that the "dividing line between a mistake or error which is the result of an accidental slip or omission and a mistake or error which is the product of a deliberate decision has often been difficult to draw". 2. In order for the slip rule to apply, the Court (here the Tribunal) must be satisfied that had the matter been drawn to its attention it would have made the correction at once: Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453; Newmont Yandal Operations Pty Limited v The J Aron Corporation and the Goldman Sachs Group [2007] NSWCA 195; 70 NSWLR 411 at [137]; Wardle v Agricultural & Rural Financers Pty Ltd (No 3) [2013] NSWCA 207; (2013) 303 ALR 298 at [61]. 3. The slip rule is not applicable where it involves the exercise of an independent discretion not exercised at the time in question: Storey & Keers Pty Ltd & Anor v Johnstone (1987) 9 NSWLR 446; Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287 at [62] to [64].
10. This case appears to be an exception because both parties treated the slip rule application as an occasion to go beyond the identification of obvious errors and seek a reconsideration of a number of findings.

Grounds for Appeal

1. Section 80 of the Act makes provisions for the making of internal appeals. The provisions relevant to this case are that an appeal is available as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80). The other grounds are referred to in cl 12 of Sch 4 of the Act. Clause 12 provides that an Appeal Panel may grant leave for an internal appeal against a Division decision (referring to a decision made in the Consumer and Commercial Division) only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. In the Appeal Panel decision in Collins v Urban the Appeal Panel stated that it would ordinarily be appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

The Commencement Date

1. Clause 8.1 of the contract required the Builder to commence the building works within 20 working days after the day that (a) the Builder receives all necessary building permits and planning approvals for the building works to commence or (b) the Owner satisfies all of the requirements of clause 4, whichever is later.
2. The Tribunal found that the commencement date of the works was 23 February 2011. The basis for that finding was that the actual building work could not commence until the amended design had been approved. Essentially the Tribunal agreed with the Builder's submissions (and said as much in par [33] of the Decision).
3. The Owner's submissions assert that a construction certificate was issued on 21 October 2010 and that the calculation of the commencement date should have been made by reference to that date.
4. The Builder submits that the demolition works were taken out of the contract works at the owner's request and, as a consequence, the work thereafter to be performed under the contract, could not be commenced until the amended plans were approved. Although the demolition work could have been commenced from 21 October 2010 that work was taken out of the contract and the Owner organised the demolition herself.
5. The Tribunal made no express findings concerning the Builder's submission that the demolition work was taken out of the contract. However, the Member stated in par [33] that he agreed with the Builder's submissions. A review of the Builder's first instance submissions in chief and in reply has been undertaken. They do not state that there was an agreement between the Owner and Builder to vary the scope of works by an agreement to the effect that the Owner would undertake demolition. Rather, the submissions assert that the demolition was undertaken by the Owner on her "initiative and without the Builder's involvement". The Builder submitted that it was impossible to commence the construction of the works, including site excavation until the application to vary the design was approved. The facts concerning how this change in the building works occurred was not the subject of express findings by the Tribunal, but the Tribunal expressly agreed with the Builder's submissions.
6. Counsel for the Owner took us to the evidence of Ms Yang who stated that the demolition was organised by Mr Guild and undertaken at his direction. This evidence is inconsistent with the evidence given by the Builder which was the subject of the Builder's submission. However, the Tribunal agreed with the Builder's submissions and, in our view, effectively found that the demolition occurred without the Builder's involvement. On the evidence, such a finding was, in our view, open to the Tribunal.
7. The Builder's submissions also state that, on 29 October 2010, the Builder lodged on behalf of the Owner an application for the approval of an amended design, and that it was impossible to commence the work proposed in the amended application.
8. Although the Decision did not record explicit findings of fact, it is sufficiently clear that the Tribunal found that the findings asserted by the Builder were accurate. The Decision found that the "actual building work" (which we take to mean the work described in the amended application) could not commence until it was approved, which occurred on 26 January 2011. Neither party contended that the building work, the subject of the approval of 21 October 2010, was intended to be built in the form then approved.
9. The fact that the approval to commence the work was obtained on 21 October 2010, did not in our view enliven cl 8.1 of the contract, as the Owner contends, given the facts which were found to have occurred. Those facts (being the submission for approval of the amended design) reflected the fact that both the Owner and the Builder did not intend to proceed with the work the subject of the October approval.
10. The Owner's appeal in respect of the commencement date is therefore dismissed. An error of law has not been identified and nor has one of the leave grounds described earlier been established.

Extension of time

1. The Tribunal found that by reason of cl 9.1 of the contract the Builder was entitled to an extension of time of five weeks in respect of the "industry shut down" which is expressly referred to in cl 9. In our view, the Member's reasoning discloses no error of law and nor is there any other basis for the Owner's appeal with respect to this aspect of the decision to be upheld.
2. The Owner also appealed in respect of the Member's decision to allow an extension of time for the period from 27 September 2011 for 19.6 days. This claim arises out of inclement weather (see par [38] of the Decision). The Decision records in par [38] that the Owner did not dispute this claim. On the basis of this finding, we are of the opinion that the decision displays no error of law or any other ground for upholding this aspect of the appeal.
3. Additionally, the Owner appeals against the extension of time allowed at 21 days in respect of "window issues". Paragraphs [39] and [40] of the Decision make it clear that the Tribunal accepted the evidence of the Builder justifying this claim and that there was no persuasive evidence to the contrary. Again, in our view the Decision does not display any error of law or any other basis for upholding this aspect of the appeal.
4. Accordingly, the appeal with respect to the findings as to extensions of time is dismissed.

Dispute about Progress Claims

1. We accept the Owner's arguments. The Member found that the contract did not provide for progress claims and the Builder does not argue otherwise. The fact that the Owner was content to receive and pay some progress claims does not, in our view, lead to the conclusion that the Builder acquired a right to suspend the works as a result of the Owner not paying progress claim 7 in full.
2. We reject the Builder's submission that the Owner was estopped from denying the Builders entitlement to make progress claims because she had paid the first six progress claims. In our view, notwithstanding the issue and payment of six progress claims to which there was no finding of a contractual entitlement, the Builder did not have an entitlement to issue and have paid progress claim 7. The Builder's right to suspend the carrying out of the building works is contained in cl 32 of the contract and may be exercised if the Owner is in breach of the contract. In this case the alleged breach is said by the Builder to arise because, as the Member found, the Owner did not pay progress claim 7. In our view, this analysis displays an error in not determining that there was a contractual obligation to pay progress claim 7. Even if the Owner waived a right to refuse to pay the progress claims, that waiver does not extend to a waiver of her right to require the Builder only to suspend in the event of her breach. For such a waiver to have arisen (entitling the Builder to suspend by reason of non-payment of progress claims), it would have been necessary for the Owner to have represented to the Builder that she accepted that the Builder had a right to issue progress claims. There was no finding and no submissions from the Builder that such a representation had occurred.
3. The principles concerning estoppel have been summarised by Brereton J in Moratic Pty Ltd v Gordon [2007] NSWSC 5 as follows: …In equitable promissory estoppel, it is necessary for a plaintiff to establish (1) that it has adopted an assumption as to the terms of a legal relationship with the defendant; (2) that the defendant has induced or acquiesced in the plaintiff's adoption of that assumption; (3) that the plaintiff has acted in reliance on its assumptions; (4) that the defendant knew or intended that the plaintiff so act; and (6) that it will occasion detriment to the plaintiff if the assumption is not fulfilled. …. In common law conventional estoppel, it is necessary for a plaintiff to establish (1) that it has adopted an assumption as to the terms of its legal relationship with the defendant; (2) that the defendant has adopted the same assumption; (3) that both parties have conducted their relationship on the basis of that mutual assumption; (4) that each party knew or intended that the other act on that basis; and (5) that departure from the assumption will occasion detriment to the plaintiff…
4. Neither the Decision nor the Slip Rule Decision made findings that satisfied the elements referred to by Brereton J. In particular, there was no finding that the Builder had adopted an assumption as to the terms of the legal relationship with the Owner or that the Owner had induced or acquiesced in the Builder's adoption of that assumption.
5. In our view, the omission to make findings as to the Builder's entitlement to make progress claims and be paid those claims resulted in the decision to find that the Builder was entitled to suspend the works for 47 days. That finding arose by reason of the error in finding that the Builder was entitled to suspend the works.
6. The reasoning displays an error or law and this aspect of the appeal is upheld. The consequence is that the finding that the adjusted contractual date for completion was 2 May 2012 (par [43] of the Decision) is in error. On the analysis we have provided the correct date for the adjusted contractual date of completion was 16 March 2012 (47 days prior to 2 May 2012).
7. The Decision goes on to make findings concerning the date of practical completion. The Builder issued a notice of practical completion on 13 April 2012 (par [45] of the Decision), which the Owner disputed but the Builder then issued a further notice of practical completion being 23 May 2012 which the Owner did not dispute. The Decision found that the actual date of practical completion was 23 May 2012 by reason of the operation of cl 26.6(b) of the contract which deems the date of practical completion to be the date stated in the notice of practical completion in circumstances where the Owner has not paid the amount of the final progress claim or has not given the Builder a notice under cl 26.3 disputing that practical completion has been reached.
8. The Tribunal found that the Owner was entitled to liquidated damages of $1.00 per day for any delay in completion of the works (par [27] of the Decision). The effect of the error identified above that the Builder was not entitled to suspend the works for 47 days is to increase the liquidated damages payable to the Owner by $47.00.

The right to damages for breach

1. In the Decision the Tribunal rejected the Owner's claim for "general damages". The Member found that the Owner was not able to obtain an Occupation Certificate in May 2012, because there were further works which needed to be completed on the site which were not the responsibility of the Builder. There was also a claim by the Owner that the Builder had failed to comply with "the BCA", but the Tribunal rejected that claim on the basis that there was no evidence to support that submission.
2. The Owner's submissions do not identify any error of law, nor do they identify any leave ground contemplated by cl 12 of Sch 4 of the Act. The Builder's submissions with respect to this aspect of the appeal are accepted.

Demolition work

1. The essence of the Owner's appeal with respect to this item is that the reasons were inadequate. The Decision found that the Builder's evidence was to be accepted (see par [57(4)] of the Decision) and that the allowance in favour of the Owner was the amount contended for by the Builder namely $10,566.00. In the Slip Rule Decision the Member found that GST had not been included and increased the allowance in favour of the Owner to $11,623.00.
2. In our view, the two decisions which are the subject of this appeal do not display any error or law or satisfy any of the leave grounds in so far as this aspect of the appeal is concerned. None of the matters identified in Collins v Urban (cited earlier) have been established. This aspect of the appeal is dismissed.

Piers

1. In the Decision, the Member found that the Builder was entitled to an allowance of $13,330.00 for additional piering. In the Slip Rule Decision the Member acknowledged that in coming to that decision he had overlooked including the Builder's margin and GST. When those items were included the correct amount is $18,330.00 (par [42] of the Slip Rule Decision). The Slip Rule Decision went on to make fresh findings in respect of this item but ultimately rejected the Owner's submissions (par [56] of the Slip Rule Decision). The Slip Rule Decision maintained the "original allowance" but corrected it so as to include the Builder's margin and GST. That meant that the allowance was $18,330.00 in favour of the Builder.
2. The Owner submits on the appeal that the Tribunal failed to give an appropriate credit for the sum of $34,056.00. However, par [55] of the Slip Rule Decision states that the Member was satisfied that the Builder was paid $34,056.00. Therefore it is incorrect for the Owner to state that credit was not given for that amount.
3. The evidence with respect to the calculation of allowances for piering was extensively dealt with by the Tribunal both in the Decision and in the Slip Rule Decision, and no error of law has been displayed in relation to how that matter was finally resolved. Nor has any of the leave grounds been established. Accordingly, this aspect of the appeal is dismissed.

Contracts Review Act

1. The Owner submits that the Tribunal erred by disregarding the pressure "amounting to duress" alleged by her. The Decision records in par [30] that the Owner alleged that she was pressured into agreeing to retain the Builder because, unless she did so, she would not be permitted to have the works which were designed by a company associated with the Builder used by her to erect a building using another builder. The Decision found that there was no evidence of any particular pressure being applied by the Builder. The Decision went on to state that it is usual business practice for a home designer to claim copy right over design plans and drawings.
2. The Owner submits to the Appeal Panel that she had acquired an implied licence to use the designs produced by the designer and for which she had paid money.
3. We accept the submission of the Owner that, generally speaking, the engagement for reward of a person to produce material capable of being the subject of copyright carries with it the implied permission to use the material for which it was contemplated that it would be used (see Torpey Vander Have Pty Ltd v Mass Constructions Pty Ltd [2002] NSWCA 263.
4. The Decision is, in our view, in error in stating that it is "usual and reasonable business practice for a home designer to claim copy right over design plans and drawings", and in so doing to implicitly find that the Owner had not acquired an implied licence to use the design plans. However, there was no finding by the Tribunal that the Builder had represented to the Owner that she had not acquired the right to use the plans. There was also no specific finding by the Tribunal that the Builder's conduct had contributed to the Owner's decision to use the Builder. The specific finding of the Tribunal was that there was "no evidence of any particular pressure being applied by the Builder".
5. We are of the opinion that there was no error of law relevant to the Decision, and that none of the leave grounds have been established. Accordingly, this aspect of the appeal is to be dismissed.

Builder's Appeal

1. In the Decision, the Member found (par 57) that the Builder should make an allowance in favour of the Owner in the sum of $6901.00, but in par [67] allowed the sum of $5,436.00. In the Slip Rule Decision, the Member made fresh findings and found that an allowance of $15,699.50 was due to the Builder.
2. The Builder's appeal may be based upon an error of law (i.e. the decision was plainly wrong) and is also based upon the leave grounds provided for in cl 12 of Sch 4 of the Act. The Builder claims to have suffered a substantial miscarriage of justice. The Builder submits that the decision involves an important issue of principle governing accounting in progress claims and building contracts. The Builder also submits that it involves an injustice which is reasonably clear in the sense of going beyond what is merely arguable or an error that is plain and readily apparent. These are the principles referred to earlier in the Appeal Panel decision in Collins v Urban.
3. In our view, the reasoning currently binding the parties, namely that contained in the Slip Rule Decision, cannot be described as plainly wrong. Nor does that decision involve those matters referred to in Collins v Urban. We are of the opinion that the dispute involved issues of fact (namely what amounts had been claimed and paid between the parties), and we disagree with the Builder's submission that the decision involves important issues of principle governing accounting in progress claims. Additionally, we do not accept that an injustice has occurred which is reasonably clear.
4. In our view, by reason of the conclusions referred to above, the Builder's appeal should be dismissed.

Conclusions and Costs

1. Apart from increasing the amount of the Owner's delay damages by $47.00, no other adjustments to the orders which are the subject of these appeals is required.
2. Both parties sought costs. The Act provides in s 60 that each party is to pay their own costs, but s 60(2) provides that the Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. Section 60(3) provides that in determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the matters described in subs (a) - (g). Subsection (d) refers to the "nature and complexity of the proceedings" and s (g) refers to "any other matter that the Tribunal considers relevant".
3. In substance, the Owner's appeal has been unsuccessful. In our view, these proceedings were complex and made more complex by the number of appeal points raised by the Owner. In particular, the Notice of Appeal contained a very substantial number of appeal points. The complexity of the Owner's appeal may be fairly described as "out of the ordinary" (to use the phrase of the Court of Appeal to describe "special circumstances": see Cripps v G & M Mawson [2006] NSWCA 84 at [60]).
4. In our view there are special circumstances in the Owner's appeal justifying an award of costs in favour of the Builder. However, we do not think that the hearing of the appeal was made any longer than it might otherwise have been because Owner's counsel concentrated on the key issues in the Owner's Appeal. Accordingly, it is our view that it is appropriate to award the Builder costs in the Owner's appeal but to reduce the amount of costs by 20%. In other words, we propose to make an order that in the Owner's appeal, the Owner pay the Builder's costs as agreed or as assessed but limited to the amount of 80% of the assessed costs. In the Builder's appeal. We do not think it is appropriate to award costs. The Builder's appeal was not complex and in our view special circumstances do not exist.

Orders

1. In the Owner's Appeal, AP 15/49779 the Appeal Panel makes the following orders: 1. The appeal is upheld for the limited purpose of reducing the amount payable by the appellant by $47.00. 2. Order 2 made on 12 August 2015 in HB 12/37224 is set aside and in its place the Appeal Panel makes order 3 below. 3. The appellant is to pay the respondent the sum of $76,495.87 within 60 days of these orders. 4. The appellant is to pay the respondent's costs of the appeal as agreed or as assessed pursuant to the provisions of the Legal Profession Uniform Law Application Act 2014 subject to the fact that the amount which the appellant is required to pay will be 80% of the amount assessed.
2. In the Builder's appeal, AP 15/51898 the Appeal Panel makes the following order: 1. The appeal is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2016