Dwyer Building Group Pty Ltd v Spicer

1. [1]

   By a summons filed 11 July 2025, the applicant seeks leave to appeal from a decision dated 13 June 2025 by an Appeal Panel of the New South Wales Civil and Administrative Tribunal (NCAT) (see Dwyer Building Group Pty Ltd v Spicer; Spicer v Dwyer Building Group Pty Ltd [2025] NSWCATAP 133).

2. [2]

   The appeal is brought under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and Pt 50 of the Uniform Civil Procedure Rules 2005 (NSW). Under s 83(1), the applicant (the Builder) must obtain the leave of the Court to appeal on a question of law against the Appeal Panel’s decision. There is no right of appeal on a question of fact nor any right to seek leave to appeal on such a question.

3. [3]

   The proceedings have a notably long history. They date back to 2020 when the respondent (the Owner) commenced home building proceedings in NCAT, which resulted in the parties agreeing to a Work Order dated 4 May 2021. This required the Builder (in accordance with applicable laws, rules, codes and standards and in a proper and workmanlike manner) to complete works under a contract dated 29 November 2018 (the Contract) within a reasonable time. A Note to the Work Order stated that, on 17 July 2020, the Builder proposed an amended project schedule which, inter alia, provided for the completion of the works within six and a half months of recommencement. The Builder recommenced work at the Owner’s property in May 2021 but relations between the parties significantly deteriorated and the Builder ceased work on about 10 December 2021.

4. [4]

   On 21 January 2022, the Owner commenced renewal proceedings in NCAT seeking to enforce the Work Order. In mid-2022, the Builder issued a notice of termination of the Contract, which caused the Owner to accept what it described as the Builder’s unlawful repudiation of the Contract and the Owner then elected to terminate the Contract.

5. [5]

   The central issue was whether the Builder was in breach of the Work Order on 21 January 2022, when the renewal proceedings were commenced. This in turn depended upon whether the Builder was entitled under the Contract to extensions of time (EOTs) of a sufficient period to avoid the Builder being in breach as at 21 January 2022.

6. [6]

   NCAT heard the renewal proceeding over three days in March and August 2023. The parties provided numerous sets of written submissions, culminating in the Owner’s closing submissions in reply dated 15 December 2023. The parties’ written submissions before NCAT totalled approximately 230 pages. NCAT was faced with more than 4,000 pages of evidence. This may explain why there was almost an eight-month delay in NCAT publishing its reasons for decision on 30 August 2024 (see Spicer v Dwyer Building Group (NSWCATCD, 30 August 2024, unrep). NCAT ordered the Builder to pay the Owner the sum of $251,187.45 on or before 25 September 2024 and to pay the Owner’s costs of the renewal proceeding.

7. [7]

   On 25 September 2024, the Builder filed an appeal under s 80(2)(b) of the CAT Act (which confers a right of appeal on any question of law and, with the leave of the Appeal Panel, on any other grounds). The Builder raised 12 grounds of appeal and provided written submissions totalling 38 pages. The Owner’s written submissions in response totalled 15 pages. The Owner also filed a cross-appeal. After a half-day hearing, the Appeal Panel published its reasons for decision on 13 June 2025. It allowed both the appeal and the cross-appeal. In order (2), the Builder was ordered to pay the Owner the sum of $241,305.74 (less any amounts paid since 30 August 2024). (On 12 August 2025, Elkaim AJ stayed order (2) pending determination of the summons in the present proceeding.) The Appeal Panel’s reasons contain 272 paragraphs and cover 77 pages.

8. [8]

   Having regard to the history of the proceedings as outlined above, it is hardly surprising that the Appeal Panel was moved to comment as follows at [172] of its reasons:

9. [9]

   Guided by the need to conduct the proceedings so as to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”, as required by s 36 of the CAT Act, the Appeal Panel said at [173] that it had paid due regard to that guiding principle and would proceed to “redetermine the issues necessary to finally resolve the proceedings following the appeals” and that its reconsideration would be on the basis of the evidence and material before NCAT below and the parties’ submissions to the Appeal Panel.

10. [10]

    For the reasons that follow, leave to appeal will be refused and the summons dismissed with costs. Accordingly, the Owner’s notice of contention filed on 29 August 2025 need not be determined.

Background facts further summarised

1. [11]

   For present purposes, it is sufficient substantially to adopt the Builder’s outline of submissions in this Court dated 14 October 2025 which describe the relevant background (footnotes omitted):

Applicant’s proposed grounds of appeal

1. [12]

   The five proposed grounds of appeal in respect of which leave to appeal is sought are as follows:

2. [13]

   In circumstances where the Court was not satisfied that the summons precisely identified all the questions of law to which the grounds of appeal relate, it directed the Builder to state those questions of law. In response, the Builder provided the following statement of what it claims are the questions of law:

(a) The significance of s 83(1) of the CAT Act, the need precisely to identify one or more questions of law and the requirement to obtain leave

1. [14]

   At the outset, it is critical to appreciate the nature and scope of an appeal to the Court under s 83(1) of the CAT Act. The right of appeal is confined to a question of law against any decision made by the Tribunal and that right can only be exercised if the Court grants leave. These important restrictions on the right of appeal under s 83(1) reflect a deliberate legislative policy of tapering rights of appeal in relation to administrative decisions as one ascends the appellate hierarchy. This tapering effect is manifest, for example, in the fact that, although there is a full merits review before NCAT in relation to a reviewable decision, s 80 of the CAT Act confers a right of appeal to an Appeal Panel in the case of an “internally appealable decision”, but then imposes certain constraints on that right (which constraints are not as severe as the constraints under s 83). Thus, s 80(2)(a) provides for a right of appeal to the Appeal Panel from an interlocutory decision of NCAT which is not constrained other than by the requirement that the Appeal Panel grant leave. Further, s 80(2)(b) constrains the right of appeal to the Appeal Panel from other decisions of NCAT. That right of appeal is limited to any question of law (and there is no requirement to obtain leave) or with the leave of the Appeal Panel on any other grounds apart from a question of law.

2. [15]

   The tapering effects of ss 80 and 83 of the CAT Act are not circumvented if a party who is dissatisfied with a decision of NCAT or an Appeal Panel seeks to invoke the Court’s supervisory jurisdiction by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW). That is because the Court has a discretion to refuse to conduct a judicial review “because the inference may readily be drawn that, by commencing proceedings for judicial review, the moving party is deliberately seeking to avoid the obligation to obtain leave to appeal” (see Makowska v St George Community Housing Ltd [2022] NSWCA 5 at [28] per curiam). Furthermore, it is notable that s 34(1) of the CAT Act confers a statutory power on the Court to refuse to conduct a judicial review of an NCAT decision where an internal appeal to an Appeal Panel or an appeal to a Court could be, or has been, lodged.

3. [16]

   I sought to identify relevant principles relating to s 83(1) of the CAT Act in Targeted Property Investment Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416; 20 BPR 43,135 at [32]–[39] (noting that [33] was approved in Dokas v Gallagher (No 2) [2024] NSWCA 236 at [66] per Kirk JA and Griffiths AJA and, more recently, in Hawach v A & A Building Services Pty Ltd [2025] NSWSC 1174 at [7] per Stern JA). Despite their length, I will reproduce that statement of the principles:

4. [17]

   To the above summary of principles guiding the issue of leave may be added the important observations of Fitzgerald JA (with whom Mason P and Davies AJA agreed) in Chapmans Ltd v Yandell [1999] NSWCA 361 at [11] that a requirement of leave to appeal is “intended to act as a filter to ensure that unsuitable appellant proceedings which are not able to be brought with the demands which that places upon the resources of the Court and the burden which it places upon other parties and the delays which it causes to other litigants”. Those observations have a strong resonance in the present proceeding.

5. [18]

   As noted above, the fundamental requirement of identifying with precision one or more questions of law the subject of a proposed appeal under a provision such as s 83(1) is not circumvented by asserting, for example, that the Appeal Panel “erred in law”. I also respectfully agree with Stern JA’s observations in Hawach at [75], where her Honour said (emphasis added):

(b) Relevant provisions of the Contract

1. [19]

   Clause 2A of the Contract deals with the joint responsibilities of the parties. Relevantly, it states:

2. [20]

   Clause 2 deals with the Owner’s responsibilities, which relevantly include:

3. [21]

   Clause 11 deals with delays and extensions of time and relevantly provides:

4. [22]

   Clause 14 deals with variations. It relevantly provides:

(c) How EOTs #5 and 10 were raised in the NCAT and the Appeal Panel

1. [23]

   It is necessary to trace at some regrettable length the history of EOT #5 and 10, including their terms, the parties’ submissions in relation to them and how those particular EOTs were dealt with by both NCAT at first instance and, more importantly, the Appeal Panel. These matters illuminate how and why EOTs #5 and 10 were addressed by the Appeal Panel in the way that they were and why leave to appeal to this Court should not be granted. I shall summarise relevant parts of the NCAT proceedings, not because they are the subject of the present proceedings, but because they provide context for the subsequent proceedings before the Appeal Panel.

2. [24]

   The notice concerning EOT #5 is dated 30 September 2021. Its substantive terms are as follows:

3. [25]

   It is to be noted that EOT #5 is directed exclusively to the mudroom area of the property.

4. [26]

   In the Builder’s written outline of submissions dated 9 March 2023 before NCAT, 15 separate extension of time notices were identified which it contended were relevant to the assessment of what constituted “a reasonable time” to implement the Work Order. It submitted that it was entitled to have added to the six and a half month period specified in the Note the length of time specified in each EOT notice or, where the Owner expressed dissent to any particular EOT within five days as provided for in the Contract, it sought an extension which was “fair and reasonable” having regard to the circumstances at the time.

5. [27]

   The Builder provided NCAT with the following table particularising each of the 15 EOTs (including EOTs #5 and 10, to which the summons in the present proceeding is primarily directed):

6. [28]

   At [153] of its closing written submissions dated 17 November 2023 before NCAT, the Builder explained that, consistently with NCAT’s approach to the EOTs at the hearing (which it described as dealing with “certain EOTs as being representative of the approach taken by the parties”), it would address EOTs #4–15 “globally and with reference to the previous submissions”. The reference to “previous submissions” presumably refers to the Builder’s written outline of submissions dated 9 March 2023.

7. [29]

   Later in its closing submissions, under a heading “Alleged damage to property”, the Builder denied that it was liable for various forms of water ingress damage to the property. It is unclear whether this included EOT #5 because there is no express reference to that particular EOT in this part of the Builder’s written submissions. The Builder described the Owner’s claims regarding water damage as “circumstantial”. It urged NCAT to find, as a matter of causation, that the Builder’s actions were not the cause of any water ingress or that any water ingress which resulted in damage already existed at the 130-year-old property. The Builder added that, because it was not the cause of any damage resulting from water ingress, it was entitled to be recompensed for the additional work of remediating any damage and was entitled to require the Owner to sign a written variation for the additional scope and cost. It further submitted that because the Owner failed to provide a signed variation, the Builder was entitled to an extension of time for a reasonable period pursuant to the Contract. The Builder made no express reference to damage to the mudroom and, apart from some passing references to the existence of EOT #5, the Builder did not develop any further in its written closing submissions its claim regarding EOT #5.

8. [30]

   Turning now to EOT #10 and the way in which the Builder presented its case on that item, the evidence before me contains copies of three separate documents titled EOT #10. The first is dated 27 October 2021 and the two subsequent documents are both dated 3 November 2021. In the EOT #10 dated 27 October 2021 and the first of the two EOTs #10 dated 3 November 2021, the Builder gave notice in respect of the Owner’s failure to complete what were described as “AC Works”, for which the Builder sought to add to the Construction Period five business / working days. Both those notices describe the cause of delay as “owners [sic] failure to complete AC works. Builder cannot progress with works to this area until completed”. The document dated 27 October 2021 appears to be the one relied on by the Builder in respect of EOT #10 (and also EOTs #9, 11, 13, 14 and 15 where air conditioning formed one of numerous items). The tables are referred to at [27] above and [32] below. They refer to the EOT #10 dated 27 October 2021.

9. [31]

   In its 62-page written closing submissions to NCAT dated 17 November 2023, the Builder addressed EOT #10 under the heading “Air-conditioning”. In brief, it submitted that there was conflicting evidence on the question whether AC ducting had been installed by November 2021. Reference was made to the Builder’s email dated 10 November 2021 which asked the Owner to confirm that the AC works had been completed. This request was made in circumstances where Mr Kyle Dwyer (the director of the Builder) said that he had visited the site the previous week and noticed that “there was ducting all over the site that was not installed into the ceiling space”. He added that, as per quote 1004, “all heating and cooling works are the clients [sic] responsibility, and we have been asking for months for this work to be completed. Please confirm if the AC works are completed, this is delaying the progress of works”. The Builder submitted to NCAT that it should be guided by the contemporaneous business records on the issue whether ducting had been installed. It added that because of the Owner’s delays on this issue, it was entitled to an extension of time for a reasonable period under the Contract.

10. [32]

    The Builder’s closing submissions before NCAT included another table describing the 15 EOTs, including EOTs #5 and 10. The entries for these items are substantially similar to the earlier table (which is set out at [27] above). In the written submissions, the Builder submitted that if NCAT found it necessary to determine each of EOTs #5–15 and attribute a time period to each of them, NCAT should accept the time sought for each item in the table (which in the case of EOTs #5 and 10 were seven business days / nine calendar days and 40 business days / 56 calendar days respectively).

11. [33]

    I turn now to summarise relevant parts of the Owner’s closing written submissions dated 4 October 2023 before NCAT. The issue concerning damage to the mudroom floor was addressed by the Owner not in direct response to the Builder’s EOT #5 but rather with reference to Item 17 of its Schedule of Damages relating to defective works. This Item concerned the Owner’s claim for damage to the mudroom. It is desirable to set out [125]–[130] of the Owner’s closing written submissions in relation to this Item (footnotes omitted):

12. [34]

    As to the issue relating to air conditioning, the Owner made the following written submissions to NCAT in her closing written submissions dated 4 October 2023 (footnotes omitted):

13. [35]

    The Owner also provided closing written submissions in reply dated 15 December 2023 before NCAT. The submissions total 83 pages. The Owner claimed that the manner in which the Builder calculated the extensions of time sought in its EOT notices was “farcical”. The submissions included detailed replies on EOTs #1–4, but no submissions were directly addressed to EOTs #5 or 10.

14. [36]

    The Owner’s closing written submissions in reply included a table comprising three columns. The first two columns referred to the Builder’s closing written submissions (i.e., the paragraph number and the text of that paragraph) and the third column constituted the Owner’s reply. The table does not explicitly refer to EOT #5, but the material relating to air conditioning was as follows (footnotes omitted, emphasis in original):

15. [37]

    Only the transcript for day two of the three-day hearing before NCAT was included in the evidence before me. The transcript records the NCAT Senior Member expressing concern about the time available to complete the hearing. He urged the parties not to deal with every one of the EOTs in the same way because, if that were to occur, “we won’t finish”. The transcript includes re-examination of Ms Spicer regarding the mudroom door and her knowledge of the date of a photograph of the door. Ms Spicer said she had taken the photograph “weeks prior to the builder taking possession of the property”. In further cross-examination, Ms Spicer agreed that her evidence that the photo was taken prior to June 2019 was inconsistent with [61] of her affidavit which indicated that photos she had taken depicted the Builder leaving paint cans and other matters while in possession of the property.

16. [38]

    The transcript also included cross-examination of Mr Roberto Tavian (who is Ms Spicer’s partner) and Mr Dwyer. The lengthy cross-examination of Mr Dwyer, which covered almost 100 pages of the transcript, included questions regarding the timing of the painting of the mudroom door, damage to the mudroom floor and the use of that area by the Builder to store materials. Mr Dwyer was also briefly cross-examined on whether the installation of air conditioning was complete. There was the following exchange on that topic:

17. [39]

    The transcript of the NCAT hearing before me did not include the evidence of the experts, nor oral closing submissions. Presumably this is because neither party considered these parts of the transcript to be relevant.

18. [40]

    In its reasons for decision dated 30 August 2024, NCAT concluded that it did not need to determine any of the EOTs because there were provisions in the Contract relating to extension of time which could not be imputed into the Work Order (see at [70]). Accordingly, there is no direct reference to either EOT #5 or 10 in NCAT’s reasons.

19. [41]

    Later in its reasons, NCAT addressed the Builder’s claim that the Owner had failed to undertake or complete the Owner’s works, including installation of air conditioning. NCAT made the following observations and findings at [95] (which observations and findings were adopted by the Appeal Panel, as will emerge):

20. [42]

    The reference to what Mr Tavian told Mr Dwyer on 20 March 2020 is a reference to a text message which Mr Tavian sent to Mr Dwyer on that day. The text message was described at [166] of Mr Tavian’s affidavit dated 1 April 2021. Mr Tavian said that he told Mr Dwyer that the person responsible for installing the air conditioning was sick but that “hopefully he will be at the Property on the weekend”. In response, Mr Dwyer sent a thumbs up emoji, which Mr Tavian understood to mean that there was no problem. Mr Tavian then deposed at [167] of his affidavit that the air cooler was installed on 22 March 2020 and that he sent a further text message to Mr Dwyer telling him that the “air cooler and big pieces have been lifted into the ceiling cavity. Everything is okay for you to install the timbers in the kitchen ceiling”.

21. [43]

    The reference to what Mr Dwyer was told on 6 November 2021 appears to include a typographical error because, although there is no communication dated 6 November 2021 in evidence regarding the air conditioning, there is a letter dated 8 November 2021 which was sent by email to Mr Dwyer by Ms Spicer. In that letter, Ms Spicer relevantly said:

22. [44]

    For completeness, it might also be noted that in her witness statement dated 24 August 2022, which was before both NCAT and the Appeal Panel, Ms Spicer deposed at [89] that all of the air conditioning ducting was installed and completed by 3 and 4 November 2021.

23. [45]

    I will now turn to the proceedings in the Appeal Panel.

24. [46]

    Curiously, a copy of the Builder’s notice of appeal was not included in the papers before me. It is evident, however, that the Builder raised 12 grounds of appeal before the Appeal Panel. Ground 11 related to the EOTs. As noted above, the Builder had a right of appeal on any question of law without the need to obtain leave, but required the leave of the Appeal Panel to raise any other grounds.

25. [47]

    In its written outline of submissions dated 10 December 2024 before the Appeal Panel, the Builder summarised ground 11 as follows (noting the reference to EOTs #5 and 10 in sub-paragraphs 64(a) and (b) respectively):

26. [48]

    With specific reference to EOT #5, the Builder made the following written submissions (footnotes omitted):

27. [49]

    As to EOT #10, the Builder addressed it (together with EOTs #8 and 9) under the heading “variations / no signed instructions”. In its written submissions, the Builder described EOT #10 as relating to the “approval of quotes”.

28. [50]

    In its written outline of submissions dated 23 December 2024 before the Appeal Panel, in addressing ground 11 of its notice of appeal, the Builder claimed with respect to EOT #5 that NCAT found at [79] that a variation had been issued but then failed to determine whether this should produce an extension of some length of time. With respect to EOT #10, the Builder said that it (and EOTs #8 and 9) related to “documents titled quotes but which were sought as variations”. The Builder claimed that NCAT had failed to determine whether there was any such variation and, if so, whether there should be an extension of some length of time.

29. [51]

    Turning now to the Owner’s written submissions to the Appeal Panel and focussing on ground 11, the Owner contended that this (and related grounds 3 and 5) were an attempt by the Builder to re-run its case on questions of fact or mixed fact and law, which required leave. The Owner addressed EOTs #1, 2, 4, 5 and 7 as a group under a heading “Variations / no signed instructions”. She identified the common theme of these EOTs as allegations that the Owner had caused the delay. The Owner submitted that NCAT had properly considered the evidence and correctly rejected the Builder’s claim that the Owner caused delay, including by refusing to pay for variations to repair water damage to the bedroom wall (referring to NCAT’s decision at [79]) and to the claim that the Owner failed to undertake or complete her works (referring to NCAT’s decision at [105]).

30. [52]

    The section of NCAT’s reasons addressing the claim that the Owner had failed to undertake or complete the Owner’s work included [95] (which is set out at [41] above) in which the issue regarding air conditioning was addressed. As noted above, on this issue, NCAT had concluded that there appeared to be “little substantive evidence to support [Mr Dwyer’s] assertion that the Owner’s failure to install the air conditioning unit prevented the Builder from complying with the Work Order”.

31. [53]

    The evidence before me included the transcript of the half-day hearing before the Appeal Panel which occurred on 3 February 2025. Senior Member Molony is recorded as emphasising that the Appeal Panel’s function was not hearing the case again but rather was “to see if there are any errors of law or whether leave to appeal should be granted …”. Significantly, there was no oral evidence before the Appeal Panel. Rather, the Appeal Panel had before it evidence given below in NCAT. The materials before the Appeal Panel also included copies of the parties’ submissions below in NCAT and various additional written submissions prepared by the parties for the purposes of the Appeal Panel hearing.

32. [54]

    The Builder contended that NCAT had erred in not considering its submissions on delay and the EOTs. Specific reference was made to EOTs #4 and 7, which the Builder’s counsel claimed had not been considered by NCAT. He then added that the balance of the EOTs (i.e., necessarily including EOTs #5 and 10) were “covered in writing, and I won’t dwell on those matters, but those are examples”. The following significant exchange then occurred:

33. [55]

    After that exchange, the Builder’s counsel said that he would “spend more time considering the extensions of time … ”. Counsel then proceeded to make brief oral submissions on EOT #3, which related to the effect of COVID.

34. [56]

    It is notable that, in the 41 pages of transcript of the Appeal Panel hearing, no oral submissions were made by either party in respect of EOT #5. EOT #10 was addressed only very briefly and in conjunction with EOTs #8 and 9, as is reflected in the following extract:

35. [57]

    In oral address, counsel for the Owner made the following submissions regarding the nature and scope of the appeal:

36. [58]

    In reply, counsel for the Builder criticised his opponent for claiming that the Builder’s approach regarding delays and EOTs “was to take the Appeal Panel on a journey through an enormous amount of material”. Counsel submitted:

37. [59]

    Counsel for the Builder complained that the case before the Appeal Panel was not being conducted on the basis of the Appeal Panel considering EOTs with respect to documents in evidence only and existing submissions. Instead, he complained that the Owner was taking the Appeal Panel to select documents and select submissions.

38. [60]

    The transcript of oral addresses records no direct submission being made by either party on either EOTs #5 or 10, save for the passing reference by the Builder’s counsel to EOT #10 as noted at [56] above.

39. [61]

    After hearing oral submissions from both parties as to whether the Appeal Panel should remit any part of the proceeding, the hearing ended with Senior Member Molony highlighting his concerns about the costs of the proceeding to date (which concerns have proved to be prescient):

40. [62]

    As noted above, the Appeal Panel’s reasons are lengthy. It must be emphasised, however, that numerous matters apart from EOTs #5 and 10 are covered in those reasons, reflecting the way in which the case was presented to the Appeal Panel by both parties. This also reflects the fact that of the 12 grounds of appeal, only one (ground 11) related to the issue of extensions of time, of which there were 15 in all, including EOTs #5 and 10.

41. [63]

    In respect of the EOTs generally, the Appeal Panel found that NCAT had erred in not determining whether the Builder was entitled to any EOTs under the Contract and that this was necessary to determine a reasonable time for carrying out the Work Order.

42. [64]

    The Appeal Panel then divided EOTs #1–15 into the following five categories (noting that EOTs #5 and 10 are identified in categories “1”, “3” and “5”):

43. [65]

    The Appeal Panel acknowledged that EOT #9 contained nine separate extension of time claims and that the first eight claims were made on the same basis as inter alia EOT #10. Since they were worded similarly, the Appeal Panel said that they would be “considered together” (at [187]).

44. [66]

    Although the Appeal Panel squarely addressed EOTs #1, 2, 4 and 7 under the heading “Delays due to no instructions being given for variations / adjustments”, it made no express reference in this part of its reasons to EOT #5.

45. [67]

    Similarly, although the Appeal Panel addressed EOT #8 under the heading “Delays due to latent conditions”, it did not explicitly address EOT #5 in this part of its reasons (but see at [70] below).

46. [68]

    The Appeal Panel addressed EOT #10 in that part of its reasons relating to “Delays due to owners work being incomplete”, which also included consideration of EOTs #9, 11, 12, 13, 14 and 15. The issue of air conditioning was squarely addressed by the Appeal Panel at [236(2)] of its reasons in which the Appeal Panel made clear that it saw no reason to disagree with NCAT’s findings on this issue as set out in [95] of NCAT’s reasons (which paragraph is set out at [41] above) (emphasis in original):

47. [69]

    The Appeal Panel added at [237] that it was unable to understand how the Builder’s claims with regard to the air conditioning works and some other matters gave rise to an extension of time under cl 11(a)(xii) of the Contract (relating to causes beyond the Builder’s control).

48. [70]

    Finally, the Appeal Panel made the following observations at [255]–[257] regarding the extensions of time generally (presumably including EOTs #5 and 10):

49. [71]

    It is clear from the reference in [255] of the Appeal Panel’s reasons to “extensions of time #1 to 9” that the Appeal Panel was mindful of all nine of those EOTs, including EOT #5. Fairly read, the Appeal Panel’s subsequent reference in [256] to its “consideration of these claims” necessarily includes consideration of the claim concerning EOT #5. The same may be said with reference to [257], where the Appeal Panel recorded its impression “having reviewed the extension of time claims” that many of the Builder’s requests were unjustified. Fairly read, these conclusory paragraphs of the Appeal Panel’s reasons should be viewed as including EOT #5.

(d) Disposition

1. [72]

   For the reasons that follow, while I accept that proposed Ground 1 (concerning EOT #5) raises a question of law, leave to appeal should not be granted. Moreover, I consider that each of proposed grounds of appeal 2–5 do not relate to any question of law. Rather, they relate to questions of fact and fall outside the scope of s 83 of the CAT Act.

2. [73]

   The Builder describes EOT #5 as relating to an instruction given by the Owner to the Builder to stop work until further notice, while the Owner addressed damage to the mudroom flooring, and the Owner never provided any notice in the form of an instruction to the Builder to recommence work.

3. [74]

   The Builder contends that the Appeal Panel failed to determine the Builder’s entitlement to EOT #5 under the Contract, which was notified to the Owner on 30 September 2021. This is said to constitute a failure by the Appeal Panel to determine an issue in dispute (citing The Owners - Strata Plan No 73943 v Gazebo Penthouse Pty Limited [2014] NSWSC 1536 at [76]) and / or a failure to deal with a substantial and well-articulated argument, giving rise to a constructive failure to exercise jurisdiction (citing Colman v The Owners – Strata Plan 61131 [2025] NSWCA 203 at [23]–[26]).

4. [75]

   The Builder claims that, in the light of the Appeal Panel’s failure to give any consideration to EOT #5, there was a further error of law in the ultimate finding that the Builder was entitled to an overall extension of only 20 business days. The Builder emphasises that it was never its position that an extension of time for EOT #5 should be limited to only seven business days. Rather, relying on cl 11 of the Contract, it says that it was entitled to an extension of time which is “fair and reasonable”, which necessarily focuses attention on the circumstances surrounding the subject delay. The Builder adds that the issue of what is a reasonable period to extend time would only arise if the Court found an error of law and the issue should then be remitted to NCAT (if it was not determined by the Appeal Panel).

5. [76]

   In support of these submissions, the Builder emphasises the following matters:

6. [77]

   I accept that proposed Ground 1 relates to a question of law, namely whether the Appeal Panel’s failure to determine EOT #5 amounts to a constructive failure to exercise jurisdiction, but that is not the end of the matter. The Court also needs to be persuaded that the Builder should have leave to appeal in relation to that ground. For the following reasons, I would not grant leave.

7. [78]

   I am not satisfied that proposed Ground 1 raises an issue of principle, a question of general public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable. I do not accept the Builder’s contention in oral address that a question of public importance is raised by proposed Ground 1 because “there is a public importance to all decisions of the tribunal being within power and within jurisdiction”. As I pointed out, acceptance of that proposition would mean that there would be a grant of leave in any case under s 83 of the CAT Act where there was a claim that the Appeal Panel had acted beyond jurisdiction. That proposition is not voided by the terms of the grant or jurisdiction under cl 8 of Sch 4 to the CAT Act, which the Builder’s counsel described as “being of exceptionally narrow compass”. It is understandable that the Builder itself has a strong interest in seeking to have the Appeal Panel’s decision set aside on judicial review but that falls far short of demonstrating that there is any question of general public importance. It may also be accepted that the Builder holds a sincere subjective view that it has suffered substantial injustice in not achieving any extensions of time within which to complete the Work Order, but none of the proposed grounds of appeal are sufficiently strong to warrant a grant of leave.

8. [79]

   I also consider that proposed Ground 1 is flawed because it does not take into account the way in which the case was conducted before the Appeal Panel. As is evident from the lengthy summary above of the proceedings in both NCAT and the Appeal Panel, EOT #5 attracted little if any real attention by the parties. It was well open to the Appeal Panel to approach the matter in the way that it did, namely by proceeding on the basis that it was open to address variations, including that relating to EOT #5, on a global rather than individual basis. The Appeal Panel’s failure to make specific, explicit findings in respect of EOT #5 was not inconsistent with the parties’ approach. Moreover, although there are only a few express and passing references to EOT #5 itself in the body of the Appeal Panel’s reasons, for the reasons set out at [71] above, I consider that the Appeal Panel’s reasons at [255]–[257] (as set out at [70] above) should fairly be read as covering EOT #5.

9. [80]

   There can be no constructive failure to exercise jurisdiction where the decision-maker acts consistently with the way in which the parties presented their cases. EOT #5 was given only nominal attention by the parties in both their written and oral submissions before the Appeal Panel, as is evident from the detailed summary above.

10. [81]

    There is “an air of artificiality” surrounding proposed Ground 1, which is the expression used by Basten JA in Walshe v Prest [2005] NSWCA 333 at [19] (Giles JA and Campbell AJA agreeing). The air of artificiality relates to the Builder’s attempt, with the benefit of hindsight, to elevate the significance of EOT #5 notwithstanding its substantially muted treatment in both the parties’ argument and in the reasons of the Appeal Panel.

11. [82]

    The following observations of Mortimer J (as her Honour then was) in CPE15 v Minister for Immigration & Border Protection [2017] FCA 591 at [40] are apposite to proposed Ground 1 here. After referring with approval at [36] to SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; 317 ALR 365 at [75]–[82] per Griffiths J, Mortimer J said:

12. [83]

    An additional reason for refusing leave concerning EOT #5 relates to utility. The first point to note is that in EOT #5 (the terms of which are set out at [24] above), the Builder contended that it relied upon sub-cll 11(a)(iii) and (vii) of the Contract. Sub-clause (iii) relates to latent conditions affecting the site, the ability to carry out work or requiring work. Sub-clause (vii) relates to an instruction by the Owner to stop the works. Despite that bifurcated reliance on these two provisions in EOT #5 itself, the table in the Builder’s written outline of submissions dated 23 December 2024 before the Appeal Panel stated that the only reason why the Builder sought an additional seven business days / nine calendar days in respect of EOT #5 was “latent condition affecting site”. Mr Simone (who appeared for the Builder before me) confirmed that the Builder now placed no reliance on sub-cl (iii) regarding latent conditions and that the reference to that sub-clause in the Builder’s table was abandoned. In those circumstances, as Mr Horowitz (who appeared for the Owner) submitted, correctly, there would be no utility in remitting the matter to the Appeal Panel because the only basis for supporting EOT #5 as identified in the Builder’s 23 December 2024 submissions to the Appeal Panel was now abandoned.

13. [84]

    There is a further obstacle to the Builder obtaining leave to appeal in respect of EOT #5. It relates to the fact that the Builder claimed an additional seven business / working days in respect of EOT #5. Thus, if EOT #5 was remitted to the Appeal Panel, was upheld, and the Appeal Panel was required to determine what would be a reasonable extension time, it would need to grant an extension of time for several additional weeks and well in excess of the seven days identified in EOT #5, so as to avoid the Builder being in breach of the Work Order as at 21 January 2022. This uncertainty casts further doubt on the utility of granting leave.

14. [85]

    For the following reasons, I do not consider that these grounds truly relate to any question of law. Rather, they are properly characterised as raising questions of fact (or, at the very least, questions of mixed fact and law) for which there is no right of appeal to this Court, even with leave.

15. [86]

    EOTs #9–11 and 14–15 were considered by the Appeal Panel together, under the category reflecting cl 11(a)(v) of the Contract which relates to “Delays due to owners work being incomplete”. The Appeal Panel said at [223] that although it could not locate a copy of EOT #12 in the materials, it would determine that item as well under this category on the basis that EOT #12 was to the same effect as the Builder’s email at p 4007 of the Tender Bundle.

16. [87]

    The alleged errors the subject of proposed Grounds 2, 3 and 4 specifically relate to delays in the completion of the Owner’s AC Works. The AC Works included running air conditioning ducting in the void between the ceiling and the roof. The Owner was installing air conditioning as part of renovation works being carried out by it at the same time as the Builder was implementing the Work Order. The Builder contended below that it had a reasonable excuse for its failure to complete ceiling framing and sheeting work and close up the roof space because the Owner’s work on the air conditioning ducting was incomplete. The Appeal Panel dealt with this contention at [236(2)] (see at [68] above).

17. [88]

    The Builder submits that the Appeal Panel erred in finding that there was “no evidence as to how complete [air conditioning] ducting was necessary for the other work to proceed” and in failing to consider relevant evidence as to this issue. The Builder emphasises that:

18. [89]

    The Builder further submits that the Appeal Panel erred by embracing NCAT’s finding at first instance concerning the “air conditioning unit” in circumstances where NCAT had failed to determine any of the EOTs. The Builder also submits that NCAT’s finding referred to by the Appeal Panel did not relate to air conditioning ducting, but only to the air conditioning “unit”. The Builder contends that the unit itself had no relevance to the delays with the ceiling framing and sheeting works. The Builder claims in its summons that the Appeal Panel identified the wrong issue, asked itself the wrong question or “otherwise erred”.

19. [90]

    I am not satisfied that proposed Grounds 2, 3 and 4 relate to any question of law. Rather, in substance, they challenge the correctness or merits of the Appeal Panel’s fact finding, which falls outside the scope of s 83 of the CAT Act.

20. [91]

    The true character of these proposed grounds is revealed by the Builder’s challenge to the Appeal Panel’s finding at [236(2)] that there was “no evidence as to how complete [air conditioning] ducting was necessary for the other work to proceed”. That finding is quintessentially a finding of fact, not law.

21. [92]

    The Builder seized on the Appeal Panel’s reference in [236(2)] to “no evidence”, as though the use of that expression alone involved a question of law. I readily accept that, where there is no evidence to support a finding of fact, this may give rise to a question of law (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–6; [1990] HCA 33). But I do not accept the Builder’s reading of this part of the Appeal Panel’s reasons. The primary basis for the Appeal Panel’s rejection of the Builder’s case concerning the Owner’s failure to install air conditioning was its adoption of NCAT’s conclusion at [95] of its reasons (which is set out at [41] above). NCAT concluded that the air conditioning unit had been sufficiently installed to permit the Builder to pursue his works and it rejected Mr Dwyer’s claim that the Builder had been prevented from complying with the Work Order within a reasonable time because of the Owner’s failure to install the air conditioning unit.

22. [93]

    The Appeal Panel then turned its mind in [236(2)] to the specific issue of air conditioning ducting. It was in that particular context that the Appeal Panel stated that “we do not see and there is no evidence as to how complete ducting was necessary for the work to proceed”. Even if the Appeal Panel erred in stating that there was no evidence on that issue (where the Builder had in fact adduced such evidence, as to which see at [88] above), that error would be one of fact, not law.

23. [94]

    Furthermore, even if I am wrong in my characterisation of the Appeal Panel’s statements in [236(2)] as relating to questions of fact and not law, I see no utility in granting leave to appeal on this matter. That is for two reasons. First, there was in fact conflicting evidence before the Appeal Panel on whether installation of the ducting was holding up the Builder’s work (see the summary of the Builder’s evidence at [88] and the summary of the Owner’s evidence outlined at [42]–[44] above). This is not a case of all the evidence pointing one way such that a successful outcome on remitter is assured insofar as EOT #10 is concerned.

24. [95]

    Secondly, even if the Builder succeeded on this issue on a remitter, there is the obstacle created by the fact that, in EOT #10 itself, only an additional five business / working days were sought to be added to the Construction Period insofar as the Owner’s alleged failure to complete air conditioning works is concerned (noting that EOT #10 contained eight separate items for which a five day extension was sought, giving rise to the 40 business days / 56 calendar days specified in the table at [27] above). The same additional period of five business / working days in respect of the air conditioning item in each of EOTs #9, 11, 13, 14 and 15 was sought by the Builder. Even if those five business / working days were cumulated across all those EOTs together with EOT #10 and also recognising that, on the Builder’s case, the Appeal Panel would need to determine what is a reasonable period, there is considerable uncertainty whether the Appeal Panel would view the air conditioning ducting issue as warranting such a lengthy extension of time as to avoid the Builder being in breach of the Work Order as at 21 January 2022, which is the Builder’s abiding objective.

25. [96]

    The Builder also contends that the Appeal Panel identified the wrong issue, asked the wrong question or took into account an irrelevant consideration when it adopted the Tribunal’s finding at first instance that there was “little substantive evidence to support [Mr Dwyer’s] assertion that the Owner’s failure to install the air conditioning unit prevented the Builder from complying with the Work Order”. As noted above at [68], the Appeal Panel said at [236(2)] that it saw no reason to disagree with that finding. It then added in response to the suggestion that the air conditioning ducting was incomplete that, even if that were so, there was no evidence as to how complete ducting was necessary for the other work to proceed, with the consequence that cl 11(a)(v) did not apply. These matters all relate to the Appeal Panel’s fact finding and not to any question of law as required by s 83 of the CAT Act.

26. [97]

    The question of law raised by proposed Ground 5 is identified by the Builder in its written submissions as “whether the Tribunal has the power to make orders at all in the renewal proceeding”. I shall assume that the Builder’s reference to the “Tribunal” should be read as a reference to the Appeal Panel.

27. [98]

    The Builder accepts that the Court does not need to address this question, since “it likely first arises following the matter being remitted back to the Tribunal, and only if the Tribunal determines that the builder did not breach the Work Order.” Accordingly, proposed Ground 5 is no longer pressed by the Builder and need not be determined.

Conclusion

1. [99]

   For all these reasons, the summons filed 11 July 2025 will be dismissed, with costs. There is no need to determine the notice of contention. The stay dated 12 August 2025 will be discharged.