Robert Symes and Kim Louise Filmer v Mick Fabar Constructions Pty Ltd

Case •

[2015] NSWCATCD 77

•

30 June 2015

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Robert Symes and Kim Louise Filmer v Mick Fabar Constructions Pty Ltd [2015] NSWCATCD 77
Hearing dates:22 May 2015 (on the papers)
Decision date: 30 June 2015
Jurisdiction:Consumer and Commercial Division
Before: G Meadows, Senior Member
Decision:

The renewal application includes:

1  whether it is appropriate to convert the work order (or any particular item within the work order) into a money order;
2  whether any of the works have been complied with;
3  whether any of the works not complied with are still necessary;
4  whether the applicants have prevented any of the works;
5  whether any of the works not completed are impossible or impractical to complete;
6  whether an opinion as to satisfactory completion of any of the items requires expert opinion of a particular type, such as general building, structural, hydraulic;
7  any other issues a party asserts may be relevant.
Catchwords: Administrative Law—Home Building Claim—consent work orders—applicants allege incomplete—whether respondents estopped from calling fresh evidence to disagree with owners’ experts’ “reasonable satisfaction”
Legislation Cited: Home Building Act 1989
Category:Procedural and other rulings
Parties: Robert Symes and Kim Louise Filmer—applicants;
Mick Fabar Constructions Pty Ltd—respondent
Representation: Counsel: Michele Fraser for the applicant
File Number(s):HB 14/06604
Publication restriction:Nil

REASON FOR DECISION

Application

  1. This application raises interesting and important issues in relation to renewal of proceedings in circumstances in which the original proceedings were settled, or partly settled, by consent orders. (In these reasons, I will refer to the orders made on 14 August 2013 as “consent orders”. In their submissions the parties variously refer to the orders as “work orders” or “consent orders”: there appears to be no distinction intended by the different words used.)

  2. The renewal application was in respect of certain consent orders made in matter number HB 10/44392 on 14 August 2013. Pursuant to the provisions of Clause 12 of Schedule 1 “Savings, transitional and other provisions” (Schedule 1) to the Civil and Administrative Tribunal Act 2013 (the CAT Act), and Clause 14 of Schedule 1, the order made in HB 10/44392 is taken to be as if made by the Civil and Administrative Tribunal of New South Wales (NCAT) in exercise of functions allocated to the Consumer and Commercial Division (CCD) of NCAT.

Applicable Legislation

  1. Clause 14 of Schedule 1 provides:

14   Orders of existing tribunals

(1)   An existing order of an existing tribunal made under other legislation is taken, on and from the establishment day, to be an order made by NCAT under the corresponding provision of that legislation (as amended by a relevant amending Act) or this Act (as the case may be).

(2)   This clause is subject to the other provisions of this Schedule.

(3)   In this clause:

existing order of an existing tribunal is an order made by the tribunal before the establishment day, and includes an order that would have come into effect on or after the establishment day.

  1. A right of renewal, which is in practice a right to make a renewal application, if not exercised prior to the establishment day, is an “unexercised right” as defined in Clause 6 of Schedule 1. Clause 9 of Schedule 1 provides:

9   Certain unexercised rights to make applications or appeals to existing tribunals may continue to be exercised in NCAT

(1)   This clause applies to each of the following unexercised rights (an existing unexercised application or appeal right):

(a)   an unexercised right to apply to an existing tribunal for it to make a decision at first instance concerning a matter,

(b)   an unexercised right to apply to an existing tribunal for a review of a decision of another person or body,

(c)   an unexercised right to appeal to an existing tribunal against a decision of another person or body.

(2)   A person who has an existing unexercised application or appeal right may apply or appeal to NCAT for the exercise of the same functions that could have been exercised by the existing tribunal to which the right relates had the existing tribunal not been abolished.

Note. An application or appeal under this clause that would have required leave before the establishment day will still require such leave. Also, any time limits under existing law for making the application or appeal will continue to apply to applications or appeals under this clause. See subclause (3).

(3)   For the purposes of subclause (2):

(a)   NCAT has and may exercise all the functions that the relevant existing tribunal would have had in relation to the application or appeal if it had been made before the establishment day (including any functions relating to the granting of leave to apply or appeal), and

(b)   the provisions of any Act, statutory rule or other law (including provisions concerning the time within which to apply or appeal) that would have applied to or in respect of the application or appeal had this Act and the relevant amending Acts not been enacted continue to apply.

  1. The result of those legislative provisions is that although the renewal application was filed on 30 January 2014, the applicable law is that which would have applied if the NCAT legislation had not been passed, that is, the law which was applied by the former Consumer Trader & Tenancy Tribunal.

  2. Section 43 of the repealed Consumer Trader & Tenancy Tribunal Act 2001 (CTTT Act) applied to renewal applications:

43   Enforcement of certain Tribunal orders

(1)   If the Tribunal makes an order in relation to any proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.

(2)   If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.

(3)   The provisions of this Act apply to a notice lodged in accordance with subsection (2) as if the notice were an application made in accordance with section 24.

(4)   When proceedings have been renewed in accordance with this section, the Tribunal:

(a)   may make any other appropriate order under this Act as it could have made when the matter was originally determined, or

(b)   may refuse to make such an order.

(5)   This section does not apply if the operation of an order has been suspended.

(6)   A notice under this section must be in the form prescribed by the regulations.

The Consent Order of 14 August 2013

  1. On 14 August 2013, Deputy Chairperson (Determinations) (now Principal Member) Harrowell made, inter alia, the following orders by consent:

“On 14-Aug-2013 the following orders were made:

1.   By Determination of member, on 14 August 2013 the hearing was adjourned to a date to be fixed by the Registrar.

2.    By consent, on or before 15/11/13 ("Completion Date") the respondent is to carry out rectification works being items 1, 2, 3, 5, 7, 9, 10, 42, 11, 13, 22, 14, 15, 16, 17, 18, 19, 20, 21, 25, 26, 27, 28, 32, 33, 34, 36, 38, 48, 39, 40, 41, 43, 45, 46, 47, 49, 50, 51, 52, 53 and 54 marked with a tick in the document entitled "Consent Work Order" (referred to in these orders as "Agreement") dated 12/8/13 to the extent of the scope of work identified against each item in the Agreement. The Agreement is the document initialled and dated by the Deputy Chairperson (Determinations), including the modifications, which is attached to these orders.

3.   The applicant is directed to provide to the respondent reasonable access to the premises to allow the respondent to comply with order 2.

4.   The parties have liberty to apply to the Tribunal to vary the Completion Date.

5.   The Tribunal notes the agreements in paragraph A of the Agreement.

6.   The Tribunal notes that, subject to the agreement in respect of item 39 recorded in paragraph A(b) of the Agreement, the only issues remaining for determination by the Tribunal are items 29,30,31 and 35 identified in the Agreement and the issue of costs of the proceedings (the "Remaining Issues")”

  1. The “agreements in paragraph A of the Agreement” referred to in the consent orders are as follows:

“CONSENT WORK ORDERS

A.   The Builder consents to a work order for the carrying out of works in the Scope of Works below except for items 29 and 31 (pergola), 30 (painting of internal trims) and 35 (water storage tanks) of the Scott Schedule (`the excluded works’) subject to:

a.   The Builder warrants that all works within the scope of works can be completed satisfactorily and that the doing of the ‘excluded works’ at a later time will not involve duplication or redoing of works done by the Builder.

b.   In respect of Item 39 (Living room truss), it is noted that rectification is intended to make the truss structurally adequate and as well to remove a sag in the clerestory windows. If the sag in the window is rectified the Owners will forego their claims for diminution and solatium.

c.   The parties are yet to agree to a program of works and a completion date for the works.

d   Subject to an agreed program of works and completion date, the parties to agree as to the number of inspections by the Owners’ experts and who is to bear the costs of the Inspections. NB - (c) and (d) to be revised once the Owners have seen and considered the proposed program of works.

e.   The Builder will provide to the Owners at least 7 days prior notice of when any internal access will be required to the residence to complete agreed works. If during this time both of the Owners are working then the ‘builder will arrange for one of its employees to meet one of the owners on site prior to them departing for work for the purpose of opening up the premises and will wait to meet one of the owners after returning from work so as to securely lockup and/or hand back the daily occupation of the premises by the builder. The builder will require access to the residence between 7.40 am and 4.30 pm whilst works are in progress. .

f.   The works within the scope of works are to include cleaning up and making good, and removal of all waste off site.

g.   The works within the scope of works are to be completed to the satisfaction of the Owners’ experts.

h.   [excluded]

i.   Any necessary certification.is to be arranged and paid for by the Builder. Where practicable, Orange City Council is to be certifier. All certifications are to be provided by [to] the Owners.

j.   The owners will allow the builder to undertake the works without interference and any directions or instructions regarding the-works shall be communicated through- the owners’ experts.

k.   Should the works not .be-completed to the satisfaction of the Owners’ expert, the Builder consents to an application for leave to renew proceedings under s43 Consumer Trader & Tenancy: Act. In such proceedings the Owners may seek further or other orders, including orders for payment of money.”

  1. It is not necessary to reproduce it here, but attached to the consent orders was a schedule headed “Scope of Works” which was in the form of a numbered series of items including in one column “Description of Item” and in the next column “Scope”. The information in the “Scope” column referred to numbered paragraphs in various expert reports prepared by the applicants’ experts, Mr Finnane and Mr Broune.

  2. The completion date for these works was 15 November 2013. Although it was common for the Tribunal to specify a date by which a renewal application could be filed in the event a party considered another party had failed to comply with the order to complete the scope of works, that was not done in this case. However, by s 43(2) of the CTTT Act the applicants had until 15 November 2014 to file any renewal application. As noted above, the current application was filed on 30 January 2014 and therefore the applicants have complied with the statutory requirements.

The application for a decision in relation to the scope of the renewal hearing

  1. It appears from the Tribunal file that there was initially some confusion within the Tribunal as to the status of this renewal application and its relationship to the continuation of the determination of the remaining issues in matter HB 10/44392, although it is not necessary to consider that further. On 26 September 2014, Senior Member Goldstein made orders for the parties to serve expert reports, a scott schedule and witness statements by 24 November 2014.

  2. The matter was listed for telephone directions on 2 December 2014 before me. I was unable to make contact with the applicants (through no fault of theirs) but Mr Carpenter for the respondent appeared by telephone. Mr Carpenter advised he had received a witness statement and a scott schedule but due to misfiling he had been unable to prepare a response. Mr Carpenter also indicated that the remaining issues to be determined by Senior Member Goldstein were subject to a reserved decision, and further that, if I understood his submission correctly, some of the issues in this renewal application were dependent on, or were interrelated with, issues to be decided by Senior Member Goldstein. In order that this renewal application might be clarified, I adjourned the matter to allow the respondent to finalise its expert evidence and for the applicants to file a statement setting out which items the applicants consider are in dispute in this matter and why those matters are in dispute.

  3. The matter was listed for a further directions hearing, again by telephone, on 24 February 2015. On 14 January 2015 the respondent wrote to the Tribunal requesting an extension of time for the filing of expert reports, due to the pressure of work of the respondent’s experts. The applicants consented to this request while reserving their rights in relation to an equivalent extension of time if necessary, by letter dated 16 January 2015. As a result, the respondent was granted an extension of time to serve its evidence until 6 February 2015.

  4. Importantly, in explaining the genesis of this application in relation to the scope of the renewal hearing, the applicants wrote to the Tribunal on 2 February 2015, noting that in their opinion much of the builder’s evidence seeks to “go behind” the work orders (that is, the consent orders of 14 August 2013) whereas the applicants submit that the scope of the renewal proceedings should be limited to:

  1. Whether the work that was carried out complied with the orders to the satisfaction of the owners’ experts; and

  2. The costs to rectify or complete the works.

  1. On 24 February 2015 Senior Member Boyce made orders extending the timetable made by me on 2 December 2014 and ordered the matter to be listed in the Sydney Registry for a decision to be made in relation to the parties’ submissions in relation to the scope of this renewal, as raised in the applicants’ letter of 2 February 2015 referred to in the previous paragraph. The matter was listed before me on 22 May 2015 and I reserved my decision. This is that reserved decision.

Submissions

Applicants’ submissions

  1. The applicants note that in this renewal application, they seek to “convert” the work orders into money orders as most of the consent orders have not been complied with. The applicants note the respondent resists the renewal application on the basis that the works, or some or most of the works, were not necessary, were impossible to carry out or were otherwise undesirable. Also the respondent asserts that the work it did carry out satisfied the consent orders.

  2. In summary, the applicants submitted that:

  1. The consent orders create issue estoppels as to:

  1. The [original] work being defective or incomplete; and

  2. The requirements for rectification.

  1. The only issues between the parties in this application are:

  1. Whether the work orders should be converted to money orders, and, if so:

  2. The cost to complete and rectify the work.

  1. It follows that “all of the evidence served by the Builder, save that concerning its willingness to undertake the work, and quantum, is irrelevant and inadmissible”.

  1. The applicants relied upon the following evidence:

  1. The statement of Robert Symes dated 9 October 2014.

  2. The expert report of Peter Finnane 27 December 2013.

  3. The Scott Schedule, completed by the Builder.

  4. The statutory declaration of Matthew William Lindfield dated 7 November 2014.

  5. The statutory declaration of Andrew Morrison dated 26 November 2014.

  6. The statutory declaration of John James Parker dated 7 November 2014.

  7. The statutory declaration of Mark Perizzollo dated 7 November 2014.

  8. The statutory declaration of Timothy John Robinson dated 12 November 2014.

  9. The statutory declaration of Wayne John Wilson dated 7 November 2014.

  10. The statutory declaration of Michael John Fabar dated 11 November 2014.

  11. The statutory declaration of Michael John Fabar dated 18 March 2015.

  12. The expert report of Wayne Roe dated 20 February 2015.

  1. The applicants subsequently sought to replace item (l) with an expert report of Wayne Roe dated 06 November 2014. I note that items (a) and (b) are evidence on behalf of the applicants, while the remaining items were served by the respondent.

  2. In relation to the scope of the current dispute, that is, the scope of the renewal hearing, the applicants rely on a statement by Member Marzilli in Beck v Blindmaster Pty Ltd [2005] NSWCTTT 707:

“10.   Here, …, the issue before the Tribunal, in this matter, is limited to ascertaining the following:

a.   Were the orders made and were they in favour of the applicant named in the Notice (subsections 43(1) and (2) of the Act).

b.   Whether the orders previously made, …, have been complied with by the other party within the time specified by the Tribunal (subsections 43(1) and (5) of the Act); and if not,

c.   What other orders are appropriate, if any, that could have been made by the Tribunal when the matter was originally determined (subsection 43(1) and (5) of the Act).”

  1. The applicants then submit:

“5.3   The Consent Work Orders have not been complied with. To the extent that the Builder claims that they have, the Owners rely upon condition A(g), which requires that the works be completed to the satisfaction of the Owners’ experts. Mr Finnane is the Owners’ expert. He is not satisfied.”

  1. The applicants submit further that in Murko v Advantage Marine Services Pty Ltd [2004] NSWCTTT 495 Member Reid stated:

“When there is a failure to comply with the work orders it is the applicant’s right to have the work order converted to a money order that is shown to be reasonable.”

  1. The applicants note that in Beck’s case Member Marzilli agreed that “in most cases” section 43 proceedings are concerned with, “and limited to” converting work orders into money orders, referring approvingly to the passage above from Murko.

  2. Member Marzilli also stated:

“11.   … Member Smith also adopted this position in Zaky v Versatile Ceramics (General) [2005] NSWCTTT 144 (10 March 2005) where he stated:

“From the outset it should be understood that this application is not an appeal from the orders [previously] made by ... [the Tribunal] ... I do not have any power to rehear the merits of the dispute. This application is simply part of the process to enforce those orders, if necessary.”

12.   Moreover, in most cases, the jurisdiction of the Tribunal is exhausted by the time section 43 renewal applications are made. The Tribunal having: decided that it had jurisdiction; taken evidence; made findings of fact and applied them to the law; and, made orders, the subject of the renewal application; it cannot then revisit the issues originally in dispute. … Orders made by consent have the same effect on the Tribunal’s jurisdiction as set out above. … [A]nd while subsection 43(3) states the provisions of the Act apply to a renewal as if it were an application made in accordance with section 24, this only relates to procedural matters. The original dispute does not come back before the Tribunal.”

  1. The applicants further submit that a judgement or order by consent is a res judicata: Spencer Bowen and Handley, Res Judicata, 4th Edition, Lexis Nexis 2009, paragraph 2.16. This means, in the submission of the applicants, that

“[j]udgments, orders and awards by consent are as efficacious as those pronounced after a contest in creating cause of action estoppels and merging the cause of action sued on. Any issue which was raised in the litigation and was fundamental to the judgment or order will be conclusively determined.”

  1. Therefore, the renewal is “not an occasion to revisit the issues of whether or not the work originally performed was defective or incomplete, or what is the necessary rectification work.” Those issues are conclusively determined against the respondent.

  2. In relation to the evidence served by the respondent, the applicants state that most of that evidence challenges Mr Finnane’s findings, the consent orders, or both. If the respondent’s evidence is admitted, it will require extensive evidence in reply including expert evidence, including most probably a further inspection of the site by the experts in the form of a Tribunal assisted conclave.

  3. The remainder of the applicants’ submissions consists of a brief review of each of the statements served by the respondent and the submission that for the reasons just summarised, each statement should be rejected. In relation to Mr Fabar’s statements, it is submitted that the only relevant items are those evidencing his willingness to return to undertake works within the consent orders’ scope of works. Further, submitting that Mr Roe’s expert evidence is also irrelevant, it is further submitted that if it is admitted, the applicants will need to obtain further expert evidence from Mr Broune. The effect will be to relitigate the content of the consent orders. In circumstances where the respondent has agreed to those orders, such an attempt to relitigate would be an abuse of process.

  4. In addition to the submissions relating to previous CTTT decisions, the applicants also referred to Meehan v Jones [1982] HCA 52; (1981 - 1982) 149 CLR 571. The submission relates to the meaning to given to the phrase “to the satisfaction of the Owners’ experts” as used in the consent orders.

  5. The applicant in Meehan had contracted to purchase land with an oil refinery with two special conditions as follows:

"This contract is executed by the parties subject to the following: -

(a)   The Purchaser or his nominee entering into a satisfactory Agreement or arrangement with Ampol Petroleum Limited for the supply of a satisfactory quantity of crude oil until such time as the Purchaser or his nominee has received the approval of the Federal Govt or the appropriate empowered authority for a crude oil allocation of 500 barrels per day or better;

(b)   The Purchaser or his nominee receiving approval for finance on satisfactory terms and conditions in an amount sufficient to complete the purchase hereunder;

and should either of the above conditions not be satisfied on or before the Thirty-first day of July, 1979 (or such extended time as the parties may agree upon) then this Contract (other than for the provisions of this Clause) shall be null and void and at an end and all monies paid hereunder by the Purchaser shall be refunded in full." [Emphasis added].

In the leading judgment, Mason J found the law to be that, subject to an implied obligation to act honestly, or honestly and fairly, it is the purchaser (in that case) who has to be satisfied. The Court found against the three proposition put by the vendors, that:

“(1)   a contract which is expressed in language ‘so obscure and so incapable of any definite or precise meaning that the court is unable to attribute to the parties any particular contractual intention’ is void for …;

(2)   a contract which reserves to a party a discretion or option whether he will carry out what appears to be a promise on his part is also void for uncertainty …; and

(3)   there can be no concluded bargain if a vital matter has been left to the determination of one of the parties …”

Respondent’s submissions

  1. The respondent submits that the applicants appear to be seeking a determination of a preliminary question of law, namely, what is the true scope of clause 8(4) of Schedule 4 of the CAT Act. The main submissions of the applicants, as set out in paragraph 17 above, are summarised, as well as the Meehan v Jones submissions.

  2. The respondent submits it does not seek to set aside or challenge the original making of the consent order, nor does the respondent dispute that an estoppel arises in relation to the consent order (but does dispute the extent of that estoppel).

  3. The respondent seeks to address certain matters arising from Clause 8(4) of Schedule 4 of the CAT Act:

  1. the true construction of the orders: with regard to certain items the work was never required to be performed;

  2. the facts that the respondent has complied with the orders in many cases, while others have not been complied with because of oversight, or because of previous physical impossibilities, now overcome;

  3. if the respondent has failed to comply, what orders should be made now, not necessarily a money order; and

  4. where a different order is being sought:

  1. if the work is unnecessary, no order should be made, for the avoidance of futility;

  2. where, in carrying out or attempting to carry out, certain orders something occurred or was discovered making it physically impossible or impracticable to carry out the work as ordered, another method of rectification should be ordered and “the Tribunal should not sanction the impossible or the unreasonable”; and

  3. if the applicants themselves prevented a component of the works being carried out, the Tribunal can choose to make no order in relation to that item.

  1. In relation to “the satisfaction of the owners’ experts”, the respondent submits that the applicants assert that the expression is to be construed as referring to the subjective state of mind of Mr Finnane, and that Mr Finnane’s state of mind binds the respondent “unequivocally”. In that regard, the respondent submits as follows:

  1. The only actual work order is paragraph 2 of the consent orders, stating that the respondent is to carry out the work in relation to each item in the schedule to the extent of the scope of work in the adjacent column, referring to the Agreement. Whereas the applicants “make much of” Clause A of the Agreement, the consent orders do no more than “note” the agreements of the parties in Clause A of the Agreement. Therefore, submits the respondent, the applicants are not correct in their submission that compliance with the work order was to be to the satisfaction of Mr Finnane.

  2. Further, to the extent that the consent order required the work to be performed to the satisfaction of the owners’ experts (Agreement, clause A(g)), Mr Finnane is only one of the owners’ experts. The other expert, Mr Broune, was a structural engineer and it cannot be a proper construction of the consent orders that Mr Finnane was to be the arbiter of satisfaction in relation to any items of the works in respect of which Mr Finnane had no expertise.

  3. The respondent also draws attention to Clause A(i) of the Agreement which provides that, in effect, the respondent’s structural expert, Mr Roe, was to provide the relevant structural certification, which, it is submitted, was accepted by the applicants’ solicitor and by Mr Broune.

  4. Once such certification has been provided, Mr Finnane must “necessarily” be satisfied the work had been performed and “[t]here is simply no room in this case for Mr Finnane to reject the relevant work that has been certified by Mr Roe”. The respondent does, however, note that Mr Broune may disagree with that certification.

  5. Finally, in relation to this submission, the respondent states that Mr Finnane’s satisfaction must be considered against “objective standards of reasonableness” and therefore the Tribunal must consider any evidence relevant to a finding that Mr Finnane’s satisfaction is reasonable or unreasonable, or rather, whether Mr Finnane’s dissatisfaction is reasonable or unreasonable.

  1. In reply to the applicants’ submissions in relation to the evidence sought to be relied upon by the respondent and any evidence the applicants’ may feel compelled to obtain and file in response, the respondent submits:

  1. The applicants have not identified the nature of such evidence, or the cost or the time required to obtain such evidence, nor whether they intend to serve any such evidence anyway.

  2. The cost of such evidence is not a factor relevant to the assessment of the true scope of the renewal application or the relevance of any evidence, which the applicants’ lawyers can decide. The Tribunal should not be required to conduct “a minute exercise” of an advance ruling of the admissibility of the respondent’s evidence.

  3. The respondent submits in relation to what is said to be an even more fundamental difficulty, that the applicants’ submission that “all of the evidence served by the Builder, save that concerning its willingness to undertake the work, and quantum, is irrelevant and inadmissible” is “patently wrong”. It is clearly of relevance what work has been done and to what extent the consent orders have been complied with. The respondent submits that the evidence which the applicants submit should be rejected (that is, the numerous statutory declarations) all contain evidence relevant to that issue.

  4. In addition, evidence in relation to the matters set out paragraph 8 of the respondent’s submissions (paragraph 32 above) and footnoted in the respondent’s submissions, would also be relevant.

  5. Finally, but as a supplementary point, the respondent submits that the rules of evidence do not apply in the Tribunal in any case.

  1. The respondent also refers to a number of decided cases.

  2. In Edwards v The Hunter Valley Co Op Dairy Co Ltd (unreported: NSW SC Equity Division, 22 April 1992, McLelland SCJ), His Honour found that in the case of an insurance policy which provided that the insurer was to form a particular opinion as a condition of the insurer’s liability, it is well established that the insurer is obliged to act reasonably in considering and determining that matter even though that opinion may not be shared by the Court.

  3. In the former Consumer Trader and Tenancy Tribunal, Member Holwell found in The Gateway Village Holiday Park v Northern Rivers Signs & Screenprinting [2007] NSWCTTT 670 that:

“The respondent has not complied with the Tribunal order in respect of the fitting of the hinged door. I am satisfied on the evidence before me that a hinged door cannot be fitted to this sign without major changes to design, lighting, lettering etc. I am therefore satisfied that that order made by the Tribunal to fit a hinged access door cannot be complied with by the respondent on a reasonable basis.”

  1. Member Holwell went on to find that given that the applicant was under a common law duty to mitigate loss, the applicant’s proposal for expensive rectification work was not appropriate and ordered the original sign to be removed and the costs of purchasing and installing the sign be reimbursed.

  2. In another CTTT case, Edwards v Micks Mobile Mechanical [2011] NSWCTTT 364, Member Moss considered a case in which the work order was to the effect that the respondent was to undertake all necessary repairs to a “mower-conditioner” machine so that it complies with all relevant safety standards. The respondent conceded that the repairs had not been completed in compliance with the order, but asserted that was because when attempting to comply with the order, the respondent had discovered that one of two motors had been tampered with, thus avoiding the warranty. The applicant denied that the subject motor had been interfered with in any way. The Member was satisfied that the motor had been tampered with and that the respondent had genuinely attempted to comply with the work order. The Member said:

“50   In all the circumstances, it is not fair or reasonable to require Micks Mobile to repair or replace the hydraulic motor.

51   There are cogent and valid reasons why Micks Mobile Mechanical did not comply with the Tribunal order.

52.   The Tribunal is not satisfied that it is appropriate to order …, or to make any further order.”

  1. Finally the respondent refers to a decision of mine in this Tribunal, Laurence and Tanya Matty v Scott and Julie Boyd t/as Vast Constructions [2014] NSWCATCD 216. In that case I found that the applicant homeowners had prevented the respondents from returning to the site to complete certain works and had also prevented independent experts from jointly considering whether there were (still) required works and if so, the nature of those works. For those reasons I refused the application that the original work orders should be converted to a money order and the renewal application was dismissed. In doing so, I found that “[o]rders 1 and 2 have been complied with to the extent that the respondent was permitted by the applicants to do so”.

Consideration and Determination

  1. As discussed above, in my opinion the applicable legislation is not the CAT Act but the CTTT Act. In any case, even if I am wrong in that conclusion, Clause 8 of Schedule 4 of the CAT Act, although worded somewhat differently, has the same effect as s 43 of the CTTT Act. The time limits are the same in each act, and the effect of each section is to permit the Tribunal, on a renewal application hearing, to make any other appropriate order under this Act as it could have made when the matter was originally determined, or to refuse to make such an order.

  2. Next, with great respect to the applicants, I am not really assisted by the referral to previous Tribunal decisions. None of those decisions purports to analyse in any detail the effect of s 43 of the CTTT Act. It is clear that s 43 is not an appeal giving rise to a rehearing of the merits of the original decision but nor is it the case, as appears to be suggested in some of the decisions, that the only choice on the rehearing is to consider if the order(s) were complied with and, if not, to make a money order, the so-called process of converting the work order into a money order. That is one possibility (and, in practice, may even be the usual outcome of a renewal hearing) but the section provides that on a renewal application the Tribunal may make “any other order” which it could have made when the matter was “originally determined”, or to refuse to make an order.

  3. That formulation means that, in a suitable case, it may be necessary to inquire just what was originally determined and whether the determination followed a full hearing on the merits, or whether, for example, the parties’ evidence was admitted and witnesses subject to cross-examination but the matter was resolved by consent without a decision from the Tribunal or whether the matter was resolved by consent before any evidence was admitted or the parties’ cases even commenced. Work orders, with a right to renew, are quite common in each of those situations in this Tribunal.

  4. I can see no reason in principle that if, for example, it should be found that the orders have not been complied with, the Tribunal may not make further or amended or fresh orders altogether, rather than converting the original orders into money orders, even if that is the usual practical course adopted by the Tribunal.

  5. If the reasoning in the previous paragraph is correct, it would be appropriate and probably necessary for both parties to call expert evidence in relation to what other orders may be appropriate (including but not limited to quantum evidence).

  6. I agree, and it is not disputed by the parties, that in the case of consent orders an estoppel is created, but I also agree with the respondent’s submission that it may be necessary to consider the extent of such estoppel. In my opinion, an estoppel is created only to the extent that it can be determined what is the content of the parties’ agreement. If, on a proper view of the evidence relied upon in the original hearing, the experts agree that a particular item is to be constructed but it later becomes obvious that it is physically impossible to do so, such impossibility not being known to the experts or any other person at the time the agreement was made, then it cannot be the case that an estoppel has been created because the party who promised to do the agreed work did not know it could not be done. Furthermore, if the party getting the benefit of the proposed work did know it could not be done but allowed the other party to make the agreement, then the party with knowledge will not be permitted to take advantage of that estoppel. Logically, the original consent order cannot be implemented and nor can a money order be made—the Tribunal cannot make an assessment of the cost of performing an impossibility, and neither can anyone else.

  7. If the agreed scope of work in relation to any particular item is later discovered to be impractical, but not impossible, there is no reason why the Tribunal should not make, or the parties may agree to, an alternative order, substituting another method or alternative materials for example.

  8. On the other hand, if it was always realised (or should have been realised) that any one of a number of alternative methods or alternative materials may be equally acceptable, the party required to do the work cannot substitute of its own accord such other methods or materials simply because they are cheaper or even, in the opinion of the contractor, more suitable or more efficient than the originally agreed scope. That is because, out of all the possible scopes, methods and materials, the parties agreed on a particular scope etc. and if there is no reason why that work is impossible or impractical then that is how the work must be done. The distinction is the extent of the knowledge of the parties when entering into the agreement.

  9. In my opinion the same reasoning applies to the situation where it is discovered, when the work has commenced, that there is no need for the work, either because there never was any need (although the parties and their experts initially considered and agreed the work was necessary) or because the situation has changed, and what was correctly agreed to be necessary is no longer necessary. That is true whether the changed circumstances may be due to physical discoveries, or to changed circumstances related to surrounding developments. As an example of the latter type, suppose it had been agreed that the contractor was to build a sound-reduction wall specifically because a major new highway was to be constructed contiguous to the subject premises. If that highway was later abandoned by the authorities, the contractor cannot be held to that agreement because the agreement, and the estoppel, was based on particular circumstances, not on the changed circumstances. The Tribunal will not make an order to construct such a wall just because it was agreed to in consent orders, if, say, the beneficiary had decided the wall would be useful for increased privacy while agreeing that it was no longer required to reduce noise.

  10. In my opinion, also, that reasoning is true whether the consent orders were made after a full hearing on the merits or by compromise before the parties’ cases were opened.

  11. At this point I note that neither party has developed their submissions in relation to estoppel as it applies in these proceedings, so as to provide any answers to the questions just raised above. Without proceeding to examine this submission further, I do note that even if the doctrine of estoppel (of whichever type) applies in these proceedings, the questions the Tribunal would have to resolve are: what is the detriment that was suffered by the applicants’ reliance on the respondent’s representation (or promise etc.) and what is the appropriate method of “making good” that detriment? The latter question could only be resolved, in my opinion, by the parties calling evidence from their experts and such evidence could include not only quantum evidence (related to converting work orders into money orders) but also evidence in relation to whether other methods of rectification would remove the alleged detriment or whether indeed there was any detriment at all (for example should the rectification work no longer be required or was never required in the first place).

  1. In fact, in my opinion the resolution of this application is by way of considering the duty on the applicants’ experts in relation to their “satisfaction”.

  2. I note first the respondent’s submissions in relation to the status of Clause A(g) of the Agreement: that clause is not included in the work order itself, being order (2) in the orders made by consent on 14 August 2013.

  3. More importantly, in my view, is that the “satisfaction” of the experts must be understood as their satisfaction as an expert in their area(s) of expertise. Pursuant to the principle in Makita v Sprowles [2001] NSWCA 305 and noting that experts in this Tribunal are subject to the Expert Witness Code of Conduct, the “satisfaction” of any expert or experts must be appropriately based.

  4. In Makita’s case, Heydon JA said:

“59   If Professor Morton’s report were to be useful, it was necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions.”

  1. It follows that Mr Finnane’s satisfaction must be limited to those areas within his expertise, and that in the absence of appropriate evidence provided by Mr Finnane his “satisfaction” will not be accepted by the Tribunal. Furthermore, the respondent is entitled to call its own expert evidence in order to challenge any opinions expressed by Mr Finnane.

  2. The same holds true of the opinions of Mr Broune. Mr Finnane cannot simply accept and adopt the opinions of Mr Broune: within Mr Broune’s area of expertise, to the extent that Mr Finnane does not have such expertise, the applicants will be required to call evidence from Mr Broune, or run the risk, especially in the face of evidence which may be called by the respondent, that the Tribunal rejects the opinion of satisfaction or dissatisfaction expressed by Mr Finnane. As stated in the previous paragraph in relation to Mr Finnane, the respondent is entitled to call its own expert evidence in order to challenge any opinions expressed by Mr Broune.

  3. Considered in that fashion, to the extent that any of the works involve structural issues (which is itself a question for a structural engineer) the applicants cannot avoid calling evidence from Mr Broune.

  4. It follows that the decision in Meehan v Jones is if no assistance and must be distinguished. In that case, the satisfaction was that of a businessman in relation to business agreements, such satisfaction being peculiarly that of the individual making those agreements. In this case, even accepting that the satisfaction must be honest and fair, because experts are involved the satisfaction must also be objectively reasonable for an expert to reach, and that is subject to opinions of other experts.

  5. For those reasons, I find that the scope of these renewal proceedings should include:

  1. whether it is appropriate to convert the work order (or any particular item within the work order) into a money order;

  2. whether any of the works have been complied with;

  3. whether any of the works not complied with are still necessary;

  4. whether the applicants have prevented any of the works;

  5. whether any of the works not completed are impossible or impractical to complete;

  6. whether an opinion as to satisfactory completion of any of the items requires expert opinion of a particular type, such as general building, structural, hydraulic and so on.

  7. The above list may not be exhaustive. For further clarity, I find that it is within the rights of either party to assert whether other issues may be relevant, and to call evidence in that regard. Of course, it is expected that being represented by experienced solicitors and counsel, the parties will be aware of possible costs implications in making any decision as to which issues should be argued and supported by evidence, expert and otherwise.

  1. Evidence in chief should be provided by any party asserting that any of the above items require a positive answer, and evidence in reply by any party disputing such an assertion.

  2. For further clarity, I direct that the evidence sought to be served and relied upon by both parties includes but is not limited to the evidence served to date in these proceedings.

  3. The matter is to be listed for further directions for the provision of a final timetable for the service of evidence and for the parties to advise in relation to an estimate of the hearing time required and unavailable dates.

G Meadows

Senior Member

Civil and Administrative Tribunal of New South Wales

30 June 2015

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Decision last updated: 28 August 2015

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Cases Citing This Decision

1

Tanios v Baserite Constructions Pty Ltd [2021] NSWCATCD 85
Cases Cited

2

Statutory Material Cited

1

Laurence and Tanya Matty v Scott and Julie Boyd t/as Vast Constructions [2014] NSWCATCD 216
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305