Bazdaric Homes Pty Ltd v Yeh

1. [1]

   By summons filed on 18 July 2025, Bazdaric Homes Pty Ltd (Builder) seeks leave to appeal on a question of law under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) against a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal (Appeal Panel and Tribunal, respectively) on 24 January 2025: Yeh v Bazdaric Homes Pty Ltd; Bazdaric Homes Pty Ltd v Yeh [2025] NSWCATAP 17 (AP Decision).

2. [2]

   The proceedings arose out of the construction, by the Builder, of new residential premises, the previous premises having been demolished, on a site in Beecroft (Premises) owned by Mr Yuan Yeh and Mrs Huang Yeh (Owners), pursuant to a Home Building Contract dated 5 May 2020 (Contract). Both the Builder and the Owners made applications to the Tribunal under the Home Building Act 1989 (NSW) (HB Act), with the Builder seeking payment of unpaid invoices and interest and the Owners seeking damages for breach of contract and breach of the statutory warranties in s 18B of the HB Act (statutory warranties), alleging defective and incomplete work and delay.

3. [3]

   A key issue before the Tribunal at first instance was whether the Builder was liable to pay damages to the Owners in respect of the actual cost, or alternatively the reasonable cost, of works which had been undertaken to install a gravity-fed sewer connection linking the Premises to a Sydney Water mains connection (I describe these works as the Sewer Connection works). Those works were not carried out by the Builder due to a dispute as to whether the Builder was obliged to do so under the Contract.

4. [4]

   In its decision of 22 April 2024 (First Instance Decision), the Tribunal found that the Builder was in breach of contract, and in breach of the statutory warranties, in not taking steps prior to laying a concrete slab at the Premises to check whether the floor levels of the proposed lower ground floor, and the level of the Sydney Water mains sewer connection (Mains Connection), would enable a gravity-fed sewer to be connected (breach issue). By way of context, as was clarified in submissions before me, whilst the final floor levels were on plans for the Premises, the level of the Mains Connection was not designated on any plan and was underneath the ground. Thus, that level was not known at the time that the Builder’s works commenced at the Premises but could have been discovered by excavation. Further, a gravity-fed sewer would not work if the level of the pipe from the Premises was lower than the level of the Mains Connection (and in fact when the Sewer Connection works were carried out they involved connecting the Premises not to the Mains Connection, but to a different Sydney Water mains sewer connection further down the street which was at a lower level than the Mains Connection). As to loss, however, the Tribunal found that the Owners could not recover damages for the cost of installing the Sewer Connection in circumstances where it was the Owners’ son, Mr Jeffrey Yeh (whom, with no disrespect intended, I will refer to as Jeffrey) who in fact paid for the works installing the Sewer Connection (issue of loss). The Tribunal found that, in these circumstances, the Owners had suffered no loss and were not entitled to damages for the costs of installing the Sewer Connection.

5. [5]

   The Owners appealed on the issue of loss under s 80 of the CAT Act. The Builder filed a Notice of Contention challenging the Tribunal’s finding on the breach issue. The Appeal Panel dismissed the Builder’s Notice of Contention and in part upheld the Owners’ appeal, finding that, notwithstanding that payment had been made by Jeffrey, the Owners were entitled to be compensated for the reasonable, but not the actual, costs of installing the Sewer Connection. These had been assessed by the parties’ respective experts in the sum of $41,757 (the actual costs were a little over $100,000).

6. [6]

   In this application, the Builder contends that the AP Decision should be set aside on three grounds, which are in substance:

   1. (1)

      Did the Appeal Panel exceed its jurisdiction in deciding that the Tribunal at first instance had erred in law on the issue of loss? The Builder contends that, in the absence of the appeal being on a question of law, or a grant of leave to appeal, the Appeal Panel should not have made that finding (ground one);

   2. (2)

      Did the Appeal Panel deny the Builder procedural fairness or misapply the authority of Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35 in finding for the Owners on the issue of loss? The Builder contends that the contentions upon which the Appeal Panel relied in making this finding were not raised below and the Appeal Panel should thus not have allowed the appeal on the issue of loss (ground two); and

   3. (3)

      Did the Appeal Panel misconstrue the Contract in finding that the Builder breached the Contract and the statutory warranties in failing to check the level of the Mains Connection prior to installation of the concrete slab (ground three)? The Builder contends that, properly construed, the Builder complied with its contractual obligations provided it checked the floor levels prior to commencing works to connect the Premises to the Mains Connection.

7. [7]

   There is no dispute that, for the purposes of this Court having jurisdiction under s 83 of the CAT Act, each of these grounds raises a question of law.

8. [8]

   For the reasons set out below, an extension of time for the filing of the summons is granted but leave to appeal under s 83 of the CAT Act is refused.

Extension of time

1. [9]

   The summons seeking leave to appeal was filed on 18 July 2025, nearly six months after the AP Decision. Rule 50.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) requires that a summons commencing an appeal must be filed “within 28 days after the material date” or such further time as the court allows. The “material date” is defined in UCPR, r 50.2(1) relevantly to mean “the date on which the decision [appealed against] was given”. The Builder contends that no extension of time is required as the final dispositive orders, and their financial impact, were not fully appreciated until the Appeal Panel delivered its judgment on costs on 24 June 2025: Yeh v Bazdaric Homes Pty Ltd; Bazdaric Homes Pty Ltd v Yeh (No 2) [2025] NSWCATAP 146 (AP Costs Decision).

2. [10]

   There is no evidence supporting this contention albeit that something to this effect is said in the summons in support of the application for leave and an extension of time. It appears, however, to be premised in part upon a contention that the decision to appeal to this Court was prompted by the outcome as to costs at first instance, and in part upon the fact that one of the orders made in the AP Costs Decision, apparently at the request of the Owners, was an order that the Builder pay the Owners $68,558.04 within 14 days of publication of the Orders. The background to this order is that:

   1. (1)

      In the First Instance Decision the Tribunal ordered that the Owners pay $86,781.04 to the Builder “immediately” (Tribunal order 1). That sum comprised (albeit with a mathematical error of 10 cents):

   2. (2)

      In the First Instance Decision the Owners were also ordered to pay the Builder interest of $33.98 per day from and including 23 April 2024 up to and including the date of payment (Tribunal order 2).

   3. (3)

      On 7 June 2024 the Owners paid or caused to be paid $86,781.04 to the Builder, pursuant to the First Instance Decision.

   4. (4)

      In the AP Decision, the Appeal Panel set aside Tribunal orders 1 and 2 and ordered that the Owners were instead to pay the Builder the sum of $18,223 within 14 days. Implicit in these orders was an assumption that, upon being set aside, amounts payable under Tribunal orders 1 and 2 must be repaid to the Owners.

   5. (5)

      On 29 January 2025 the solicitor for the Builder wrote to the solicitor for the Owners making an offer of compromise and indicating that “my client will, if necessary, appeal”. That offer was not accepted and the Owners made a counter-offer by letter of 13 February 2025.

   6. (6)

      On 25 February 2025 the solicitor for the Owners wrote to the solicitor for the Builder asking if the Builder still intended to lodge an appeal against the AP Decision. A further email seeking a response to the 25 February 2025 email was sent on 4 March 2025. There was no substantive response from the solicitor for the Builder as to whether the Builder would appeal the AP Decision.

   7. (7)

      According to the AP Costs Decision, an affidavit dated 4 March 2025 from Logan Cavanagh (the solicitor for the Owners) was before the Appeal Panel at the time of that decision, indicating that, despite repeated requests, the Builder had not returned the sum of $68,558.04 (being the difference between the amount ordered by the Appeal Panel to be paid and the amount paid pursuant to the First Instance Decision) to the Owners. Presumably by reason of this, the Appeal Panel said in the AP Costs Decision that there did not appear to be any reason to reject the Owners’ application for an order that the Builder return the sum of $68,558.04 to the Owners.

   8. (8)

      It is apparent, however, that on 13 March 2025 the Builder paid the sum of $65,558.04 to the Owners. Emma Macfarlane (the solicitor for the Builder) says in her affidavit dated 18 July 2025 that this was paid “pursuant to the Appeal Decision”. On 26 March 2025, a further $3,000 was paid by the Builder to the Owners. It does not appear that either of these payments were drawn to the attention of the Appeal Panel before the AP Costs Decision was made on 24 June 2025, in which the Appeal Panel (unnecessarily) ordered that the sum of $68,558.04 be paid by the Builder to the Owners within 14 days.

   9. (9)

      These sums of $65,558.04 and $3,000, together, comprise the difference between the amount ordered to be paid by the Owners to the Builder in the First Instance Decision and the amount ordered to be paid by the Owners to the Builder in the AP Decision.

3. [11]

   It follows that there is no substance to the Builder’s contention that final dispositive orders on the substantive issues before the Appeal Panel were not made until the AP Costs Decision. An extension of time for the filing of the application is thus required. In Maitland v Nationwide News Pty Ltd [2004] NSWCA 155 at [16], the Court of Appeal explained that the concern of the court in deciding whether or not to grant an extension of time is whether strict compliance with the rules will work an injustice. The factors generally identified as relevant are length and reason for delay, whether the applicant has a fairly arguable case and the extent of any prejudice to the respondent: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55].

4. [12]

   There is no evidence explaining the delay, albeit that the summons includes a contention that it was reasonable and appropriate to await the AP Costs Decision before filing. The delay is a little under five months albeit that the summons was filed within 28 days of the AP Costs Decision. The Owners rely upon what they describe as presumptive prejudice, being the loss of their vested right to retain the decision of the Appeal Panel: see Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [4]. They also contend that they lost the opportunity to seek to have the question of costs deferred pending the outcome of the appeal, in circumstances where both parties made written submissions, including reply submissions, on costs. The force of this submission is somewhat blunted, however, once it is appreciated that the written submissions in chief on costs (and the Owners’ supporting evidence) were served on 18 February 2025, before the expiry of the 28 days within which the summons should have been filed commencing this appeal. For the reasons set out below, the grounds of appeal are arguable, but are no stronger than that.

5. [13]

   Overall, having balanced these factors, I am satisfied that an extension of time to file the summons should be granted.

Leave to appeal

1. [14]

   Leave to appeal will ordinarily only be granted “concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what [is] merely arguable”: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; see also Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[37]; Corcoran v Far [2020] NSWCA 140 at [12].

2. [15]

   In support of its application for leave to appeal, the Builder contends that the appeal raises a question of principle, being the circumstances in which an appeal under s 80 of the CAT Act should be entertained when no question of law is identified in the grounds of appeal or in the Appeal Panel decision. The Builder also contends that there was a clear injustice in the Appeal Panel deciding the appeal on a basis that, the Builder contends, was not advanced at first instance. Further, presumably also in support of a contention of injustice, it is apparent from an affidavit of Emma Macfarlane dated 17 July 2025 that significant costs may be payable by the Builder pursuant to the AP Costs Decision, in which the Appeal Panel held that the Owners were liable to pay the first instance costs of the Builder’s application to the Tribunal but the Builder was liable to pay the first instance costs of the Owner’s application to the Tribunal and of both appeals (with the appeal costs payable on an indemnity basis after 15 May 2024). Given that the issues raised in this Court are only a subset of those that were before the Tribunal and the Appeal Panel, however, the costs payable to or by the Builder will only in part be impacted if the Builder is granted leave to appeal.

3. [16]

   Whilst I recognise that this is a case in which the Builder’s costs liability may be significant, it must be remembered that the award of damages in respect of the issue of loss was only $41,757 and the contentions on appeal affect only that issue. Moreover, as I have already said, the grounds of appeal do not go beyond the merely arguable. Nor is any question of public importance raised by those grounds. The proper ambit of the Appeal Panel’s jurisdiction under s 80 of the CAT Act has been explained in many cases. Further, as set out below, ultimately whether an appeal is “on any question of law” depends upon context. The proper construction of the Contract does not raise a question of significance beyond these parties and this dispute. As to the question of whether there was a misapplication of the principles explained in Suttor v Gundowda or a denial of procedural fairness, that is also a matter which does not have significance beyond the parties.

4. [17]

   In these circumstances, leave to appeal under s 83 of the CAT Act should be refused.

Background

1. [18]

   At some time prior to October 2019 Jeffrey engaged Ming Yang from Hanton Design & Development Co (Architect) on behalf of the Owners as architect to design the construction of a proposed multi-level house at the Premises (Project).

2. [19]

   On 2 October 2019 Petar Bazdaric, a director and the operator of the Builder, who had been introduced to Jeffrey and the Architect by a third party, was sent the Architect’s designs for the Project. Those plans included a plan which had floor levels for the garage. He met with Jeffrey, the Owners and the Architect on or about 5 October 2019. Mr Bazdaric then engaged in a tendering/quotation process with Jeffrey, culminating in Mr Bazdaric sending “Quotation No 6” to Mr Yi Yeh (likely a reference to one of the Owners) on 11 December 2019.

3. [20]

   As he sets out in his affidavit dated 24 July 2023, Mr Bazdaric dealt almost exclusively with Jeffrey and not with the Owners as regards the Contract and the works at the Premises. He was aware that Jeffrey had a power of attorney to act on behalf of his parents (Power of Attorney) as he describes the Owners as accepting Quotation No 6 on or about 5 May 2020 through Jeffrey “exercising his Power of Attorney”. He also says that the Contract was signed by Jeffrey on behalf of the Owners “using the Power of Attorney”, and that is indeed apparent from the fact that, at each place where Jeffrey signs the Contract his signature is followed by the letters “POA”. There is, however, nothing in the evidence going to the ambit of, or any limitations upon, the Power of Attorney.

4. [21]

   Quotation No 6 is headed “QUOTATION No. 6 FOR CONSTRUCTION OF OWNERS DESIGN”. It provided that construction and engineer drawings are “by ‘Owner’”. The total contract price is $1,321,000, which included:

   1. (1)

      under the heading “Double Brick & Brick/Veneer Design”, that the “concrete slab to ground floor (Garage/Sub-floor etc)” was “as per engineers’ details”; and

   2. (2)

      under the heading “Plumbing”, that “Sewer & Stormwater connections included”.

5. [22]

   A plan, prepared by the Architect, was reviewed and dated by Mr Bazdaric on 5 May 2020 and has notations for “FFL” which I understand to mean finished floor levels, including as regards the lower ground floor level.

6. [23]

   The Contract incorporated Quotation No 6, a scope of works dated 5 May 2020 (Scope of Works), special conditions dated 5 May 2020, plans prepared by the Architect, and hydraulic storm and rainwater plans prepared by ING Consulting Engineers Pty Ltd.

7. [24]

   The Contract included, in cl 1, that:

8. [25]

   Clause 3 provided that, subject to other clauses of the Contract, the Builder would comply with the statutory warranties.

9. [26]

   Under cl 5, the Builder was to commence the work within 31 working days from the date of the Contract or the date of relevant council or other statutory approval or consent of the lending authority if required, whichever was later.

10. [27]

    In cl 9 the Builder gave a number of warranties, including that the work would be done “with due care and skill and in accordance with the plans and specifics set out in the contract”.

11. [28]

    The Scope of Works provided, under the heading “Documents”, that:

12. [29]

    It also said, under the heading “Plumbing”:

13. [30]

    No plans or drawings were prepared by the Architect or the engineers for the construction of the sewer connection between the Premises and the Mains Connection. Counsel for the Builder accepted before this Court that, having regard to the terms of the Scope of Works, it was the Builder’s responsibility to check and verify the level of the Main Connection to ensure that the Premises could be effectively connected to the Mains Connection and that it was for the Builder to design, supply and construct a sewer pipe linking the Premises to that connection.

14. [31]

    On 14 May 2020 the Architect gave the Builder a Construction Certificate for the Project, and stamped Construction Certificate plans and drawings. These included plans prepared by the Architect which set out both garage and ground floor levels. These also included a lower ground floor plan approved by Mr Ng, Engineer, the General Notes to which stated at [1] that: “[t]he contractor must verify all dimensions and existing levels on site prior to commencement of works” and at [6] that:

15. [32]

    This plan was described in the First Instance Decision at [113], and in the AP Decision at [167], as the “Erosion and Sediment Control Plan”.

16. [33]

    The Builder commenced work at the Premises on or about 2 June 2020.

17. [34]

    On 8 December 2021 and 18 January 2022 Mr Bazdaric received emails from Jeffrey attaching letters from the Owners in which they authorised Mr Bazdaric to deal with both Jeffrey and the Architect as their representatives for the purpose of cl 19 of the Contract which provided that “[t]he owner or the owner’s representative must communicate and deal with the contractor personally”. Jeffrey’s covering email to the letter of authorisation sent on 18 January 2022 said that the letter was being sent “as per our discussion”, suggesting that some discussion between Jeffrey and Mr Bazdaric had taken place between the sending of the first and second letters of authorisation. In the letter of authorisation sent on 18 January 2022 it was stated:

18. [35]

    The letter sent on 8 December 2021 had also said that, as regards payments, Jeffrey would be the only contact.

19. [36]

    In his affidavit dated 24 July 2023 Mr Bazdaric explained that he had previously been authorised to deal with Jeffrey using his Power of Attorney but that this further authorisation enabled him to deal also with the Architect as the Owners’ representative.

20. [37]

    Consistent with this, correspondence in evidence before the Tribunal showed that Mr Bazdaric dealt with Jeffrey as regards multiple matters arising in relation to the Contract and the Premises. By way of example, he requested Jeffrey to pay progress claims and negotiated variations to progress claims with Jeffrey. Further, it was Jeffrey who sent payment receipts for the Builder’s invoices.

21. [38]

    On about 16 January 2022 during works to excavate the Mains Connection, it was discovered that the Mains Connection could not be connected to the Premises as the invert sewer level at the Premises was too low. On 19 January 2022 Mr Bazdaric advised Jeffrey and the Architect of this and told them that an alternative sewer connection was being investigated. On 12 April 2022 Mr Bazdaric notified the Owners, through Jeffrey and the Architect, that the Owners would need to find another means of connecting the Premises to the Mains Connection, at their own cost. By that time, the concrete slab had been laid.

22. [39]

    Ultimately, through Jeffrey, the Owners (whilst disputing their responsibility to pay for this) engaged contractors to remedy this issue by constructing the Sewer Connection. The works were approved in around March 2023 and completed in around June 2023. After they were certified by Sydney Water the Builder completed the works at the Premises in around August 2023. The construction of the Sewer Connection cost $100,399.99, but the experts agreed that a reasonable cost of the installation of the Sewer Connection was $41,757.

The Grounds of Appeal

1. [40]

   In support of ground one, the Builder contends that the appeal to the Appeal Panel was not an appeal on a question of law, as required under s 80 of the CAT Act, to the extent that the Owners challenged the First Instance Decision that they suffered no loss in relation to the Sewer Connection as the relevant works were paid for by Jeffrey and not by the Owners (in grounds 3 and 5 before the Appeal Panel (AP grounds 3 and 5)). Rather, the Builder contends that these grounds were an attempt to reagitate the First Instance Decision that the party who incurred the cost of the Sewer Connection (Jeffrey) was not a party to the proceedings and did not have the benefit of the statutory warranties. The Builder contends that this is apparent from the Notice of Appeal to the Appeal Panel filed on 20 May 2024, the submissions before the Appeal Panel and the AP Decision. By reason of this, the Builder contends that the Appeal Panel exceeded its jurisdiction in allowing the appeal against the First Instance Decision that the Owners suffered no loss. The Builder also contends that, as resolution of AP grounds 3 and 5 required the Appeal Panel to determine whether payment for the Sewer Connection was made by Jeffrey as agent for, or on behalf of, the Owners, those grounds should be characterised as raising either a question of fact or a mixed question of law and fact.

2. [41]

   AP ground 3, as set out in the Owners’ Notice of Appeal to the Appeal Panel is:

3. [42]

   AP ground 5 is:

4. [43]

   To the extent that AP ground 5(e) raised the legal question whether payment by a third party is irrelevant to the determination of loss for breach of contract, the Appeal Panel did not determine that question.

5. [44]

   In support of these grounds, before the Appeal Panel the Owners submitted that the Tribunal had erred in law in finding that there was no loss because there was undisputed evidence of the Power of Attorney and the Builder’s awareness of that before the Tribunal. They submitted that the payments for the Sewer Connection works took effect in law as if they had been made by the Owners and that the Tribunal erred in law by finding otherwise and that Jeffrey acting as agent for the Owners was entitled to be indemnified by the Owners against the liabilities thereby incurred. The errors of law were said to include applying the wrong principle of law and failing to take into account relevant considerations.

6. [45]

   By way of background, s 80(2)(b) of the CAT Act provides:

7. [46]

   The Appeal Panel noted that the Owners submitted that AP grounds 3 and 5 were errors of law and that, overall, the Owners submitted that the Tribunal had made both errors of law and errors of fact and, in respect of the errors of fact, leave to appeal should be granted. The Builder’s submission before the Appeal Panel was that AP grounds 3 and 5 were both attempts to reagitate factual findings for which leave was not clearly sought and in respect of which leave should not be granted. It necessarily follows that the Appeal Panel was clearly cognisant that leave to appeal under s 80(2)(b) of the CAT Act was required if the appeal was not on a question of law. In these circumstances, it should be inferred from the fact that the Appeal Panel did not grant (or refuse) leave to appeal that it found that the appeal was, relevantly, on a question of law.

8. [47]

   The existence of a question of law for the purposes of s 80(2) of the CAT Act is not merely a qualifying condition to the statutory right of appeal; rather, the question of law alone is the subject matter of the appeal: see Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21] per French CJ, Gummow and Bell JJ; Davis v NSW Land and Housing Corporation [2016] NSWCA 325; 18 BPR 36,459 at [77] per McColl JA, Meagher and Leeming JJA agreeing. Moreover, as there is only one legally correct answer to the question whether the appeal was on a question of law, this Court must determine whether the Appeal Panel’s conclusion as to this was correct (applying by analogy GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 at [16] per Kiefel CJ, Gageler and Jagot JJ).

9. [48]

   The starting point is the relevant finding in the First Instance Decision. Having found that the Builder was in breach of the Contract and the statutory warranties, the Tribunal found that the evidence did not support any finding that the Owners had suffered any loss because: (1) the invoices for the work for the Sewer Connection were not made out to them; (2) none of the payments for those invoices were made by them; (3) neither of them had provided any witness statement, statutory declaration or affidavit; and (4) Jeffrey’s evidence was that he had incurred that cost. The Tribunal also, and uncontroversially, found that no damages could be awarded to Jeffrey (a non-party).

10. [49]

    The Tribunal did not make any reference to the question whether Jeffrey incurred the cost of the Sewer Connection on behalf of the Owners or whether the Owners would be liable to reimburse Jeffrey for the sums that he had paid in this regard. Instead, the Tribunal reasoned that the facts that invoices were addressed to Jeffrey, and he paid them, led inexorably to the conclusion that the Owners suffered no loss in circumstances where the Owners did not put evidence before the Tribunal. That was so notwithstanding that:

    1. (1)

       The Builder pleaded in its Amended Points of Claim (APOC) before the Tribunal at [3] that “[a]t all material times, the [Owners] have been represented in their dealing with the [Builder] by their son, [Jeffrey], exercising authority pursuant to Power of Attorney”. This was admitted by the Owners in their Points of Defence. Thus, before the Tribunal, the agreed factual position was that Jeffrey represented the Owners pursuant to a Power of Attorney in his dealings with the Builder. It was not suggested that this was only dealings under the Contract and the factual context for this pleading in the APOC was that, as identified in the APOC at [4], the Builder had dealings with the Owners in respect of Quotation No 6 which was given prior to the Contract being entered into. The natural inference to be drawn from the APOC at [3] is thus that the Power of Attorney covered dealings irrespective of whether they were dealings under the Contract.

    2. (2)

       Consistent with this, as already set out, notwithstanding that the Power of Attorney was not in evidence, the evidence before the Tribunal disclosed that Jeffrey had taken steps in relation to the Premises, such as engaging the Architect and entering into and dealing with matters relating to the Contract, including payments, on behalf of the Owners;

    3. (3)

       There is no doubt that the Builder dealt with Jeffrey and not the Owners as regards multiple issues under the Contract and that, as is clear from the correspondence set out above, he was aware of the Power of Attorney. Mr Bazdaric sought payments from Jeffrey in relation to the Contract and accepted at least one payment receipt which, on the face of the document, had been requested from the bank by Jeffrey (suggesting that the payment was made from his account or that he had authority on the account from which the payment was made). Mr Bazdaric wrote to Jeffrey identifying what he thought “fair for you”, ie Jeffrey, to deduct from a progress payment. In an affidavit dated 15 December 2023 (also before the Tribunal) Mr Bazdaric said he had reached agreement with Jeffrey “in relation to him withholding [money] from [a progress payment]”. This recognised that Jeffrey was making payments under the Contract on behalf of the Owners.

    4. (4)

       Mr Bazdaric’s oral evidence was that he was aware that Jeffrey made payments to the Builder on behalf of his parents.

    5. (5)

       Consistent with this, in the APOC at [14] the Builder referred to the payment of one of the invoices under the Contract, Invoice 1799, which the Builder requested Jeffrey to pay, as being paid by the Owners. All correspondence as regards that invoice was between Mr Bazdaric and Jeffrey.

    6. (6)

       Whilst, in his affidavit dated 31 October 2023, Jeffrey only expressly identified having engaged the Architect “[o]n behalf of my parents”, he identified in that affidavit that he (using the pronoun “I”) dealt with multiple other matters, such as entering into the Contract, agreeing variations, documenting variations, being entitled to withhold monies, withholding monies from progress claims, reaching agreements about progress claims, engaging an inspector to resolve a dispute under the Contract, being “not required to make payment” of a progress claim, making payments, and agreeing to partially pay invoices. In context, all of those matters must be understood as having been done by him on behalf of the Owners, who were the parties to the Contract. In these circumstances, whilst Jeffrey also said in that affidavit “I have incurred” costs to rectify the problem with the Sewer Connection, the inference could readily be drawn that this was done as Power of Attorney or on behalf of the Owners.

    7. (7)

       In the context of the pleading in the APOC at [3] that Jeffrey dealt with the Builder pursuant to a Power of Attorney in all of the dealings they had, and in light of the matters at (6) above, the inference that would most naturally be drawn is that the steps that Jeffrey took in relation to the Premises, including making payments under the Contract, were taken pursuant to the Power of Attorney. Given that the Sewer Connection works were undertaken to complete works at the Premises (which the Owners contended fell under the Contract), the obvious inference from the pleadings and evidence before the Tribunal was that the payments for those works were also made by Jeffrey pursuant to the Power of Attorney.

    8. (8)

       Shortly prior to the hearing at first instance the Builder sent a Notice to Produce to the Owners in the following terms:

    9. (9)

       The written submission of the Builder at first instance was that, as none of the invoices for the works for the Sewer Connection were addressed to the Owners and Jeffrey said in his affidavit “I have incurred” those costs, even if the Owners succeeded on liability, they should be awarded, at best, nominal damages.

    10. (10)

        The Owners’ counsel responded to this submission in his oral submissions before the Tribunal:

    11. (11)

        Counsel for the Builder responded that:

    12. (12)

        In oral submissions in reply, counsel for the Owners said:

    13. (13)

        The Tribunal made no mention in the First Instance Decision of the Owners’ submission that the Sewer Connection works were paid for by Jeffrey on behalf of the Owners and that there was an obligation on the Owners to reimburse Jeffrey.

11. [50]

    Turning now to the AP Decision, in response to AP grounds 3 and 5, the Appeal Panel found:

12. [51]

    It is not contended on appeal that the Appeal Panel erred in reaching the legal conclusion that it did from the uncontested facts identified. Thus, whilst in oral submissions before this Court Counsel for the Builder contended that the Appeal Panel in fact had to make additional factual findings to reach the legal conclusion it did, whether or not that is so is not a matter properly raised before this Court.

13. [52]

    The Appeal Panel also rejected a contention by the Builder that it had not been put below that Jeffrey was acting in relation to the Sewer Connection works pursuant to a Power of Attorney. Consistent with what I have already noted, the Appeal Panel interpreted Jeffrey’s affidavit evidence as being that all of the steps he described were taken on behalf of his parents. The Appeal Panel should be understood also to have interpreted Jeffrey’s evidence as being that this was pursuant to the Power of Attorney. Again, it was not contended in this Court that the Appeal Panel erred in reaching this conclusion, or in the legal conclusion it drew from the APOC, the Points of Defence and the evidence before the Tribunal at first instance.

14. [53]

    As is well recognised, an appeal is not one “on a question of law” merely because it is asserted that an error of law was made below: Thomaz and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [32] (Leeming JA, Meagher JA and Griffiths AJA agreeing). Rather, the question whether an appeal is on a question of law should be approached as a matter of substance and not merely form, bearing in mind that there is no satisfactory test of universal application to define a question of law: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394; [1996] HCA 36 applied by Leeming JA in Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [4]. It has also repeatedly been said that the distinction between what is or is not a question of law is vexed and context dependent such that it is not possible to enunciate a clear test for this: Thomas and Naaz at [52]-[53]; see also Da Costa v The Queen (1968) 118 CLR 186 at 194; [1968] HCA 51.

15. [54]

    It has been held that a mixed question of fact and law is not a question of law: Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60] per Bathurst CJ and Bell P. In support of this principle their Honours cited the statement of Dixon J in Thomas v The King (1937) 59 CLR 279 at 306; [1937] HCA 83 that a “mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law”. Those words clarify what is meant by a mixed question of fact and law. A question whether a restitutionary obligation was owed on uncontested facts, in circumstances where the Tribunal made no finding as to whether or not monies were paid by Jeffrey for the Sewer Connection works on behalf of the Owners, is a question of law. Consistent with this, it has been recognised that a decision on a question of law may be intermingled with decisions of fact and opinion: Kudrynski v Orange City Council [2024] NSWCA 33 at [45] (Griffiths AJA, Meagher and Kirk JJA agreeing); see also in the context of valuation, Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111; [2003] HCA 8 at [8].

16. [55]

    It may be accepted that the Notice of Appeal to the Appeal Panel should have, but did not, expressly identify the questions of law on which the appeal was premised. Considered in the context of the First Instance Decision however, AP grounds 3 and 5, albeit framed as allegations of error, raised the question of law whether the Tribunal at first instance erred in finding that the Owners had suffered no loss on the basis that Jeffrey paid invoices addressed to him for the Sewer Connection works and said, in his affidavit, that he incurred those costs. Another question of law raised by AP ground 5, was whether the fact that payments were made by third parties was irrelevant to the determination of loss in a breach of contract claim. Neither of these grounds invited review of findings of fact made by the Tribunal in the First Instance Decision: see eg Waterford v Commonwealth (1987) 163 CLR 54 at 77-78 (Brennan J); [1987] HCA 25.

17. [56]

    In the circumstances, in reaching its decision, the Appeal Panel properly exercised jurisdiction under s 80(2) of the CAT Act. This conclusion should not be understood as an encouragement to litigants in the Tribunal to ignore the requirement to identify the question of law for the Appeal Panel in their notice of appeal. Plainly that should be done: Thomas and Naaz at [71]. Rather, it is a conclusion which turns on the framing of the grounds of appeal to the Appeal Panel, considered in the context of the First Instance Decision and the evidence and pleadings before the Tribunal, which were sufficient for a reader of the Notice of Appeal to the Appeal Panel “to apprehend what the question or questions of law are”: Thomas and Naaz at [71].

18. [57]

    As I have already said, it was not contended before this Court that the Appeal Panel erred in making findings as to the ambit of the Power of Attorney held by Jeffrey if, as I have found, the grounds of appeal to the Appeal Panel properly raised a question of law. Nor was it contended that the Appeal Panel erred in the conclusion that it reached that the Owners suffered loss irrespective of the fact that Jeffrey was invoiced and paid the costs of the Sewer Connection works.

19. [58]

    It follows that ground one is rejected.

20. [59]

    Having regard to the matters I have already set out above, ground two can be dealt with briefly.

21. [60]

    As set out above, the Owners submitted before the Tribunal at first instance that Jeffrey incurred the costs of the Sewer Connection works on behalf of the Owners which would ordinarily give rise to a debt. Whilst this submission did not expressly refer to the Power of Attorney, in the factual context I have already discussed (and having regard to the APOC at [3]) that was readily to be inferred. Counsel for the Owners also put to Mr Bazdaric below that he knew that payments were made to him by Jeffrey on behalf of the Owners. Whilst the payments for the Sewer Connection costs were not made to Mr Bazdaric, in context, it must have been clear that the purpose of this question was to demonstrate Mr Bazdaric’s knowledge that payments made by Jeffrey in relation to the Premises were made on behalf of the Owners. Whether payments by Jeffrey were made on behalf of the Owners was relevant in the proceedings only to the question whether the Owners suffered loss by reason of the Sewer Connection works. Further, the clear inference from Jeffrey’s affidavit was that the steps he described in relation to the Premises, including incurring the costs of the Sewer Connection works, were taken on behalf of the Owners.

22. [61]

    Before the Tribunal at first instance the Builder did not submit that there was any unfairness to the Builder in the Owners having contended, in their oral submissions, that the payments for the Sewer Connection works were made on behalf of the Owners such that a debt would be owed by them to Jeffrey. No application was made to re-call Jeffrey for cross-examination. Instead, counsel for the Builder simply reiterated his written submission that the wrong plaintiff had sued, relying upon the bank records showing who actually made payments for the Sewer Connection works.

23. [62]

    In these circumstances, there was no failure by the Appeal Panel to apply the principles in Suttor v Gundowda at 438 as the contention that the Sewer Connection works were paid for by Jeffrey on behalf of the Owners subject to an obligation of reimbursement was not a new point taken on appeal. Nor was there any denial of procedural fairness. The evidence before the Tribunal clearly identified the existence of the power of attorney and the matters relied upon in AP grounds 3 and 5 were sufficiently raised by the Owners in their oral submissions at first instance. At that stage of the proceedings the Builder could have sought to take steps to deal with those matters if it was thought appropriate or necessary to do so.

24. [63]

    It follows that ground two is rejected.

25. [64]

    In ground three the Builder contends that the Appeal Panel misconstrued the Builder’s obligations under the Contract, and the statutory warranties, with the consequence that the Builder did not breach those obligations in respect of the sewer works.

26. [65]

    The Tribunal found that the Builder breached its obligations under the Contract because Mr Bazdaric did not verify the level of the Mains Connection until after the concrete slab at the Premises was poured, at which point it was not possible to make a gravity-fed sewer connection as the level of the concrete slab did not enable the sewer connection in the Premises to be sufficiently higher than the Sydney Water sewer connection for that to work satisfactorily. The Appeal Panel dismissed the Builder’s Notice of Contention seeking to challenge this finding.

27. [66]

    Relevantly, as noted above at [30], counsel for the Builder accepted in his oral submissions before this Court that the Builder was obliged, under the Contract, to verify the level of the Sydney Water sewer connection. His contention is that the Builder’s obligation in the Contract to check and verify dimensional setout, and refer all queries to the Architect prior to taking any action, as set out in the Scope of Works (above at [28]), should be construed as arising only immediately prior to undertaking that stage of the construction, here, the works to connect the premises to the Mains Connection. In oral submissions, counsel for the Builder said that the obligation to check dimensions only arose in relation to the “particular action that is required for that particular piece of work”.

28. [67]

    The Builder’s contentions should be rejected. It is not the natural reading of the Contract and it makes no commercial sense. The obvious commercial purpose of the verification requirement was to ensure that the plans could be implemented on the Premises and having regard, here, to the actual level of the Mains Connection. There is no reason why that would be required only immediately prior to undertaking works to connect the Premises to the Mains Connection. I would not infer that it was the intention of the parties, objectively determined.

29. [68]

    As is apparent from the facts of this case, one stage of construction may impact upon the feasibility or cost of another stage of construction if there is any inaccuracy in the dimensions or levels. As already noted, as counsel for the Builder accepted before me, the level of the Mains Connection could not have been known without some excavation and was when construction commenced under the Contract. It would be inferred that both the Builder and the Owners (through Jeffrey) would have been aware of this, and that the same may be true of other levels and dimensions that needed to be verified. It would fly in the face of commercial rationality for the obligation to verify levels to arise at a time when the concrete slab had already been laid. Rather, as both the Tribunal and the Appeal Panel found, under the Contract the level of the Mains Connection had to be verified prior to construction of the concrete slab. The floor level of the lower ground floor would impact the feasibility of a new PVC pipe connecting the Premises with the existing sewer main, as provided in the Scope of Works (above at [29]).

30. [69]

    I would also reject the Builder’s oral submission before me that the Scope of Works contemplated the sewer connection between the Premises and the Sydney Water mains involving the use of a pump. There is no mention of a pump in the Scope of Works. Only a “PVC sewer pipe” is identified for this connection.

31. [70]

    It follows that ground three is rejected.

Conclusion

1. [71]

   As already indicated, for the reasons set out above, leave to appeal should be refused. Costs should follow the event, no submission having been made to the contrary.

2. [72]

   My orders are:

   1. (1)

      An extension of time to 18 July 2025 for filing the summons is granted.

   2. (2)

      Leave to appeal under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) is refused.

   3. (3)

      The plaintiff is to pay the defendants’ costs.