Zahrouni v Vesta Homes Pty Ltd

Background

1. In 2019 the owner purchased from the developer a new two storey dual occupancy house that had been constructed by the builder for $670,000.
2. The contract for sale dated 21 August 2019 contained a copy of the Occupation Certificate. The Occupation Certificate is dated 3 May 2019.
3. On 24 August 2020 the owner obtained a "pre hand over (sic) visual building inspection report" from Sydney Building Inspections identifying various issues with the building works. Although the report is lengthy (91 pages), the vast majority of the report constituted photographs with very brief commentary and no comprehensive scope of works is set out to rectify defects.
4. In December 2020 a Building Inspector from NSW Fair Trading issued a rectification order under s 48E of the HB Act in respect of a number of defects, including hairline cracks in soffit linings above the southern end of the first floor; water marks staining the soffit lining above the southern brick column of the front entry; timber trims dressing the eave linings and external walls not being installed with due care and skill; loose plastic capping to the bottom edge of the wall lining above the garage door; chip on the bottom corner of the timber skirting at the western end of the northern wall; areas of painting and plasterwork that had not been performed with due care and skill; and mortar stains on brickwork.
5. On 26 February 2021 the Building Inspector from NSW Fair Trading issued a further report that a number of such items had not been repaired, or adequately repaired, by the builder.
6. On 1 March 2021 the owner commenced proceedings in the Tribunal against the builder. Those proceedings settled, with the Tribunal making a consent order dated 12 July 2021 as follows; 1. Fix leaning fence by 19 July 2021. 2. Remove timber flooring, secure the fibre cement sheeting sub-floor with timber screws then reinstall the existing timber flooring by 9 August 2021. 3. Repaint areas that were subject to wear and tear by 9 August 2021. 4. Painting and sealing of driveway by 19 July 2021. 5. Painting small patch in the cornice inside the garage by 9 August 2021. 6. Painting of manhole cover upstairs by 9 August 2021. 7. Installation of one (1) toilet paper roll holder in downstairs WC by 19 July 2021.
7. On 4 April 2022 the owner filed renewal proceedings in the Tribunal under Cl. 8 of Sch. 4 of the Civil and Administrative Tribunal Act 2013 (NSW) ('the NCAT Act').
8. The renewal application identified that the consent orders had not been complied with, as follows (set out as per the original): They put different floorboards The painter haven't done a good job The grout cracks and missing grout Roof leaking Watertank the pump not working and the sweat from fuse always off when I try turn it on bec off I have cracked everywhere They cracks my tiles and driveway they (sic cut my ceiling now I can seek cracks I'm sure something wrong with yellow tank
9. In a section of the Tribunal renewal application form, the owner identifies the orders sought as follows: I want someone else to fix for me or they have to pay me all damage I want $15,000-$20,000 all lost it (sic) I paid for tribunal (sic) they have to pay for it.
10. During the course of the renewal proceedings in the Tribunal, the owner obtained an expert report from Mr Nakhla, building consultant (SJN Building Consultants). That report was served on the builder. The date of the report is 14 June 2022.
11. Mr Nakhla's report comprises of 68 pages. It refers to the NCAT Expert Witness Code of Conduct (Practice Note 3) and the provisions of s 18E of the HB Act. It also contains a Scott Schedule summarising the defects; method of rectification and cost of rectification. There is also a detailed schedule of method of rectification and cost of rectification at pages 24-29 of the report.
12. Mr Nakhla identified the total cost of rectification as $30,969.63. Defects were categorised as follows:

Roof Leaks

1. Mr Nakhla identified water ingress in "multiple locations" of the roof of the house and garage. His report does not identify what breach of relevant Australian Standards involving waterproofing of residential building has occurred, or that the builder has not performed work with due care and skill (see Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd [2017] NSWCATAP 185 at [46] for discussion of the applicable legal test for breach of statutory warranties under s 18B of the HB Act).
2. However, Mr Nakhla asserts the defect is a "major defect" under s 18E of the HB Act because "Water ingress will deteriorate the fabric of the structure over time and create greater issues".
3. Mr Nakhla identifies the method of rectifying the roof leaks as a "general roof service" which includes "replace any cracked tiles; check all flashings and repair gaps, tears or penetrations; replace any cracked mortar in the hip and ridge line; and tape up sarking and repair where torn" at a total cost of $3,127.08.

Undulated Floors to Upstairs

1. Mr Nakhla asserts that the upstairs flooring deviated more than 4 mm over 2 mm which was more than the recommendation contained in the NSW Fair Trading Guide to Standards and Tolerances in respect of timber flooring. He did not identify any breach of any Australian Standard, or that the flooring had not been installed with due care and skill; or not in accordance with the plans as specifications under the original contract to construct the house.
2. Mr Nakhla states that the purported defect is not a major defect under s 18E of the HB Act.
3. In respect of method of rectification and cost of rectification, Mr Nakhla asserts that affected sections of the floor need to be removed; self-levelling compound applied to the sub-strate; and the floorboards reinstalled at a total cost of $5,191.56.

Incomplete Works and Miscellaneous Defects

1. Mr Nakhla identifies 11 items of "miscellaneous defects and incomplete works" He does not identify whether he believes such items are major defects under s 18E of the HB Act, although one of the items (Item 9) appears to be an item of concern.
2. That item involves "rear elevation brick cracking and movement". Mr Nakhla states that the expansion joint to the rear of the property has "substantial movement" and that "the bricks to the rear elevation left side have been repaired but are now showing stepped cracking again". Mr Nakhla states the owner informed him that the owner was engaging a structural engineer "for future monitoring". Mr Nakhla states that "further structural analysis and report (is) required by a structural engineer".
3. The other items do not obviously appear to be "major defects" under s 18E of the HB Act, nor does Mr Nakhla explain how they constitute a breach of statutory warranties under s 18B of the HB Act.
4. For example, Item 1 is "mismatched flooring" (which will be discussed further below) involving floorboards of a different colour in a part of the house. Other items involve such matters as areas of the premises that require further painting touch ups; kitchen splashback tiles; damaged floor tiles; brick cleaning; retaining wall and fence repairs; and rainwater tank pump repairs.
5. According to Mr Nakhla, the various additional "incomplete works and miscellaneous defect items" (exclusive of preliminaries; builder's profit margin; and GST) will cost $20,401.60 to rectify.
6. When the cost of rectifying all items is added together with allowances for preliminaries; builder's profit margin; and GST, Mr Nakhla asserts the total cost of rectification is $39,288.27.
7. The builder did not obtain any independent expert evidence to support its case in the renewal proceedings. Rather, its evidence focused upon the builder's compliance with the consent orders of the Tribunal, and that in respect of the replacement of flooring the owner had agreed to accept floorboards of a different shade, because the colour of the original floorboards was no longer available.

Decision and Reasons of the Tribunal

1. The hearing in the Tribunal occurred on 22 July 2022 and the Tribunal made a decision with written reasons on the same date.
2. The reasons referred to the procedural background, including that the applicant was seeking an award of damages of $20,000 and that the proceedings were renewal proceedings arising from the owner's allegation the builder had not complied with the consent orders of 12 July 2022.
3. The Tribunal referred to the evidence of the parties, including the evidence contained in Mr Nakhla's report. The Tribunal stated as follows (emphasis added): The applicant relied on an expert report of SJN Building Consultants dated 14 June 2022 (Expert Report). The Expert Report deals with some 21 items, the ones which are relevant to these proceedings being: Item 1-mismatched flooring, for which $2,080.00 was provided for rectification. Item 3-Paint finishes throughout, for which $3,120.00 was provided for rectification. Item 10-retaining wall and fence repairs, for which $3,120.00 was provided for rectification. The first challenge is for the applicant to prove on the balance of probabilities that the works the subject of the previous order were not carried out or not carried out properly. I will consider each item in turn, bearing in mind it is up to the applicant to prove these matters on the balance of probabilities.
4. The Tribunal then made the following findings:

Fence

1. The Tribunal found that, although the fence was not installed by the builder, the builder agreed to rectify the fence pursuant to the consent orders. The Tribunal noted that the builder's evidence was that it sent a fencing contractor after the consent orders were made, but "fixing the fence was a much larger job than just removing the panels". According to the builder, because the owner had installed artificial turf the builder elected not to repair the fence because it did not want to "cause further damage".
2. The Tribunal found the consent order to repair the fence had not been complied with and awarded the owner $3,120 as damages for the cost of rectification.

Timber Flooring

1. The Tribunal noted the owner stated that floorboards were discoloured. The builder's evidence was that the original floorboards had been discontinued; the builder showed the owner a sample of the replacement floorboards and the owner agreed to the new colour.
2. The Tribunal made a factual finding that it preferred the evidence of Mr Satar for the builder to the evidence of the owner in respect of the owner agreeing to the different colour.
3. The Tribunal also found that the photographs of the floorboards contained in the owner's evidence did not show discolouring sufficient to require the "wholesale replacement of the floorboards".
4. The Tribunal stated that at the hearing the owner "made no complaint about uneven or undulating floorboards".

Painting

1. The Tribunal found that the applicant had not made any attempt to match the areas where Mr Nakhla stated repainting was required with "the areas that were subject to wear and tear in July 2021 the subject of the work order". According to the Tribunal, the painting claim was "generalised and exaggerated".

Other Items

1. The Tribunal's reasons then dealt with the other items of work in the consent orders. The Tribunal stated that "paint and seal driveway" and "replace toilet roll holder" were not pressed. In respect of painting manhole cover, the Tribunal stated that the item was not referred to in Mr Nakhla's report. In respect of painting of the cornice, the Tribunal found the work had not been performed, and allowed 1 hour at $65 per hour (based on the cost of painting in Mr Nakhla's report) for the cost of rectification.
2. The Tribunal made an order the builder pay the owner $3,185 in respect of rectification of the fence and painting of the cornice. Other items were dismissed.

Grounds of Appeal

1. The owner filed a Notice of Appeal on 25 July 2022. The appeal was filed within the applicable limitation period under Reg. 25 of the Civil and Administrative Tribunal Rules 2014 (NSW).
2. Grounds of Appeal are identified in the Notice of Appeal as follows: Because I have EXPERT WITNESS REPORT with quotation
3. Order challenged on appeal; and orders sought are identified as: Painting indoor & outdoor Floorboards Fance [sic] Rain water tank Uneven floor upstairs
4. The Notice of Appeal states that the owner is seeking leave to appeal.
5. The basis that leave to appeal is sought is that the owner has "EXPERT WITNESS REPORT with quotation" and "It's going to cost me more money to fix everything".

Reply to Appeal

1. The builder filed a Reply to Appeal dated 17 August 2022. The builder opposed the appeal because: …all of these items have fallen out of the defects liability period and what was required to be completed has been done so as per the evidence submitted to the tribunal [sic]. Whatever was deemed incomplete by the tribunal [sic] Vesta Homes is willing to compensate the appellant in the sum of $3,185 only.

Scope and Nature of Appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80 (2) of the NCAT Act.
2. Internal appeals involve consideration of whether there has been any error of law; or any error other than an error of law sufficient to grant leave to appeal under Cl. 12 of Sch. 4 of the NCAT Act.
3. An appeal is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
4. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ('Prendergast') the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
5. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in Cl. 12(1) of Sch. 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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).
6. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of Cl. 12(1) of Sch. 4 may have been suffered where: … 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.
7. Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of Cl. 12(1) of Sch. 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
8. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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.
9. Even if the appellant establishes that it may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains discretion whether to grant leave under s 80(2) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong (Pholi v Wearne [2014] NSWCATAP 78 at [32]).
10. In respect of a self-represented non-legally trained appellant, grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised (Prendergast at [12]; Cominos v Di Rico [2016] NSWCATAP 5 at [13]).

CONSIDERATION

1. Written and oral submissions of the parties were unhelpful; with both parties focussing upon the substance of the dispute rather than whether there was an error on a question of law in the decision or the conduct of the hearing; or whether an error of a type that leave to appeal should be granted under Cl. 12 of Sch. 4 of the NCAT Act had occurred (applying the principles in Collins v Urban).
2. Neither party provided a transcript of the hearing; nor a sound recording of the hearing.
3. It is clear from the economical written reasons of the Tribunal that the Tribunal adopted the position that the owner's renewal proceedings were limited to the 7 items of rectification identified in the consent orders of 12 July 2021; whether such work had been performed (adequately, or at all); and what remedial orders should be made in respect of the consent orders that had not been complied with.
4. A critical issue in the appeal is whether this approach constitutes an error on a question of law.
5. Cl. 8 of Sch. 4 of the NCAT Act states: 8 Renewal of proceedings in respect of certain Division decisions (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. (4) When proceedings have been renewed in accordance with this clause, the Tribunal - (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order. (5) This clause does not apply if - (a) the operation of an order has been suspended, or (b) the order is or has been the subject of an internal appeal.
6. Renewal proceedings are means of enforcing and promoting timely compliance with Tribunal orders: Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 ('Blessed') at [26]; Mania v NSW Land and Housing Corporation [2022] NSWCATAP 376 ('Mania') at [25]-[26]). If orders of the Tribunal have not been complied with, the Tribunal has a degree of flexibility in determining what orders are appropriate having regard to the purpose of renewal proceedings; the circumstances giving rise to the renewal application and any other relevant circumstances (including circumstances since the making or the original orders): Blessed at [33]; Mania at [34]-[35]; Minifie v Maxwell [2020] NSWCATAP 30 at [37]-[41]).
7. However, in proceedings involving the HB Act, the Tribunal is not empowered in renewal proceedings to consider defect claims that were not part of the original proceedings and are not items that have arisen as a consequence of the orders made in the original proceedings. The Appeal Panel stated in Devel Pty Ltd v Lewis; Lewis v Devel Pty Ltd [2021] NSWCATAP 395 ('Devel') at [80]-[82]: In our view, there is nothing in the Appeal Panel's reasoning in Blessed Sydney Constructions to support a conclusion that in renewal proceedings the Tribunal can make an order concerning a claim that was not made in the original proceedings. Renewal proceedings are an enforcement mechanism which provides a remedy for non-compliance with Tribunal orders. They are restricted to claims relating to the consequences of the order in the original not being complied with. This will usually be the cost of undertaking the works specified in the work order. However, where other consequences have arisen as a result of that non-compliance (for example, water damage caused by defective waterproofing work), then the cost of rectifying that damage may be claimed in the renewal proceedings. However, renewal proceedings are not proceedings in which a new claim can be raised that was not raised in the original proceedings. As Items 26 to 29 were not part of the original claim and are not items that have arisen as a consequence of the orders made in the original proceedings, they could not be considered as part of the renewal proceedings. We conclude that the Tribunal erred in finding that they could be considered as part of the renewal proceedings on the basis of authorities such as Bondarek and Blessed Sydney Constructions. Items 26 to 29 had to be considered as a new claim, to which the relevant time limitation periods under the HB Act applied. The claim in respect of Items 26 to 29 should have been made in a separate application under the HB Act, rather than on the same application form as the application in the renewal proceedings. There are circumstances in which it would be appropriate for the Tribunal to exercise its discretion to allow both renewal proceedings and a claim for items that were not part of the original claim to be set out in the same application form; for example, if an application in respect of the new claims would be time barred if the Tribunal insisted on a separate application. Allowing the renewal proceedings and the claim in respect of new items to be set out in the same application form in such circumstances would be consistent with the guiding principle under s 36(1) of the NCAT Act; that is, the resolution of the real issues in dispute in a manner that is just, quick and cheap. It would also be consistent with the Tribunal's obligation under s 38(4) of the NCAT Act to act "with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
8. As was pointed out by the Appeal Panel in Devel (when distinguishing the Appeal Panel decision in Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 'Bondarek') a key difference between renewal proceedings involving breach of statutory warranties under s 18B of the HB Act and other types of renewal proceedings (such as under the Residential Tenancies Act 2010 (NSW) involving Bondarek) is that time limits for statutory warranty proceedings in the Tribunal strictly apply under ss 48K (7), 3B and 18E of the HB Act; and time cannot be extended under s 41 of the NCAT Act. (see the discussion of time limits for breach of statutory warranty claims in Baserite Constructions Pty Ltd v Tanios [2022] NSWCATAP 347 ('Tanios') at [134]-[139] and Onslow v Cullen [2022] NSWSC 1257 at [52]-[62]).
9. In this matter, the owner was the purchaser of the residential premises from the developer. By reason of s 3B (3) (c) of the HB Act, practical completion for the purpose of the limitation period for breach of statutory warranties in the circumstances of this matter would commence on the date of the occupation certificate (i.e. 3 May 2019).
10. The owner had 2 years from 3 May 2019 to commence proceedings in the Tribunal for non-major defects; and 6 years from 3 May 2019 to commence proceedings for major defects (as defined in s 18E of the HB Act, and subject to the provisions of s 18E (1) (e) of the HB Act allowing an extension for a further 6 months if the breach of warranty becomes apparent within the last 6 months of the warranty period). The 'non-major' defects period to commence proceedings in the Tribunal expired on 3 May 2021.
11. The owner commenced the original proceeding in the Tribunal within the 2 year period, on 1 March 2021. However, the owner settled those proceedings by way of a consent work order under s 48O of the HB Act.
12. In our view, the renewal proceedings only involved the defect items set out in the consent orders of 12 July 2021. The owner chose to settle the original proceedings by way of a limited work order under s 48O of the HB Act. In those circumstances, nothing is raised in this appeal to indicate that the owner would not be estopped from re-litigating the non-major defects he raised in the original proceedings but chose not to pursue when he entered into the consent work order (see Bauer v Farm Cove Investments Pty Ltd [2022] NSWCATAP 14 at [58]-[59] for a summary of applicable principles in respect of issue estoppel; cause of action estoppel; and res judicata).
13. By the time the owner filed the renewal proceedings in the Tribunal, he was out of time to bring proceedings for breach of statutory warranties other than in respect of major defects under s 18E of the HB Act.
14. Section 18E of the HB Act states as follows: 18E Proceedings for breach of warranty (1) Proceedings for a breach of a statutory warranty must be commenced in accordance with the following provisions - (a) proceedings must be commenced before the end of the warranty period for the breach, (b) the warranty period is 6 years for a breach that results in a major defect in residential building work or 2 years in any other case, (c) the warranty period starts on completion of the work to which it relates (but this does not prevent proceedings from being commenced before completion of the work), (d) if the work is not completed, the warranty period starts on - (i) the date the contract is terminated, or (ii) if the contract is not terminated - the date on which work under the contract ceased, or (iii) if the contract is not terminated and work under the contract was not commenced - the date of the contract, (e) if the breach of warranty becomes apparent within the last 6 months of the warranty period, proceedings may be commenced within a further 6 months after the end of the warranty period, (f) a breach of warranty becomes apparent when any person entitled to the benefit of the warranty first becomes aware (or ought reasonably to have become aware) of the breach. (1A) If a building bond has been lodged for building work under Part 11 of the Strata Schemes Management Act 2015, the period of 2 years specified for commencing proceedings for a breach of a statutory warranty for that work is extended until the end of 90 days after the end of the period within which a final inspection report on the building work under that Part is required. (1B) Subsection (1A) does not limit any other law that permits the period for commencement of proceedings to be extended. (2) The fact that a person entitled to the benefit of a statutory warranty specified in paragraph (a), (b), (c), (e) or (f) of section 18B has enforced the warranty in relation to a particular deficiency in the work does not prevent the person from enforcing the same warranty for a deficiency of a different kind in the work (the other deficiency) if - (a) the other deficiency was in existence when the work to which the warranty relates was completed, and (b) the person did not know, and could not reasonably be expected to have known, of the existence of the other deficiency when the warranty was previously enforced, and (c) the proceedings to enforce the warranty in relation to the other deficiency are brought within the period referred to in subsection (1). (3) The regulations may prescribe defects in a building that are not (despite any other provision of this section) a major defect. (4) In this section - major defect means - (a) a defect in a major element of a building that is attributable to defective design, defective or faulty workmanship, defective materials, or a failure to comply with the structural performance requirements of the National Construction Code (or any combination of these), and that causes, or is likely to cause - (i) the inability to inhabit or use the building (or part of the building) for its intended purpose, or (ii) the destruction of the building or any part of the building, or (iii) a threat of collapse of the building or any part of the building, or (b) a defect of a kind that is prescribed by the regulations as a major defect, or (c) the use of a building product (within the meaning of the Building Products (Safety) Act 2017) in contravention of that Act. Note - The definition of major defect also applies for the purposes of section 103B (Period of cover). major element of a building means - (a) an internal or external load-bearing component of a building that is essential to the stability of the building, or any part of it (including but not limited to foundations and footings, floors, walls, roofs, columns and beams), or (b) a fire safety system, or (c) waterproofing, or (d) any other element that is prescribed by the regulations as a major element of a building.
15. As discussed in Devel, the Tribunal at first instance could have given the owner the opportunity to expand the defects claimed in the renewal proceedings by treating the application as involving both (a) renewal proceedings involving the 7 items contained in the consent order dated 12 July 2021; and (b) fresh proceedings filed as at the date of the renewal application in respect of any major defect that did not form any of the 7 work items contained in the consent order dated 12 July 2021.
16. As stated previously, the owner did not provide a written transcript of sound recording of the hearing. However, considering the written reasons of the Tribunal and the manner in which the owner made his appeal submissions (which simply focussed upon the merits of the dispute at first instance and in particular, the colour of the replacement floorboards) we are satisfied that neither the owner made an application to the Tribunal at the hearing to consider part of his renewal proceedings as a fresh application; nor did the Tribunal raise with him that he could make such an application.
17. In our view, although the Tribunal could have raised this with the owner at the hearing, and (subject to the views of the builder and the issue of procedural fairness) considered any major defect items as constituting a fresh application in addition to the renewal proceedings, the failure to do so was not an error of law.
18. A failure by the Tribunal to raise with the owner that he could make such an application would only be an error of law if it constituted a denial of procedural fairness.
19. In Italiano v Carbone & Ors [2005] NSWCA 177 ('Italiano v Carbone') Basten JA stated at [88]: An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment", as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]: "A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations." at [37].
20. Procedural fairness is not an abstract concept. As Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 said at [37] in respect of procedural fairness: ...Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
21. Any failure by the Tribunal to raise with the owner the possibility that he could make an application to have any of the defect items that fell outside the items of work contained in the consent orders but were "major defects" under s 18E of the HB Act, as a separate application to be heard in conjunction with the renewal proceedings, is not a denial of procedural fairness in the circumstances of this matter.
22. In our view, there is no reason why the owner cannot file a fresh application with the Tribunal regarding any "major defects" under s 18E of the HB Act. The owner is well within the applicable limitation period discussed previously. As the Tribunal clearly did not consider anything other than the 7 work order items in the renewal proceedings, it cannot be said that there was any determination as to whether there were any "major defect" items under s 18E of the HB Act or that such an issue formed part of the Tribunal's decision on 22 July 2022. We do not envisage that any issue estoppel or res judicata arises, noting further that if a defect is of such a type to constitute a "major defect" (see the discussion in Tanios at [136]-[137] regarding applicable principles) it is likely to have deteriorated or occurred since 22 July 2022 in any event.
23. We do not propose to discuss the merits of any such new application. The owner has not lost any rights that he would have had if the Tribunal had taken into account the potential major defect items referred to in the report of Mr Nakhla beyond the 7 items of work that constituted the consent orders and were considered and ruled upon by the Tribunal.
24. This is an entirely different situation to the issue of denial of procedural fairness considered in Italiano v Carbone at [105] and Tiwari v Champion Home Sales Pty Ltd [2016] NSWCATAP 73 at [21] involving a self-represented litigant not being informed of the right to make an application for an adjournment in certain circumstances, which then leads to the loss of the ability to make such an application. Here, the owner can file fresh proceedings in the Tribunal in respect of major defects.
25. If the owner files a fresh application, it will be a matter for both parties to raise their own evidence and arguments. It is inappropriate for the Appeal Panel to speculate on the merits or likely outcome of such an application if it is made.
26. The other issues raised by the owner in the appeal do not constitute an error of law; nor an error of a type that the Appeal Panel would grant leave to appeal under Cl. 12 of Sch. 4 of the NCAT Act (applying the principles in Collins v Urban).
27. The reasons given by the Tribunal, although economical, are sufficient not to constitute a failure to give adequate reasons (Volkswagen Group Australia Pty Ltd v Saad [2020] NSWCATAP 133 at [58]).
28. The findings of the Tribunal were reasonably open to it on the evidence (including the finding regarding the replacement of the floorboards with floorboards of a slightly different colour) and there is nothing to indicate the reasoning process of the Tribunal was unorthodox or unreasonable.
29. In our view, most, if not all, of the complaints raised by the owner regarding the decision at first instance are effectively an attempt to re-argue the merits of the original decision. That is not sufficient to succeed in an appeal.
30. On the issue of leave to appeal being granted under Cl. 12 of Sch. 4 of the NCAT Act, we are not satisfied that a substantial miscarriage of justice may have occurred on the grounds set out in Cl. 12 of Sch. 4, nor that any of the matters in Collins v Urban at [84] have been established.

ORDERS 1. Leave to appeal is refused. 2. Appeal dismissed. 3. Stay of Tribunal orders dated 22 July 2022 granted by Appeal Panel on 12 August 2022 is lifted.

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: 21 February 2023