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

In Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 on 26 April 2018, the New South Wales Civil and Administrative Tribunal (the Tribunal) Appeal Panel looked at the extent of the Tribunal’s power to make a money order on a renewal application.

Facts

The Owner claimed for defects, the builder claimed amounts for works carried out.

On the day of the hearing, the Owner and the Builder executed a written agreement. The Builder withdrew its application and the Tribunal subsequently made a work order in relation to the Owner’s application that the Builder return to the Property and perform certain works under the contract and its agreed variations in a proper and workmanlike manner. The Owner was to be charged for five variations. The Owner was granted leave to renew its proceedings within 12 months if the work order was not complied with.

The Owner instituted renewal proceedings in the Tribunal, alleging the Builder had failed to complete the works subject of the work order. Further, three out of five variations appeared to have not been completed or invoiced.

The Tribunal varied its orders, requiring the Builder to pay the homeowner damages in the sum of $83,243.05, plus legal costs.

Appeal

On appeal, the Builder argued the Tribunal did not have the power to award the Owner damages as an order for damages could not have been made under clause 8(4)(a) of Schedule 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), which limits the Tribunal’s powers on renewal to making any other appropriate order under the NCAT Act or enabling legislation as it could have made when the matter was originally determined. The relevant circumstance informing this argument was that the contract had not been terminated.

The Appeal Panel favoured an interpretation of clause 8(4)(a) that “as [the Tribunal] could have made when the matter was originally determined” should be construed as referring to orders that the Tribunal had authority to make when the matter was originally determined, whether those orders were appropriate or not in the circumstances at that time. In the case of an application under the HB Act, such orders include all those in s48O.

The Appeal Panel summarised its views on the proper construction of clause 8(4)(a) as follows:

  • on a renewal application, the Tribunal can make an order that is materially different from the order made when the proceedings were originally determined
  • such an order must be suitable or fitting in light of the general law principles, whether legal or equitable, and statutory provisions applicable to the type of relief claimed on the renewal application as well as all other relevant circumstances, whether occurring before or after the proceedings were originally determined, including the fact that the order originally made has not been complied with within the time specified in the order and that a renewal application has been made
  • such an order must be one that the Tribunal has authority to make under the NCAT Act or the relevant enabling legislation
  • such an order must be one that the Tribunal had authority to make when the proceedings were originally determined, having regard to the specific legislative provisions under which the original application was made, but the order does not have to be an order that would have been appropriate in the circumstances when the proceedings were originally determined.

The Appeal Panel found that the contract had been terminated between the work order and the renewal hearing. Accordingly it was not relevant that the contract had not been terminated when the work order was made.

In so finding, the Appeal Panel accepted that the Tribunal may not award substantial damages, representing the cost of completing incomplete work under a building contract, while the building contract remains on foot, and the builder remains in possession of the site and is carrying out work as required by the contract.

Given the contract was no longer on foot and its four criteria were met, the Appeal Panel held that the Tribunal below’s order for the Builder to pay the Owner damages was correctly made. As such, the appeal was dismissed.

What does this mean?

This decision is significant for parties who appear before the Tribunal on a renewal application. The Appeal Panel has interpreted the renewal powers widely and builders who may benefit from s.48MA in the Tribunal below by the making of a work order, should be mindful of the scope for its conversion to a money order on renewal.