LANE & OWEN - [2015] FamCAFC 197

FAMILY COURT OF AUSTRALIA

LANE & OWEN

[2015] FamCAFC 197

FAMILY LAW – APPEAL – PROPERTY – Where the trial judge found that the parties’ matrimonial home was unable to be sold prior to May 2018 – Where the ability of the parties to sell the matrimonial home is disputed – Where the wife was issued an owner-builder permit pursuant to the Home Building Act 1989 (NSW) to develop the matrimonial home – Where the Home Building Act 1989 (NSW) provides for statutory warranties in relation to defects in the property – Where proceedings for breach of the statutory warranties must be brought within certain limitation periods – Where the limitation period commences on the date of “practical completion” – Whether “practical completion” is determined by reference to common law principles or the Home Building Act 1989 (NSW) – Where the trial judge incorrectly applied the Home Building Act 1989 (NSW) to find that practical completion occurred on the latest rather than earliest of the possible dates – Appeal allowed.

Family Law Act 1975 (Cth) ss 75(2), 79(4)
Family Law Rules 2004 (Cth) r 17.02
Federal Proceedings (Costs) Act 1981 (Cth) s 9
Home Building Act 1989 (NSW) Part 2C, ss 3B(3)(c), 3B(3)(d), 18B, 18E, 48L, 95, 95(3), 95(4), Items 106 and 107 of the Savings and Transitional Provisions
Home Building Amendment Act 2011 (NSW)
Interpretation Act 1987 (NSW) ss 30, 33

Griffith v Gates (Home Building) [2013] NSWCTTT 302 (26 June 2013)
Norbis v Norbis (1986) 161 CLR 513
Plaintiff M47/2012 v Director-General of Security (2012) 86 ALJR 1372
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355
The Owners – Strata Plan 78103 v Charlie Habrouk [2014] NSWCATCD 46
Vero Insurance Limited v Kassem [2011] NSWCA 381
Visy Paper Pty Ltd v Australian Competition & Consumer Commission (2003) 216 CLR 1

APPELLANT:

Mr Lane

RESPONDENT:

Ms Owen

FILE NUMBER:

SYC

2485

2010

APPEAL NUMBER:

2013

DATE DELIVERED:

22 October 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan and Murphy JJ

HEARING DATE:

2 February 2015 and 12 March 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 June 2013

LOWER COURT MNC:

[2013] FamCA 457

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Rudge SC with Mr Othen

SOLICITOR FOR THE APPELLANT:

Uther Webster & Evans

THE RESPONDENT:

In person

Orders

The appeal is allowed.
The orders made by Justice Loughnan on 17 June 2013 be set aside.
The matter is remitted for re-hearing by a judge of the Family Court of Australia.
There be no orders as to costs.
The Court grants to the appellant husband a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lane & Owen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 90 of 2013
File Number: SYC 2485 of 2010

Mr Lane

Appellant

and

Ms Owen

Respondent

REASONS FOR JUDGMENT

Ainslie-Wallace & Ryan JJ

By Notice of Appeal filed on 11 July 2013, Mr Lane (“the husband”) appeals against property settlement orders of Loughnan J made on 17 June 2013 as between himself and Ms Owen (“the wife”).
A matter of particular controversy in this appeal concerns the parties’ matrimonial home and whether, by virtue of the Home Building Act 1989 (NSW) (“the Home Building Act”), it is able to be sold and the proceeds distributed between the parties.

Background

To give context to this appeal it is necessary to set out some apparently uncontentious background facts.
The husband was born in 1967 and the wife was born in 1966.
The parties met in March 1999, commenced cohabitation in June 2001 and married in early 2005. They separated in July 2009 and are not divorced. There are no children of the marriage, though the husband has two children from his previous marriage and the wife has three children from her previous marriage.
Although his Honour’s judgment carefully outlines the parties’ financial and other history, in this case, it is unnecessary to traverse that history in any detail.
His Honour considered at [133] the parties’ competing assertions as to the value of their various assets and liabilities and the matters to be taken into account by his Honour in determining the property of the parties and each of them. In particular his Honour considered the matters in dispute between the parties.
Of particular relevance to the trial and on appeal is a property at U Road, Suburb C (“the C property”) registered in the wife’s sole name.
After noting that there was a dispute between the parties as to the C property and whether it can be sold and if so, what consequences would attend the sale, his Honour referred at [136] to [138] to the competing arguments of the parties in reliance on the Home Building Act and the statutory warranties provided by its terms, to which we will return later in these reasons. His Honour noted the husband’s argument that there was no impediment to the sale of the property as the limitation period relevant to the statutory warranties had expired and thus the property could be sold. The wife argued that the limitation period in relation to the warranties had not expired and thus on any sale of the property there were significant consequences to the wife exposing her to potential liability.
His Honour said:
139. If the argument made on behalf of the husband is correct, the property has a value of $1,750,000. …
140. However, if the argument made by the wife is correct then there is no evidence of value.
The judge found, after considering the evidence, that the earliest date on which the property could be sold without penalty to the wife and which was outside the limitation period in respect of any suit for breach of statutory warranties was 31 May 2018. His Honour further found:
149. The valuer did not provide a valuation for the property assuming that the warranty on the renovations has not expired and no insurance is available.
150. The property will be included in the list of assets but no value can be attributed to it.
His Honour thus proceeded to resolve the disputes concerning various items of property and assets and determined at [176] the value of the parties’ assets, excluding the C property, to be $49,588.00 exclusive of superannuation which was agreed to total $40,000 being made up of $20,000 standing to the credit of each party. Again, after resolving the disputes between the parties about the nature and extent of their financial liabilities, his Honour found at [201] that the liabilities of the parties were $562,370.00.
He said:
202. The value of the [C] property is not known. The parties owe the Westpac Bank $550,000 secured by mortgage over that property. Otherwise, the parties have assets valued at $89,588 and a relevant debt of $12,370. Of the assets, $40,000 is in the form of superannuation and $49,588 is by way of non superannuation assets.
His Honour then proceeded to consider the parties’ contributions under the Family Law Act 1975 (Cth) (“the Act”) and concluded that the husband’s contributions supported an adjustment as to 53 per cent in his favour [254]. Turning then to the matters referred to in s 79(4)(d) to (g) his Honour concluded that those matters supported an adjustment in the wife’s favour of 5 per cent, thus concluding that there should be a division of the net assets between the parties as to 52 per cent to the wife and 48 per cent to the husband [297] and [299].
His Honour found that, ignoring the C property, those conclusions would require the wife to pay the husband $24,313 [302].
The judge then ordered that the C property not be sold until after 31 May 2018 [304] and made further orders by which the wife was not required to make the payment to the husband referrable to his Honour’s findings until the sale had taken place [305].
Pending the sale of the C property, his Honour’s orders contemplated that the husband who was then living in the property would continue to do so and further that he be responsible for the payment of the outgoings on the property. His Honour further ordered that the husband be permitted to allow boarders to live in the property to assist to defray the cost of the outgoings.

The appeal

The husband’s Notice of Appeal contains four grounds of challenge to his Honour’s orders. At the commencement of the hearing, counsel for the husband sought leave to add a further sub-ground to Ground 1 being:
The trial judge failed to adequately reveal the reasoning process which led him to conclude that the property owned by the respondent at [Suburb C] may not be able to be sold prior to 31 May 2018.
That leave was granted.
The gravamen of the appeal however is contained within Ground 1. In our view, the success of this ground renders it unnecessary to consider the other grounds of appeal and on the appeal being allowed, the only available recourse in the matter is to remit the matter for further hearing.

Ground 1

That the learned trial judge erred in principle in concluding that property owned by the Respondent at [Suburb C] could not be sold prior to 31 May 2018 in that:
(a)such conclusion was based upon an erroneous interpretation of the provisions of s95 of the Home Building Act 1989 (NSW) (“the HBA”), or, in the alternative;
(b)if the trial Judge’s interpretation of s95 of the HBA was reasonably open to him, the unchallenged evidence before His Honour in relation to the absence of “structural defects” in [Suburb C] established that the property could be sold after 31 May 2014, and rendered erroneous the conclusion that [the C property] could not be sold before 31 May 2018.
(c)The trial judge failed to adequately reveal the reasoning process which led him to conclude that the property owned by the respondent at [Suburb C] may not be able to be sold prior to 31 May 2018.

The C property

It is uncontentious that the parties purchased the C property in August 2004 for $980,000. The purchase price comprised a home loan for $550,000 taken out by the parties and the balance being paid from the wife’s bank account [52].
In June 2005 an owner-builder permit was issued to the wife pursuant to the Home Building Act allowing the wife to develop the property. Building work began in February 2006.
The parties separated in July 2009 [81] and the wife left the C property in January 2010 [92]. On 2 November 2010 after a conciliation conference, the parties agreed on interim orders which provided, inter alia, that certain, further work be done on the property by a licenced builder. That building work was done on the property in 2011 broadly as contemplated by the November orders.
On 17 May 2011 the local authority issued a Certificate of Occupancy in relation to the property.
The central issue raised by this ground is whether certain provisions of the Home Building Act apply to the C property and if so, whether the trial judge correctly applied them.

The Home Building Act 1989 (NSW)

Part 2C of the Home Building Act imposes statutory warranties in relation to defects in a property on which building work is conducted by an owner-builder. The warranties cover structural and other defects in the building (s 18B). Relevantly, the immediate successor in title to an owner-builder may bring proceedings against an owner-builder for breach of the statutory warranties in relation to defects in the property, but must do so within the limitation periods prescribed by the Home Building Act.
Section 95 of the Home Building Act as it applied in this case provided that an owner-builder who does work on a property where the market value of the work is greater than $20,000 is required to take out Home Warranty Insurance. Thus an owner-builder is indemnified in respect of any claims made by a subsequent purchaser of the property in relation to defects in the property. If an owner-builder failed to obtain Home Warranty Insurance in accordance with s 95, penalties applied. Though it has since been amended, s 95 relevantly provided:
(1) An owner-builder must not enter into a contract for the sale of land on which owner-builder work is to be or has been done by or on behalf of the owner-builder unless a contract of insurance that complies with this Act is in force in relation to the work or proposed work.
Maximum penalty: 1000 penalty units in the case of a corporation and 200 penalty units in any other case.
Further, s 95(4) provided that a contract for the sale of the property on which uninsured work had been effected by an uninsured owner-builder is voidable at the option of the purchaser before completion of the contract unless the sale of the land is more than six years after the completion of the work (s 95(3)).
The wife did not take out Home Warranty Insurance on the property, thus on any sale of the property she was potentially liable for the penalty pursuant to s 95, the possibility of any contract for sale being voided by the purchaser and she was exposed to liability in relation to a potential claim by the purchaser of the property.
Before the introduction of the Home Building Amendment Act 2011 (“the Amendment Act”) the limitation period in respect of an action brought under the statutory warranties was seven years, with the period to run from the date of practical completion of the building works. The determination of the date of practical completion was assessed by reference to common law principles, a determination not without difficulty as reflected in the authorities such as Vero Insurance Limited v Kassem [2011] NSWCA 381. With the introduction of the Amendment Act, the limitation period is still expressed to run from the date of “practical completion” however the limitation period is six years in relation to structural defects and two years in relation to other defects (s 18E(1)(b)). Thus, the seven year limitation period no longer applied.
The Amendment Act, by the insertion of s 3B, provided a definition of “practical completion”. The section was enacted to clarify the various circumstances in which “practical completion” may occur depending on whether the work is undertaken by licensed contractors or, as in these proceedings, by owner-builders. Section 3B provides:
(1A) This section does not apply to residential building work to which section 3C applies.
Note. Section 3C provides for the date of completion of new buildings in strata schemes.
(1) The completion of residential building work occurs on the date that the work is complete within the meaning of the contract under which the work was done.
(2) If the contract does not provide for when work is complete (or there is no contract), the completion of residential building work occurs on practical completion of the work, which is when the work is completed except for any omissions or defects that do not prevent the work from being reasonably capable of being used for its intended purpose.
(3) It is to be presumed (unless an earlier date for practical completion can be established) that practical completion of residential building work occurred on the earliest of whichever of the following dates can be established for the work:
(a)  the date on which the contractor handed over possession of the work to the owner,
(b)  the date on which the contractor last attended the site to carry out work (other than work to remedy any defect that does not affect practical completion),
(c)  the date of issue of an occupation certificate under the Environmental Planning and Assessment Act 1979 that authorises commencement of the use or occupation of the work,
(d)  (in the case of owner-builder work) the date that is 18 months after the issue of the owner-builder permit for the work.
(4) If residential building work comprises the construction of 2 or more buildings each of which is reasonably capable of being used and occupied separately, practical completion of the individual buildings can occur at different times (so that practical completion of any one building does not require practical completion of all the buildings).
(5) This section applies for the purposes of determining when completion of residential building work occurs for the purposes of any provision of this Act, the regulations or a contract of insurance under the Home Building Compensation Fund.
(Our emphasis in (3))
In this case, as the wife did not take out Home Warranty Insurance she thus contended that if she entered into a contract to sell the property she would be liable to a penalty pursuant to s 95 of the Home Building Act. Further, she submitted that she should not be required to sell the property until the relevant limitation period expired because if the property was sold before the expiration of the limitation period she could be exposed to potential liability from suit by the purchaser for breach of the statutory warranties. She contended that this problem was particularly acute as further building work was done on the property after she had vacated it and she had had no control over the manner in which the work was done. Thus she argued she could not be satisfied as to the quality of the owner-builder work for which she would nevertheless potentially be liable.

Practical Completion

Therefore the first question for determination is the date of practical completion of the building work and thus the date on which the limitation periods in relation to the statutory warranties commenced and expired. Before his Honour both parties proceeded on the basis that the provisions of s 3B applied to the matter and the submissions of both parties relied on s 3B.
His Honour also had the benefit of expert opinion on the point from Mr D, a barrister with expertise in construction law, who on 12 November 2012 provided an expert opinion by way of answers to questions asked of him in writing by the parties. He said, in response to a question directed at how the potential liabilities to the wife consequent on the sale of the property could be minimised:
… the best way to minimize the potential liabilities of the owner-builder is either ensure that the house is built without defects or wait until the relevant limitation periods have expired before selling or transferring it.
He continued the answer with reference to s 18E of the Home Building Act which provides for the limitation periods. He noted that the limitation period contained within s 18E of two years and six years operated to replace the previous limitation period of seven years and was inserted by the Amendment Act which took effect on 1 February 2012. He then referred to items 106 and 107 of the Savings and Transitional Provisions of the Amendment Act (which will we address in greater detail below). He said that in his opinion, item 107, which provides that an amendment made by the amending Act “does not extend to or affect any decision of a court or tribunal in proceedings commenced in the court or tribunal before the commencement of the amendment” did not apply to the present proceedings and thus, s 3B governed the determination of the date of practical completion in the matter before his Honour. As we have said, both parties proceeded before the trial judge on the basis that it did.
It was argued to his Honour on behalf of the husband that pursuant to s 3B(3)(d), “practical completion” occurred on 9 December 2006 being 18 months after the wife was issued with the owner-builder permit in

July 2005. Accordingly, it was submitted that the six-year warranty period expired on 9 December 2012 and that from that date the property could be sold without the wife being liable in relation to any defects in the property or penalties pursuant to s 95.

However, the wife submitted that pursuant to s 3B(3)(c), “practical completion” occurred in May 2011 upon the issuing of the Certificate of Occupancy. She therefore contended that the six-year warranty period would expire in 2017 and the property could not be sold before that date without exposing her to potential liability for defects.
His Honour did not resolve that controversy. He found:
146. Despite the opinion of the expert, the situation remains far from clear. However, the following matters are relevant:
·The wife was the owner builder for the work on the [C] property and she obtained the required permit.
…
·There was work done in relation to the [C] renovation as recently at (sic) 2011. Orders were made with the parties’ consent on 2 November 2010 for work on the [C] property and further work was undertaken by [Mr TR] on a contract. That suggests that the old limitation period applies.
·The occupancy certificate was only provided in May 2011.
(Our emphasis)
147. On those facts I cannot assume that the warranty on the renovations has expired. There is no submission in the husband’s case that I should require the wife to breach the provisions of the Home Building Act by selling the property before the warranty expires. In any event I would not.
148. At the latest, the warranty will expire in May 2018.
It seems that his Honour’s reference to the “old limitation period” is a reference to the seven year limitation period that operated under the Home Building Act before the changes brought in by the Amendment Act in 2011. This perhaps explains his Honour’s finding that the limitation period expired in May 2018, seven years from the date on which the Certificate of Occupancy was issued. Given that it was accepted in the trial before his Honour that the Amendment Act applied both as to the determination of “practical completion” and as to the limitation periods, it is not altogether clear on what basis his Honour came to that conclusion but to the extent that his Honour applied the seven year limitation period, on the evidence before him, he erred.
His Honour ultimately made orders that the C property was to be sold after

31 May 2018. The husband contends that this order was based on an incorrect application of s 3B and that his Honour ought to have relied on the earlier of the dates available.

Does the Home Building Act apply?

At trial, as we have said, it was an agreed position that the above provisions of the Home Building Act applied to the current proceedings.
However on appeal, a controversy arose as to the applicability of s 3B and the effect of item 107 of the Savings and Transitional Provisions of the Amendment Act. It is useful to set out both items 106 and 107 of those transitional provisions:
106 Purpose and operation of amendments
The amendments made by the amending Act are made for the purpose of the avoidance of doubt and accordingly (except as otherwise provided by this Part) those amendments extend to:
(a)       residential building work commenced or completed before the         commencement of the amendment, and
(b)       a contract of insurance entered into before the commencement of     the amendment, and
(c)       a loss or liability that arose before the commencement of the           amendment, and
(d)       the notification of a loss before the commencement of the      amendment.
107 Legal proceedings not affected
An amendment made by the amending Act does not (despite any other provision of this Part) extend to or otherwise affect any decision of a court or tribunal in proceedings commenced in the court or tribunal before the commencement of the amendment (whether the decision is made before or after that commencement).
(Our emphasis)
As the Family Court proceedings were begun before the commencement of the Amendment Act, it was suggested that the effect of items 106 and 107 was to exclude the proceedings before the judge from the provisions of the Amendment Act both as to the determination of practical completion and as to the limitation period in respect of claims under the statutory warranties. Accordingly it was suggested that the date of practical completion should have been ascertained by reference to common law principles rather than by the provisions introduced by the Amendment Act.
For the husband it was contended that item 107 only applies to proceedings commenced under the Home Building Act, for example proceedings in which an owner-builder, such as the wife in this case, is sued by a purchaser of the property for breach of statutory warranties provided for by Part 2C. It was argued that the trigger for the operation of the s 18E warranties would be the sale of the subject property. Where there was no sale and axiomatically no purchaser, there could be no proceedings for breach of statutory warranties commenced (or indeed even contemplated). Simply put, the husband contended that the intended effect of item 107 was to clarify the retrospective reach of the amendments and thus retain the integrity of proceedings pending under the Home Building Act.
The husband thus contended that item 107 did not apply to the present Family Court proceedings because they were not the sort of proceedings contemplated by the Home Building Act and no such “proceedings” had been commenced against the wife for breach of statutory warranties.
The wife submitted that s 3B, along with the other amendments included in the Amendment Act, had no application in these proceedings and contended that the husband was unable to rely on the earlier date of practical completion provided by s 3B(3)(d). Somewhat confusingly, she further contended that the completion date for the purpose of determining the commencement of the statutory warranty period occurred when the occupation certificate was issued in May 2011 thus, it seems, contending that if s 3B applied, the later of the dates by which “practical completion” is determined should be applied.
Whether the trial judge was correct to apply s 3B in his determination of the date of completion turns on whether item 107 was intended by the legislature to apply only to proceedings commenced under the Home Building Act, as submitted by the husband, or whether it was intended to capture proceedings in any court or tribunal.
The purport of items 106 and 107 thus falls to be determined by application of principles of statutory construction. Where the applicable law is expressed in legislation, the starting point for analysis is the text of the legislation itself (see Visy Paper Pty Ltd v Australian Competition & Consumer Commission (2003) 216 CLR 1).
It was suggested that the words of item 107 do not by their terms restrict the application of it to matters commenced under the Home Building Act, and thus the restriction applied to the present proceedings. While that is true and a literal reading of item 107 in isolation from the amendments and the Home Building Act as a whole could lead to the conclusion that item 107 applies to any proceedings about the subject property of any kind conducted in any court, when considered in context, that interpretation cannot be correct.
In Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355, the High Court (McHugh, Gummow, Kirby and Hayne JJ) said:
69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. …
Evidently, the proper approach demands the derivation of the meaning of the words from the legislative context in which they appear.
Turning first to the purpose of the provision, assistance is gained from a consideration of item 106 which is intended to explain the “purpose and operation of the amendments”. In summary it provides that the amendments apply to the following matters commenced or completed before the commencement of the amendments:
·Residential building work;
·A contract of insurance entered into;
·Loss or liability; and
·Notification of the loss or liability to the insurer.
All of these matters are plainly conditions precedent to a claim under the statutory warranties provided in the Home Building Act. They deal with issues directly arising under the Home Building Act. Against these matters then sits the provisions of item 107 which specifically excludes from the reach of the amendments proceedings already commenced in a court or tribunal.
Thus the purpose of the amendments, as explained in item 106 and in the context of the Amendment Bill, makes it clear that item 107 is directed at proceedings commenced under the Home Building Act.
We find support in this conclusion by the words explaining the purpose of the amendments found in item 106, namely “…the avoidance of doubt”. As we have indicated, s 3B introduced by the Amendment Act provides a means of ascertaining the date of practical completion for the purposes of determining the reach of the warranty period without having to have recourse to common law principles, which, as we have said was not without difficulty.
Furthermore, the purpose of the warranties and the anticipation of proceedings for breach of them are conditioned on the subject property being sold and the right to sue reposing in the subsequent purchaser. We accept the argument that, until there is a purchaser of the subject property, proceedings under the Home Building Act could not even be contemplated.
The proceedings before his Honour were not proceedings brought by a purchaser of the property. They were proceedings as between the husband and wife by which they sought property settlement orders as against each other. Although the property may be sold in pursuance of any orders made by the court there was no prospective or actual purchaser of the property.
Thus in our view item 107 did not operate to exclude the operation of the Amendment Act from the subject matter of the proceedings before his Honour and he was obliged to determine the date of “practical completion” by reference to s 3B.

Date of practical completion

Section 3B provides four possible dates at which practical completion is deemed to have occurred depending on whether the residential building work is undertaken by a contractor or by an owner-builder. The terms of s 3B(3) make it clear that it is the earliest date available that is to be taken as the date of practical completion.
Subsections (c) and (d) of s 3B(3) are relevant to this issue.
(3) It is to be presumed (unless an earlier date for practical completion can be established) that practical completion of residential building work occurred on the earliest of whichever of the following dates can be established for the work:
…
(c) the date of issue of an occupation certificate under the Environmental Planning and Assessment Act 1979 that authorises commencement of the use or occupation of the work,
(d) (in the case of owner-builder work) the date that is 18 months after the issue of the owner-builder permit for the work.
The wife contended that as building work was still being conducted on the property in 2011 and work had barely commenced on the property 18 months after the issue of the owner builder permit, it was logical to have regard to s 3B(3)(c) in determining the date of practical completion. Conversely the husband argued that the “earliest” of whichever date can be established for the work is found in s 3B(3)(d), that is, 18 months after the issue of the owner-builder permit.
Clearly s 3B(c) assumes that building work is likely to be completed within 18 months after the issue of an owner builder’s certificate. In this case, the determination of practical completion by reference to s 3B(3)(d) renders a somewhat illogical result, that is, at the expiration of the 18 months, the building work had not in fact reached practical completion. However that does not render ineffective the intention of the section, which is that the determination is had by reference to the “earliest” date and does not dictate a different result.
Thus, the ascertainment of the date of practical completion relevant to this matter was by reference to s 3B(3)(d), that is, a period 18 months after the issue of the owner-builders permit in June 2005. The limitation period in which any purchaser may sue the wife for breach of the statutory warranties expired six years from that date, namely in December 2012.
His Honour ought to have found the date of practical completion to be the earlier of the two possible periods, namely June 2005 and further, his determination at [146] that the “old limitation period applies” is also incorrect. It follows then that the order requiring that the sale of the C property not take place until after 31 May 2018 was erroneous.
As a result, his Honour’s determination that he could not attribute a value to the C property for the purposes of determining the assets of the parties and each of them for the purposes of making property orders as between them was an error.
This ground of appeal is established.

Grounds 2 and 3

These grounds challenge his Honour’s findings as to the parties’ contributions pursuant to s 79(4) and s 75(2).
For the husband, the challenge to his Honour’s assessment of the parties’ contributions pursuant to s 79(4) comprehended a number of challenges including a contention that his Honour failed to adequately expose his reasoning. However it was said that overarching the challenges in the ground is the asserted error in his Honour’s treatment of the C property. Thus it was said that if Ground 1 succeeds, there is little attraction in the argument under Ground 2 which challenges the judge’s finding that there should be a 6 per cent disparity between the husband and the wife on assessed contributions. As to Ground 3, which takes issue with his Honour’s findings in relation to s 75(2) matters, it was argued that if Ground 1 succeeds and the value of the C property is brought into the pool of the assets of the parties and each of them, the dollar effect of the adjustment made by his Honour in the wife’s favour becomes greater than his Honour anticipated in the reasons when the determination excluded the value of the C property.
In our view, it is unnecessary to consider these grounds. His Honour’s error in relation to the commencement or, more particularly, the conclusion of the warranty periods and the effect of that conclusion on the capacity of the C property to be sold, led him to order the sale of the property be deferred. As we have said, his Honour further ordered the husband to continue to pay the outgoings on the property for the five year period before which the property could be sold. The order that the husband make the payments was made after his Honour had considered the parties’ contributions and determined what adjustment should be made in the favour of each of them. Thus, any contributions of the husband made subsequent to the orders would not be taken into account further. That of itself could significantly affect his Honour’s assessment of the parties’ contributions and renders his determination erroneous.
Had the C property been introduced to the pool of property at its assessed value of $1.75 million, it would have completely changed the framework in which his Honour determined the case.

Ground 4

Finally, Ground 4 relates to Order 11 made by the primary judge on 7 May 2012 which provided for the husband to meet the costs of the expert in the first instance.
Order 11 of 7 May 2012 provides:
11. That in the first instance the husband pay the costs of the expert and the parties ultimately bear the cost in the proportions of the final settlement.
The primary judge’s orders of 17 June 2013 make no reference to the

7 May 2012 order and do not apportion the costs of engaging the expert as envisaged by Order 11.
It was contended for the husband that his Honour overlooked the terms of that order and thus made no order in the final orders that the wife reimburse the husband for those fees. It was asserted, uncontroversially, that the husband had, in fact, made the payment.
The husband argued that the correction of the apportionment of the costs could be effected by his Honour pursuant to the slip rule (r 17.02 of the Family Law Rules 2004 (Cth)) but said that it had been included as a ground of appeal to avoid duplication of proceedings.
Rule 17.02 deals with errors in orders and allows the court to correct a clerical mistake or error arising from an accidental slip or omission.
The wife argued that his Honour’s failure to make an order requiring her to reimburse the husband for a portion of those fees was not a slip and that

his Honour’s orders of 17 June 2013 operated to extinguish the 7 May 2012 orders.
We do not accept the wife’s argument. First, Order 1 of his Honour’s orders made on 17 June 2013 sets aside the orders of 2 November 2010 but otherwise makes no reference to the orders of 7 May 2012.
Secondly, the orders of 7 May 2012 were not property orders such that

his Honour’s final property orders had the effect of subsuming them. Order 11 is an order for costs and its operation is unaffected by the making of the final property orders. It is capable of being enforced albeit the amount payable would need to be calculated.
It is thus, in our view, not a matter for appeal and this ground will be dismissed.
We are of the view that the success of Ground 1 determines the whole appeal which will thus succeed.

Disposition of the appeal

The husband argued that if the appeal succeeded, the matter should be remitted for re-hearing. It was not suggested that this Court should, or indeed could,

re-exercise the trial judge’s discretion. This course was opposed by the wife who, entirely understandably, was concerned at the cost and time involved in a further hearing.
However, given the nature of the error and its impact on his Honour’s determination of the issues of contribution, this is not a matter in which we would re-exercise the discretion. Thus the matter will be remitted for further hearing.
We are, however, of the view that there is no impediment to the matter being returned to his Honour to be re-determined by him if his hearing calendar permits.

Costs

Counsel for the husband submitted that if the appeal succeeded there should be an order for costs against the wife, or, if the court was of the view that it was appropriate to so order, sought a costs certificate.
The appeal has succeeded on a question of law, and it is not a matter in which we consider an inter partes costs order appropriate, and we will thus order a costs certificate for the appeal in relation to the husband pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The wife appeared on her own behalf, assisted by her sister, and we are of the view that she should not have a costs certificate for the appeal.
We do not consider this an appropriate matter to order costs certificates for either party in relation to any re-hearing.

Murphy J

Orders for settlement of property made by Loughnan J on 17 June 2013 pursuant to s 79 of the Family Law Act 1974 (Cth) (“FLA”) included an order postponing the sale of a piece of real property, known in the proceedings as “the C property”, for almost five years after the date of the orders. At that time, the orders contemplate a sale and an equal division of the proceeds of sale after payment of various nominated expenses and liabilities.
The husband contends centrally in this appeal that the order postponing the sale results from an erroneous interpretation of certain provisions of the Home Building Act 1989 (NSW) (“HBA”). The asserted error emanates from the uncontentious facts that the wife obtained an owner-builder permit in

June 2005 and that renovations were carried out on the C property over a period of some years between about late 2005 and 2011, including after separation which occurred in July 2009. That asserted error of law is the foundation for Ground 1 which, in addition, asserts an inadequacy of reasons.

Separate grounds of appeal challenge his Honour’s assessment of contributions and the adequacy of the reasons therefor (Ground 2), and the assessment of relevant s 75(2) factors (Ground 3). A fourth “ground of appeal” contends, accurately as it seems to me, that an asserted mistake can be, and should be, corrected pursuant to “the slip rule”.

The HBA And The s 79 Proceedings

Context

Each of the parties contended before his Honour that the HBA affected the proceedings for settlement of property and, specifically, impacted upon the orders which were available to his Honour. The potential impact of that legislation and, in particular, its relevant restraint on owner-builders entering contracts for sale of property upon which building work had been undertaken, and an owner-builder’s potential future liability to purchasers of the property pursuant to the HBA’s statutory warranties, is central to the asserted error of law contended before this Court.
Those issues surfaced acutely during written submissions provided by the parties at the close of evidence of what was to be a two-day trial. As a result of matters there raised, and circumstances where the wife filed an Application in a Case subsequent to the close of evidence “because the mortgagee had issued a default notice in respect of [the C property]”,[1] his Honour sought submissions from the parties in respect of a number of specific matters. As reproduced in the reasons, the wife’s submissions were, relevantly, as follows:[2]
In respect of the [C] property:
If, as the wife contends, the property cannot be sold, how can it be that it has a value of $1,750,000? If the agreed valuation did not take into account the alleged restrictions on selling the property, should the valuation be updated.
The Court could order that the parties obtain advice from a single expert as to the options, if any, available to the parties and/or the Court, in order to effect a sale of the property. The Court could adjourn the matter until that advice is provided and the parties have an opportunity to consider and make submissions about that advice;
If the mortgagee obtains the right to realise its security, the Court could make an order for the division of any net proceeds in anticipation of there being a balance left after a mortgagee sale;
Should the proceedings be adjourned under s 79(5) until 6 years after the date the renovations were completed?
[1] Trial Reasons [13].
[2] At [13]
A barrister, Mr D, provided two reports which contain opinions as to the “saleability of [the C property] by reference to the provisions of the HBA”. Reports subsequently received from him were admitted into evidence before

his Honour. The opinions pertain in large part to an interpretation of sections of the HBA. It seems that the opinions were sought jointly by the parties who sought that two reports be admitted into evidence.[3]
[3]The reports, in so far as they provide an opinion as to the construction of the HBA seem to me to intrude upon the province of the trial judge and I query their admissibility or, if admissible, their utility. Nevertheless, no point to that effect is raised in this appeal.
In identifying the issues to be determined in the reasons for judgment,

his Honour recorded:
16.The main issues identified by the parties were:
1.the treatment of the potential liability of the wife as owner-builder, for all building defects and any resulting litigation or claims over the property, for a period of six years from the date of certification for the building works on the property, that is, until 18 May 2017;
…
6.whether the [C] property can and should be sold.
The issue of whether the C property “can or should be sold” involved a consideration of s 95 of the HBA. That section in its then form provides relevantly:
95   Owner-builder insurance
(1) An owner-builder must not enter into a contract for the sale of land on which owner-builder work is to be or has been done by or on behalf of the owner-builder unless a contract of insurance that complies with this Act is in force in relation to the work or proposed work.
Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.
(2) An owner-builder must not enter into a contract for the sale of land on which owner-builder work is to be or has been done by or on behalf of the owner-builder unless a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, is attached to the contract.
Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.
(2A) A person who is the owner of land, and to whom an owner-builder permit was issued under Division 3 of Part 3 after the commencement of this subsection and not more than 6 years previously must not enter into a contract for the sale of the land in relation to which the permit was issued unless the contract includes a conspicuous note:
(a)  that an owner-builder permit was issued under Division 3 of Part 3 to the person in relation to the land, and
(b)  that the work done under that permit was required to be insured under this Act.
Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.
(3) This section does not apply:
(a)  to a sale of the land more than 6 years after the completion of the work, or
(b)  if the reasonable market cost of the labour and materials involved does not exceed the amount prescribed by the regulations for the purposes of this section, or
(c)  if the owner-builder work is of a class prescribed by the regulations.
(4) Subject to subsection (4A), if an owner-builder contravenes subsection (1) or (2A) in respect of a contract, the contract is voidable at the option of the purchaser before the completion of the contract.
(4A) A contract is not voidable as referred to in subsection (4) if:
(a)  the owner-builder obtained a certificate of insurance evidencing a contract of insurance that complies with this Act in relation to the work or proposed work before entering the contract concerned, and
(b)  before completion of the contract, the owner-builder served on the purchaser (or an Australian legal practitioner acting on the purchaser’s behalf) a certificate of insurance, in the form prescribed by the regulations, evidencing that contract of insurance.
His Honour accepted, and it is uncontroversial before this Court, that for various reasons that were, in part at least, the subject of dispute before

his Honour, the wife was, and remained, unable to obtain the policy of insurance or, consequently, the certificate of insurance there referred to.
Reference to the terms of the then s 95 reveals that the restriction on sale applies for a period of six years from “completion of the work”. The concept of “completion of the work” is also central to the application of the statutory warranties implied in respect of, relevantly, “residential building work” undertaken by an owner-builder. In that case, the statutory warranties can be availed of by a successor in title to the owner-builder.[4] The relevant sections were referred to by his Honour in the reasons for judgment.[5] Section 18E provides relevantly:
18E Proceedings for breach of warranties
(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 structural defect (as defined in the regulations) 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)
…
[4]And, as a result of a 2012 amendment to the Act, to a person who acquires the property from that successor in title. Home Building Act 1989 (NSW) s 18C(1).
[5] Home Building Act 1989 (NSW) ss 18B; 18C; 18E at [141]ff.

The HBA and the Date of Completion of Residential Building Work

In response to perceived uncertainty as to the meaning of the expression “completion of the work” (and like expressions such as “practical completion” or “completion”) arising from judicial consideration of the term/s, the Home Building Amendment Act 2011(NSW) (“the Amending Act”) introduced s 3B.[6]
[6]Second Reading Speech, Home Building Amendment Bill 2011 (NSW), the Honourable Greg Pearce, Minister for Finances and Services and Minister for the Illawara, Hansard, 13 October 2011.
The section is entitled “Date of Completion of Residential Building Work” and provides:
3BDate of completion of residential building work
(1)The completion of residential building work occurs on the date that the work is complete within the meaning of the contract under which the work was done.
(2)If the contract does not provide for when work is complete (or there is no contract), the completion of residential building work occurs on practical completion of the work, which is when the work is completed except for any omissions or defects that do not prevent the work from being reasonably capable of being used for its intended purpose.
(3)It is to be presumed (unless an earlier date for practical completion can be established) that practical completion of residential building work occurred on the earliest of whichever of the following dates can be established for the work:
(a) the date on which the contractor handed over possession of the work to the owner,
(b) the date on which the contractor last attended the site to carry out work (other than work to remedy any defect that does not affect practical completion),
(c) the date of issue of an occupation certificate under the Environmental Planning and Assessment Act 1979 that authorises commencement of the use or occupation of the work,
(d) (in the case of owner-builder work) the date that is 18 months after the issue of the owner-builder permit for the work.
(4)If residential building work comprises the construction of 2 or more buildings each of which is reasonably capable of being used and occupied separately, practical completion of the individual buildings can occur at different times (so that practical completion of any one building does not require practical completion of all the buildings).
(5)This section applies for the purposes of determining when completion of residential building work occurs for the purposes of any provision of this Act, the regulations or a contract of home warranty insurance.
The completion date of residential building work done by the wife as an owner-builder as referred to in s 3B was contended by both parties to impact upon the proceedings before his Honour. As argued it was said to impact upon

his Honour’s power to make orders without exposing the wife to a penalty. It was uncontentious that, if that was its effect, the court would not make such an order given the statutory prohibition in the then s 95.
It was also argued by each of the parties below that the potential for liability under the statutorily-implied warranties ought to affect the consideration by

his Honour of, at least, s 79(4)(e) and any orders for sale (albeit that each party advanced different arguments in each respect).
The argument before his Honour centred on whether s 3B(3)(c) applied (as contended by the wife) or whether s 3B(3)(d) applied (as contended for by the husband). Similar arguments attend the assertion of error of law before this Court. The appellant husband contends that his Honour applied s 3B(3)(c) but ought to have applied s 3B(3)(d).

Were Findings Made As To The Application of the HBA?

His Honour was charged in the proceedings before him with deciding whether orders should be made altering the existing interests in property of the parties (s 79(2))[7] and, if so, arriving at orders which his Honour considered appropriate (s 79(1)) having regard to relevant specified matters (s 79(4)) and ultimately ensuring that any such orders were just and equitable (s 79(2)). As the High Court has made clear, his Honour has a very wide discretion in arriving at orders which are just and equitable (Norbis v Norbis (1986) 161 CLR 513).
[7]It was not in issue in the proceedings that orders of some type altering existing interests should be made and nor could it reasonably have been in issue: “… the just and equitable requirement [was] readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife [were] no longer living in a marital relationship. It [was just and equitable to make an order here] because there [was] not and [would] not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements ha[d] been brought to an end by the voluntary severance of the mutuality of the marital relationship…” (Respectfully adapting Stanford v Stanford (2012) 247 CLR 108, at [42]).
The potential impacts of the HBA were relevant to a determination of orders that were just and equitable and had the potential to affect any such orders, but any impact of that Act was not necessarily determinative of the s 79 issue. As a consequence, it was, in my view, open to his Honour to postpone the sale of the C property as an exercise of discretion if his Honour considered such an order more appropriate in order to do justice and equity between the parties in the s 79 proceedings.
If that is what his Honour did, the challenge lies not to any imputed or inferred finding as to the meaning or proper interpretation of s 3B (or other provisions of the HBA). Rather, the challenge is to the exercise of his Honour’s discretion. That question involves, of course, different and more circumscribed assertions of error than an assertion that his Honour misapplied the law. But, is that what his Honour did?
Passages within his Honour’s reasons suggest just that conclusion. That is,

his Honour had determined to postpone the sale not as a result of a finding that s 3B, or any particular component of it, applied but, rather, because significant uncertainty surrounded the positions of each of the parties, resulting primarily from uncertainty about the interpretation and operation of the HBA. Having referred to the evidence of Mr D and noting that there was “no direct challenge to his evidence”, and having set out a number of aspects of

Mr D’s opinion, his Honour says:
146.Despite the opinion of the expert, the situation remains far from clear. However, the following matters are relevant:
·    The wife was the owner builder for the work on the [C] property and she obtained the required permit.
·    I am obliged to accept the wife’s evidence about the circumstances under which she obtained the permit and therefore cannot gainsay her evidence about falsely doing so.
·    There was work done in relation to the [C] renovation as recently at 2011. Orders were made with the parties’ consent on 2 November 2010 for work on the [C] property and further work was undertaken by [Mr TR] on a contract. That suggests that the old limitation period applies.
·    The occupancy certificate was only provided in May 2011.
147.On those facts I cannot assume that the warranty on the renovations has expired. There is no submission in the husband’s case that I should require the wife to breach the provisions of the Home Building Act by selling the property before the warranty expires. In any event I would not.
148.At the latest, the warranty will expire in May 2018.
149.The valuer did not provide a valuation for the property assuming that the warranty on the renovations has not expired and no insurance is available.
150. The property will be included in the list of assets but no value can be attributed to it.
(Emphasis added in each case)
Later in the reasons for judgment, his Honour referred to (and apparently accepted) the wife’s contentions as to potential risk posed by the potential application of interpretations of the HBA:
197.I have found earlier in these reasons, based in part on the evidence of the single expert, that there is a risk that the wife’s (sic) is obliged to give a warranty to an eventual purchaser, for work on the house until May 2017.
198.A significant problem for the wife’s argument on this issue is that there is absolutely no evidence as to the risk, let alone that the risk is $300,000.[8] In her written submissions, the wife said that this figure represents the minimum cover that has to be provided under a contract for Home Warranty Insurance. That figure seems to be based on the statutory limit for home warranty insurance and bears no relationship to a potential claim on the [C] house. Neither of the parties has caused an inspection of the house to assess the defects and so, the potential damage. Arguing that there may not be significant risk is the fact that the renovations have now been approved by council.
…
291.The wife submitted that the owner-builder liability is a relevant s 75(2)(o) factor because the husband will be free from any liability relating to the statutory owner-builder obligations while she will be financially limited by her requirement to retain the property until May 2017 in order to fulfil her statutory warranty obligations. Sadly I feel obliged to address that risk another way. Under the orders I propose there will be no risk to the wife under any home builder’s warranty.
(Emphasis added in each case)
[8]The wife had sought to quantify the potential risk of liability at that amount in the event that she retained [C] and asserted that figure should be taken into account in assessing its value.
So, too, under the heading “Framing the Orders”, his Honour said:
304.I have found that I should not order the [C] property to be sold until after May 2018. The question remains – whether the proceedings should be adjourned until then or orders made now, for then. Given that the parties’ wealth is almost exclusively tied up in the [C] property and given that they have turned their minds to the disbursement of the proceeds of sale for many years – including agreeing to an order for sale and disbursement of some of the proceeds in November 2010, I propose to make final orders now. The proceedings have been excruciating for the parties and need to come to an end.
(Emphasis again added)
There can, I think, be little doubt that the possible interpretations of the HBA, and specifically s 3B, and the application of those interpretations, creates significant uncertainty. His Honour was, with respect, correct as it seems to me when he says that uncertainty remained despite the opinions of Mr D.[9] An author has also commented on the uncertainty arising specifically from the introduction of s 3B, saying that the new definition “… adds a greater scope for uncertainty on the part of a home-owner than was provided for under the former regime” and he concludes that “in most cases, then, s 3B makes determination of completion date no clearer than before”.[10]
[9] And, indeed, would have remained even had Mr [D’s] opinions not been in evidence.
[10]Phillip Bambagiotti, Building Disputes and the Home Building Act 1989 (NSW) (Thomson Reuters, 2012) 40-41.
The appellant’s written submissions also refer to the uncertainties facing

his Honour – albeit in the context of a contention that his Honour’s reasons were inadequate. The written submissions contend:
19.With all due respect to the trial judge, and accepting that the issue was not without uncertainty (as his Honour observed), and acknowledging that the assistance received with respect to it may have been less than optimal, the appellant contends that the reasons for judgment cannot withstand appellate scrutiny in the light of the authorities.

Concern as to whether his Honour in fact made specific findings in respect of the application of the relevant provisions of the HBA is also evident later in the appellant’s written submissions:
25.In reliance upon Ground 1(a), the appellant contends that, to the extent that the trial judge’s reasons for judgment reveal why his Honour concluded as he did with respect to the HBA issue, such conclusion was vitiated by the erroneous interpretation of the provisions of the HBA. Inferentially, the trial judge found that the relevant date for the commencement of limitation periods under the HBA was May 2011 (RFJ, para 146, AB 73). To the extent that the trial judge’s reasoning was revealed, the appellant contends that it can be inferred that his Honour proceeded on the basis that the limitation period commenced on the latest date which might assume relevance under the HBA. As noted above, the trial judge made no findings of fact in that respect, other than as to the date the occupancy certificate issued (2011), and the date upon which the owner-builder permit issued to the respondent (2006).
26.… On the evidence before the trial judge, a finding that completion of the building works occurred on a number of earlier dates, including December 2006, was reasonably open to his Honour. In the absence of any findings, it is difficult to usefully articulate more in support of this complaint …
27.… With great respect to the trial judge, to the extent that his Honour engaged with this issue,[11] he erred in his determination of it by, inferentially, adopting an approach which diametrically departed from the provisions of the statute, thereby rendering appellate intervention inevitable …
(Emphasis again added in each case)
[11]That is, what the written submission contends in the same paragraph are the “four ‘dates for practical completion” and what is submitted to be “legislative intention [which] could not be clearer.”
Yet, real uncertainty intrudes upon a conclusion that his Honour intended to, and did in fact, postpone the sale as an exercise of discretion as opposed to making an order based on findings as to the interpretation of the HBA and s 3B in particular.
Other passages within his Honour’s reasons point to his Honour having made a specific finding as to the application of s 3B. For example, at [200] of the reasons, his Honour said, “unfortunately I cannot see a safe basis for requiring the wife to sell the property until her warranty expires” (my emphasis). Later, again under the heading “Framing the Orders”, his Honour said:
303.Albeit, on my calculations, $562,684 apart, the parties have both framed orders sought, at least in the alternative, giving the wife the opportunity to retain the [C] property and buy the husband out. It follows from the above findings that I cannot make a similar provision. Accepting the wife’s argument about the warranty on the [C property] renovations, I do not know how much the property is worth and so cannot identify the amount the wife would need to pay the husband. Obviously, the other mechanism for identifying the value of the property – a sale, is not available here.
(Emphasis again added)
In addition, and more specifically, under the heading “Conclusions”,

his Honour did not find that C should not be sold, but said:
316.The parties’ [C] property cannot be sold for about five years. In the meantime the current arrangement whereby the husband manages the property and pays the outgoings will continue.
(Emphasis added)
Crucially, I cannot see that any argument to the effect as just outlined was put to his Honour below, nor that his Honour raised any such issues expressed in those terms with the parties. Further, although it might be said that the central challenge before us directed to an inadequacy of reasons raises this issue, no argument expressed in the terms just outlined was canvassed in the proceedings before this Court. Accordingly, while I consider it entirely possible, and perhaps likely, that his Honour had in mind exercising his discretion in the manner suggested, as distinct from making orders flowing inexorably from the determination of questions of law, I consider that it would be unjust to decide this appeal on a ground “that was neither pleaded nor argued”[12] at the trial below. As the High Court has said, “[a] court may not decide a case on a point not raised by one of the parties or by the court for the consideration of the parties”.[13]
[12] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, at [132].
[13]International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, at [146] per Heydon J, referencing; Friend v Brooker (2009) 83 ALJR 724.
However, the uncertainty and ambiguity to which I have referred lends very considerable weight to the submissions made on behalf of the appellant that

his Honour’s reasons were inadequate to explain the basis upon which the orders were made and, in particular, the order postponing the sale of the C property.
There is in my view considerable merit in those arguments. I would allow the appeal on that basis.
While that conclusion is sufficient to dispose of the appeal, in light of the central arguments raised both below and on appeal and the reasons of

Ainslie-Wallace and Ryan JJ with which I respectfully disagree, it is appropriate to deal briefly with the major challenge to his Honour’s orders as argued, which centres on a contention that his Honour did in fact make findings (the appellant says “inferentially”) as to the meaning and interpretation of s 3B.
Further, I respectfully disagree with the arguments on behalf of the appellant in respect of the HBA’s transitional provisions and the acceptance of those arguments by Ainslie-Wallace and Ryan JJ. Given the potential for that issue to impact upon the application of s 3B, it is preferable to turn to it first.

The Transitional Provisions

While extensive argument before his Honour addressed the proper interpretation of s 3B and its effect on the s 79 proceedings, the parties there referred only fleetingly to the impact of Schedule 4 of the HBA. The relevant provisions provide:
106 Purpose and operation of amendments
The amendments made by the amending Act are made for the purpose of the avoidance of doubt and accordingly (except as otherwise provided by this Part) those amendments extend to:
(1)residential building work commenced or completed before the commencement of the amendment, and
(2)a contract of insurance entered into before the commencement of the amendment, and
(3)a loss or liability that arose before the commencement of the amendment, and
(4)the notification of a loss before the commencement of the amendment.
107 Legal proceedings not affected
An amendment made by the amending Act does not (despite any other provision of this Part) extend to or otherwise affect any decision of a court or tribunal in proceedings commenced in the court or tribunal before the commencement of the amendment (whether the decision is made before or after that commencement).
In commencing her submissions before his Honour on 24 April, the wife (who was representing herself) said this:
Accordingly, [the single expert] Mr [D], in his response and with specific reference to schedule 4 to the Home Building Act 1989 and sections 106 and 107 of schedule 4, responded at paragraph 1 of page 2 of his 12 February 2013 report.
In my letter to the parties, dated 12 November 2012, I said that in my view section 107 applies to proceedings in which the limitation period would be an issue between the parties.
The husband in his written submission of 15 April 2013 has omitted to bring to the court’s attention the whole of Mr [D’s] legal opinion on this question, which is – and quoting Mr [D]:
To answer the question, assuming that the date for completion of the owner builder work is not a matter to be decided by the Family Court in these proceedings and the evidence does not show that the work was actually completed later than 18 months from the issue of the owner builder permit for the work.
On the same question, Mr [D] in his report said:
I do not know, as a matter of fact, if the question of whether or not the owner builder work, in relation to which I have been asked questions, is an issue that extends to or otherwise affects a decision by the Family Court in these proceedings. Assuming that it is not such a question, then section 3B(3)(d) is likely to be applicable.
However, as we are all here to discuss those questions, it is my submission that this is very much an issue that affects a decision to be made in the proceedings currently before the court and there is a significant amount of evidence that shows that the work was not actually completed until May 2011. Accordingly, it is my submission that section 3B(3)(d) is not applicable and cannot be relied upon by the husband to invent an earlier completion date.[14]
[14] Transcript of proceedings, 24 April 2013, p 21, lines 15 – 45. (Italics in original)
Later, counsel for the husband came to address the same point:
[Counsel for the husband]: Your Honour, the question of the application and operation of section 3B(3)(d) arose in the third report and the questions that led to that third report. The expert says in response to question 1 that 3B(3)(d) was introduced into the Act and came into force on 25 October 2011. He goes on to say that in the transitions – say in transition provisions:
The amendments made by the amending Act are made for the purpose of the avoidance of doubt and accordingly, accept [sic] as otherwise provided by this part. Those amendments extend to residential building work commenced or completed before the commencement of the amendment.
Now, there’s no doubt that the residential building work was commenced before 23 October 2011. The second point it makes:
An amendment made by the amending Act does not extend to or otherwise effect [sic] any decision of a court or tribunal in proceedings commenced in the court or tribunal before the commencement of the amendment.
That in our submission refers to proceedings under the Home Building Act.
HIS HONOUR:   I’m sure.
[Counsel for the husband]: Not the Family Law Act.
HIS HONOUR:   No.
[Counsel for the husband]:   So we are caught by this provision. Sorry, it has application to us.
HIS HONOUR:   Yes.[15]
[15]         Transcript of proceedings 24 April 2013, p 44, lines 5 – 34. (Italics in original)
It was, and is, uncontroversial that the proceedings before his Honour commenced prior to the commencement of the Amending Act.
While the wife’s argument commenced with reference to the transitional provisions as outlined above, it seems that the wife’s argument was thereafter based on an assumption that s 3B was applicable to the proceedings. Certainly, the wife’s central argument appears to have been that “completion of the work” should be ascertained by the application of s 3B(3)(c). The issue of the application of the transitional provisions (and Mr D’s opinion) does not appear to have been returned to.
His Honour’s reasons do not refer at all to the transitional provisions, presumably as a result of the assumption inherent in the passage from the transcript quoted above and the central argument of the wife just referred to. It is however clear that his Honour proceeded on the assumption that item 107 of Schedule 4 had no application to the s 79 proceedings before him. I consider, with respect, that assumption to be incorrect.

The Application of the Transitional Provisions

Given that the proceedings before his Honour commenced prior to the commencement of the Amendment Act, if item 107 applies to the proceedings, then “completion” within the meaning of ss 18C, 18D, 18E and 95 of the HBA would be ascertained by reference to “completion of the work” without reference to s 3B.
Counsel for the husband contends before us that item 107 of Schedule 4 should be read down so as to apply only to proceedings instituted under, or brought pursuant to, the HBA. As Ainslie-Wallace and Ryan JJ point out, counsel illustrated the argument by suggesting that item 107 refers to disputes such as claims for breach of warranty and other building claims. The argument contends that proceedings pursuant to s 79 of the Family Law Act “were not in contemplation of the NSW Legislature” when item 107 was enacted.
To the extent that the submission averts to legislative purpose, it is to the terms of the section seen in the context of the Act as a whole to which reference should be made in seeking that purpose.[16] The duty of a court is “… to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have”.[17] However, the purpose of legislation “… is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction”.[18]
[16]“It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of the metaphor …” (Zheng v Cai (2009) 239 CLR 446, at [28] per French CJ; Gummow, Crennan, Kiefel and Bell JJ)
[17]Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, at [78] per McHugh, Gummow, Kirby, Hayne JJ
[18]Lacey v Attorney-General for Queensland (2011) 242 CLR 573, at [44] per French CJ; Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Item 107 of the HBA occurs in the context of s 30 of the Interpretation Act 1987 (NSW) (“the Interpretation Act”) which provides, relevantly:
(1)The amendment or repeal of an Act or statutory rule does not –
…
(c)affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule; or
…
(2)Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect:
(a)the proof of any past act or thing;
(b)any right, privilege, obligation or liability saved by the operation of the Act or statutory rule; or
(c)any amendment or validation made by the Act or statutory rule; or
(d)the operation of any savings or transitional provision contained in the Act or statutory rule.
Section 33 of the Interpretation Act provides, relevantly, that in interpreting a statutory provision, a “construction that would promote the purpose or object underlying the Act … (whether or not the purpose or object is expressly stated in the Act …) shall be preferred to a construction that would not promote that purpose or object”. The purpose of an Act is sought “… not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open”.[19]
[19] Mills v Meeking (1990) 169 CLR 214, at 235 per Dawson J.
The HBA does not contain a specific “objects” or “purposes” provision but its primary purposes can be ascertained from its substantive provisions. Among other things, the HBA, provides for “resolving building disputes and building claims.”[20] With those purposes in mind, the Act gives jurisdiction to “the Tribunal” in respect of “building claims”.[21]
[20] HBA Part 3A
[21] HBA s 48K
The definition of “building claim” includes “the payment of a specified sum of money” or “relief from payment of a specified sum of money” or “a combination of two or more” of the remedies provided for within the definition.[22] The definition is expanded by subsection (2) which provides that “without limiting the definition of ‘building claim’, it includes the following:
(a)an appeal against the decision of an insurer under a contract of insurance required to be entered into under this Act,
(b)a claim for compensation or loss arising from a breach of statutory warranty implied under Part 2C.
[22] HBA s 48A.
Nothing in item 107 restricts “proceedings” or “decisions” to “building claims” or otherwise makes reference to those defined claims to which the provisions of the HBA are centrally directed. “Tribunal” has a specific defined meaning (“the Civil and Administrative Tribunal established by the Civil and Administrative Tribunal Act 2013”).[23] A “tribunal” is not defined. Nor is “court” or “Court”. The central place of the “Tribunal”, as defined, in the determination of “building claims” is fundamental to the purposes of the HBA. For example, in s 48L (entitled “Tribunal to be chiefly responsible for resolving building claims”) provision is made for the transfer of such claims to the Tribunal.
[23] HBA Schedule 1
Within that context it is in my view significant that the use of the defined “Tribunal” is eschewed in item 107 in favour of “tribunal”, an expression, which in undefined form is, of broader compass. So, too, it is also telling in my view that item 107 does not restrict or confine “proceedings” (for example, by confining them to “proceedings under the Act”; by reference to “building claims” or by reference to any other proceedings referred to specifically in the HBA).[24]
[24] For example s 139 of the HBA (proceedings for offences).
Further, not only does the fact that jurisdiction is given to the defined Tribunal to deal with defined claims not preclude other proceedings in other courts or tribunals upon which the HBA might impact; the HBA itself expressly contemplates that such other proceedings may occur which might be affected by the Act’s provisions. For example, despite that fact that it may be a “building claim”, proceedings that relate to “the refusal of an insurance claim that exceeds $500,000 (or any other higher or lower figure prescribed by the regulations) is to be heard by a court of competent jurisdiction”.[25] Equally, actions for specific performance in a court of equity might be affected by the provisions of the HBA.
[25] HBA s 48M.
Item 107 is a savings provision which is designed to preserve existing rights and obligations, including, specifically, those being determined in proceedings commenced before the amendment. As such, the function of item 107 is to

“… make special provision for the application of legislation to circumstances which exist at the time the legislation came into force”.[26] The adoption of expressions of broad compass – and the concomitant eschewing of defined expressions or restrictive expressions contained within the same Act – is consistent with the broader legislative purpose of preserving rights and obligations existing prior to the amendment including in respect of proceedings commenced but not yet resolved. (That is, itself, an evident statutory purpose emerging from s 31 of the Interpretation Act).
[26] Britnell v Secretary of State for Social Security [1991] 2 All ER 726, at 729-730
Extrinsic materials offer little assistance in the interpretation of the provision. However, such assistance as is provided by the second reading speech sees a distinction being drawn between “claims” and “litigation”: “[t]he amended definition of ‘completion’ will commence on assent of the Act and will apply to contracts underway but not to any finalised claims or litigation or claims or litigation currently underway.”[27]
[27]Second Reading Speech, Home Building Amendment Bill 2011 (NSW), the Honourable Greg Pearce, Minister for Finances and Services and Minister for the Illawara, Hansard, 13 October 2011.
In my view, item 107 does not bear the restrictive interpretation given to it by arguments for the husband which Ainslie-Wallace and Ryan JJ accept. Specific to the proceedings before his Honour, the application of a date of completion is an issue that may not have necessarily determined the proceedings, but, as the arguments both below and in this court themselves illustrate, the proceedings were, potentially at least, affected by s 3B.

For completeness, I should also record that I am, with respect, not persuaded that item 106 of Schedule 4 assists in the interpretation of item 107 as

Ainslie-Wallace and Ryan JJ contend. That item within Schedule 4 is a transitional provision in respect of work and its associated issues. Item 107 is a transitional provision pertaining to an entirely different specific matter, namely proceedings. Further, by its terms, item 107 is intended to apply “despite any other provision of this Part”. That part includes item 106.
The consequence is that, in my opinion, s 3B did not apply to the proceedings before his Honour. In so far as his Honour applied s 3B, so as to make a finding material to his decision that completion was to be determined in accordance with that section (as the arguments for each of the parties below and in this court contend), I consider, with respect, that his Honour erred.
I turn to consider what is contended to be the interpretation given to s 3B by

his Honour and the arguments addressed to this Court to the effect that this interpretation constitutes an error of law.

“Completion” and s 3B

Interpretation of this section is not without its considerable difficulties. Indeed, as has been seen, one author asserts that the section has made the ascertainment of the date of completion more difficult.
Specifically as to the interpretation of the section, the same author asserts that the section provides for “… deemed ‘practical completion’ and allows consequences to flow from that concept”.[28] That statement would appear to suggest a view that the presumption in s 3B(3) drives the operation of the section and s 3B(2) is subsidiary to it – a view which, in turn, appears to be underlined by the author continuing:
… the provisions concerning the statutory practical completion concept in s 3B(2), are effectively sidelined in s 3B(3) which sets out the earliest of a set of events (some of which could have no direct bearing to the state of practical completion) … [and] … in the case of an owner-builder, 18 months after the issue of an owner-builder permit (effectively meaning that long running owner-builder projects will only have very limited cover).
In short, it appears that the author’s view is that s 3B(3) “trumps” s 3B(2).
[28] Bambagiotti (above) 41.
Counsel could not point to any decisions of any court where s 3B has been interpreted. However, support for the above view, and the conclusion reached by Ainslie-Wallace and Ryan JJ, can be found in decisions of the Consumer Trader and Tenancy Tribunal (NSW). The decision in Griffith v Gates (Home Building)[29] appears to be the first decision in which the interpretation of s 3B received substantive attention and Senior Member Smith’s interpretation in that decision has been adopted in later decisions of the Tribunal. It is, I think, appropriate to quote what Senior Member Smith said:
[29] [2013] NSWCTTT 302 (26 June 2013).
48.The applicant’s argument was that s 3B(2) provides a method of determining when practical completion occurs and if it can be determined in accordance with that provision, the presumptions otherwise applicable under s 3B(3) are displaced.
49.I do not accept that argument for the following reasons.
50.Firstly, in relation to the argument that to accept that the presumption provided by s 3B(3) is irrebuttable would mean that s 3B(2) had no work to do.
51.I am not satisfied that argument is correct. If, by application of the presumptions provided by s 3B(3)(a)–(d) it was impossible to establish the date for practical completion (for example because they were inapplicable or through lack of evidence), then by application of the definition of practical completion provided by s 3B(2) it would still be possible to determine a date for practical completion.
52.Further, even if one of the presumptive dates could be established by s 3B(3), it is still possible by the application of the definition in s 3B(2) to establish an earlier date because of the words in parenthesis in s 3B(3) (“unless an earlier date for practical completion can be established”).
53.That is, there are circumstances in which one must apply s 3B(2) to establish when practical completion occurred.
54.Secondly, the applicant’s argument that had the parliament intended that the presumptions provided by s 3B(3) were not able to be rebutted, it would have included the words “irrebuttable presumption” or words to that effect.
55.With respect to the applicant’s representative I find this argument is also flawed. The plain interpretation to be placed on s 3B(3) is that it does provide for a rebuttal presumption. However, the wording of the section is that the presumption can only be rebutted by establishment of an earlier date.
56.That interpretation is consistent with the second reading speech (which was not of great assistance in understanding the provision) and the Interpretation Act 1987 s 33 which requires an interpretation that is consistent with the underlying objectives of the HBA.
57.It is true that the warranty provisions of the HBA and that Act generally are of a beneficial nature intended to provide some protection to consumers of services for residential building work.
58.However, prior to the enactment of s 3B there was a long line of cases, discussed by the parties’ representatives at the hearing, that demonstrated a lack of clarity in regard to how the date for practical completion was to be determined.
59.The section (and the second reading speech confirms this) was introduced to provide some certainty in determining when completion occurred and “to better reflect the practical realities of building”.
60.I am satisfied that is exactly what s 3B(3) does. It provides four different ways to determine when practical completion occurred depending on the relevant circumstances and available evidence, and it is first in time of those that is to be applied as the relevant date. It is only if it is not possible to determine a date under s 3B(3) or if an earlier date can be established under s 3B(2) that it is necessary to look outside s 3B(3).
61.The third argument of the applicant is that if s 3B(3) was to be applied as an irrebuttable presumption it would lead to absurd and unreasonable results.
62.Examples given were a differential entitlement to warranty protection depending on whether the claimant is a successor in title to an owner-builder or the holder of a contractor license and the potential to deprive a successor in title to an owner-builder to a statutory warranty of seven years in the case of a contract entered into before 25 October 2011.
63.For the above reasons I am satisfied that the presumptions of s 3B(3) are not irrebuttable, but I am satisfied that rebuttal only by establishment of an earlier date does not create any absurd or unreasonable outcome.
(Emphasis in original)
That interpretation has been adopted in The Owners – Strata Plan 78103 v Charlie Habrouk [2014] NSWCATCD 46 where Senior Member Goldstein posed the question as: “Do the presumptions in sub-section 3B(3) apply in priority to sub-sections 3B(1) and (2)?”. The Senior Member concluded that they do and, referring to Griffith, said “In circumstances where the matters referred to in section 3B(3)(a)-(d) cannot be established, then practical completion is to be determined in accordance with section 3B(2).”[30]
[30] See also: Sayegh v Vojodic (Home Building) [2013] NSWCTTT 436
I am respectfully unable to agree with the interpretation of s 3B outlined in those decisions, or in the judgment of Ainslie-Wallace and Ryan JJ in this case. If I have understood correctly Mr Bambagiotti’s observations, earlier quoted, I am also respectfully unable to agree with them.
Section 33 of the Interpretation Act 1987 (NSW) has earlier been quoted.[31] As has also earlier been pointed out, statutory purpose can “appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials”,[32] and, to repeat, the HBA has no express “purpose” or “objects” provisions.
[31] It has its analogue in 15AA of the Acts Interpretation Act 1901 (Cth).
[32] Lacey (above).
The task “of a court in construing a statutory provision”:
… is to give meaning to every word in the provision. It is a long-established rule of interpretation that ‘such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.[33]
[33]Per French CJ in Plaintiff M47/2012 v Director-General of Security (2012) 86 ALJR 1372 quoting from Project Blue Sky (1998) 194 CLR 355 at 382.
I agree, with respect, with Senior Member Smith that the second reading speech does not significantly assist in ascertaining the purpose of s 3B, nor, I should add, does the Explanatory Memorandum to the Amending Act.[34] Such as the purpose of s 3B might be illuminated by the former, the purpose of the amendment expressed more generally includes:
[34] Explanatory Memorandum, Home Building Amendment Act 2011 Bill.
The Bill revises the legislation’s definition of “completion” for the purposes of residential building work. The term “completion” has a very important legislative role as it triggers the commencement of the statutory warranty and home warranty insurance time periods.
…
[after referring to the intention to harmonise the definition of completion for both statutory warranties and home warranty insurance, the Minister continued]:
The Bill provides a definition of “completion” for the both these purposes, based on the regulation’s definition. It also improves the current definition to better reflect the practical realities of building.
In the first instance, the builder defines “completion” as occurring in accordance with the completion provisions in the contract for residential building work.
In cases where the contract does not provide a definition of completion, or there is no contract for the work, completion occurs on the practical completion of the work.
The builder finds “practical completion” as taking place when the work is completed except for any omissions or defects that do not prevent the work from being reasonably capable of being used for its intended purpose.
(Emphasis added)
No specific mention is made by the Minister of the presumptions contained in s 3B(3) of the HBA.
Section 3B read as a whole follows a pattern that can, in my view, readily be seen to “reflect the realities of building”. That purpose is met by starting with the particular facts and circumstances of the case and asking, in the first instance, whether there is a contract and, if so, whether it defines completion (s 3B(1)). If the answer to that question is in the negative, the question which must then be asked is whether the facts and circumstances admit of a conclusion that the work has been “completed except for any omissions or defects that do not prevent the work from being reasonably capable of use for its intended purpose” (s 3B(2)). If that question can be answered, there is no necessity to resort to the statutory presumptions because the defined statutory criterion (“practical completion”) has been met.
If, however, there are no such facts and circumstances by which that conclusion can be drawn to the requisite degree of satisfaction, resort to presumptions will be necessary to fill the lacuna (s 3B(3)). In those less certain circumstances, it is not surprising that, in listing statutory presumptions, the legislature would demand that the earliest of them be chosen as the presumptive completion date.
In that respect, it is in my view telling that s 3B(2) does not define “practical completion” by reference to presumptions; rather, it itself defines “practical completion” by reference to a specified set of circumstances. That is, s 3B(2) does its work independent of s 3B(3) which is enlivened only when practical completion cannot be ascertained by reference to the s 3B(2) definition.
In my view, the interpretation just described should be preferred for the following reasons.
That interpretation provides for an inter-relationship of the sub-sections of s 3B such that “sense is made upon the whole”[35] of the section and which is most consistent with a purpose of “reflecting the practical realities of building”. Section 3B(2) might be seen to have particular application and resonance to owner-builders where work is often undertaken over a period of time, some with contracts, some without. (The trial judge seems to me to have had something similar in mind when he said “if the purpose of the provision is to protect a future purchaser from some ham-fisted owner-builder, then you would want to be protecting the future purchaser from the date when the work was completed … you know, projects where that work took longer … you would be even more worried about …”.)[36]
[35] Plaintiff M47/2012 v Director-General of Security (above) per French CJ.
[36] Transcript of proceedings 24 April 2013, page 46.
An alternative interpretation does not appear to permit of any readily recognised circumstances where a date of practical completion can occur after 18 months from the issue of an owner-builder permit.[37] As the trial judge’s comments just quoted would appear to suggest, that would fly in the face not only of the realities of many owner-builder projects, but would also render less effective the statutory warranties. If, for example, an owner-builder permit issued in January 2005, but work in respect of which warranties would apply, was not conducted until 2010, protection would be afforded only until June 2006, rather than 2016[38]. A purchaser subsequent to June 2006 would have no recourse to the statutory warranties for defective work.
[37]Save perhaps where the issue of the permit (which is controlled and recorded by government agency by reason of the HBA) cannot be proved – something that does not present as inherently likely in but the rarest of cases.
[38]Or 2017 – a separate issue in respect of the Amending Act, not directly relevant to the issues on this appeal is when a limitation of six years, rather than seven years, applies.
Expressed in terms of the decision earlier quoted,[39] such an interpretation renders s 3B(2) – a provision of general application that itself defines “practical completion” – as “ … prov[ing] superfluous, void, or insignificant”. By contrast, a consecutive application of both ss 3B(2) and (3) renders both provisions “useful and pertinent”.[40]
[39] Plaintiff M47/2012 v Director-General of Security (above)
[40] Respectfully adapting the words of French CJ above.
Specifically in that respect, the interpretation which I prefer renders entirely possible proof of a completion date before or after a date eighteen months from the issue of an owner builder permit in circumstances where admissible evidence of the relevant facts and circumstances points to that conclusion. The interpretation urged by Senior Member Smith does not seem to me to admit of any realistic scenarios where a date of practical completion can be established after the applicable presumption said to predominate the interpretation. Again, the former is an interpretation that seems to accord with the practical realities of building and, specifically, the practical realities of building in the case of an owner-builder, whereas, at least in my view, the alternative does not.
Further, and importantly in my view, such an interpretation seems to accord with the purpose of the amendment, reflected in the second reading speech, of seeking to draw a balance between the rights of an owner builder and the rights of a subsequent purchaser. By way of contrast, limiting practical completion to a date eighteen months after the issue of an owner-builder permit, save for an otherwise proven earlier date, admits of the potential for greater injustice for a subsequent purchaser and a predomination of the rights of the owner-builder.
The effect of the foregoing construction of s 3B is that his Honour was bound to turn first to s 3B(2) in order to ascertain what was proved in respect of the facts and circumstances before him.
His Honour referred in the reasons to the various pieces of evidence he had before him by which a conclusion as to practical completion may be reached. By way of broad summary, these included:
·In June 2005 an owner builder permit was issued to the wife to allow the parties to develop the C property (at [58]);
·In February 2006 renovations commenced on the C property (at [62]);
·The parties entered a consent order on 10 November 2010 which recognised that renovation work had been conducted on the C property and that further work was required. The orders provided a mechanism for that occurring;
·That same consent order recognised that work was yet to be completed (at [106]; paras 1, 2, 3, 3A, 4 and 10 of the consent order);
·The husband’s counsel conceded at trial that at the time of the consent orders between the parties in November 2010 “there was some outstanding building work” (Transcript of proceedings, 7 May 2012, page 14);
·Further work was required on the renovation so as to bring it to the point where the local council would certify (Transcript of proceedings, 7 May 2012, page 15);
·In January 2011 “the husband entered into an agreement with [a builder] to commence work on the [C] property with payment to be made …” (at [111]). This work related to the consent order made in November 2010;
·In July 2011, a motorcycle was transferred to a builder from a company for $17,380 in lieu of work completed in January 2011; and
·A certificate of occupancy was provided by the relevant local authority in May 2011 (at [138]).
Counsel for the husband contended, in the proceedings before his Honour, that there was “an absence of evidence in respect of … the contracts under which the work was done”[41] and so much seems to be clear. During that same interchange with counsel, his Honour observed that “we have got evidence that significant work was undertaken in 2008 and 2010 and we’ve got evidence that an occupancy certificate was provided in May 2011”, to which then counsel for the husband replied “certainly”.[42]
[41] Transcript of proceedings 24 April 2013, page 42.
[42] Transcript of proceedings 24 April 2013, page 43.
Despite those references, it is not clear to me what findings were used by

his Honour so as to arrive at the decision to postpone the sale. Specifically, I am unable to discern whether his Honour used any such findings to conclude (erroneously as the appellant would have it) that s 3B(3)(c) applied so as to, in turn, determine a date of completion upon which the postponement of the sale of the C property was premised. Indeed, as I have earlier said in respect to a different issue, it is not clear to me whether in fact his Honour was applying the HBA at all in order to sustain the orders made.
To the extent that his Honour applied s 3B(3)(c) in isolation to ascertain the date of practical completion, I consider, with respect, that he erred in law.[43]
[43]Assuming my interpretation of item 107 earlier outlined is incorrect and s 3B applied to the proceedings
Further, because I am unable to discern specific findings by which it can be concluded what specific legislative provision was being applied to determine practical completion or the factual findings said to underpin the application of any such section, it follows that I consider his Honour’s reasons were inadequate to explain each of those matters and that the appeal should be allowed on that basis.

The Challenge to the assessment of contributions and s 79(4)(e)

In argument before this Court, counsel for the appellant properly conceded that the challenge to his Honour’s assessment of contributions (ground 2) and the “s 75(2) factors” (ground 3) was each inextricably interwoven with the success or failure of ground 1 of the appeal and, more broadly, the approach taken by his Honour in postponing the sale of the C property. A decision on that central issue must have an impact on the value attributable to the C property and, consequently, the assessment of contributions, including an assessment attributing to them a dollar value, and the period over which contributions are to be assessed. Equally, the application of the relevant matters within s 75(2) must also depend, in part, upon whether they are being assessed by reference to the C property remaining unsold, for about five years, or sold immediately (or, indeed, retained by the wife).
Given my conclusions that the appeal must be allowed, I do not propose to canvas the arguments in respect of each of these issues, save briefly in respect of two specific assertions of material error of fact.

The Asserted Material Errors of Fact

The Use of $44,000 on Legal Fees

The central contention in ground 2(c) is that his Honour ought to have “added back” $44,000 asserted to have been spent on legal fees by the wife from funds otherwise available to the parties”. The alleged material error of fact appears to be that his Honour found that the amount was not spent.
In oral argument, counsel for the appellant conceded that “I’m not sure that a submission can be made out specifically that it should have been added back in a figure, a specific figure of $44,000”. In answer to a question from Ryan J as to whether counsel conceded that “provided his Honour took it into account, then there is nothing to the ground”, counsel responded “I think that must be right.”[44]
[44] Transcript of proceedings, 2 February 2015, page 46.
At [126] of the reasons, his Honour addressed in some detail the husband’s submission “asserting that [the wife] unilaterally spent $111,145 from the line of credit and $199,113.75 should be added back to the pool as a preliminary advance to her”. Nothing to which we have been taken suggests that there was cogent evidence before his Honour that the sum of “not less than approximately $44,000” was used by the respondent to meet her legal fees. Then counsel for the husband asked the wife, during the course of his cross-examination of her “and do you still have $44,000-odd owing to Pigdon Norgate.” The wife responded “that is correct. And I am paying $50 per week off.”[45]
[45] Transcript of proceedings, 13 December 2011, page 148 (cross examination of the wife).
His Honour found at [161] that “it must be said that the arguments in this case for add-backs are almost entirely misconceived”. The materials before this court suggest that comment is, with respect, well made.
Nothing to which this Court was taken persuades me that this asserted error of fact can be sustained.

The Asserted Undervaluing of the Husband’s Initial Contributions by $100,000

Expressed simply, it is asserted that his Honour overlooked an amount of about $100,000 in making findings as to the direct financial contributions made by the husband and thereby “undervalued” those contributions as a result. The capital contribution asserted to have been made by the husband derives from a deed of arrangement entered into some two years prior to cohabitation by which the husband was to receive a substantial sum.
The evidence before his Honour in respect of this issue was extremely confusing and beset with anomalies and difficulties. His Honour was, with respect, entirely correct in finding that “the evidence is far from clear in respect of this issue.” Indeed his Honour’s statement might be seen to involve no small measure of understatement.
Junior counsel appearing for the husband before us conceded that “the precise timing of monies received by the husband from [the deed] was ultimately, I think, not entirely clear”. Further, junior counsel conceded that “… it was for the husband to explain what had gone on and that his maths didn’t make sense”[46] and, further, that his Honour needed to “make sense of the evidence”.[47]
[46] Transcript of proceedings, 2 February 2015, page 35.
[47] Ibid.
To complicate those matters further, his Honour made adverse findings about the reliability of both parties “… the husband because his recollection is said to be poor and the wife because she was not directly involved in the first place”.[48] Specifically in respect of the relevant capital contributions, his Honour found in respect of the husband’s evidence:
121.The husband did not have a clear recollection of some significant events in the financial history of the parties. The evidence he proffered at first in respect of his initial contributions could not be supported by him. The evidence about the benefit to him of payments made under a Deed of Agreement in respect of [W Ptd Ltd] proved to be unreliable. Faced with relevant bank statements he was not able to support some of his claims. For example he was not able to explain the calculation of $169,000 said to have been paid to him under the agreement prior to the parties’ cohabitation. He was forced to concede that his savings with Westpac at the date of cohabitation were of the order of $9,000 and not $110,000 as he had deposed. The husband required certificates under s 128 of the Evidence Act (1995) (Cth) for evidence about his income tax declarations and about the discharge of his duties as a trustee of a trust. Those matters do him no credit.
[48] Trial Reasons [124].
Later his Honour found that the husband “has not revealed financial circumstances relating to his cohabitation” with his current partner.
In my view at least, the considerable difficulties confronted by his Honour resulted primarily from the inconsistencies between the husband’s sworn evidence and the evidence revealed in the bank statements, some of which he himself exhibited to his affidavit.
The husband bore, at least, an evidentiary onus in respect of his assertions as to capital contributions. Given all of the matters just referred to, it would in my view, have been open to his Honour to simply reject the husband’s contentions by reason of his failure to satisfy the evidentiary onus.
It is by no means apparent to me why a cogent summary of the evidence referenced, to the extent it could be done, to relevant documents, was not provided to his Honour and an aide memoire to that effect relating each to

his Honour’s findings given to this Court. Neither occurred. Junior counsel’s concession before us earlier referred to says much about the persuasiveness, and ultimate potential merits, of an argument asserting this material error of fact.
I am conscious that, as the unanimous view of this court is that the appeal should be allowed and remitted for rehearing, it seems highly likely that the husband’s capital contributions will be an issue on any rehearing. Given the highly confusing state of the evidence, I am extremely reluctant to enter upon a discussion of the instant issue or express an ultimate view about a potentially important factual matter.

The Application of the “Slip Rule”?

I respectfully agree with Ainslie-Wallace and Ryan JJ that there is no substance to the wife’s argument that his Honour’s orders of 17 June 2013 “extinguished” the 7 May 2012 orders.
Further, I consider it abundantly clear that his Honour did not in any event intend any such result. Nothing in his Honour’s 17 June orders or reasons, or in the transcript of the proceedings below, would suggest any such intention. The husband is, in my view, correct in asserting that his Honour overlooked the earlier order.
That being so, it should be pointed out that, if hope and common sense might triumph over expectation, the parties can, by agreement, correct that oversight. Failing that occurrence, the question is whether it is susceptible to appellate intervention or, as the appellant’s written outline effectively concedes, the oversight can be corrected by reference to “the slip rule”.[49]
[49] See Russell & Russell (1999) FLC 92-877, at [66].
Notwithstanding that the Family Court, like the Federal Court, is a Chapter III Court whose jurisdiction is limited by statute, each has “ … an inherent or implied jurisdiction to amend orders which do not correctly state what was actually decided and intended. Indeed, after a decree or order has been passed and entered a court will not, unless by consent, permit it to be altered without a rehearing, except in cases of mistakes or errors arising from accidental slips or omissions.”[50]
[50]Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206, at 209 per Lockhart J cited with approval in respect of this Court in Russell, above at [67]. See, generally, the authorities cited more recently in Trask & Westlake [2015] FamCAFC 160.
As this Court has pointed out:[51]
… the “slip rule” has been described as both “surprisingly wide” and “that it is to be exercised sparingly” … Specifically, it has been held that it applies “... where the proposed amendment is one upon which no real difference of opinion can exist [and] it does not apply where the amendment is a matter of controversy; nor does it extend to mistakes that are the consequence of a deliberate decision” … Similarly, while the rule permits of correction for accidental slips or omissions of counsel, deliberate but mistaken acts or omissions may not be correctable by the application of the rule …
[51] Trask, above at [46], citations omitted.
In my view, the oversight by his Honour can be corrected by him pursuant to the court’s implied power to do so. Despite ground 4 of the appellant’s notice of appeal, the oversight is not an error amendable to intervention and correction by this Court. So much was effectively conceded in argument by the appellant.

Conclusion

The appeal should be allowed.
Any potential re-exercise by this Court involves the resolution of significant factual issues. There is no evidence as to the relevant facts and circumstances existing as at the date of the hearing of the appeal by which this Court could itself hear and determine the proceedings. The nature and scope of the dispute also militates against any such occurrence. Remitter is therefore, unfortunately for the parties, the inevitable consequence.

Costs of the Appeal

I agree with Ainslie-Wallace and Ryan JJ that s 117(1) of the FLA applies to the circumstances of this case. Further, this appeal has succeeded on a question of law. The appellant makes application for a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The pre-conditions prescribed by s 9 of that Act have been met.
I agree that this is an appropriate case to grant to the appellant a certificate pursuant to that section. I agree that no certificate should issue to the respondent for the reason identified by their Honours; it is not at all apparent that the wife has incurred any costs.
I also agree that in the circumstances of this case it is not appropriate to grant certificates to either party in respect of any rehearing below.

I certify that the preceding one hundred and ninety-one (191) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 22 October 2015.

Associate:

Date: 22 October 2015