The Owners - Strata Plan No 93804 v M Services & Maintenance Pty Ltd

[2024] NSWCATCD 54

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

The Owners – Strata Plan No 93804 v M Services & Maintenance Pty Ltd [2024] NSWCATCD 54

Hearing dates:

19 August 2024

Date of orders:

30 September 2024

Decision date:

30 September 2024

Jurisdiction:

Consumer and Commercial Division

Before:

D Robertson, Senior Member

Decision:

(1)   The respondent’s application for a further extension of time to comply with the orders made on 11 September 2019 is refused.

(2)   The applicant is given leave to renew the proceedings, as the orders made on 11 September 2019 have not been complied with within the period specified by the Tribunal, as extended on 12 July 2021.

(3)   The respondent is to pay the applicant the sum of $500,000 immediately.

(4)   If either party seeks an order in relation to the costs of the proceedings, they may file, and serve upon the other party, submissions of no more than five pages, with any evidence in support, within 14 days of the publication of these orders.

(5)   If a party files and serves submissions pursuant to Order (4) above, the other party may file and serve submissions in response of no more than five pages, with any evidence in support, within a further 14 days.

(6)   Submissions in reply to submissions filed and served pursuant to Order (5) above, of no more than three pages, may be filed and served within a further 7 days.

Catchwords:

BUILDING AND CONSTRUCTION – Home Building Act – orders not complied with - renewal of proceedings – whether Tribunal considering application for renewal can entertain an application for an extension of time for compliance with the orders

CIVIL PROCEDURE – Civil and Administrative Tribunal Act s 41 – extension of time for compliance with orders – applicable principles – whether Tribunal has power to extend time for compliance with orders made by consent `

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW) s 41, Sch 4 cl 8

Design and Building Practitioners Act 2020 (NSW)

Home Building Act 1989 (NSW) ss 48K, 48MA

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104

Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98

Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22

Madic Construction Pty Ltd v Noble [2023] NSWCATAP 130

Mania v NSW Land and Housing Corporation [2022] NSWCATAP 376

Texts Cited:

Ritchie’s Uniform Civil Procedure NSW (looseleaf)

Category:

Principal judgment

Parties:

The Owners – Strata Plan No 93804 (Applicant)
M Services & Maintenance Pty Ltd (Respondent)

Representation:

Counsel: R Thrift (Respondent)

Solicitors: Bannermans Lawyers (Applicant)
Spark Helmore Lawyers (Respondent)

File Number(s):

2023/00390118 (formerly HB 23/28368)

REASONS FOR DECISION

Introduction

1. The application before the Tribunal is for the renewal of proceedings originally commenced on 20 November 2018.

2. The Tribunal first made orders requiring the three respondents to the original proceedings to carry out work to rectify defects in the common property of the applicant strata scheme on 11 September 2019. The work was required to be completed within 240 days, that is by 8 May 2020.

3. On 12 July 2021, in renewal proceedings commenced by the applicant on 6 May 2021, the time for compliance with the work orders was extended to 22 June 2022.

4. These proceedings, which are the second renewal application brought in respect of the work orders made on 11 September 2019, were commenced on 20 June 2023.

5. Although much of the work the subject of the original work orders has been completed, there remain substantial items yet to be completed. In the time since the original work orders were made, two of the respondents have entered external administration and the proceedings against those parties have been dismissed.

6. The remaining respondent, formerly Hamilton & Marino Builders Pty Ltd, now M Services & Maintenance Pty Ltd, seeks a further extension of time for compliance with the original work orders pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

7. Section 41 provides:

41   Extensions of time

(1)  The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2)  Such an application may be made even though the relevant period of time has expired.

8. The renewal of proceedings is permitted pursuant to cl 8 of Sch 4 to the NCAT Act. Clause 8 provides:

8 Renewal of proceedings in respect of certain Division decisions

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

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

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

(4) When proceedings have been renewed in accordance with this clause, the Tribunal—

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

(b) may refuse to make such an order.

(5) This clause does not apply if—

(a) the operation of an order has been suspended, or

(b) the order is or has been the subject of an internal appeal.

9. The work remaining to be performed falls into three categories, the most substantial of which, referred to as the “fire stair pressurisation relief works” or “stair pressurisation relief works”, is now said by the parties to require the installation of a ventilation duct through the centre of the building. This will involve cutting penetrations through each floor slab. Apparently, alternative solutions involving the construction of a duct on the outside of the building proved impractical for reasons including the size of the crane which would have been required and the need to block streets while the crane was in operation.

Evidence

10. The applicant relied upon evidence from Mr Craig Blackwell, an employee of the solicitor for the applicant, and Mr William McNally, a quantity surveyor.

11. The respondent filed affidavits from Ms Carly Roberts, the solicitor for the respondent, and Mr Max Simmer.

12. Each of Mr McNally and Mr Simmer gave oral evidence at the hearing and were cross-examined briefly.

13. The affidavits of Mr Blackwell and Ms Roberts annexed or exhibited relevant correspondence.

14. Mr McNally had undertaken a costing, as at May 2024, of the remaining rectification works. His conclusion was that the reasonable cost of completing the defect rectification works which he understood remained to be completed was $742,830.63

15. Mr Simmer stated that he is employed as the “defects manager” for Resolve Remedial Pty Ltd. Mr Simmer described Resolve Remedial Pty Ltd as a remedial building company. Mr Simmer gave evidence that, since 2022, he has been overseeing the defect rectification works the subject of these proceedings.

16. Mr Simmer exhibited to his affidavit, as Exhibit MAS1, a bundle of documents, including a chronology which summarised communications he had been having with various consultants and contractors in seeking to co-ordinate the completion of the fire stair pressurisation works.

17. Mr Simmer stated in his affidavit:

“24. Broadly, my understanding is that the defect the subject of the stair pressurisation relief works arises from the lobby not complying with the Building Code of Australia (BOA) requirements for two natural ventilation points. The rectification works will involve installation of a relief shaft going all the way to the rooftop as a second natural ventilation point in the lobby. Behind tab 8 of Exhibit MAS1 is a true copy of the latest report I received from Erbas Engineering of 18 April 2024 with several options available with the shaft location.

25. There is a hydraulic sprinkler booster tank located on the rooftop of the building which is used to store water that is used when the fire sprinklers activate in an emergency. As part of the stair pressurisation relief works, the relief shaft will penetrate the tank, thus taking away a volume of water. TDL Engineering have been engaged to ensure that the new volumes in the tank remain compliant following installation of the relief shaft. …

26.   I note the following in relation to the outstanding stair pressurisation relief works:

a.    with respect to the drawings.

i    the draft architectural drawings prepared by MS Studio were received on 11 April 2024. ... The architectural drawings will be updated once the structural engineering drawings for the slabs are done. Behind tab 9 of Exhibit MAS1 Is a copy of the current draft architectural drawings;

ii    the architectural drawings will be finalised upon receipt of the structural drawings for the slabs, which Resolve Remedial is currently requesting from Adams Engineering, PTC Group and Triaxil Group:

iii    the final draft mechanical drawings prepared by Erbas were received on 19 April 2024. … Behind tab 10 of Exhibit MAS1 is a copy of the current draft mechanical drawings;

iv.   the final draft structural drawings for the wall inside tank prepared by Adams Structural and Civil Engineering were provided on 21 May 2024 in final draft. ... Behind tab 11 of Exhibit MASI is a copy of the current draft structural drawings for the wail inside tank;

v.   the final hydraulic engineering drawings for the rooftop tank design prepared by TDL Engineering Consulting were provided on 20 June 2024. ... Behind tab 12 of Exhibit MAS1 is a copy of the current draft hydraulic engineering design:

vi   the electrical drawings cannot be started until final draft of mechanical and architectural drawings are issued, with the latter subject to the hydraulic design on the rooftop to be finalised. Resolve Remedial will be engaging an appropriate electrical engineer to prepare this over the next two weeks; and

vii. once all the drawings are in final draft, they will be consolidated and updated (if necessary). As this a Complying Development Certificate application, the above drawings will then be sent to a private certifier and will be lodged in the NSW portal [NSW planning portal – as defined in s 1.4 of the Environmental Planning and Assessment Act 1979 (NSW)] with the design declaration from each consultant, as required by the Design and Building Practitioners Act 2020 (NSW);

b.   I had difficulties finding a private certifier to become involved in the Project between August and December 2023, and eventually Resolve Remedial engaged East Coast Approvals Group Pty Ltd in or around December 2023. …;

c.   I have had difficulty progressing the structural engineering of the cutting of the holes in the slabs on each floor to allow for the construction of the relief shaft. Resolve Remedial initially engaged PTC Group in July 2023, but PTC Group are yet to respond to my last correspondence on 9 May 2024. …:

d.    I have also had difficulty finding a waterproofing consultant to assist with the waterproofing of inside the sprinkler booster tank. I tried to engage Endeavour Engineering on 9 July 2024, however I am yet to receive a fee proposal from them which has now led me to try to find another waterproofing consultant; and

e.   I understand that Omnii have submitted the revised fire engineering brief questionnaire (FEBQ) to Fire and Rescue NSW following Erbas’ review on 9 July 2024. ... We are awaiting a response from Fire and Rescue NSW.

27. I do not know how long it will take for external approvals to be obtained for the stair pressurisation relief works (including approvals from Fire and Rescue NSW).”

Timing

“28.   Notwithstanding the above, I anticipate that the outstanding rectification works set out in MSM’s Current Defect Schedule above will be completed in around 9 months, excluding the time required to obtain the necessary approvals. This 9 months is made up of an estimated 3-4 months to finalise the design documents, and an estimated 4-5 months for all construction work. Rectification work cannot be completed without finalisation of the design.”

18. In oral evidence, Mr Simmer stated that, since affirming his affidavit on 13 August 2024, he had been informed by PTC Group that they did not wish to be part of the project. Mr Simmer related that PTC Group had expressed the concern that the Design and Building Practitioners Act 2020 (NSW) would require them to undertake responsibility for the structural integrity of the whole of each slab within the building. Mr Simmer stated that he had spoken to Adams Engineering about that firm undertaking the design of the penetrations in the slabs.

19. It does not appear to be disputed, and I would in any event take notice of the fact that the progress of building and construction work was substantially delayed by the Covid-19 Pandemic in 2020 and 2021 by reason of both lockdowns and interruptions to the supply of building materials. I also take notice of the commencement of the provisions of the Design and Building Practitioners Act imposing obligations on design, building and engineering practitioners on 1 July 2021. I accept that the commencement of those provisions increased the design and engineering requirements for the installation of the ventilation duct.

20. The parties were agreed that, if the Tribunal declined to grant an extension of time and resolved instead to award the applicant compensation for the respondent’s breaches of statutory warranty in constructing the building defectively, the appropriate measure of compensation, being the reasonable cost of rectification of the remaining defective work, would exceed $500,000. The Tribunal does not have jurisdiction in proceedings under the Home Building Act 1989 (NSW), that is in respect of building claims, where the amount claimed exceeds $500,000: section 48K(1) of the Home Building Act.

21. The applicant waived any claim to compensation in excess of $500,000 and, accordingly, the Tribunal retains jurisdiction to deal with the matter.

22. The issue presented to the Tribunal is therefore whether the Tribunal can, and should, grant the respondent a further extension of time to complete the work the subject of the orders of 11 September 2019 or whether the Tribunal should order the respondent to pay the applicant the sum of $500,000 as compensation for the breaches of statutory warranty the subject of the original proceedings and the original work orders.

Extension of time

23. The extension of time sought by the respondent was until 30 June 2025.

24. The principles applicable to in determining an application for an extension of time for the commencement of proceedings were set out in by the Appeal Panel in Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22. The Appeal Panel stated, at [22]:

“The considerations that will generally be relevant to the Appeal Panel’s consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:

(1)   The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];

…

(3)   Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:

(a)   The length of the delay;

(b)   The reason for the delay;

(c)   The appellant’s prospects of success, that is usually whether the applicant has a fairly arguable case; and

(d)   The extent of any prejudice suffered by the respondent (to the appeal),

- Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and

(4)   It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].”

25. The extension of time for compliance with an order of the Tribunal is not entirely analogous to the extension of time to commence proceedings or an appeal.

26. Guidance in the exercise of the power to extend time for compliance with an order of the Tribunal pursuant to s 41 of the NCAT Act may be gleaned from the jurisprudence concerning rule 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) which provides:

“(1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court.

(2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires.”

27. Ritchie’s Uniform Civil Procedure NSW (looseleaf) (Ritchie) states, at [1.12.2]:

“The general principle, for exercise of the discretion to extend time, is that of determining the “justice of the case” in the particular circumstances: Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104; at [28]–[34].”

28. Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 was an appeal from a decision of Rothman J declining to set aside the service of a statement of claim which had been served outside the time required by the UCPR. It was common ground that the issue for determination was whether Rothman J had correctly exercised the discretion provided by UCPR r 1.12.

29. Ipp JA, with whom Tobias and McColl JJA agreed, held, at [27] – [34]:

“27 His Honour said (at [50]) that the discretion was “a broad one and may be exercised for any good reason”. In my opinion, this formulation of the discretion was inadequate and incomplete, and was capable of leading to error. In my view, with respect, that is what occurred.”

28 The rule requires the exercise of a judicial discretion, not fettered by inflexible prescriptions: Bray CJ in Victa Limited v Johnson (1975) 10 SASR 496 at 503, approved by Stephen J, sitting alone, in Van Leer Australia Pty Limited v Palace Shipping KK [1991] HCA 11; (1991) 180 CLR 337 at 343 - 344, and Mason J, sitting alone, in Foxe v Brown (1984) HCA 69; (1984) 59 ALJR 186 at [189]. But this does not mean that the discretion is at large. The discretion is to be exercised in the context of and by reference to the statute by which it is conferred (and any other statute that is relevant to the legislative context) and in accordance with principles developed by judicial decisions.

29 In CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 Gaudron J (at [53] - [54], 185) observed that, where a general and unconfined discretion is conferred on a court, it is governed by the requirement that it be exercised judicially and consistently with the judicial process.

30 The point is illustrated by the approach of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) HCA 25; (1996) 186 CLR 541. His Honour (at 551) emphasised that the discretion to extend time was to be exercised in the context of the rationales for the existence of limitation periods. His Honour applied the object of the limitation statute under consideration in that case (in terms of which the relevant discretion had to be exercised) in giving content to the criteria applicable to the discretion. He stated (at 554):

“The object of the discretion, to use the words of Dixon CJ in [ Klein v Domus Pty Limited (1963) 109 CLR 467 at 473], ‘is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case’. In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.”

31 Kirby J, in the same case, expressed like views. His Honour stated (at 564 - 565), that the “discretion” must be exercised to achieve the purposes for which Parliament provided it. This requires the identification of its intended operation” (see also at 570).

32 TheIMB Group Pty Limited (in liq) v Australian Competition and Consumer Commission [2006] QCA 407; [2007] 1 Qld Rep 148 illustrates how the content of a discretion of the kind provided for by UCPR r 1.12 may be confined or affected by the statutory regime that confers the discretion. In that case the Queensland Court of Appeal was concerned with the renewal of a statement of claim where there had been considerable (and deliberate) delay in service. The discretion to renew was contained in the Queensland Uniform Civil Procedure Rules r 24(2). Keane JA (with whom McMurdo P and Cullinane J agreed) said (at [27], 153):

“Importantly for the present case, it must be borne in mind that the discretion conferred by r 24(2) of the UCPR falls to be exercised in a context which includes r 5 which states the philosophy of the UCPR. Rule 5 of the UCPR provides:

(1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

(2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.

(3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.”

33 Keane JA, after pointing out that that the plaintiffs had deliberately decided to refrain from serving their statement of claim, proceeded (at [54], [160]):

“Whatever the position may have been … in the absence of a provision such as r 5(3) of the UCPR , the presence of r 5(3) means that the approach pursued by the plaintiffs in the present case should not be vindicated by the court.”

And (at [57], 161) he said:

“What the plaintiffs were plainly not entitled to do was unilaterally to arrogate to themselves the benefit of a stay of proceedings in the Supreme Court in defiance of r 5(3) of the UCPR .”

34 This case demonstrates that a statute that confers what, on its face, appears to be a broad and general discretion, may require criteria to be applied to its exercise that significantly limit its effect. Such criteria, in recent times, are frequently found in connection with discretionary powers to cure irregularities, amend pleadings or add parties with retrospective effect. Other examples of this phenomenon can be seen in the reasons of the Western Australian Full Court in Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79 and in Chalmers v Kensit [2008] WASCA 122 (which followed Brealey).”

30. At [43], his Honour held:

“43 Accordingly, the Court should consider, when exercising a discretion such as that under UCPR r 1.12, the attempts that have been made at service, the length of the delay, the reasons for the delay, whether the delay was deliberate, whether notice was given to the defendant, the conduct of the parties generally, and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it.”

31. The applicant opposed the grant of any further extension of time, submitting that:

1. The Tribunal had no power to extend time for compliance with the orders;

2. The respondent had had long enough to carry out the work and should not receive any further indulgence;

3. There was a question mark over the capacity of the respondent to carry out the work; and

4. The applicant (ie the owners) had lost patience with the respondent and wished to move on to arrange the rectification of the defective work the subject of the work orders for themselves.

1. The Tribunal’s power to grant an extension of time

32. I do not accept the applicant’s submission that the Tribunal does not have the power to further extend time to time for compliance with the orders originally made on 11 September 2019.

33. The applicant relied upon the Appeal Panel decisions in Mania v NSW Land and Housing Corporation [2022] NSWCATAP 376; Madic Construction Pty Ltd v Noble [2023] NSWCATAP 130; and Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98.

34. In Mania v NSW Land and Housing Corporation the Appeal Panel held, at [30] – [34], referring to the decision in Blessed Sydney Constructions Pty Ltd v Vasudevan:

“30   The meaning of the expression ”other appropriate order under this Act or enabling legislation” was considered by the Appeal Panel in Blessed. Of the word “other” the Appeal Panel said at [32]:

First criterion

32 The first criterion, that an order made on renewal be “other”, presents little difficulty. All that is required is that the order made is different in some material respect from the order originally made that has not been complied with.

31   That is, the order made on renewal must be ”different in some material respect”.

32   As to the word ”appropriate”, the Appeal Panel in Blessed said at [33]:

… Since the order is being made on a renewal application, it would be natural to construe “appropriate” as requiring the order to be fitting or suitable having regard to the purpose for which a renewal application is made, the circumstances giving rise to the renewal application and any other relevant circumstances whenever arising. …

33   The Appeal Panel then continued at [35]:

… A renewal application is, however, designed to deal with a situation where there has been non-compliance with the original order that the Tribunal thought was appropriate when the matter was first determined. The circumstances will inevitably have changed since that time, if for no other reasons than because there has been non-compliance with the order that had been made. What was appropriate originally may well not be appropriate at the time of the hearing of the renewal application. To limit the orders that could be made on renewal to those that would have been appropriate when the matter was originally determined would be likely to prevent the Tribunal from doing justice between the parties, having regard to the non-compliance with the original order and to any other circumstances that had changed materially since the proceedings were originally determined. This would render the right to renew proceedings ineffective in a significant number of cases.

34   Once it is accepted that the purpose of the renewal provision is to provide a mechanism for enforcement of or timely compliance with the original orders, it seems to us that the making of the same order but for a different date neither has the effect of enforcing the original order nor ensuring the timely compliance with that order. Rather, an ”other” order requiring the same work to be done but by a later date is not materially different and has the effect of relieving a party from original obligations (at least as to time) and not enforcing the original order which has not been complied with according to its terms.”

35. In Madic Construction Pty Ltd v Noble, the Appeal Panel held, at [23] – [26], after quoting extracts from Blessed Sydney Constructions Pty Ltd v Vasudevan at [32], [33] and [35]:

“23. Adopting the principles enunciated at Mania [sic, Blessed] at [35], the purpose of the renewal provision is to provide a mechanism for enforcement of or timely compliance with the original orders, it seems to us that the making of the same order but with the added requirement of a ”certifier”, neither has the effect of enforcing the original order nor ensuring the timely compliance with that order. Rather, an ”other” order requiring the same work to be done but have it ”certified” is not materially different. …

24   Blessed is authority for a narrow construction of the word ”other” and we are bound to follow it. We are of the view it serves no purpose to order work be ”certified” or ”supervised” and this requirement has not allowed finality to be reached in these proceedings.

25   The applicants had the opportunity to renew the proceedings to seek a money order. Instead the applicants simply complained that the orders had not been complied with and sought an identical remedy. The Tribunal should have considered whether in the absence of a claim for compensation supported by a report from a qualified contractor leave to renew the proceedings should have been declined and the Renewal proceedings dismissed.”

26 … in the absence of a claim for compensation, the applicants must look to other means of enforcement provided in the NCAT Act or the relevant enabling legislation. The fact these other means of enforcement may be more complex is not a basis for interpreting Sch 4 cl 8 in a manner that permits identical orders to be made twice that are not properly seen as a means of enforcing or ensuring compliance with the original orders.”

36. The applicant submitted that the extension of time is not the making of an “other order” within the meaning of clause 8 of Sch 4 of the NCAT Act.

37. That much may be accepted, but the fact that renewal proceedings have been filed does not deny the Tribunal the power to extend time for compliance with the original orders pursuant to s 41 of the NCAT Act. That power exists independently of the right of renewal. I do not consider that the fact that the application for an extension of time was made in the course of, and in submissions addressing, a renewal application affects the exercise by the Tribunal of the power to extend time.

38. The applicant secondly submitted that the power of the Tribunal pursuant to s 41 applied in respect of “the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction”. The applicant submitted:

“The extension of time to comply with a 2019 Work Order is not extending time to do something under an Act. The time for the compliance with the Work Order was made under the Work Order.”

39. The applicant also submitted that the 2019 work order was made by consent, as were the orders in made in 2021 extending the time for compliance with the work order. The applicant submitted that, as the time for compliance with the work orders was fixed by consent, the Tribunal “does not now have power under s 41 to extend the time for complying with the work orders.”

40. I do not accept those submissions. As the respondent pointed out, the Appeal Panel in Mania at [36] explicitly acknowledged that the power in s 41 is available to extend the time for compliance with orders, in the alternative to making a different order pursuant to clause 8 of Sch 4.

41. Regardless that the time for compliance with the work orders was fixed by the work orders, the requirement to carry out the work the subject of the work orders was an obligation imposed under the Home Building Act, which gave the Tribunal jurisdiction to make the work orders.

42. Nor do I accept that the fact that the orders in question were originally made by consent precludes the Tribunal from extending the time for compliance.

43. As Ritchie states at [1.12.5]:

“The court’s power to extend time potentially applies despite any contrary agreement of the parties. However, the terms of an such agreement will be material to the exercise of the power: Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573 at 579, 580. Indeed, time limits fixed by consent will rarely be enlarged, except by consent: Australasian Automatic Weighing Machine Co v Walter (1891) WN 170; Gamble v Killingsworth and McLean Publishing Co Pty Ltd [1970] VR 161. Generally, an exceptional case would be required before the court would set aside or vary times fixed by a consent order based on a free and voluntary contract, where the underlying agreement could not be set aside or varied: Paino v Hofbauer (1988) 13 NSWLR 193 at 198 (agreed instalment payment schedule — extension overruled on appeal), affirmed in Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130; (discounted instalment payments — no time extension); see also Deputy Commissioner of Taxation v Zarzycki (1990) 96 ALR 146; 90 ATC 4707; 21 ATR 575; H & G Group Pty Ltd v Pilot Developments Pty Ltd [2002] NSWSC 257; (time extended where non-compliance contributed to by opposing party’s breach of undertaking).”

44. Clearly, the fact that the orders and the subsequent extension of time for compliance were made by consent is relevant to the question whether it is appropriate to extend the time for compliance. However, it does not deny the Tribunal the power to extend time for compliance.

45. The terms of the consent agreement are significant. Circumstances in which the Tribunal might decline to extend the time for compliance with an order made by consent would include where timely compliance with the obligations imposed by the orders was a substantial element in the other party’s agreement to the consent orders. There is nothing in the consent orders themselves or in the evidence to suggest that that is the position in this case.

1. The length of the delay in carrying out the work orders.

46. Mr Simmer sought to explain the delay in compliance with the work orders since he became involved in 2022. The respondent led no evidence to explain the delay up to that time. As noted above, the Covid-19 Pandemic and the commencement of the Design and Building Practitioners Act might explain some of the delay. I accept that both of those matters were likely to have caused delay in the carrying out of substantial building works such as those which remain to be completed in this case. However, the evidence before the Tribunal is not sufficient to persuade me that the respondent has been as diligent in seeking to carrying out the work as it could have been.

47. Although the substantial delay in completion of the work the subject of the Tribunal’s orders is a factor to be taken into account in determining whether to further extend time for compliance, I do not regard it as a matter which necessarily requires refusal of the extension of time sought.

48. As the respondent submits, s 48MA of the Home Building Act requires the Tribunal, in determining a building claim involving an allegation of defective residential building work, to have regard to the principle that rectification of the defective building work by the responsible party is the preferred outcome. I accept that that provision continues to apply to renewal proceedings and in relation to an application for an extension of time to comply with work orders made in respect of defective residential building work, but the impact of the principle must be diminished when the rectification of defective building work has not been completed five years after orders were made requiring the responsible party to rectify that work.

1. The capacity of the respondent to carry out the work orders.

49. The applicant tendered at the hearing a copy of the financial statements for the financial year ending 30 June 2023 for Hamilton & Marino Holdings Pty Ltd, the holding company of the group of which the respondent formed a part. That document disclosed that the respondent had been sold by the holding company on 30 June 2023 for $90. The notes to the accounts recorded:

“The business operations of these entities [ie the respondent and two other companies sold at the same time] were wound down or transferred to other subsidiaries within the Group prior to the sale. On this basis, at the time of sale, the respective entities were considered dormant and had minimal balances on their balance sheets. Any contractual arrangements including leases, inter-company loans etc were re-assigned to other entities within the Group prior to the sale.”

50. The notes record that, as at 30 June 2023, the respondent had cash and receivables of $272,341 and liabilities of $406,481.

51. The applicant submitted that Mr Simmer was “merely a defects manager for a different and separate company Resolve Remedial Pty Ltd” and that the respondent had led no evidence from a director or manager of the respondent itself in relation to the reason for the delay in carrying out the work, the financial capacity of the respondent to undertake the work or to provide any commitment on behalf the respondent that, even if the extension of time sought is granted, the work will now be undertaken.

52. Mr Simmer’s evidence was that Resolve Remedial was carrying out the work by arrangement with the respondent. However, no details of that arrangement were disclosed beyond its bare existence. Mr Simmer was not familiar with the details of that arrangement save that, apparently, no money was changing hands. There was otherwise very little evidence of the financial strength of the respondent or its capacity to carry out the work.

1. The applicant’s preference for a money order

53. Given the doubt over the solvency of the respondent, it may be that extending time to permit whatever arrangement exists between the respondent and Resolve Remedial to follow its course may be the applicant’s best prospect of having the work completed without the lot owners bearing substantial costs themselves.

54. The respondent submitted that:

“If the work order were not extended, Resolve would be in the position of having paid … consultants to carry out effectively the entire design scope of works for no reason. There is no suggestion that the Applicant would seek to retain the same consultants or that they would even consent to being novated to the Applicant or another remedial builder.”

55. The respondent submitted that this would have two effects: “[F]irst, the work done to date would be wasted”; and, secondly, the alternative order made by the Tribunal would be of “limited utility” and be “likely to compound … the difficulty in finding a structural consultant who is willing to do the works”.

56. However, it is not for the Tribunal to second-guess the applicant and its lot owners. The applicant has sought a money order and opposes a further extension of time. I must assume that the lot owners have received advice and concluded that opposition to a further extension of time is their preferred course.

57. If I were persuaded that a further extension of time, even one to the end of June 2025, would be sufficient to see the work completed, I would be minded to grant the further extension of time sought. I accept that the outstanding work was always complex, and that its complexity has been increased by the commencement of the Design and Building Practitioners Act and the requirements for the certification of designs imposed by that legislation. I also accept that the Covid-19 Pandemic was responsible for substantial delays in building work, both by reason of the lockdowns imposed during 2020 and 2021, and by reason of the shortages of labour, equipment and materials which arose following the lifting of restrictions.

58. However, I am not persuaded that there are real prospects that the respondent, or Resolve Remedial on its behalf, could complete the work by the end of June 2025:

1. Mr Simmer gave evidence that the engineer which he had been expecting would undertake the design of the slab penetrations necessary for the installation of the duct had declined that commission.

2. No replacement engineer had been retained although Mr Simmer had spoken to a proposed new engineer;

3. Consent of relevant authorities, eg Fire and Rescue NSW, has yet to be obtained.

4. No contracts have yet been let for the carrying out of any part of the work.

59. Accordingly, I will refuse the respondent’s application for an extension of time for compliance with the orders made on 11 September 2019, as amended on 12 July 2021.

The Renewal Proceedings

60. The respondent did not suggest that, if I declined to grant an extension of time for completion of the work orders, there was any other order which could be made in the renewal proceedings, beyond an order for the payment of compensation. Nor did the respondent suggest that there was any reason why the applicant should not be granted leave to renew the proceedings.

61. As noted, there is no dispute that the reasonable cost of rectification exceeds the amount claimed by the applicant, which is the Tribunal’s jurisdictional limit of $500,000, and I will order the respondent to pay the applicant the sum of $500,000 immediately.

62. The parties sought an opportunity to make submissions on costs and I will make directions for the exchange of such submissions. I note that the parties were agreed that the question of costs could be determined on the basis of written submissions and without a further hearing.

orders

63. My orders are:

1. The respondent’s application for a further extension of time to comply with the orders made on 11 September 2019 is refused.

2. The applicant is given leave to renew the proceedings, as the orders made on 11 September 2019 have not been complied with within the period specified by the Tribunal, as extended on 12 July 2021.

3. The respondent is to pay the applicant the sum of $500,000 immediately.

4. If either party seeks an order in relation to the costs of the proceedings, they may file, and serve upon the other party, submissions of no more than five pages, with any evidence in support, within 14 days of the publication of these orders.

5. If a party files and serves submissions pursuant to Order (4) above, the other party may file and serve submissions in response of no more than five pages, with any evidence in support, within a further 14 days.

6. Submissions in reply to submissions filed and served pursuant to Order (5) above, of no more than three pages, may be filed and served within a further 7 days.

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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: 04 April 2025