Nu-Stone Building Pty Ltd v McInerney

Case •

[2023] NSWSC 940

•

11 August 2023

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940
Hearing dates: 21 June 2023
Date of orders: 11 August 2023
Decision date: 11 August 2023
Jurisdiction:Common Law
Before: Wright J
Decision:

(1)   The plaintiff has leave to appeal.

(2)   The appeal is allowed.

(3)   The decision of the Appeal Panel made on 14 November 2022 is set aside.

(4) Pursuant to s 83(3)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), the matter is remitted to the Appeal Panel of the Tribunal to be heard and decided again.

(5)   The defendants are to pay the plaintiff’s costs of the appeal.

Catchwords:

APPEALS – leave to appeal from decisions of NSW Civil and Administrative Tribunal (“NCAT”) Appeal Panel to Supreme Court – whether Appeal Panel gave adequate reasons – statutory obligation on Appeal Panel to provide the reasoning process that led it to the conclusions in made in its written reasons – review of written reasons as a whole – leave to appeal granted – appeal allowed.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 27(1), 34(1)(c), 62, 78, 80, 81, 83

Home Building Act 1989 (NSW), ss 42A, 48K, 48L

Administrative Decisions Review Act 1997 (NSW), s 63

Residential Tenancies Act 2010 (NSW)

Cases Cited:

Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254

Brandy v Human Rights and Equal Opportunity Commission (1985) 183 CLR 245; [1995] HCA 10

Concoran v Far [2019] NSWSC 1284

Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875

Jaycar Pty Ltd v Lombardo [2011] NSWCA 284

Jones v First Tier Tribunal [2013] UKSC 19; [2013] 2 AC 48

Lloyd v Thornbury [2019] NSWCA 154

Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of New South Wales [2006] NSWCA 314

New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

Nu-Stone Building Pty Ltd v McInerney [2022] NSWCATAP 285

NuStone v McInerney [2022] NSWCATCD 23

Scoway Pty Limited v Faxon Pty Limited [2004] FCA 249

Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 4

Welsh v Carnival Plc trading as Carnival Australia [2014] NSWCA 430

Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697

Category:Principal judgment
Parties:

Nu-Stone Building Pty Ltd (Plaintiff)

Garry John McInereny (First Defendant)
Gladys Bridget McInerney (Second Defendant)
Representation:

Counsel:
F Corsaro SC with M Klooster (Plaintiff)
M McCulloch SC with M Galvin (Defendants)

Solicitors:
Sachs Gerace Lawyers (Plaintiff)
Walker Hedges Forestville (Defendants)
File Number(s): 2022/00364333
 Decision under appeal 
Court or tribunal:
Civil and Administrative Tribunal of New South Wales
Jurisdiction:
Appeal Panel
Citation:

[2022] NSWCATAP 285

Date of Decision:
14 November 2022
Before:
R C Titterton OAM, Senior Member
C Mulvey, Senior Member
File Number(s):
AP 2022/0037784
AP 2022/00053249

Judgment

Introduction

  1. By a summons filed on 2 December 2022, the plaintiff, Nu-Stone Building Pty Ltd, sought to appeal by leave from a decision of the Appeal Panel of the Civil and Administrative Tribunal (NCAT) made on 14 November 2022. The NCAT proceedings concerned home building work carried out by the plaintiff/builder to the house of the defendant/homeowners, Mr and Mrs McInerney.

  2. The Appeal Panel’s orders made on 14 November 2022 relevantly included the following:

“1. Appeal allowed [presumably in relation to the builder’s appeal].

2. Appeal allowed [presumably in relation to the homeowners’ appeal].

3. Set aside order 1 made by Senior Member Thode on 19 January 2022 and in lieu thereof order that Nu-Stone Building Pty Ltd is to pay $178,965.59 to Garry and Gladys McInerney immediately.

4. Nu-Stone Building Pty Ltd to pay Garry and Gladys McInerney’s costs of primary applications (HB20/36393 and HB20/15757) on the ordinary basis as agreed or assessed.

5. That there be no order as to costs of the Appeal proceedings [before the Appeal Panel].”

  1. The Appeal Panel’s reasons had been given earlier on 31 August 2022: Nu-Stone Building Pty Ltd v McInerney [2022] NSWCATAP 285. On that occasion, the Appeal Panel ordered the parties to exchange proposed orders designed to give effect to the Appeal Panel’s reasons. The orders made on 14 November 2022 were the outcome of that process.

Application for leave to appeal

  1. Under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), a party to an internal appeal before the Appeal Panel, such as the plaintiff/builder in the present case, “may, with leave of the Supreme Court, appeal on a question of law against any decision made by the Tribunal [including the Appeal Panel]”.

  2. As noted above, the builder’s summons seeking leave to appeal against the Appeal Panel’s decision of 14 November 2022 was filed on 2 December 2022. The builder sought the following orders:

“1. Pursuant to s 83(1) of the Civil & Administrative Tribunal Act 2013 the Plaintiff have leave to appeal form the whole of the decision in Nu-Stone Building Pty Ltd v McInerney [2022] NSWCATAP 285 (31 August 2022) below.

2. The appeal be allowed.

3. Orders 1, 2, 3 and 4 made on 14 November 2022 below be said aside, and in lieu thereof, Order that the Defendants are to pay the Plaintiff $32,758.05 immediately.

4. Order 4 made on 14 November 2022, for costs, be set aside, and in lieu thereof, that the Defendants pay the Plaintiff’s costs of the appeal proceedings below as well as those at first instance.

5. Costs.

6. Such further or other Order as the Court deems fit.”

  1. The three proposed grounds of appeal set out in the builder’s summons were:

“Ground 1

1. The Appeal Panel erred at [81], [82], [96] and [97] by failing to provide reasons, or adequate reasons, as to:

(a) Why the value of Invoice number NU0421 issued on 18 March 2021 should be deduced from the value of completed work.

(b) Why the value of Invoice number NU0421 issued on 18 March 2021 should be excluded in any contract reconciliation;

Ground 2

2. The Appeal Panel in concluding:

(a) At [81] that the value of Invoice number NU0421 issued on 18 March 2021 should be deduced from the value of completed work.

(b) At [96] that the value of Invoice number NU0421 issued on 18 March 2021 should be excluded in any contract reconciliation.

applied the wrong principle of law.

…

Ground 3

2. The Appeal Panel in concluding:

(a) At [81] that the value of Invoice number NU0421 issued on 18 March 2021 should be deduced from the value of completed work.

(b) At [96] that the value of Invoice number NU0421 issued on 18 March 2021 should be excluded in any contract reconciliation.

identified a wrong issue, asked itself the wrong question, and arrived at a mistaken conclusion.”

  1. It can be noted that there was no challenge in the present case to the jurisdiction of the Court on the basis that the proposed appeal for which leave was sought was not an appeal on a question of law within s 83 of the NCAT Act. Indeed, it has been held that it is not possible to enunciate a clear test of what is, or is not, a question of law for the purposes of s 83: Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [53] (Leeming JA, Meagher JA and Griffiths AJA agreeing). Accordingly, it is sufficient to note that:

  1. each of grounds of appeal raised an error of law and an appeal on a question of law is not confined to an error of law: Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of New South Wales [2006] NSWCA 314 at [27] (Spigelman CJ, Handley and Tobias JJA agreeing); and

  2. it may be appropriate to take a pragmatic approach to the question of whether an appeal from a body, such as NCAT’s internal Appeal Panel, is on a question of law so that the expertise of the Tribunal at first instance and that of the Appeal Panel can be used to best effect: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [5]; 96 ATR 875 (Leeming JA) citing Jones v First Tier Tribunal [2013] UKSC 19; [2013] 2 AC 48 at [16].

  1. Having regard to these matters, I accepted that the Court had authority to determine the application for leave to appeal, and any appeal, under s 83 of the NCAT Act.

Notice of contention

  1. The homeowners filed a notice of contention on 21 February 2023 which stated:

“[The homeowners] contend that the decision of the Tribunal below should be affirmed on grounds other than those relied upon by the Tribunal below, but does not seek a discharge or variation of any part of the orders of the Tribunal below”.

  1. Notwithstanding this, the homeowners’ grounds essentially stated that, for the reasons set out in grounds 1a, b and c of the notice, the additional cost to the homeowners to complete the remaining works under the contract, which it was said must include the substantially incomplete works the subject of invoice NU0421, was $77,082.28. Furthermore, it was contended that having regard to that matter and the fact that $84,034.00 was due for defective works, and there was an agreed sum for unpaid variations of $28,606.00, the Appeal Panel should have held that the homeowners were entitled to the sum of $132,510.28 and otherwise have dismissed the builder’s claim. In these circumstances, it appeared to me that the propositions relied upon by the homeowners were not strictly suitable for inclusion in a notice of contention, since they sought a different outcome from that contained in the orders of the Appeal Panel, which constituted the decision under appeal.

  2. At the hearing, it did not appear that the result sought in the notice of contention were pressed to any significant extent, or at all.

The decision of the Tribunal at first instance

  1. In order to consider the application for leave to appeal and the proposed grounds of appeal it is necessary to review in some detail the decision of Senior Member Thode, sitting at first instance in the Consumer and Commercial Division: NuStone v McInerney [2022] NSWCATCD 23 (Paragraphs from this decision will be referred to as CCD[paragraph number]). There were a number of legal and factual issues addressed in that decision which are not relevant for the purposes of the present application for leave to appeal. Consequently, only the parts of the decision of the Tribunal at first instance relevant for the purposes of the present appeal are included in the following paragraphs.

Overview of both parties’ claims

  1. Senior Member Thode recorded that both the builder and the homeowners made claims arising out of a building contract and work done or not done in relation to the homeowner’s house. The Senior Member summarised the outcome as: a finding “against the builder in respect of variations but [there should be] an award for outstanding payments” (at CCD[5]); and a finding that “the [home]owners have lawfully terminated the contract … [and a finding] for the owners on the defects claim and on the claim for incomplete costs” (at CCD[8]). The Senior Member concluded that “a sum owing under the Contract to the builder is to be set off against the sum awarded to the [home]owners” (at CCD[8]), resulting in the builder being ordered to pay the homeowners $114,557.17 and costs on the ordinary basis (CCD orders 1 and 3). The Tribunal’s findings and reasoning are set out in the following paragraphs.

Homeowners’ claims – Tribunal Findings

  1. In regard to the homeowners’ claims, the finding included that the contract price was a fixed sum of $905,320.00 [1] and it was agreed that the owners paid $563,889.00 pursuant to the contract (at CCD[13]).

    1. This figure appears to be exclusive of GST. At CCD[81] the contract price is said to be $995,852, which appears to be $905,320.00 plus GST.

  2. The builder repudiated the contract, the homeowners accepted the repudiation and elected to terminate the contract effective from 18 March 2020 (at CCD[48]).

  3. The damages awarded in favour of the homeowners for defective work totalled $84,034.00 (at CCD[67]).

  4. The homeowners were entitled to claim their reasonable and necessary completion costs to bring them into the position they would have been in but for the builder’s repudiatory conduct (at CCD[68]).

  5. The report of the homeowners’ expert, Mr Redfern, did not amount to “an expert opinion but merely accept[ed] and adopt[ed] the opinions of a [Quantity Surveyor] who was not called to give evidence. The underlying assumptions that form[ed] the basis of Mr Redfern’s opinion in relation to the value of the works have therefore not been made out and the opinion should be afforded little weight” (at CCD[75]).

  6. Although the report of Mr Nguyen, the builder’s expert, was to be preferred, Mr Redfern’s reply report, of 2 October 2020, provided significant and relevant critiques of the Nguyen report that required adjustments to be made to Mr Nguyen’s figures (at CCD[76]). These adjustments were described in CCD[80] as resulting in the following values for the items listed:

“Completed works          $547,358

Additional 5% builders margin    $24,879.90.

Remaining works          $345,752.

Additional 15% builders margin    $51,861.30.

Subtotal exclusive GST       $969,841.20.

GST 10%            $96,984.

Total contract of works cost       $1,066,825.20.”

  1. Since the contract price was $995,852 (apparently GST incl), the “cost to complete over and above the adjusted contract price” was $70,973.20 (at CCD[81]).

  2. Adding the award of damages for defective work of $84,034 (see CCD[67] and [82]) to the $70.973.20 meant that the homeowners were entitled to recover $155,007.02 for “defective and incomplete work” (at CCD[83]).

  3. The builder was entitled to deduct from the sum for defective and incomplete work, an amount of $28,606.06 to account for Prime Cost costs adjustments for windows (at CCD[84]).

  4. Thus, it was found that the builder should be ordered to pay the homeowners $126,401.14 (at CCD [85]).

Builder’s claims

  1. The Senior Member concluded in relation to the values of the variations claimed by the builder as follows:

  1. Variation 1 - $38,862.30, which had been paid and therefore there was no award (at CCD[88]);

  2. Variation 2 - $16,703.49 (with a credit of $1446.50), which had been paid and therefore there was no award (at CCD[90]) [2] ;

  3. Variation 3 - $2,044.90 (with a credit of $1,800) and the balance was not pressed (at CCD[91]);

  4. Variation 4 – the Senior Member was not satisfied, on balance, that the builder performed the work or was entitled to restitution for this variation (at CCD[93]);

  5. Variation 5 - $28,606.06 for extra over cost from Prime Cost items for the supply and install windows and doors, which was the amount referred to previously at CCD[84], and had already been accounted for in the homeowner’s claim (at CCD[95]);

  6. Variation 6 – this claim should be dismissed (at CCD[96]).

    2. It is not entirely clear why the sum said to have been paid was $14,973.99 when $16,703 less $1446.50 is $15,256.50.

  1. The Senior Member next considered the builder’s underpayment claim that he was entitled to an award of $119,032.25 made up as follows (at CCD[97]):

“Value of contract works

$575,733.81

Value of variations

$107,188.28

Less agreed total amount paid on account only being $497,926 for contract works and $65,783.84 variations

$563,889.84

Balance payable to builder

$119.032.25”

  1. The Senior Member then reasoned (at CCD[99]) that the builder had been unsuccessful in his variations claims and was not entitled to any further payment in that regard and

“[t]he contract reconciliation thus is the value of the contract works (as per the builder’s evidence) $575,733.81 less an amount paid to the builder $563,889.84 (as agreed between the parties), the difference being $11,843.97”.

  1. On this basis, $11,843.97 was awarded to the builder as “an amount owed under the contract” (at CCD [100]).

The issue of interest claimed by the builder

  1. The Senior Member then addressed a discrete issue of whether the builder was entitled to interest “of at least $14,802.67” because the amount claimed in the invoice for payment claim 4 (PC4 or PP4) [3] had not been paid within five business days form the date of issue. This led the Senior Member to consider the related questions of whether the work the subject of PC4 was “90% completed … [and whether] that would constitute a ‘substantial completion’”, at CCD[101]-[106]. In the context of that claim for interest, the Senior Member said, at CCD[104]:

“I have not been taken to any evidence that suggests the works were 90% complete. The issue was hotly contested and during cross-examination the builder conceded that among other incomplete work, there was no roof on the garage at the time he issued PP4. Mr Redfern in his report of 31 March 2021 129412) states that lock up was substantially incomplete (10.2.3). The builder bears the onus of proof and other than the submissions set out above I was not referred to the evidence bundle to support these contentions. In the absence of being referred to any specific evidence I am not satisfied, on balance, that the work was “substantially complete” and decline to make an award [of interest].”

3. Although the Senior Member did not identify it as such, it was common ground on the appeal in this Court that the relevant invoice was invoice number NU0421 in the sum of $257,759.80 which included sum for variations and prime cost adjustment (Ex A Court Book pp 421-424).

  1. The Senior Member’s finding in relation to the invoice for PC4, invoice number NU0421, was not said by her to have any other relevance in the proceedings at first instance.

Conclusion on the homeowners’ and builder’s claims and costs

  1. In concluding, the Senior Member, in effect, set off the amount awarded to the builder on its claims against the amount awarded to the homeowners on their claims. Thus, at CCD[106], her order was:

“[d]educting the award made in favour of the builder ($11,843.97) from the award made in favour of the owners ($126,401.14) I order the builder to pay $114,557.17 to the owners immediately”.

  1. As to costs, it was held that the homeowners had been successful in both applications and costs should follow the event (at CCD[107] and [108]). However, in case a different costs order was sought, directions were given to facilitate such an application being made.

The decision of the Appeal Panel

  1. Both parties appealed under s 80 of the NCAT Act against the Senior Member’s decision. Under s 80(2)(b), such an internal appeal may be made “as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds”. [4] As noted above, the Appeal Panel’s reasons for decision were handed down on 31 August 2022: Nu-Stone Building Pty Ltd v McInerney [2022] NSWCATAP 285 (Paragraphs from this decision will be referred to as AP[paragraph number]), and final orders disposing of the appeals were made on 14 November 2022.

    4. It can be noted that, under cl 12 of Sch 4 to the NCAT Act, in an appeal from a decision of the Consumer and Commercial Division, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because:

  2. Only limited aspects of the Appeal Panel’s decision were sought to be challenged on the appeal in this Court and, consequently, it is not necessary to review all aspects of the Panel’s reasoning. The relevant portions of the Appeal Panel’s decision can be adequately summarised as follows.

Parties’ grounds of appeal

  1. The builder did not seek to challenge any of the Tribunal’s factual findings and its two grounds of appeal were set out by the Appeal Panel at AP[45] and summarised again by the Panel at AP[60]. They were said to be, in substance, that the Senior Member erred:

  1. in concluding that the homeowners were entitled to $70,973.20 (at CCD[80]-[82]) as a result of applying a wrong principle of law in calculating “completion costs”;

  2. applied a wrong principle of law by failing to account for variations that were found by the Tribunal to have been agreed between the parties.

  1. The homeowners’ relevant grounds of appeal were summarised at AP[47] as follows:

“1. the Tribunal erred in law by adopting the evidence in the Nguyen Report as to the estimate of costs of works completed set out in section 3.1 of the report;

2. the Tribunal failed to take into account relevant considerations and failed make findings in circumstances where the relevant considerations and findings ought to have been made in relation to:

a. the value of incomplete works and works paid for by the Homeowners;

b. determining that the work completed was $575,733.81 whereas the uncontroverted evidence was that items of the works that were not undertaken by the Builder, or items of the works that were paid for by the Homeowners reduced the quantum merit value ascribed in section 3 of Mr Nguyen’s Report to $445,781.71;

c. regardless of the error referred to in ground 1 above, in the event that it is determined that ground 1 is not made out, the Tribunal erred at law by failing to take into account and make relevant findings which reduced the value of works completed and increased the value of work to be completed in the circumstances where work was not completed and payments were made by the Homeowners to subcontractors as referred to in Ground 2 (b).

…. “

Builder’s appeal – errors in the contract reconciliation

  1. As to the builder’s grounds of appeal, the Appeal Panel noted at AP[71] that both the builder and homeowners agreed that:

“in essence, that in undertaking what both described as a contract reconciliation the Tribunal:

● erred in calculating the completion costs;

● failed to take into account variations (1), (2) and (5).”

  1. The Appeal Panel’s dealt with these two issues at AP[72]-[83] and AP[90]-[97] respectively. Most relevantly their reasoning included what is set out in the paragraphs which follow.

  2. The Appeal Panel summarised the Senior Member’s findings at AP[72]:

“The Tribunal found that the net amount to be paid by the Builder to the Homeowners was $126,4101.14 [sic], being $155,007.20 ($84,034 for defective works and $70,973.20 “to the cost to complete over and above the adjusted contract price”), less the agreed $28,606 to account for ‘PC cost adjustments for windows’.”

  1. The Panel then summarised the builder’s arguments, at AP[73], as the Tribunal “applied the wrong principle of law when calculating the completion costs, and secondly it failed to account for variations”. At AP[74], it was recorded that the homeowners’ argument was that the Tribunal “erred because it included a sum for completion of the works the subject of Payment Claim 4”.

  2. The Appeal Panel’s reasoning in respect of the builder’s first ground of appeal then continued:

“75 The Tribunal found at [CCD][80] that the completion costs were $345,752 plus an additional Builder’s margin of $51,861.30, a total of $397,613.30.

[AP]76 The Builder submits that the Homeowners are entitled to the damages payable for completion costs, calculated by deducting the costs to complete from the balance payable under the contract. The Builder submits that:

The balance of the contract price is $514,584.51, calculated as follows:

Finding at [CCD][1] as to contract price (excluding variations), $995.852.00

Less finding at [CCD][97] as to amount paid for contract works (excluding variations), $497,926.00

Balance payable to complete works (excluding variations) $514,584.51.

77 We consider that that submission and that calculation should be rejected as:

(1) first, the Tribunal’s calculation of the contract price was not the $995.852.00 found at [CCD][1], but the $1,066,825.20 found by the Tribunal at [CCD][80] and [81];

(2) secondly, while the Tribunal’s calculation as to amount paid for contract works (excluding variations) was $497,926.00, the Tribunal should have found that the amount paid for contract works including variations was $572,333.05.

78 Therefore, adjusting the Builder’s calculation, the amount paid for contract works (including variations), was:

contract price (including variations), $1,066,825.20.

less find the amount paid for contract works (including variations), $572,333.05.

balance payable to complete works $494,492.15.

79 Nevertheless, the Builder’s argument remains the same, the costs to complete the contract, being $457,255.295 ($397,613.30 plus 15% margin) is less than the balance payable under the contract (being $494,492.15), and therefore that the award for completion costs should be NIL.

80 However, for the reasons submitted by the Homeowners and the calculations set out in their submissions, we do not accept that proposition.

81 The substance of the Homeowners’ response to the Builder’s Appeal, and forming part of their own appeal (Ground 1), is that the value of Invoice number NU0421 which was issued on 18 March 2021 for Payment Claim 4 should have been deducted from the value that was assigned by Mr Nguyen to the completed work.

82 We accept that proposition. We agree that the Tribunal erred in failing to exclude Payment Claim 4 in its calculation of the contract price.”

Builder’s appeal - error in not taking into account variations

  1. As to the builder’s second ground of appeal, the Appeal Panel accepted, at AP[83], the submissions of both parties that the Senior Member “erred in failing to take into account the variations when calculating the contract price”. The Appeal Panel did not, however, spell out the implications of this conclusion in terms of specific amounts.

Builder’s appeal - Appeal Panel’s summary of conclusions

  1. After addressing an issue that is not relevant for present purposes at AP[84]-[89], the Appeal Panel summarised its conclusions in relation to the builder’s appeal, without giving any more reasons, at AP[90]-[92] as follows:

“90 For the above reasons, we consider that the Tribunal erred in failing to include the value of variations (1), (2) and (5) in its contract reconciliation.

91 We also consider the Tribunal erred in including the value of Invoice number NU0421 which was issued on 18 March 2021 for Payment Claim 4 in its contract reconciliation.

92 We do not agree that either of these matters raise questions of law, much as they have been described as such by the parties. To the extent necessary we grant leave to appeal in respect of these issues and allow both appeals in relation to those matters.”

Homeowners’ appeal

  1. As to the homeowners’ appeal, the Appeal Panel’s reasoning was relevantly found at AP[96]-[97]:

“96 These matters were substantively raised in the Homeowners’ response to the Builder’s appeal, that is the Tribunal erred in including the value of Invoice number NU0421 which was issued on 18 March 2021 for Payment Claim 4 in its contract reconciliation.

97 For the reasons set out above, we accept this submission, and we would allow the Homeowners’ appeal to this extent.”

  1. The reference to “the reasons set out above” appears to be a reference to what was recorded in AP[80]-[83].

Appeal Panel’s orders

  1. The Appeal Panel summarised the effect of its decision at AP[113] as:

“113 As noted above, in our view the Tribunal erred in its calculation of the money to be paid by:

(1) failing to include the value of variations (1), (2) and (5) in its contract reconciliation; and

(2) including the value of Invoice number NU0421 which was issued on 18 March 2021 for Payment Claim 4 in its contract reconciliation.”

  1. The parties were directed to provide submissions on the form of final order and related matters. As it transpired, the Appeal Panel made the orders set out in [2] above disposing of the appeals before them on 14 November 2022.

Ground 1

  1. The first ground of appeal raised, in substance, the issue of whether the Appeal Panel provided adequate reasons for its conclusion that the value of Invoice number NU0421 issued on 18 March 2021 should be deduced from the value of completed work for the purposes of any contract reconciliation. The Panel’s reasoning in this regard was principally found at AP[81], [82], [96] and [97].

Submissions

  1. The plaintiff/builder submitted that failure to give adequate reasons may be an error of law and that one of the functions of reasons for decisions is to explain to the losing party the process of reasoning that led to their loss. It was contended that a decision maker may accept, and incorporate by reference, one party’s submissions as long as it was clear what was being accepted and why, in deciding between the positions put by the parties, one party’s position was rejected. It was also accepted that, in the present case, the Appeal Panel’s relevant reasoning must be read fairly and as a whole.

  2. More particularly, it was submitted on the builder’s behalf that, in effect, the Appeal Panel’s reasons were inadequate because: the reasons did not articulate why the homeowners’ submissions, which the Appeal Panel said they accepted, were correct or why they should be accepted rather than the builder’s submissions; there was no articulated reasoning as to why the value of invoice NU0421 could be used to establish the value of works carried out or why the value of all works claimed in that invoice should be deducted from the value of the works carried out when the evidence, including the expert report of Mr Redfern, indicated that some of that work had been carried out; the Appeal Panel’s relevant reasoning did not address apparently inconsistent findings of the Senior Member as to the value of works completed and how the amount claimed in invoice NU0421 (which included not only contract works but variations and prime cost adjustments) related to these findings; and, all of these matters together with related findings and conclusions should have been explained and justified in the Appeal Panel’s reasoning but they were not.

  3. The builder also submitted that in assessing the sufficiency of the Appeal Panel’s reasons, one relevant factor would be whether the reasons disclosed the process of reasoning of the Panel so as to allow proper consideration of any appeal by this Court. Ultimately, the builder contended that it was not sufficient for the parties to “speculate from collateral reasons” citing Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697.

  4. In relation to the first ground of appeal, the homeowners submitted that there was no common law duty to give reasons for making a statutory decision and, with the exception of s 62, the NCAT Act did not provide any express statutory duty to give reasons. Indeed, it was submitted that the builder’s appeal proceeded on a misapprehension that NCAT was required to provide reasons in the same manner and to the extent required where a court delivers judgment. The submissions made on behalf of the homeowners referred to authorities concerning the extent of reasons required in respect of administrative decisions, including the principles identified in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77]. It was contended that, read as a whole, the Appeal Panel’s reasons for decision met the required standard “because they set out adequately the background of the matter and identif[ied] the issues contested in the Tribunal, summarise[d] the position of each party on appeal and of importance in this case, identif[ied] the key issues”. In addition, it was said that they were “adequate, logical and compliant with the requirements consistently held by the courts”.

  5. In particular, the homeowners submitted, in effect, that the reference to the “reasons submitted by the Homeowners” at AP[80] was “clearly a reference to the written submissions [which commenced] at page 108 of the Court Book” and the “calculations that were referred to are set out at paragraphs 40 to 44 of those submissions”. In large measure, the homeowners submitted that in relation to issues the Appeal Panel was required to determine, its reasons were adequate and that the other matters raised by the builder related to issues which the Appeal Panel was not required to address for the purposes of adequately explaining it reasoning processes.

  6. The homeowners submitted, in summary, that leave should not be granted in relation to ground one because adequate reasons had been provided and no error of law was disclosed.

Consideration

  1. In relation NCAT decisions, the giving of reasons is regulated by s 62 of the NCAT Act which provides:

“62 Tribunal to give notice of decision and provide written reasons on request

(1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings.

(2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.

(3) A written statement of reasons for the purposes of this section must set out the following—

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal’s understanding of the applicable law,

(c) the reasoning processes that lead the Tribunal to the conclusions it made.

(4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.”

  1. The references to the Tribunal in this section naturally include the Tribunal constituted as an Appeal Panel under s 27(1) of the NCAT Act.

  2. Section 62(3) sets out the required content of a “written statement of reasons for the purposes of this section”. There are two categories of “written statements of reasons” which are referred to for the purposes of s 62 and to which s 62(3) applies:

  1. “a written statement of reasons produced within 28 days after the request is made” provided in response to a request by a party under s 62(2); and

  2. “a written statement of reasons … already … provided to the party” without a request which is permitted, perhaps even encouraged, by s 62(4) and which prevents any party from making a request for a further statement under s 62(2), because a written statement of reasons under that subsection may only be requested “if a written statement of reasons has not already been provided to the party”.

  1. If it were assumed that s 62 of the NCAT Act constituted the sole source of any obligation on the Tribunal to give reasons for its decisions, the terms and structure of subss (2) and (3) appear to have two potentially anomalous effects. First, written reasons given more than 28 days after a decision not in response to a request under s 62(2) would not appear to be a “written statement of reasons for the purposes of this section” and thus would not be subject to the requirements of s 62(3). Secondly, if the Tribunal made a decision but did not provide reasons for its decision at that time or within 28 days of notice of the decision being given to the parties, the parties would not be able, after the 28 days had passed, to make a request under s 62(2). In such a situation, there would be no obligation arising under s 62(2) for the Tribunal to provide a written statement of reasons. If the Tribunal adopted the position in such situations that it could refuse to provide any or adequate reasons because s 62 was the only source of any obligation to provide reasons, the appeal processes available to parties to proceedings in the Tribunal might be effectively frustrated or severely hindered as a result of the absence of reasons. In addition, such a refusal to give reasons might well give rise to a legitimate sense of grievance and a perception of a miscarriage of justice on the part of litigants who were denied any explanation of a decision determining their rights and liabilities. These consequences suggest that, in circumstances where there was no obligation to provide a written statement of reasons under s 62(2) or a statement complying with s 62(3), it would be unwise for a decision maker in the Tribunal to assume that the statutory conferral on the Tribunal of authority to quell controversies between parties and to determine definitively their legal rights and liabilities would not be found by the common law to entail a concomitant or implied duty to provide adequate reasons for their decisions, even if such a duty was regulated or supplemented by s 62(2) and (3) of the NCAT Act.

  2. It is not necessary, however, to address any potentially anomalous operation of s 62 in the present case, because the Appeal Panel published a written statement of reasons, namely Nu-Stone Building Pty Ltd v McInerney [2022] NSWCATAP 285, before making its dispositive orders, apparently without a request from any party. In these circumstances, the Appeal Panel’s statement of reasons was “a written statement of reasons … [which had] already been provided” within s 62(2) and, thus, constituted “a written statement of reasons for the purposes of this section” to which s 62(3) applied.

  3. Consequently, the Appeal Panel’s reasons in the present case were required to set out, in accordance with s 62(3), the relevant findings on material questions of fact, a statement of the applicable law and, most importantly for present purposes “the reasoning processes that [led] the Tribunal to the conclusions it made”. A failure to do so amounts to an error of law by failing to comply with the statutory requirements for reasons in s 62(3).

  4. When it comes to considering the related question of the standard to be reached in complying with the requirements of s 62(3), it is important to note that, in the context of appellate review of the adequacy of reasons, an appellate court is not required to determine the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: NSW Land and Housing Commission v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [66] (Bell P, Ward JA agreeing).

  5. In the case of NCAT, the standard required of reasons for decision may vary depending on the power being exercised and the functions being performed having regard to the subject matter of the proceedings. The powers and functions of the Tribunal are not limited to administrative power and administrative functions such as are engaged when matters in the Administrative and Equal Opportunity Division are being dealt with under Pt 3 of the Administrative Decisions Review Act 1997 (NSW). When the Consumer and Commercial Division of the Tribunal, or the Appeal Panel, is dealing with contractual claims, for example in the context of a building claim under the Home Building Act 1989 (NSW) or proceedings relating to a tenancy agreement under the Residential Tenancies Act 2010 (NSW), NCAT will be exercising judicial power and judicial functions: Brandy v Human Rights and Equal Opportunity Commission (1985) 183 CLR 245 at 258-9; [1995] HCA 10; Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 at [126]-[137]. When judicial power is being exercised, it cannot be assumed that the adequacy required of reasons for decision will be same as that which might be required in respect of reasons by an original administrative decision maker exercising administrative power or the Tribunal sitting at first instance exercising administrative power and deciding what the correct and preferable decision is pursuant to s 63 of the Administrative Decisions Review Act. In these circumstances, authorities relating to the reasons of Commonwealth administrative decision makers, who cannot constitutionally exercise judicial power, are likely to be of little, if any, direct assistance in considering the adequacy of reasons given by the Tribunal in a case such as the present.

  6. It is also appropriate to bear in mind that the position of the NCAT Appeal Panel is different from that of the Tribunal at first instance. The role and function of the Appeal Panel in an internal appeal under ss 80 and 81 of the NCAT Act include correcting legal and factual errors in the decisions of the Tribunal at first instance. In addition, under s 34(1)(c) of the NCAT Act, the availability of an internal appeal to the Appeal Panel is an express ground upon which this Court may refuse to conduct a judicial review of a decision of the Tribunal. Furthermore, under s 27(1)(a) of the NCAT Act, the Appeal Panel hearing an internal appeal must be constituted with at least one Member who is an Australian lawyer. These considerations suggest that it may be appropriate for the Appeal Panel to be held to a higher standard of adequacy in respect of its written statements of reasons than might apply to reasons of the Tribunal at first instance. Indeed, it is difficult to perceive why the Appeal Panel should not be held to the same standard as a court in cases such as the present where the Panel is exercising internal appeal jurisdiction in respect of a decision of the Tribunal relating to contractual building claims, which the Tribunal has authority to hear and determine up to a value of $500,000, and where the legislature has determined that the Tribunal, and not a court, is to be chiefly responsible for resolving such claims, as provided in ss 48K and 48L of the Home Building Act 1989 (NSW).

  1. Other relevant, more general principles concerning the adequacy of reasons for decisions include:

  1. One of the functions of reasons for decisions is to explain to the losing party why that party lost: Welsh v Carnival Plc trading as Carnival Australia [2014] NSWCA 430 (Welsh) at [5] (McColl JA, Sackville AJA agreeing), [61] (Adamson J, Sackville AJA agreeing);

  2. Reasons should be read fairly and as a whole to determine whether they are adequate: Welsh at [61]; and

  3. It is open to a decision maker to accept and incorporate by reference one party’s submissions, as long as it is clear what is being accepted: Welsh at [61] (although it can be noted that the case cited in Welsh as an example of this occurring involved undefended proceedings in the Federal Court of Australia, Scoway Pty Limited v Faxon Pty Limited [2004] FCA 249); and, where the decision maker is adjudicating between cases put by the parties, it is necessary that it be explained why the losing party’s case was rejected: Welsh at [62].

  1. The Appeal Panel’s reasoning in relation to the builder’s appeal was set out in AP[75]-[82]. The substance of the builder’s claim was that, since the costs to complete the work to be performed under the contract should have been found to be less than the balance payable under the contract, the “award for completion costs should be NIL” (AP[61](8)), instead of $70,973.20 as found by the Senior Member at CCD[81].

  2. This contention was rejected at AP[80] in the following terms:

“80 However, for the reasons submitted by the Homeowners and the calculations set out in their submissions, we do not accept that proposition.”

  1. As to the reasoning at AP[80], the homeowners’ particular reasons and calculations and the particular submissions to which the Appeal Panel was referring were not identified by any specific reference. While it is open to a decision maker to accept and incorporate by reference one party’s submissions, it is necessary for the decision maker to make clear what is being accepted and to explain why the losing party’s case was rejected: Welsh at [61]. This the Appeal Panel failed to do at AP[80]-[82].

  2. During oral submissions before this Court, it was contended on the homeowners’ behalf that in AP[80] the Appeal Panel were referring “to an identifiable part of the submissions which the homeowners made, before the Appeal Panel. So, in that sense, a shorthand, … a bit like a hyperlink in a footnote to an article” [5] and “para 80 is to be read as though a cut and paste was done, and inserted in the reasons” [6] . More specifically, the homeowners submitted that the particular reasons and calculations were “the relevant table, which form the basis of the finding by the Appeal Panel, [which] can be found in tabular form at [pp] 120 to 121 [of Ex A], with an explication in the preceding two paragraphs on p 119 [Ex A]” [7] . The two paragraphs referred to were pars 39 and 40 (including the table of calculations subjoined to par 40) of the Applicants’ Submissions to the Appeal Panel dated 16 May 2022. However, in the homeowners’ “Outline of Submissions for Notice of Contention” filed in this Court on 25 May 2023, at par 7, it was submitted in effect that the Appeal Panel’s reference to the homeowners’ “submissions” at AP[80] was a reference to the 19 pages of submissions dated 16 May 2022 and the reference to “calculations” it was said “could only have been the submissions at paragraphs 40 to 45 of those submissions”.

    5. Tcpt, 21 June 2023, p 26(36)–(39).

    6. Tcpt, 21 June 2023, p 27(50)–28(1).

    7. Tcpt, 21 June 2023, p 37(14)–(18).

  3. This apparent inability, even on the part of the winning party, to identify with precision and clarity which particular paragraphs of the submissions dated 16 May 2022 the Appeal Panel was intending to refer to in AP[80] speaks tellingly of the fundamental inadequacy of the Appeal Panel’s written statement of reasons.

  4. Further, whether these attempts to identify the homeowners’ particular reasons and calculations and the particular submissions to which the Appeal Panel was referring were correct or incorrect, the Appeal Panel’s statement of reasons remains problematic.

  5. It is impossible from the Appeal Panel’s statement of reasons to determine whether either of the homeowners’ contentions as to which submissions and calculations the Appeal Panel intended to refer to at AP[80] was correct.

  6. Moreover, even if the identifications or reference to the homeowners’ submissions were correct, there are two more general problems with this approach to giving reasons. First, the identification of the relevant reasons and calculations in any submissions made by the homeowners is left to the reader of the Appeal Panel’s reasons rather than being stated by the Appeal Panel. This has the potential to lead to confusion, as demonstrated by the homeowners’ various submissions as to which submissions at first instance the Appeal Panel were referring to, and dispute as to the reasons actually adopted by the Panel. On this basis, the Appeal Panel’s reasons did not amount to an adequate statement of “the reasoning processes that [led] the Tribunal to the conclusions it made”, as required by s 62(3) of the NCAT Act.

  7. Secondly, even assuming that the homeowners had correctly identified the relevant paragraphs that the Appeal Panel adopted in its reasons, the Appeal Panel’s approach is entirely unsatisfactory for any reader of the Appeal Panel’s reasons who did not have access to the Applicants’ Submissions to the Appeal Panel dated 16 May 2022. Such a reader would have no possible means of knowing what submissions, reasons or calculations the Appeal Panel was actually purporting to adopt. In this way, the Appeal Panel’s reasons also failed to provide any statement of its relevant reasoning processes.

  8. In the present case, there is a further problem even if the Appeal Panel’s approach were otherwise satisfactory. Two of the paragraphs which the homeowners contended were the submissions adopted by the Appeal Panel were as follows:

“39. In applying the “Mann Principle” the Senior Member below ought to have disregarded the quantum meruit valuation conducted by Mr Nguyen and ought to have applied the actual costs incurred by the Homeowners.

40. Even if the logic of Mr Nguyen in his Report is accepted his estimate of the remaining costs to complete the works was $345,742. If 15% is added for the Contract builder’s margin rate that brings the total to $397,603.30. The addition of GST in the sum of $39,760.30 brings the total on his estimate to complete the works to be $437,363.63. Adding back the works which were not completed by Payment Stage 4 by reference to his trade summary and the evidence results in a sum of $137,644.65 being added back in. The table below sets out the adjustment [and shows how the sum of $137,644.65 was made up].”

  1. These two paragraphs appear to provide different and alternate bases for rejecting the builder’s proposition and it is not clear from AP[80] which basis the Appeal Panel adopted. This is a further illustration of the inadequacy of the Appeal Panel’s approach to the provision of reasons.

  2. The Appeal Panel’s reasons were not, however, limited to AP[80] and the Panel continued at AP[81]-[82]:

“81 The substance of the Homeowners’ response to the Builder’s Appeal, and forming part of their own appeal (Ground 1), is that the value of Invoice number NU0421 which was issued on 18 March 2021 for Payment Claim 4 should have been deducted from the value that was assigned by Mr Nguyen to the completed work.

82 We accept that proposition. We agree that the Tribunal erred in failing to exclude Payment Claim 4 in its calculation of the contract price.”

  1. The reasoning at AP[81]-[82] involved the Appeal Panel purportedly accepting that:

  1. “the value of Invoice number NU0421 which was issued on 18 March 2021 for Payment Claim 4 should have been deducted from the value that was assigned by Mr Nguyen to the completed work”; and

  2. “the Tribunal erred in failing to exclude Payment Claim 4 in its calculation of the contract price”.

  1. These paragraphs do not identify why these propositions should be accepted or why the builder’s contrary propositions should be rejected. Thus, they do not satisfy the requirement in s 62(3) for there to be a statement of the reasoning processes that led the Appeal Panel to its conclusions.

  2. Furthermore, even if pars 39 and 40 of the homeowners’ submissions of 16 May 2022 had been the submissions and calculations relied on by the Appeal Panel, as the homeowners contended, the problem of a failure to provide adequate reasons at AP[81]-[82] is not cured by reference to those paragraphs. In so far as par 39 was said to be relied upon, that paragraph did not relate to Invoice number NU0421 for PC4 at all and thus could not provide a basis for the Appeal Panel to conclude in those paragraphs that the value of Invoice number NU0421 should have been deducted from the value that was assigned by Mr Nguyen to the completed work and not included in the calculation of “the contract price”.

  3. In so far as par 40 was said to have been relied on by the Appeal Panel, that paragraph included a submission to the effect that the “works which were not completed by Payment Stage 4” should be valued at $137,644.65. This was not a finding made by the Tribunal at first instance and, contrary to the homeowners’ contention, the evidence of Mr Redfern, the homeowners’ expert, was apparently that the value of incomplete work included in PC4 (also referred to as PP4) was only $71,094 (see CCD[74](4)). It can be noted that it was common ground that the amount claimed in Invoice number NU0421 was $257,759.80. The Appeal Panel did not address or resolve the issue of what work claimed in Invoice number NU0421 was or was not completed. Thus, there does not appear from the Appeal Panel’s reasons to be any justification for reaching the conclusions at AP[81] and [82]. Furthermore, it is clear that in par 40 of their written submissions dated 16 May 2022, the homeowners were not submitting that the total amount claimed in Invoice number NU0421 should be “added back in” to any relevant calculation or, in other words, that none of the work which was the subject of Invoice number NU0421 had been carried out. Rather, they submitted that the incomplete works under the invoice should be valued at $137,644.65 and this amount should be “added back in”. Consequently, par 40 could not, without considerably more explanation, provide a justification for the Appeal Panel’s conclusions either that “the value of Invoice number NU0421” should have been deducted from the value of the completed work or that the Senior Member “erred in failing to exclude PC4” in calculating the “contract price”, which had been the subject of agreement between the parties before the Tribunal at first instance. [8]

    8. The contract price was agreed to be $905,320.00 (GST excl) or $995,852.00 (GST incl) (see CCD[1] and [81]), and there was no challenge to these figures on the internal appeal to the Appeal Panel.

  4. These issues are not cured by what was said by the Appeal Panel at AP[91]-[92]. The summary given by the Appeal Panel of its relevant conclusions in relation to the builder’s appeal at AP[91]-[92] did not provide any further statement of its reasoning processes which led to those conclusions. Those paragraphs were as follows:

“91 We also consider the Tribunal erred in including the value of Invoice number NU0421 which was issued on 18 March 2021 for Payment Claim 4 in its contract reconciliation.

92 We do not agree that either of these matters raise questions of law, much as they have been described as such by the parties. To the extent necessary we grant leave to appeal in respect of these issues and allow both appeals in relation to those matters.”

  1. At AP[82], the Panel said that “the Tribunal erred in failing to exclude Payment Claim 4 in its calculation of the contract price”. In AP[91], however, the Appeal Panel’s criticism was that “the Tribunal erred in including the value of Invoice number NU0421 … in its contract reconciliation”. Thus, at AP[82] and [91], the Appeal Panel appeared to confuse two different concepts, “the contract price” and the Tribunal’s “contract reconciliation”. There was no dispute that the “contract price” was $995,852 inclusive of GST (CCD[1] and [81]). As to the Tribunal’s “contract reconciliation”, it had been held at CCD[99]:

“… The contract reconciliation thus is the value of the contract works (as per the builder’s evidence) $575,733.81 less an amount paid to the builder $563,889.84 (as agreed between the parties), the difference being $11,843.97.”

  1. Neither the “contract price” nor the Tribunal’s “contract reconciliation” included as an integer “the value of Invoice number NU0421”. The “contract price” was determined by the terms of the contract. The Senior Member’s “contract reconciliation” included the finding that the value of the contract works was $575,733.81. This finding must have been based on acceptance of the builder’s submissions in that regard which explained in detail how the total of $575,733.81 was calculated. [9] A review of that calculation demonstrates that that figure was not based on, nor did it include, “the value of Invoice number NU0421”. The Appeal Panel provided no reasoning as to why, in those circumstances, it concluded at AP[91] that the Tribunal erred in including the value of Invoice number NU0421 in the “contract price” or the Tribunal’s “contract reconciliation”.

    9. Builder’s Submissions at first instance, 25 October 2021, section 5.5.

  2. As to the homeowners’ appeal, the Appeal Panel relevantly found, at AP[96], that the homeowners’ first two grounds of appeal were also to the effect that the Tribunal erred in including the value of Invoice number NU0421 for Payment Claim 4 in its “contract reconciliation”, without providing any further explanation of its reasoning. The Appeal Panel then concluded, at AP[97]:

“97 For the reasons set out above, we accept this submission, and we would allow the Homeowners’ appeal to this extent.”

  1. The reference to “the reasons set out above” appears to be a reference to what was recorded in AP[80]-[83] and no further reasoning in that regard was provided. Thus, this latter part of the Appeal Panel’s reasons did not cure any defects in the earlier part.

  2. In addition, when considering the Appeal Panel’s reasoning as a whole, it can also be noted that there were other unexplained and apparently incongruous conclusions reached by the Appeal Panel, as follows:

  1. there were no reasons given as to why the Appeal Panel concluded in AP[77](1) that “the contract price was not the $995,852.00 found at [CCD][1], but the $1,066,825.20 found by the Tribunal at [CCD][80] and [81]” when, at CCD[81], the Tribunal had said “[t]he contract price is $995,852.00” and at CCD[80] the Tribunal had found that $1,066,825.20 was the “Total contract cost of works”, not the “contract price”, and was made up of the items explained in CCD[80] which included the costs of “Remaining works” as estimated by Mr Nguyen plus a margin of 15%;

  2. there were no reasons given as to why the Appeal Panel concluded at AP[77](2) that “the Tribunal should have found that the amount paid for contract works including variations was $572,333.05” when the Senior Member had noted that the sum agreed between the parties as to the amount paid by the homeowners under the contract was $563,889.84 (including $65,963.84 for variations), as set out in CCD[13], [70] and [99];

  3. there were no reasons given as to why the Appeal Panel concluded at AP[78] that the “contract price (including variations) was $1,066,825.20” when:

  1. the Appeal Panel had recorded at AP[34] that the Senior Member had “allowed $82,442.35 for variations (1), (2) and (5)” and if that sum were added to the contact price excluding variations of $995,852.00, the contract price including variations would be $1,078,294.35 not $1,066,825.20; and

  2. if the actual value of the variations (1), (2), (3) and (5), not taking into account any credits, as found in CCD[86]-[91] and CCD[94] were considered, these totalled $86,216.75 and thus the contract price including variations to that value would total $1,082,068.75;

  1. there were no reasons given as to why the Appeal Panel concluded at AP[79] that “the costs to complete the contract, [was] $457,255.295 ($397,613.30 plus 15% margin)” when at AP[75], the Panel recorded that the Senior Member “found at [CCD][80] that the completion costs were $345,752 plus an additional Builder’s margin of $51,861.30, a total of $397,613.30” and no justification was given by the Appeal Panel for apparently applying a 15% margin twice; and

  2. there were no reasons given as to why the Appeal Panel considered that the findings made by the Tribunal at first instance concerning Invoice number NU0421 for the purposes of determining a claim for interest were even relevant to other aspects of the Tribunal’s decision when the Tribunal itself did not treat those findings made for the purposes of the interest claim as having any relevance for the builder’s or the homeowners’ other claims.

  1. Reading AP[80]-[83], AP[91]-[92] and AP[96]-[97] fairly in the context of the Appeal Panel’s reasons as a whole, even without a fine toothed comb attuned to identifying error, I was satisfied that the Appeal Panel’s reasons failed to provide any, or any adequate, statement of the reasoning processes that led the Appeal Panel to its conclusions in respect of the builder’s appeal and the homeowners’ appeal, in those paragraphs or elsewhere. As a result, the Appeal Panel erred in law by failing to comply with the requirements of s 62(3) of the NCAT Act.

  2. For all these reasons, if leave to appeal is granted, I would uphold the appeal on ground 1 and it would not be necessary to consider the other proposed grounds of appeal, even if that were otherwise possible given the insufficiency of the reasons.

Leave to appeal

  1. As noted above, under s 83(1) of the NCAT Act, a party may only appeal to this Court from a decision of the Appeal Panel in an internal appeal by leave of the Court. It is well established that ordinarily it will only be appropriate to grant leave to appeal in matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46] (Campbell JA, Young and Meagher JJA agreeing); Concoran v Far [2019] NSWSC 1284 at [24] (McCallum J) and the cases there cited.

  2. In the present case, although the relevant ground of appeal involved the Appeal Panel’s failure to give adequate reasons, the circumstances which I have outlined above led, in my view, to the conclusion that there was an injustice which was reasonably clear. This injustice arose out of the fact that there were substantial grounds for concluding that the Appeal Panel’s decision could not be justified by reference to either the reasoning of the Appeal Panel or the unchallenged findings by the Tribunal at first instance. Furthermore, the absence of adequate reasons effectively deprived the Court of a sufficient basis for understanding what principles of law the Appeal Panel had applied and for considering whether the Panel erred by identifying a wrong issue or addressing a wrong question. Thus, the Court was effectively prevented by the absence of a statement of reasons complying with s 62(3) from properly considering the other two grounds of appeal. This also led, in my view, to there being an injustice which was reasonably clear. Finally, I was not satisfied, given the paucity of the Appeal Panel’s reasons, that I could come to a properly informed view as to the amount in issue on this appeal. As a result, I did not consider it appropriate to refuse leave to appeal because the subject matter of the appeal was too small to warrant a grant of leave.

  1. For these reasons, leave to appeal should be granted.

Disposition of the appeal

  1. Where a court exercising appellate jurisdiction under s 83 of the NCAT Act concludes that the Appeal Panel has failed to give adequate reasons, the court has a discretion as to whether the matter should be remitted for rehearing: s 83(3)(b) of the NCAT Act; Lloyd v Thornbury [2019] NSWCA 154 (Lloyd) at [156] (Gleeson JA, Meagher and White JJA agreeing). If the only conclusion open on the findings and evidence available before the Appeal Panel was the conclusion reached by the Appeal Panel, then, notwithstanding an inadequate statement of reasons, the matter need not be remitted: Lloyd at [156] and the cases there cited. Unfortunately, this was not such a case. The Appeal Panel’s reasons were so inadequate that it could not be determined whether certain relevant factual findings by the Tribunal at first instance were accepted or rejected by the Appeal Panel. For example, there were challenges to the factual conclusions of the Tribunal at first instance in relation to the value of work completed by the builder and there appeared to be inconsistent findings by the Tribunal at first instance, at CCD[80] and [99], on that topic. No satisfactory resolution of these and other matters raised on the internal appeal could be found in the Appeal Panel’s reasons for decision. In these circumstances, I did not consider that I was in a position to determine what the outcome of the appeals before the Appeal Panel should have been. Accordingly, the appropriate course was to set aside the Appeal Panel’s decision and remit the matter to the Appeal Panel of the Tribunal to be heard and decided again.

Notice of contention

  1. As noted above, the homeowners’ notice of contention effectively sought different orders from those made by the Appeal Panel and was not properly a notice of contention. Nonetheless, since I was not satisfied that I could reach any conclusion based on uncontested facts that would dispose of the appeal, it was not appropriate to accept the submissions made in support of the alternate orders sought in the notice of contention.

Costs

  1. Neither party suggested that costs should not follow the event and I was not aware of any circumstances which would justify a departure from that approach. Accordingly, costs should be awarded in favour of the successful plaintiff/builder.

Orders

  1. For these reasons, the orders of the Court are:

  1. The plaintiff has leave to appeal.

  2. The appeal is allowed.

  3. The decision of the Appeal Panel made on 14 November 2022 is set aside.

  4. Pursuant to s 83(3)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), the matter is remitted to the Appeal Panel of the Tribunal to be heard and decided again.

  5. The defendants are to pay the plaintiff’s costs of the appeal.

**********

Endnotes


(a) the decision of the Tribunal under appeal was not fair and equitable; or


(b) the decision of the Tribunal under appeal was against the weight of evidence; or


(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

Decision last updated: 14 August 2023

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Attorney General for New South Wales v Gatsby [2018] NSWCA 254
Attorney General for New South Wales v Gatsby [2018] NSWCA 254
Attorney General for New South Wales v Gatsby [2018] NSWCA 254