Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218
• Hearing dates: 19 May 2011
• Decision date: 29 July 2011
• Before: Allsop P at [1], Giles JA at [59],; Basten JA at [144]

Decision

(1) Amended summons filed on 21 December 2010 dismissed.

(2) Applicants pay the respondent's costs including the costs of the summons seeking leave to appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL - Jurisdiction of District Court on appeal from Consumer Trader and Tenancy Tribunal - claim in the Tribunal against three defendants as parties to a contract - order against one defendant only - appeal to the District Court under s 67(1) Consumer Trader and Tenancy Tribunal Act 2001 (NSW) - District Court found that the proceedings in Tribunal had been on the basis that all three defendants were parties to contract - whether the Tribunal had decided a question with respect to a matter of law - (per Allsop P, Giles JA) there was an implicit decision that the Tribunal had fully exercised its jurisdiction - this was a decision on a question with respect to a matter of law - (per Basten JA) there had been no question in Tribunal as to disparate liability of defendants - there was no decision of a question with respect to a matter of law - District Court made an order against all three defendants - whether the District Court exceeded its jurisdiction in finding that all three defendants were parties to contract - (per Allsop P, Giles JA; Basten JA not considering) the District Court engaged in fact-finding beyond its jurisdiction - but the fact-finding was not material to the order it made.; WORDS AND PHRASES - "decision", "question": Consumer Trader and Tenancy Tribunal Act 2001, s 67(1).
• Legislation Cited: Consumer Trader and Tenancy Tribunal Act 2001 (NSW); Home Building Act 1989 (NSW)
• Cases Cited: B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2009) 74 NSWLR 481; Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150; (2008) 72 NSWLR 44; Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86; Chapman v Taylor [2005] NSWCA 11; (2005) Aust Contract Reports 90-206; The Craftsmen Restoration & Renovations Pty Ltd v Boland [2011] NSWCA 147; Custom Credit Corporation Ltd v Commercial Tribunal (NSW) (1993) 32 NSWLR 489; Dayeian v Davidson [2010] NSWCA 42; (2010) 76 NSWLR 512; Goodwin v Commissioner of Police [2010] NSWCA 239; Grygiel v Baine [2005] NSWCA 218; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292; Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312; Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390; Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720; Muldoon v Church of England [2011] NSWCA 46; Scicluna v New South Wales Land and Housing Corporation [2008] NSWCA 277; (2008) 72 NSWLR 674; Smith v Collings Homes Pty Ltd [2004] NSWCA 75; Sullivan v St George Community Housing Ltd [2010] NSWCA 248; Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230; Wal-Mart Stores Inc v Dukes 131 S Ct 2541; 564 US...; 79 USLW 4527 (2011).
• Category: Principal judgment
• Parties: Ruban Edyp - First Appellant; Sonja Baumung - Second Appellant; R & S Healthy Living Pty Ltd - Third Appellant; Brazbuild Pty Ltd - Respondent
• Representation: M Condon - Appellants; J J Garnsey QC & D J Hand - Respondent; McLaughlin & Riordan - Appellants; Coastal Law & Conveyancing, Coffs Harbour - Respondent
• File Number(s): CA 2009/32769

Decision under appeal

• Date of Decision: 2009-12-02 00:00:00
• Before: Balla DCJ
• File Number(s): DC 2324/09

Judgment

1 ALLSOP P: I have read the reasons of Giles JA and Basten JA. I agree with the orders proposed by Giles JA. I agree generally with the reasons of Giles JA, but would prefer to express my own reasons, though I will use as far as possible the facts as stated by Giles JA and not add unnecessary recitation. This case illustrates the difficulties involved in the construction and application of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the "CTTT Act"), s 67. Although, as I hope appears from these reasons, the basic structural approach to the application of s 67 can be viewed without too much complication.

2 Section 67 is, relevantly, in the following terms:

"(1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the District Court against the decision.

...

(3) After deciding the question the subject of such an appeal, the District Court may, unless it affirms the decision of the Tribunal on the question:

(a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or

(b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal.

(4) If such a rehearing is held, the Tribunal is not to proceed in a manner, or make an order or a decision, that is inconsistent with the decision of the District Court remitted to the Tribunal.

...

(7) If a rehearing is held, fresh evidence, or evidence in addition to or in substitution for the evidence on which the original decision was made, may be given on the rehearing.

(8) A reference in this section to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal."

The circumstances here

3 The circumstances are not complex - a contract for the construction of a house, the early termination of that contract by the owner found by the Tribunal (and not relevantly ever in contest thereafter) to be repudiatory and the award of damages to the builder. The Tribunal ordered the company R&S Healthy Living Pty Ltd ("Healthy Living") to pay to the builder, Brazbuild Pty Ltd ("Brazbuild") $46,184.44 by way of damages. There was no relevant contest thereafter about the liability of Healthy Living and the assessment of the quantum of that liability.

4 What then is the dispute about? The answer to this question is whether two individuals, Ruban Edyp and Sonja Baumung, should also have been held liable.

5 The builder sued three parties alleging that they were all parties to the contract: Healthy Living and its principals, Dr Edyp and Ms Baumung. All three were parties to the Tribunal proceedings. There was no dispute in the District Court or in this Court that all three were parties to the proceedings in the Tribunal. In argument in this Court and in the District Court, there was a dispute about what were the issues for disposition in the Tribunal. In the District Court and in this Court the builder asserted that there was no issue in the Tribunal about all three being parties to the contract - that there was no controversy placed before the Tribunal in which it was said that Dr Edyp and Ms Baumung were not contracting parties. Dr Edyp and Ms Baumung did not accept that either in the District Court or in this Court. In the District Court, they submitted that it was an issue for determination that was resolved by the Tribunal unfavourably to the builder. In this Court, they again submitted that it was an issue to be resolved in the Tribunal as to who were the parties to the building contract, but accepted that the issue was not resolved by the Tribunal.

6 Thus, in this Court, both sides accepted that on either view the Tribunal had constructively failed to exercise its jurisdiction: either because it failed to give effect to a concession central to the running of the case (that Dr Edyp and Ms Baumung were parties to the contract) or because it failed to address a live and central issue in the proceedings (as to who were the parties to the contract).

7 Such jurisdictional error could be analysed from the perspective of a failure to afford procedural fairness. That is not how any of the parties has approached the matter. No one seeks to invoke the Supreme Court Act 1970 (NSW), s 65 or s 69 to attack the decision of the Tribunal. Nothing further, therefore, needs to be said about this way of analysing the matter.

8 The structure of the litigation was as follows. In the Tribunal, the builder won against Healthy Living. He appealed under the CTTT Act to the District Court complaining of the failure to make orders against Dr Edyp and Ms Baumung. The jurisdictional prerequisites for such an appeal under s 67(1) are that "in respect of ... [the] ... proceedings, the Tribunal decides a question with respect to a matter of law". If a party is dissatisfied with "the decision", an appeal then lies "against the decision". The terms of s 67(8) are also important.

9 The primary judge considered that there was a decision contemplated by s 67(1), and such a question, and made orders that added the individuals to the Tribunal's orders making them each liable for the damages and costs. The primary judge considered that the decision was implied. Her Honour expressed herself as follows:

"Recent decisions of the Court of Appeal have confirmed that section 67 extends to implicit decisions made by the Tribunal. Accordingly the absence of reasoning and the failure to decide the issue of the liability of Ruban Edyp and Sonja Baumung falls within the scope of section 67 of the Act so that it is amenable to an appeal to this Court."

10 Dr Edyp and Ms Baumung filed a summons in this Court seeking leave to appeal under the District Court Act 1973 (NSW), s 127. No such appeal lies to this Court: Muldoon v Church of England [2011] NSWCA 46; Sullivan v St George Community Housing Ltd [2010] NSWCA 248; Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 94E (Gleeson CJ with whom Samuels JA, Priestley JA and Hope AJA agreed). The summons was amended to challenge the District Court decision under the Supreme Court Act , s 69. The basis for that claim was that the primary judge was said to have committed jurisdictional error or an error of law on the face of the record in concluding that there was a relevant decision on a question with respect to a matter of law and in embarking on a factual analysis and making factual findings without statutory authority.

11 Thus, if Dr Edyp and Ms Baumung are correct, they seek an order setting aside the District Court's orders, leaving in place the Tribunal's orders, which both sides agree were a product of jurisdictional error (though they disagree about the nature of that error). This result is said to flow from the limits of the CTTT Act, s 67, the absence of any application of the builder to the Tribunal to complete its jurisdictional task and the absence of any application in respect of the Tribunal determination under the Supreme Court Act , s 65 or s 69 for either mandamus or certiorari.

12 For the reasons below, the applicants' submissions should be rejected and the application under s 69 should be dismissed with costs.

The Tribunal's treatment of the controversy and its orders

13 It is first necessary to understand what the Tribunal decided. Giles JA has dealt with this. Nevertheless, for coherent explanation of my views, I need to deal with this central topic.

14 In due course, it will be necessary to discuss the meaning of the phrase "decides a question with respect to a matter of law" and, in particular, the extent to which one can identify an implied decision from the expression of reasons and from the orders of the Tribunal. First, however, it is necessary to examine what the Tribunal said and did in seeking to resolve the controversy.

15 The Tribunal's first sentence stated a fact about the parties to the contract:

"The respondent ('the builder') entered into a written contract with the applicant dated 28 March 2008 ('the contract') for the construction of a dwelling ('the works') in the sum of $705,189.97 including GST."

The first thing to be noted about this is that the builder was the applicant (not the respondent). That error seems thereafter to have been corrected, with subsequent references to the applicant being to the builder. This error may have been occasioned by reason of the fact that both sides made claims against the other, the Tribunal noting:

"Each party seeks damages from the other: the applicant from the respondent to compensate it for recovery of moneys spent and for expectation losses arising from the alleged non-performance of its side of the bargain by the respondent, the respondent to compensate for losses incurred by the alleged failure of the applicant to perform the contract, and/or the losses arising from the respondent's alleged reliance on (alleged) advice of the applicant on certain town planning issues."

16 The Tribunal first addressed the question as to who "bears liability for ending the contract". In dealing with this question the Tribunal dealt with four "heads of concern": (1) the alleged failure to proceed with building works within 20 working days; (2) the alleged requirement for personal supervision and on-site presence by Mr Brazel, a principal of the builder; (3) the amount of the deposit; and (4) the reliance by the "respondent" (referring to the owner interest) on advice given by the "applicant" (the builder). To the extent that each of the matters was said to be a ground justifying the termination of the contract by the owner interest, the Tribunal found in favour of the builder. This led to the Tribunal's conclusion on the questions of termination, repudiation and liability:

"Each party contends it was entitled to terminate the contract for breach of contract by the other, and did so.

Termination of contract is available for breach of an essential term of the contract. The respondent claims that the applicant has either breached one or more essential terms of the contract (above) or, although not specifically pleaded, has by misleading advice on planning issues led or encouraged the respondent to enter into, or alternatively to continue, a contract rendered impossible of delivering a building which could be used as a medical centre. Alternatively the respondent appears to contend that taken together the purported breaches, in sum, constitute a failure by the applicant to perform which was so significant that the respondent was entitled to 'cancel' the contract.

The Tribunal finds on the bases outlined separately above, that none of those contentions are valid. Rather, the Tribunal finds that the respondent in notifying the applicant on 6 October that the works were not to continue - apart from the retaining wall - repudiated the contract.

The Tribunal finds that in respect to ending the contract, the applicant complied with the provisions of the contract by giving appropriate notices leading to termination by the applicant on the grounds of repudiation.

Damages thus flow against the respondent."

17 The Tribunal then dealt with damages. It concluded as follows:

" Summary of damages payable to the applicant

Damages payable by the respondent are, in summary, as follows:

For applicant's expenditure $16,776.89 Organisation work 8,000.00

Loss of profits 56,667.05

Total damages $81,443.94

Minus amount already paid 35,259.50

Amount of this order $46,184.44

Orders accordingly." (Emphasis in original.)

18 The cover sheet of the Tribunal identified the applicant as Brazbuild and the respondent as Healthy Living. The orders recorded on the coversheet were:

"The respondent is to pay to the applicant the sum of $27,295.43 on or before 31 December 2008.

Costs are awarded to the applicant on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 ."

There was no formal dismissal of the cross-application that had been made in the names of Healthy Living, Dr Edyp and Ms Baumung. The underlying substance of that claim had been dealt with by the Tribunal in dealing with the fourth "head of concern", being the alleged reliance on advice given by the builder. In the Tribunal's reasons the following was said about this issue:

"The final plans were approved in late August 2006. The respondent knew they were for a dwelling. The respondent raises the fact that Mr Cooper of RDM enquired about the use for the building after that date and that that enquiry convinced the respondent the building would not be able to be used as a medical centre. It is very difficult to believe, and the Tribunal does not believe, that this was the first time the respondent's attention had been drawn to this reality given the respondent's previous relationship with RDM.

Doubts as to the respondent's truthfulness in respect to relying on the applicant's advice are further reinforced by the fact that the respondent says it would not have bought the land but for advice (on planning) from the applicant. Evidence however shows on the balance of probabilities that the respondent entered into a contract, presumably binding, to buy the land before the respondent had had any detailed discussions as to use with the applicant.

The Tribunal's finding on this allegation of what is in effect misleading and deceptive conduct, or a misrepresentation, leading to the entering into the contract, or confirming the contract, is that the allegation should be rejected."

19 These last cited passages seem to reflect a recognition that Dr Edyp and Ms Baumung were to be encompassed within the singular expression "the respondent".

20 The making of orders by the Tribunal occurred on 22 December 2008. The matter had been heard on 27 March and 3 November 2008. The reasons were dated 15 December 2008. Evidence was not put before the District Court or this Court as to the circumstances of the making of that order. The reasons of the primary judge in the District Court record that:

"On 22 December 2008 the Tribunal Member relevantly made the following Order (as amended):

' R & S Healthy Living Pty Ltd is to pay Brazbuild Pty Ltd the sum of $46,184.44 on or before 13 March 2009.' "

21 The amendment is to be understood as the insertion of the sum $46,184.44 conforming with the reasons of the Tribunal and correcting the order on the coversheet that had referred to $27,295.43. Crucially, however, the phrase "the respondent" was not now used (as it had been in the orders in the coversheet and in the body of the reasons), but rather Healthy Living was identified by name as the only person liable to pay Brazbuild.

22 No evidence was led in the District Court or this Court as to what materials were provided to the Tribunal for the purpose of the making of the order, in particular whether any draft was provided, or who provided it.

23 This Court was informed that two letters were sent to the Tribunal seeking to raise the form of the order. No response was said to have been received. No formal application was made by Brazbuild under the CTTT Act, s 50 or s 68.

The nature of a "decision" in s 67

24 The decision of the High Court in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 makes clear that the relevant decision for the purposes of s 67 may be implied. The joint judgment of Hayne J, Heydon J, Crennan J and Kiefel J at 418 [91] stated that:

"Whether there was no evidence to support a factual finding is a question of law, not a question of fact. The Tribunal's factual finding in this case, that the builder had served the two relevant claims for extension of time, necessarily depended upon its first accepting that there was evidence to support the finding . As Dixon CJ said in Gurnett v The Macquarie Stevedoring Co Pty Ltd [No 2] :

'... in the legal dichotomy between questions of fact and questions of law we place under the latter head a question whether there is sufficient evidence to submit to a jury in support of a cause of action. That is because it is a question for the court to decide and not for a tribunal of fact.'

A tribunal that decides a question of fact when there is 'no evidence' in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law. And in this case, for the reasons given by the primary judge, there was no evidence before the Tribunal, when it decided the separate question identified by the parties, upon which the Tribunal could find that the disputed notices had been served."

[First emphasis added, footnotes omitted.]

25 Their Honours had earlier in their reasons at 412 [69] posited the central question in the appeal as follows:

"Section 67(1) of the Tribunal Act permitted the appellants to appeal to the Supreme Court against the Tribunal's decision that there was material properly before the Tribunal which supported the conclusion that the disputed claims for extension of time had been served on the appellants. The conclusion that there was material of that kind, necessarily implicit in making the finding that the disputed claims had been served, was a decision with respect to a question of law."

[Emphasis added.]

26 Further, at 414 [78] of their reasons, their Honours said:

"... that there was no evidence that the builder had served the two critical claims for extension of time. (It will be recalled that the conclusion that those two claims for extension had been validly served was a necessary step in the Tribunal reaching its conclusion that the appellants had repudiated the contract.)"

[Emphasis added.]

27 Likewise, French CJ stated at 398 [23] that the right of appeal under s 67 is not limited to explicit decisions formulated in the proceedings, saying that s 67:

"... extends to decisions which were necessary steps in the Tribunal's reasoning, whether or not made explicit by the Tribunal."

[Emphasis added.]

28 The footnote to this passage in the reasons of French CJ referred to Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [47]; Scicluna v New South Wales Land and Housing Corporation [2008] NSWCA 277; 72 NSWLR 674 at 676 [3] and 685 [42]; Custom Credit Corporation Ltd v Commercial Tribunal (NSW) (1993) 32 NSWLR 489 at 492. These are some of the cases in this Court that have decided that "decision" for s 67 may be implied and need not be express. See also the decisions referred to by Giles JA. The importance of the joint judgment in Kostas , for present purposes, was its rejection of Basten JA's (and through our agreement, the Chief Justice's and my) view that, notwithstanding the recognition that some decisions could be implied to fall within s 67, there was an artificiality in discerning an implied decision in that case; or, as Basten JA put it in Kostas [2009] NSWCA 292 at [137]:

"... in suggesting that the Tribunal would ask itself whether there was evidence 'capable of' supporting a particular factual conclusion, as opposed to whether the assertion should be accepted".

29 The scope of what is an implied decision was stated by their Honours in the High Court in Kostas broadly and simply. To understand when a decision can be seen to be implied it is unnecessary to go beyond acceptance of the expressions of the matter by French CJ: "decisions which were necessary steps in the Tribunal's reasoning" (398 [23]); and by the plurality: "necessarily implicit in making the finding" (412 [69]); "necessary step in the Tribunal reaching its conclusion" (414 [78]); and "necessarily depended upon" (418 [91]). Once one recognises that the statutory language not only encompasses any express decision of the Tribunal, but also any implicit decision as broadly expressed as in the reasons of the High Court in Kostas , it follows that the decision may concern a question or matter not specifically addressed by the parties. French CJ in Kostas addressed this at 410 [59] and 397-398 [23] of his reasons. The plurality did not address this expressly; but support for the view that I have expressed can be taken from the absence in their Honours' reasons of any necessity that the decision (including an implied decision in the manner formulated by them) be addressed by the parties and the consequence of their expression of what is an implied decision.

30 This view is reinforced by the recognition that the Tribunal is, as French CJ said at 398 [23] of his reasons, one which can be constituted by non-lawyers and in which informality, expedition and inexpensiveness should be hallmarks. If an express or an implied decision is made on a question with respect to a matter of law the statute is satisfied. The words of the statute do not require it to have been adverted to or addressed by the parties.

31 That does not mean, however, that the point made by Handley JA in Smith v Collings Homes Pty Ltd [2004] NSWCA 75 at [61] that new points of law cannot be taken for the first time on appeal is necessarily wrong. Whether a so-called new point can be raised will depend, in significant part, on whether the point that hitherto had escaped the parties was part of an implied decision in the sense described by the High Court in Kostas . How the proceedings were run at the Tribunal will be relevant to this question.

32 To the extent that anything that I have said conflicts with earlier views expressed in this Court, such as by Bryson JA in Kalokerinos at [47] or by Basten JA in Kostas [130] that for there to be a decision there must be a decision on something which arose or was in issue or was debated in the proceedings, the reasons in Kostas in the High Court explicitly (French CJ) and implicitly (the plurality) are contrary to it.

33 Though s 67(1) first uses the word "decides" as a transitive verb, it also uses the abstract noun "decision". If the abstract noun is used, a preposition or prepositional phrase becomes necessary. "On" or "as to" suffice uncontroversially. Thus, there needs to be identified a decision (express or implied) on a question with respect to a matter of law.

34 Broadly speaking, the statutory purpose in s 67 is to confer the jurisdiction to hear appeals, but limit those appeals, through the words used, to legal (and not factual) questions. I would not depart, unless required to do so by a decision of the High Court, from the meaning of the prepositional phrase "with respect to" that commended itself to Spigelman CJ, Basten JA and myself in Kostas - that the words are words of limitation, not expansion. Though the reasons of French CJ in Kostas at 398-399 [24]-[25] are contrary to this proposition, the plurality did not address the question. This approach accords with the above limitation and the apparent division of function expressed by Parliament - that fact finding as to the merits of the substantive dispute was intended to remain the exclusive preserve of the Tribunal.

35 The essential first task in any appeal under s 67 is therefore to identify the express or implied decision on a question with respect to a matter of law. Without the existence or identification of such a decision, the District Court will have no authority or jurisdiction to review the decision of the Tribunal. The relevant decision will have a clear relationship with any asserted "error of law". Though "error of law" is not the expression of the jurisdictional discrimen, it is centrally relevant for at least three reasons. First, the statute provides for an "appeal". As a matter of language and legal taxonomy, it can be accepted that the function of an appeal is to remedy the consequences of relevant error. Secondly, it is the "dissatisfaction" of the party with the decision that is to be remedied by the appeal process. Dissatisfaction implies that the party has a complaint about the decision which must carry with it the notion that the decision is said to be relevantly wrong. Thirdly, it is a decision on a question (implying an answer) about which there is to be dissatisfaction.

36 One will thus be assisted in identifying the relevant decision (express or implied) by understanding the question, the answer and the error that was posed, answered or said to have been made by the Tribunal. Given the width of the notion of decision (express or implied) there may be more than one decision involved or the relevant decision may be able to be expressed at different levels of abstraction. Once the relevant decision or decisions is or are identified, for there to be an appeal legitimately founded in the District Court that decision (or one of them) must satisfy the description as one on "a question with respect to a matter of law". The process is illustrated by Kostas . There, the Tribunal found a fact. The relevant error was finding the fact in the absence of evidence. A necessary step in the reasoning in finding the fact was to conclude that there was evidence upon which the finding could be made; or, put another way, the finding necessarily depended upon there being some evidence to support it. Thus, the implied decision (or, more accurately, the implied question on which there was an implied decision) was whether there was any evidence to support the finding. That was a decision on a question with respect to a matter of law because the question whether there was any evidence to support a finding of fact was a question of law. There was error because the primary judge (Rothman J) and the High Court ( contra the Court of Appeal) found that there was no evidence to support the finding.

37 Whether in any given case there is a decision on a question with respect to a matter of law is not a matter of form or drafting. It is a matter of substance involving the characterisation of the decision, the question and the error. Understanding the error will be critical. This will involve an analysis of the reasoning and orders of the Tribunal.

38 A party is not free to construct, by careful drafting, an implied decision in order to transmogrify what is in substance a question of fact into one with respect to a matter of law. For instance, if a Tribunal finds that only A and not B or C, is the party to the contract because of a factual finding that B and C were not present at a meeting at which the contract was made, that cannot be reconstructed or transmogrified into a decision on a question with respect to a matter of law by simply recasting it as a decision on a question with respect to the legal liability of B and C. As a matter of substance and characterisation the only question (and so the only decision) was one of, and with respect to a matter of, fact. If there was an error it was one of fact about B and C's lack of participation in the events concerning the formation of the contract.

The application of s 67 and the approach of the District Court

39 The essential complaint of the builder here (the asserted error that gives rise to the builder's dissatisfaction about the decision of the Tribunal) was that in making the orders the Tribunal failed to take account of the fact that the matter proceeded before the Tribunal on the basis that all three defendants were parties to the contract.

40 The defendants in the District Court and the applicants here (Dr Edyp and Ms Baumung) contested that proposition. In the District Court the defendants submitted that the question of the parties to the contract was in issue before the Tribunal and that the Tribunal must be taken to have decided it adversely to the builder. In this Court, the applicants submitted the question of the parties was in issue before the Tribunal, but accepted that it had not been decided by the Tribunal.

41 Thus, it was common ground in this Court that the Tribunal had failed to decide all necessary questions tendered before it by the parties for decision; or, to put it another way, that the Tribunal had failed to complete its jurisdictional task and thus constructively failed to exercise its jurisdiction.

42 The applicants submitted that these errors did not, however, reflect or amount to a decision on a question with respect to a matter of law.

43 I disagree. There was such a decision, and such a question. The decision can be formulated as an implied decision that the Tribunal had decided all relevant questions or issues placed before it by the parties necessary to resolve the controversy and to make orders; or it can be expressed as an implied decision that the Tribunal had completed the jurisdictional task set for it by the statute and by reference to the controversy brought to it by the parties. In essence this is how the learned primary judge approached the matter: see [9] above.

44 That was a decision on a question of completion of the required legal task of adjudication, a question of the legal authority to make the orders in the form made. That is a decision on a question with respect to a matter of law. Alternatively, it can be phrased by reference to s 67(8): that there was a decision (implied) on a question (implied) with respect to a matter relating to the jurisdiction of the Tribunal.

45 To ascertain whether an error of law of that kind going to jurisdictional authority had been made, the District Court was obliged to resolve the contest put before it. The plaintiff said the Tribunal had failed to take account of an agreed position of the parties. The defendants denied that and said the issue had been decided. Thus the District Court was required to reach a view about how the proceedings before the Tribunal had been conducted. That involved it in finding facts about the conduct of the hearing. That task was necessary in order for the District Court to reach a conclusion whether there had been a failure to complete the statutory jurisdictional task.

46 The District Court undertook that factual inquiry and concluded that the matter had proceeded before the Tribunal on the basis that all three defendants were parties to the contract. This conclusion was in effect that the matter had proceeded before the Tribunal on the assumption or agreed position that all three defendants were parties to the contract.

47 That conclusion was sufficient for the District Court to conclude that there was a decision on a question with respect to a matter of law containing a relevant error - that the Tribunal had failed to give effect to what was in substance an agreed fact or an agreed position in reaching its conclusion and making orders as to liability necessary for the complete disposition of the controversy.

48 Once the District Court had concluded that the Tribunal proceedings had gone forward on the basis of all three defendants being parties to the contract there then arose for consideration the consequences of this conclusion. The primary judge dealt with these consequences at a part of her reasons immediately after finding how the case had proceeded before the Tribunal and after posing the decision under s 67 (see [9] above):

"I accept the submission made by the counsel for the plaintiff that there are only three possible explanations for the Tribunal failing to make Orders in relation to Ruban Edyp and Sonja Baumung.

It was not open to the Tribunal to find that Ruban Edyp and Sonja Baumung were not parties to the contract because the matter proceeded before the Tribunal on the basis that all three defendants were parties to the contract.

The two remaining possibilities are:

1. That, notwithstanding that they were parties to the contract, Ruban Edyp and Sonja Baumung were not severally, jointly or jointly and severally liable with R & S Healthy Living Pty Ltd for its breach of the contract.

2. That it was not necessary for the Tribunal to decide whether Ruban Edyp and Sonja Baumung were so liable.

I accept the submission that both of these alternatives involved decisions of questions with respect to a matter of law - namely the liability of a party to a contract for its breach.

The Tribunal, in its Reasons, did not disclose any reason for its failure to make Orders in relation to the plaintiff's claim against Ruban Edyp and Sonja Baumung. It is accordingly not possible to determine which of the two issues was decided and in what way. I accept that the question must have been wrongly decided because:

1. In relation to the first alternative, counsel for the defendants conceded and I find that the contract provided for all three defendants to be jointly and severally liable for the breaches sued upon in the proceedings. Accordingly if the Tribunal Member decided that Ruban Edyp and Sonja Baumung were not severally, jointly or jointly and severally liable with R & S Healthy Living Pty Ltd for its breach of the contract, he made an error of law.

2. In relation to the second alternative, Ruban Edyp and Sonja Baumung had a liability under the contract and it was necessary for the Tribunal to determine that liability."

49 This expression of the matter was, without any intended disrespect, not entirely clear. It would have been enough to say (and in substance it was what can be taken as intended) the following. First, that, as counsel for the defendants effectively conceded before the primary judge, if the defendants were parties to the contract (as the primary judge found the agreed position to have been before the Tribunal), there was no basis to differentiate between the parties to the contract as to any liability for its breach. Secondly, the jurisdictional task required the necessary conclusion to be drawn from the position of the defendants as parties to the contract.

50 The primary judge then recognised the effect of s 67(3), saying:

"Section 67 permits this Court, unless it affirms the decision of the Tribunal on the question, to make such Order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal."

51 At this point, it would have been sufficient for the primary judge to make such order in relation to the proceedings as, in her opinion, should have been made by the Tribunal, if the Tribunal had recognised how the proceedings had been conducted before it. In accordance with her Honour's earlier reasoning that not giving effect to what was in effect an agreed position by making the defendants equally liable for breach was without any foundation (and thus would involve an error of law itself) the primary judge could have made the orders she did without any further reasoning. Those orders were relevantly as follows:

"...

3. The plaintiff's Appeal is allowed.

4. Order 1 of the Tribunal below, made in proceedings HB07/19712, as varied on 4 March 2009, be further varied by:

a. After the words 'R&S Healthy Living Pty Ltd', adding 'Ruban Edyp and Sonja Baumung'; and

b. Deleting therefrom 'on or before 13 March 2009.'

5. Order 2 of the Tribunal below, made in proceedings HB 07/19712, as varied on 4 March 2009, be further varied by deleting therefrom the words 'costs are awarded' and inserting in lieu thereof the words, 'The Respondents are ordered to pay costs'.

6. The defendants are to pay the plaintiff's costs of this appeal."

(The varied costs orders followed necessarily without any further factual enquiry or finding.)

52 The primary judge, however, added the following paragraph:

"I am persuaded in these proceedings it is appropriate to make such an Order rather than remitting the matter back to the Tribunal for redetermination. I find that the first and second defendants were parties to the contract. They are named as two of the three owners in the signed building contract. As I have found, as parties to the contract, they were jointly and severally liable with the third defendant. In any event, counsel for the defendants did not suggest in his submissions in this Court that any different considerations would apply to the assessment of damages as against those two defendants."

53 If these findings were to be seen to be necessary before any orders were made, the primary judge did not have authority to make them to the extent that they depended on additional findings of fact. It was not the primary judge's task to make findings about who were the parties to the contract, unless such a conclusion could be reached solely by reference to a matter of law, for example, by construing a document or by concluding, as she did, that it had been effectively an agreed position before the Tribunal. The decisions in The Craftsmen Restoration & Renovations Pty Ltd v Boland [2011] NSWCA 147 and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; 74 NSWLR 481 are contrary to provisions such as s 67(3) being construed to contain authorisation to find facts once the legal error is revealed, for reasons of perceived convenience in making orders under s 67(3).

54 The paragraph in question was, however, unnecessary. The entitlement to make the orders flowed from the finding that the Tribunal had failed to take into account and act on what was in effect an agreement between the parties in the conduct by the parties of the Tribunal hearing and that the only possible consequence of giving effect to the common position of the parties would have been to conclude that Dr Edyp and Ms Baumung were liable together with Healthy Living for breach of contract. Thus, to the extent that the fact finding in the paragraph was unauthorised it cannot be seen as operative error. The orders can be supported by her Honour's earlier reasoning.

55 There was no operative error of law of the District Court whether jurisdictional or on the face of the record.

56 Here, the error of the Tribunal, giving rise to the dissatisfaction of the builder, was that the Tribunal failed to give effect to a centrally important common position of the parties.

Summary

57 Whether or not a decision on a question with respect to a matter of law exists will generally be discerned from the nature of the asserted error giving rise to the plaintiff's dissatisfaction. From the error, the question and decision will be identifiable. Each of the question and decision may be express (or implied in the way described by the High Court in Kostas ). Here, the error of the Tribunal, giving rise to the dissatisfaction of the builder, was that the Tribunal failed to give effect to a centrally important common position of the parties. The (implied) decision was that the Tribunal had resolved all relevant questions or issues placed before it by the parties necessary to resolve the controversy and to make orders. That way of looking at the matter reflected the substance of the builder's complaints. It was, in substance, a decision on a question with respect to a matter of law. Subsection 67(1) was engaged, as was sub-s 67(8).

Orders

58 For these reasons, I agree with the orders proposed by Giles JA.

59 GILES JA : The Consumer Trader and Tenancy Tribunal ("the Tribunal"), ordered that R & S Healthy Living Pty Ltd ("Healthy Living") pay damages and costs to Brazbuild Pty Ltd ("Brazbuild"). On appeal by Brazbuild to the District Court, the Tribunal's orders were varied whereby Dr Ruban Edyp and Ms Sonja Baumung were also ordered to pay the damages and costs.

60 Dr Edyp and Ms Baumung applied in this Court for relief pursuant to s 69 of the Supreme Court Act , 1970, on the ground of jurisdictional error or error of law on the face of the record in the District Court. They contended that the Tribunal had not relevantly "decide[d] a question with respect to a matter of law", as required by s 67(1) of the Consumer Trader and Tenancy Tribunal Act 2001 ("the Act") for an appeal to the District Court, so that the District Court had no jurisdiction to hear the appeal; and further, that if the District Court had jurisdiction it exceeded that jurisdiction by making findings beyond deciding the question the subject of the appeal whereby it varied the Tribunal's orders.

61 For the reasons which follow -

(a) the District Court had jurisdiction to hear the appeal; and

(b) although it exceeded its jurisdiction making the findings, its error in that respect was not material.

62 The application should be dismissed with costs.

Background

63 Dr Edyp and Ms Baumung were directors of Healthy Living. Healthy Living owned land at Coffs Harbour. A contract dated 28 March 2006 was executed for the construction on the land of a surgery and dwelling. The contract was expressed to be between Brazbuild as builder and Dr Edyp, Ms Baumung and Healthy Living as owner.

64 Building work commenced, but before substantial work had been performed disputes arose. In October 2006 Ms Baumung told Mr Brazel of Brazbuild that the contract was "cancelled". Acting under a term of the contract, Brazbuild gave notice treating this as a substantial breach by the owner and requiring rectification of the breach and in January 2007 gave notice terminating the contract.

65 In the proceedings which followed, it was common ground that the contract had come to an end.

The proceedings in the Tribunal

66 In April 2007 Brazbuild brought an application in the Tribunal claiming damages for breach of contract. It alleged a contract between it as builder and Dr Edyp, Ms Baumung and Healthy Living as owner, and that the owner had breached the contract and it (Brazbuild) had duly terminated the contract. It claimed damages for wasted expenditure and loss of profits. All three of Dr Edyp, Ms Baumung and Healthy Living were named as respondents. An amended application filed in June 2007, in which the damages claim was modified, similarly named them as respondents.

67 In March 2008 Dr Edyp, Ms Baumung and Healthy Living brought a cross-application against Brazbuild in the Tribunal. They claimed an order that they did not have to pay Brazbuild the damages it claimed and recovery of money paid to Brazbuild. Although without an amended application, as presented in the Tribunal this became a claim to damages for breach of contract and for misleading advice.

68 The applications were heard together. In reasons published on 15 December 2008 the Tribunal (Sainsbury M) found that Brazbuild had not been in breach of contract; that there had not been reliance on the alleged misleading advice; and that Brazbuild had validly terminated the contract and was entitled to damages of $46,184.44 net of the deposit paid under the contract: Brazbuild Pty Ltd v R & S Healthy Living Pty Ltd [2008] NSWCTTT 1468.

69 The Tribunal's reasons began -

"The respondent ("the builder") entered into a written contract with the applicant dated 28 March 2008 ("the contract") for the construction of a dwelling ("the works") in the sum of $705,189.97 including GST. The principal of the applicant builder is Trevor Brazel ("Trevor"). The contract documents included: a standard form "building contract for new dwellings", Brazbuild Pty Ltd "quotation no. 68396" , drawings and a progress payment schedule. At some time later, the contract was terminated. It is common ground that termination occurred before any major work had commenced.

Each part seeks damages from the other: the applicant from the respondent to compensate it for recovery of moneys spent and for expectation losses arising from the alleged non-performance of its side of the bargain by the respondent, the respondent to compensate for losses incurred by the alleged failure of the applicant to perform the contract, and/or the losses arising from the respondent's alleged reliance on (alleged) advice of the applicant on certain town planning issues."

70 The first sentence in the reasons wrongly equated the respondent with the builder, but subsequent references to the applicant were plainly to the builder. The reasons throughout referred to "the respondent" in the singular, with corresponding references to "it" or "its" as grammar required. After the opening mention of entry into a contract, there was no consideration in the reasons of the identity of the party or parties contracting as owner or of who comprised the respondent.

71 On the cover page of the reasons Brazbuild was named as applicant and Healthy Living alone was named as respondent. The reasons concluded with a summary of damages payable by the respondent and "Orders accordingly". There were orders on the cover page: they read -

"The respondent is to pay the applicant the sum of $27,295.43 on or before 31 December 2008.

Costs are awarded to the applicant on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004."

72 On the face of the reasons, including the cover sheet, it was as if Healthy Living alone had contracted with Brazbuild, and was the respondent to Brazbuild's application and the cross-applicant in the Tribunal. The cover sheet was wrong, but provided a dictionary for the references to the respondent in the reasons and the order. The use of "the respondent" in the singular in the reasons appeared to be intentional reference to Healthy Living alone, for example where the Tribunal spoke of "Ms Baumung for the respondent" saying that the contract was cancelled, of "the respondent, effectively a partnership of two persons ... ", and of "the respondent enter[ing] into a contract ... to buy the [Coffs Harbour] land".

73 The usage was inappropriate where the Tribunal spoke of "the respondent's truthfulness in respect to relying on the applicant's advice" when rejecting reliance on Brazbuild's advice. The full passage shows that even in this respect Healthy Living alone was regarded as the cross-applicant -

"Doubts as to the respondent's truthfulness in respect to relying on the applicant's advice are further reinforced by the fact that the respondent says it would not have bought the land but for advice (on planning) from the applicant. Evidence however shows on the balance of probabilities that the respondent entered into a contract, presumably binding, to buy the land before the respondent had, had any detailed discussions as to use with the applicant.

The Tribunal's finding on this allegation of what is in effect misleading and deceptive conduct, or a misrepresentation leading to the entering into the contract, or confirming the contract, is that the allegation should be rejected."

74 In circumstances not revealed in the materials before the Court, but presumably involving the wrong amount in the original orders, in March 2009 amended orders were made -

"1. R & S Healthy Living Pty Ltd is to pay Brazbuild Pty Ltd the sum of $46,184.44 on or before 13 March 2009;

2. Costs are awarded to the Applicant on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004."

75 From the amended orders, it was clear that Healthy Living alone was regarded as the respondent and as the judgment debtor. No order was made dismissing Brazbuild's claim as against Dr Edyp and Ms Baumung, nor was an order made dismissing the claim of Dr Edyp, Ms Baumung and Healthy Living against Brazbuild although it had clearly been intended that the misleading advice claim be disposed of by the rejection of reliance on Brazbuild's advice.

The appeal to the District Court

76 Brazbuild appealed to the District Court pursuant to s 67 of the Act. Section 67 relevantly provided -

" 67 Appeal against decision of Tribunal with respect to matter of law

(1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the District Court against the decision.

...

(3) After deciding the question the subject of such an appeal, the District Court may, unless it affirms the decision of the Tribunal on the question:

(a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or

(b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal.

...

(8) A reference in this section to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. "

77 In its amended summons in the District Court, Brazbuild relied on the grounds -

"The Tribunal erred in deciding that Rhuban Edyp and Sonya Baumung [sic] (as parties to the contract in respect of which the Tribunal's decision was made):

(i) were not jointly and severally liable (with R & S Healthy Living Pty Ltd) for any breach thereof; alternatively

(ii) that it was not necessary to determine whether they were jointly and severally liable (with R & S Healthy Living Pty Ltd) for any breach."

78 Brazbuild claimed an order adding Dr Edyp and Ms Baumung to Healthy Living in the Tribunal's order for payment of $46,184.44, and ancillary orders.

79 The District Court (Balla DCJ) gave judgment on 2 December 2009. Her Honour allowed the appeal and made orders as sought by Brazbuild.

The reasons of the District Court

80 After a brief description of the circumstances, her Honour said that Brazbuild "says that the question of law arises from the Tribunal's failure to make any order as against the other two defendants Ruben Edyp and Sonja Baumung". Her Honour did not identify the question of law.

81 Under the heading, "Did the Tribunal expressly deal with the issue?", her Honour said that it was common ground that the Tribunal had not considered and decided the identity of the parties to the contract, or mentioned or explained why the order was made against "only one of the three defendants".

82 Under the heading, "Did the Tribunal impliedly deal with the issue?", her Honour then said -

"Counsel for the defendants submitted that it would have been clear to the Tribunal Member, when all of the evidence was taken into account, that the identity of the parties to the building contract was in issue and that it accordingly should be inferred that the Tribunal Member had decided that Ruban Edyp and Sonja Baumung were not parties to the contract with the plaintiff.

I do not accept this submission - that is that it must have been clear to the Tribunal Member that those two defendants asserted that they were not liable to the plaintiff because they were not a party to the relevant contract.

I have arrived at this conclusion for three reasons.

Firstly the factual matters relied on by counsel for the defendants as drawing the issue to the attention of the Tribunal are equivocal and none of them directly raise this as an issue. They are inferences counsel for the defendants sought to draw from wording in documents and the evidence. Further there is one document, their own Application filed in the Tribunal, in which they expressly include themselves as claimants against the plaintiff.

Secondly there is no evidence of this being an issue expressly addressed by the parties in the hearing before the Tribunal Member.

Lastly, there were two undisputed submissions to the Tribunal Member by counsel for the plaintiff to the effect that this was not an issue in the proceedings in the Tribunal."

83 Her Honour considered evidence of the materials before the Tribunal and the course of the proceedings in the Tribunal relevant to each of the three reasons. It is not necessary to detail the evidence or her Honour's consideration. The conclusion had been stated in the second paragraph of the passage last set out, and was re-stated (in slightly different terms) at the commencement of the passage next set out.

84 Her Honour then said, under the heading "Findings" -

"For these reasons I am not persuaded that there is any real basis on which it was reasonable for counsel for the defendants to have submitted that it would have been clear to the Tribunal that there was an issue in the proceedings as to the identity of the contracting parties.

Recent decisions of the Court of Appeal have confirmed that section 67 extends to implicit decisions made by the Tribunal. Accordingly the absence of reasoning and the failure to decide the issue of the liability of Ruban Edyp and Sonja Baumung falls within the scope of section 67 of the Act so that it is amenable to an appeal to this Court.

I accept the submission made by counsel for the plaintiff that there are only three possible explanations for the Tribunal failing to make Orders in relation to Ruban Edyp and Sonja Baumung.

It was not open to the Tribunal to find that Ruban Edyp and Sonja Baumung were not parties to the contract because the matter proceeded before the Tribunal on the basis that all three defendants were parties to the contract.

The two remaining possibilities are:

1. That notwithstanding that they were parties to the contract, Ruban Edyp and Sonja Baumung were not severally, jointly or jointly and severally liable with R & S Healthy Living Pty Ltd for its breach of the contract.

2. That it was not necessary for the Tribunal to decide whether Ruban Edyp and Sonja Baumung were so liable.

I accept the submission that both of these alternatives involved decisions of questions with respect to a matter of law - namely the liability of a party to a contract for its breach.

The Tribunal, in its Reasons, did not disclose any reason for its failure to make Orders in relation to the plaintiff's claim against Ruban Edyp and Sonja Baumung. It is accordingly not possible to determine which of the two issues was decided and in what way. I accept that the question must have been wrongly decided because:

1. In relation to the first alternative, counsel for the defendants conceded and I find that the contract provided for all three defendants to be jointly and severally liable for the breaches sued upon in the proceedings. Accordingly, if the Tribunal Member decided that Ruban Edyp and Sonja Baumung were not severally, jointly, or jointly and severally liable with R & S Healthy Living Pty Ltd for its breach of the contract, he made an error of law.

2. In relation to the second alternative, Ruban Edyp and Sonja Baumung had a liability under the contract and it was necessary for the Tribunal to determine that liability"

85 From the preceding consideration, the reference to the concession by counsel for Dr Edyp and Ms Baumung was to a concession in the proceedings in the Tribunal.

86 Her Honour then turned to the relief which she should grant. She said -

"Section 67 permits this Court, unless it affirms the decision of the Tribunal on the question, to make such Order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal.

I accept the submission made by counsel for the plaintiff that it is preferable for the expeditious disposal of proceedings to take this course when appropriate.

I am persuaded in these proceedings it is appropriate to make such an Order rather than remitting the matter back to the Tribunal for determination. I find that the first and second defendants were parties to the contract. They are named as two of the three owners in the signed building contract. As I have found, as parties to the contract, they were jointly and severally liable with the third defendant. In any event, counsel for the defendants did not suggest in his submissions in this Court that any different considerations would apply to the assessment of damages as against those two defendants."

87 It will be noted that at this point her Honour found that Dr Edyp and Ms Baumung were parties to the contract. That finding, as distinct from the finding that the matter had proceeded before the Tribunal on the basis that they were parties to the contract, had not previously been made. The apparent basis for the finding was simply that they were named as two of the three owners.

88 Her Honour then made the orders whereby Dr Edyp and Ms Baumung were ordered to pay the damages and costs together with Healthy Living.

The grounds of review in this Court

89 Dr Edyp and Ms Baumung relied on the grounds of review -

"1. Her Honour erred by finding at page 6 of her decision delivered on 2 December 2009 in case no 2324 of 2009, that "the failure [of the Tribunal Member] to decide the issue of liability of Ruban Edyp and Sonja Baumung" and "the absence of reasoning" [on the issue of liability of the abovenamed] constituted decisions of questions with respect to matters of law under Section 67(1) of the Consumer Trader and Tenancy Tribunal Act 2011 ("the Act").

2. Her Honour ought to have found that the Tribunal had made no decision concerning the question of whether the Appellants were parties to the contract with the Respondent.

3. Her Honour thus ought to have held that she had no jurisdiction pursuant to section 67 of the Act to determine the Respondent's application.

4. Further or in the alternative, her Honour erred by making the finding at page 6 of the decision delivered on 2 December 2009 that "it was not open to the Tribunal to find that Ruban Edyp and Sonja Baumung were not parties to the Contract because the matter proceeded before the Tribunal on the basis that all three Defendants were parties to the Contract" in circumstances where it was in issue at the Hearing before her Honour whether the hearing did proceed in the Tribunal on such a basis.

5. Her Honour erred by exceeding the jurisdiction granted to the Court under the Act by proceeding to make findings on issues in dispute between the parties and which were not questions with respect to a matter of law when dealing with the matter under Section 67(3) of the Act.

6. Her Honour erred by exceeding the jurisdiction granted to the Court under Section 67(3) of the Act by proceeding to determine issues in dispute between the parties and which were not questions with respect to a matter of law, and then making Orders giving effect [to] those reasons. In the further alternative, her Honour ought to have held it was not common ground between the parties before the Tribunal that the Appellants were parties to the relevant contract.

7. In that event, her Honour ought to have held that the question of who the parties to the relevant contract were did not involve a decision on a question with respect to a matter of law."

90 Grounds 1 to 4 were concerned with whether the District Court had jurisdiction to hear the appeal. Grounds 5 to 7 were concerned with whether the District Court exceeded its jurisdiction by making findings beyond deciding the question with respect to a matter of law.

Jurisdiction to hear the appeal

91 Having found that there was not an express decision, her Honour enquired after an implicit decision of the Tribunal. The reasoning appears to have been -

(a) The Tribunal did not expressly decide "the issue of the liability of Ruban Edyp and Sonja Baumung".

(b) There were three possible explanations for the Tribunal failing to find whether Dr Edyp and Ms Baumung were liable.

(c) As the first possibility, the Tribunal may have implicitly decided that Dr Edyp and Ms Baumung were not parties to the contract. If so, it erroneously decided a question with respect to a matter of law because it was not open to it so to decide when the matter proceeded before the Tribunal on the basis that all three of Dr Edyp, Ms Baumung and Healthy Living were parties to the contract. The finding that the matter had proceeded on that basis flowed from rejection of the submission that it would have been clear to the Tribunal that the identity of the contracting parties was in issue, made under the heading of implied dealing with that issue.

(d) As the second possibility, the Tribunal may have implicitly decided that, although Dr Edyp and Ms Baumung were parties to the contract, they were not liable together with Healthy Living for breach of contract. If so, it erroneously decided a question with respect to a matter of law because the contract provided for joint and several liability.

(e) As the third possibility, the Tribunal may have implicitly decided that, although Dr Edyp and Ms Baumung were parties to the contract, it was not necessary for it to determine whether they were liable together with Healthy Living for breach of contract. If so, it erroneously decided a question with respect to a matter of law because it was necessary for the Tribunal to determine their liability.

(f) These three alternatives exhausted the possibilities. Whichever was the case, there was error in deciding a question with respect to a matter of law.

92 Some of the grounds of review were not particularly apt. As to ground 1, her Honour did not decide that absence of reasoning was decision of a question with respect to a matter of law which enlivened an appeal under s 67. (I accept that the reference to absence of reasoning is rather obscure - I take her Honour to have meant that the absence of reasoning meant that she had to resort to the three possibilities). Further as to ground 1, her Honour did not decide that failure to decide the issue of the liability of Dr Edyp and Ms Baumung was itself a decision of a question with respect to a matter of law, although it underlay the third possibility. As to ground 4, the finding that the matter proceeded before the Tribunal on the basis that all three of Dr Edyp, Ms Baumung and Healthy Living were parties to the contract was part of her Honour's determination as to her jurisdiction, and it was open to her to make it for that purpose. The relevant ground of review was ground 3, understood as asserting jurisdictional error or error of law on the face of the record in finding that one or other of the three possible implicit decisions had been made.

93 The submissions on behalf of Dr Edyp and Ms Baumung scarcely engaged with her Honour's reasons. It was accepted that an implicit decision of a question with respect to a matter of law would suffice. But it was submitted that the Tribunal had simply overlooked the role of Dr Edyp and Ms Baumung as contracting parties, and had not decided anything about their being parties to the contract. It was submitted that the overlooking could not be corrected by an appeal; any relief lay through asking the Chairperson to have the proceedings in the Tribunal reheard pursuant to s 68 of the Act, or through judicial review of the Tribunal's decision unless excluded by s 65 of the Act.

94 A decision of a question with respect to a matter of law, as referred to in s 67(1) of the Act, may be implied or implicit and need not be express. In Smith v Collings Homes Pty Ltd [2004] NSWCA 75 at [60] Handley JA suggested that it was "arguable that the right of appeal extends to legal decisions where such a decision was necessarily made by the Tribunal but is not apparent on the face of the decision". The suggestion matured in a series of cases in this Court: Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [47] per Bryson JA, Santow JA agreeing; Chapman v Taylor [2005] NSWCA 11; (2005) Aust Contract Reports 90-206 at [33] per Hodgson JA, Beazley and Tobias JJA agreeing; Grygiel v Baine [2005] NSWCA 218 at [29] per Basten JA, Mason P agreeing; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [14] per Basten JA, Giles JA and Bergin J agreeing (on a slightly different form of words in s 90 of the Medical Practice Act 1992); Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150; (2008) 72 NSWLR 44 at [15] sqq per Tobias JA, Campbell JA agreeing, and at [42] per Campbell JA; Scicluna v New South Wales Land and Housing Corporation [2008] NSWCA 277; (2008) 72 NSWLR 674 at [3] per Basten JA and at [42] per Campbell JA, Hodgson JA agreeing; HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 at [26] per Allsop P and at [129]-[131] per Basten JA, Spigelman CJ relevantly agreeing.

95 Campbell JA, Basten and Macfarlan JJA agreeing, said in Dayeian v Davidson [2010] NSWCA 42; (2010) 76 NSWLR 512 at [36] in relation to s 67(8) of the Act that "it is still necessary for the Tribunal to decide a question with respect to the jurisdiction of the Tribunal" before the right of appeal is attracted (emphasis included). The same goes for other questions with respect to a matter of law. But the availability of an implied or implicit decision was recognised in the High Court in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390.

96 In Kostas v HIA Insurance Services Pty Ltd there was an issue in the Tribunal concerning service of two claims for extension of time (see in particular the reasons of French CJ at [42]-[45]). The Tribunal found that the claims had been served. Was there a decision of a question with respect to a matter of law?

97 In the joint judgment of Hayne, Heydon, Crennan and Kiefel JJ their Honours said at [69] that s 67 permitted an appeal against the Tribunal's decision that there was material properly before the Tribunal which supported the conclusion that the claims had been served, and that "[t]he conclusion that there was material of that kind, necessarily implicit in making the finding that the disputed claims had been served, was a decision with respect to a question of law". They referred at [78] to service of the claims being "a necessary step in the Tribunal's reaching its conclusion that the appellants had repudiated the contract".

98 Their Honours later observed that a taxonomy of the various expressions of appeal rights in some manner confined to errors of law was not useful, and (at [89]) that "[t]he language of the statute must be the relevant starting point". The language of s 67(1) requires a decision. Their Honours held that there was no evidence to support the Tribunal's finding, and that the Tribunal had made an error of law. It was accepted, then, that the Tribunal decided a question with respect to a matter of law, namely, whether there was any evidence to support the finding. Their Honours said at [91] that "[t]he Tribunal's factual finding in this case, that the builder had served the two relevant claims for extension of time, necessarily depended upon its first accepting that there was evidence to support the finding".

99 French CJ, in a passage which I later set out more fully, said at [23] that the right of appeal conferred by s 67 of the Act "extends to decision which were necessary steps in the Tribunal's reasoning, whether or not made explicit by the Tribunal". His Honour referred in a footnote to cases the first of which were Kalokerinos v HIA Insurance Services Pty Ltd and Scicluna v New South Wales Land and Housing Corporation.

100 The nature of an implied or implicit decision has been variously expressed: for example, one necessarily made; something which had to be decided in order to decide the proceedings; something required for the conclusion reached on a matter; something necessarily forming part of the decision-making process; and see HIA Insurance Services Pty Ltd v Kostas at [69], [78], [91] above. There has been some divergence in further expression of the nature such of a decision.

101 One view is conveniently found in the reasons of Basten JA in HIA Insurance Service Pty Ltd v Kostas at [129]-[131]. His Honour referred to Handley JA's observation in Smith v Collings Homes Pty Ltd at [61] that "the section prevents a new point of law being taken for the first time on appeal". Basten JA continued -

"129 ... In other words, it is not sufficient that a particular finding be underpinned by a legal principle; for there to have been a decision of the Tribunal in respect of that principle, there must have been an issue in dispute between the parties requiring resolution by the Tribunal.

130 With respect to matters as to which the Tribunal's reasons were silent, it will be necessary for an appellant to demonstrate that there was such an issue in dispute. Once that has been demonstrated, a further question arises, namely whether the Tribunal did in fact resolve the dispute, whether it treated the disputed matter as irrelevant or whether it simply overlooked the issue. If the Tribunal overlooked the issue, there may have been a failure to accord procedural fairness or a constructive failure to exercise jurisdiction: see eg, The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; 50 CLR 228 at 242-3 (Rich, Dixon and McTiernan JJ); Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ) and [81]-[88] (Kirby J). Such error may invalidate the decision, but may not constitute a decision of the Tribunal. To find an implied decision in such circumstances is to subvert the statutory limits of the appeal ...

131 There remains a question as to whether it is appropriate to imply in given circumstances that a particular dispute has been resolved by the Tribunal, sub silentio, because a decision expressly made necessarily involved the resolution of that disputed issue. Such a conclusion will be a matter to be established by an appellant seeking to invoke its statutory right of appeal."

102 This view had previously been exposed in Kalokerinos v HIA Insurance Services Pty Ltd , in which Bryson JA had said at [47] that "[a] decision on 'a question with respect to a matter of law' in s 67(1) must be a decision on something which arose or was in issue or was debated in the proceedings; something which had to be decided in order to dispose of the proceedings ... ". Paragraph [130] of HIA Insurance Service Pty Ltd v Kostas was cited by Campbell JA in Dayeian v Davidson at [37], with apparent acceptance although in that case there was no question of existence of an issue in dispute.

103 The other view can also be conveniently found in HIA Insurance Service Pty Ltd v Kostas , in Allsop P's qualifications of his agreement with the reasons of Basten JA. The President contemplated that there could be a decision on a question with respect to a matter of law although there had not been a relevant issue between the parties, saying -

"26 The second qualification is that the extent to which a decision on a question with respect to a matter of law is, and can be seen to be, implicit in a decision on the reasoning process of the Tribunal is not amenable to convenient definition. For instance, whether or not a finding is 'underpinned' by a legal question or whether an issue was in dispute, and the significance of the answers to such questions will often only be able to be illuminated with clarity by examination of the context and decision in question. For example, it would be possible for a decision to be made on a question with respect to a matter of law, even if the parties did not raise the issue. The lack of proffering of the issue by the parties may lead to other complaints, but it would not necessarily mean that a decision on a question with respect to a matter of law did not exist."

104 The divergence is material to the present case. On her Honour's finding, it was common ground in the Tribunal that all three of Dr Edyp, Ms Baumung and Healthy Living were parties to the contract as owner. There was not an issue as to the parties contracting as owner, although there was an issue as to the liability of the owner. If the explanation for the orders made by the Tribunal was that the Tribunal decided that Dr Edyp and Ms Baumung were not parties to the contract, there would undoubtedly have been a denial of procedural fairness, that was not an issue presented in the Tribunal but there would have been a decision on that question. The other two possibilities considered by her Honour were also unlikely to have been issues overtly presented in the Tribunal. As will appear, nor would the question with respect to a matter of law which in my view underpinned the District Court's jurisdiction.

105 Support for the view that a decision on a question with respect to a matter of law may be made although there was no overt issue can be seen in Kostas v HIA Insurance Services Pty Ltd .

106 I have referred to the reasons of the plurality. There is no indication that their Honours thought it necessary that the parties had been at issue concerning whether there was any evidence to support the finding that the claims had been served, as distinct from whether on the evidence the finding should be made. What their Honours said at [78] and [91] suggests a necessary step or dependence regardless of the parties' stances. It could be that an issue over whether a finding should be made includes whether there is any evidence to support it, but their Honours must have declined to accept what Basten JA had described in HIA Insurance Services Pty Ltd v Kostas at [137] as artificiality in "suggesting that the Tribunal would ask itself whether there was evidence capable of supporting a particular factual conclusion, as opposed to whether the assertion should be accepted".

107 French CJ at [59] accepted propositions one of which was, "The decision under appeal did not have to be a decision of a question expressly disputed before the Tribunal". His Honour did so "[f]or the reasons already given". I understand the relevant reasons, commencing with a reference to s 66 of the Act, to have been -

" [23] It is significant that s 66 not only provides for referral to the Supreme Court of a question which arises with respect to a matter of law but also empowers the Tribunal to decide such a question for itself. Referral logically requires formulation of a question. A decision of a question with respect to a matter of law by the Tribunal itself may be a decision of a question which it has expressly formulated, or it may be a decision implicit in a finding of the Tribunal. The right of appeal conferred by s 67 is therefore not limited to an appeal against explicit decisions of questions formulated in the proceedings. On its face it extends to decisions which were necessary steps in the Tribunal's reasoning, whether or not made explicit by the Tribunal. This construction of s 67 is compatible with the purpose, nature and composition of the Tribunal, which can be constituted by non-lawyer members. It is also compatible with a legislative scheme under which legal representation before the Tribunal will be the exception rather than the rule. The statutory objects of informality, expedition and inexpensiveness do not stop at the door of the Supreme Court." (footnote omitted)

108 I respectfully prefer the view that a decision may be made on a question with respect to a matter of law although the question was not raised between the parties.

109 Although the High Court did not think useful the taxonomy summarised by Basten JA in HIA Insurance Services Pty Ltd v Kostas at [84]-[87], common to the various forms of words in some manner restricting appeal to error of law is that fact-finding is for the Tribunal but legal error should be correctable. Legal error can arise when, indeed because, a question with respect to a matter of law is not raised between the parties, notwithstanding that it is necessary that it be determined for the tribunal to dispose of the proceedings before it. As French CJ indicated, absence of legal expertise in the Tribunal or the parties may mean that necessary matters of law are not recognised and not dealt with.

110 Unless the particular language otherwise requires, it should not matter that the legal error lies in studied decision of an overt question, in an unexpressed false assumption or misunderstanding as to a question, or in coming to a conclusion without attention to a question which must be determined. For example, in Kostas v HIA Insurance Services Pty Ltd the Tribunal's first acceptance that there was evidence to support its finding, to which the plurality referred at [91], was necessary whether or not the Tribunal turned its mind to whether there was any supporting evidence. The language of s 67(1) does not otherwise require, and this view of it better promotes the purpose of enabling legal error to be corrected while leaving factual matters to a Tribunal which is not necessarily constituted by a person with legal training.

111 When the matter proceeded before the Tribunal on the basis that all three of Dr Edyp, Ms Baumung and Healthy Living were parties to the contract, was there an erroneous decision on which the ultimate conclusion whereby Healthy Living alone was held liable to Brazbuild necessarily depended? The answer may not be obvious, and there may be more than one candidate or different ways of expressing the decision or levels at which the decision may be expressed. Once an erroneous decision has been identified, it must be asked whether it was a decision with respect to a matter of law - a factual decision will not do. This is an enquiry for the District Court, in order to ascertain its jurisdiction. It is not an unusual enquiry - a plea of issue estoppel requires an enquiry of broadly a similar kind.

112 By s 67(1) of the Act an appeal may be brought by "a party ... who is dissatisfied with the decision". The dissatisfaction is part of identifying the decision against which an appeal may be brought. The dissatisfaction is found in the party's statement of the decision in the process by which the appeal is brought.

113 Brazbuild stated alternative decisions, one that the Tribunal decided that Dr Edyp and Ms Baumung were not liable together with Healthy Living, and the other that the Tribunal decided that it was not necessary to determine whether Dr Edyp and Ms Baumung were liable together with Healthy Living.

114 Orders made only against Healthy Living could be explained by an implicit decision that Dr Edyp and Ms Baumung were not parties to the contract. The form of the reasons and cover sheet, as if Healthy Living alone had contracted with Brazbuild and was the respondent to Brazbuild's application, could suggest that explanation. A more likely explanation is that the role of Dr Edyp and Ms Baumung as contracting parties was overlooked, when as found in the District Court the matter proceeded in the Tribunal on the basis that all three of Dr Edyp, Ms Baumung and Healthy Living were parties to the contract. The overlooking does not mean that there was not a decision; it brought the implicit decision, necessary to the ultimate conclusion, that the Tribunal had completed its task. This is equivalent to the decision as stated by Brazbuild that it was not necessary to determine whether Dr Edyp and Ms Baumung were liable together with Healthy Living.

115 To the extent that there is artificiality, it is less artificial to see this as the implicit decision. The substance of the decision should be addressed, although it can be expressed in different ways. The decision was not on a matter on which the parties were at issue - it could not be suggested that one of the parties contended that the Tribunal should fail to complete the exercise of its jurisdiction to determine the controversy brought before it.

116 In Goodwin v Commissioner of Police [2010] NSWCA 239 it was held that the judge had erred in law in that, having identified questions of causation as central to the claim, her Honour had decided the case without determining answers to those questions, and that "[i]n doing so, she impliedly decided that it was not necessary to give answers" (at [43] per Basten JA, McColl JA and Sackville AJA relevantly agreeing). This also could have been expressed as an implicit decision that the task of deciding the case had been completed although the questions had not been answered. In the present case there was not an equivalent identification of central questions. The liability of Dr Edyp and Ms Baumung was nonetheless manifestly a matter for determination, whether by finding whether they were contracting parties or on the common ground that they were on which her Honour found the proceedings in the Tribunal had been conducted. There was a similar decision of a question with respect to a matter of law in the present case - a failure fully to exercise the Tribunal's jurisdiction in determining the controversy. Since Kostas v HIH Insurance Services Pty Ltd if not before it, any artificiality in attributing to the Tribunal a decision not fully to exercise its jurisdiction, should be accepted.

117 The decision was with respect to a matter of law. In Goodwin v Commissioner of Police the judge's error was described as "one of law, going to the jurisdiction of the Court", and the implied decision was held to be "a decision reached by the District Court on a point of law" (at [43]). The Tribunal failed fully to determine Brazbuild's application, and failed to fulfil the jurisdiction in law conferred on it and required to be exercised.

118 Although for reasons rather differing from those of her Honour, therefore, the District Court had jurisdiction to hear the appeal.

Excess of jurisdiction

119 In the appeal against the relevant decision stated by Brazbuild, the District Court had to decide whether or not the Tribunal erred in law in deciding that it was not necessary to determine the liability of Dr Edyp and Ms Baumung. As I have expressed it, the District Court had to decide whether or not the Tribunal erred in law in deciding that it had completed its jurisdictional task. This was "the question the subject of such an appeal" in s 67(3) of the Act.

120 Having decided the question the subject of the appeal, the District Court could act under s 67(3)(a) or s 67(3)(b). It could "make such order in relation to [the Tribunal proceedings] as, in [the District Court's] opinion, should have been made by the Tribunal" (s 67(3)(a)). Or it could remit its decision on the question to the Tribunal and order a rehearing of the proceedings (s 67(3)(b)), whereupon the Tribunal would complete the exercise of its jurisdiction.

121 The District Court did the former. In doing so, it found for itself that Dr Edyp and Ms Baumung were parties to the contract. That was not the question the subject of the appeal: indeed, Brazbuild's ground of appeal assumed that Dr Edyp and Ms Baumung were parties to the contract. Dr Edyp and Ms Baumung submitted that s 67(3)(a) did not empower her Honour to make the finding, and that there should have been remission for a rehearing.

122 The first limb of the submission should be accepted. The second should not, because her Honour's finding that the matter proceeded before the Tribunal on the basis that all three of Dr Edyp, Ms Baumung and Healthy Living were parties to the contract provided its own basis for the orders she made.

(a) Making the finding

123 Whether the power in s 67(3)(a) extends beyond an order on the basis of the Tribunal's fact-finding has not been finally determined.

124 Decisions on differently worded appeal provisions in some way confining appeal to error of law have generally been against the appellate court having such a power, see the review of many cases in B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2009) 74 NSWLR 481 at [61]-[78] per Allsop P and at [133][-[150] per Basten JA; see also The Craftsmen Restoration & Renovations Pty Ltd v Boland [2011] NSWCA 147 at [3]. It is necessary to distinguish between fact-finding by the appellate court for the purpose of deciding whether there has been the error of law and fact-finding by the appellate court once it has been determined that there was error of law, which the submissions for Dr Edyp and Ms Baumung did not do in their reliance on Kalokerinos v HIA Insurance Services Pty Ltd at [39]-[41] and Bahadori v Permanent Mortgages Pty Ltd at [26]. It does not matter in the present case, because the District Court did not make the finding that Dr Edyp and Ms Baumung were parties to the contract for the purpose of deciding whether there had been erroneous decision of a question with respect to a matter of law.

125 The language of s 67(3)(a) differs from that in, for example, s 32 of the (now repealed) Compensation Court Act 1984, in that it refers to making such an order in relation to the proceedings as the Tribunal should have made, rather than such order in relation to the appeal as the appellate court thinks fit. However, in B & L Linings Pty Ltd v Chief Commissioner of State Revenue there was reference to s 120(1) of the Administrative Decisions Tribunal Act 1997, which provided that the Supreme Court "is to hear the appeal and may make such orders as it thinks appropriate in the light of its decision". These are equally wide words. It was said by Allsop P at [78] that if it found error of law the Court "has no authority to engage in fact finding on the merits of the case"; see also at [137]-[139] per Basten JA.

126 More directly as to s 67(3)(a) of the Act, in HIA Insurance Service Pty Ltd v Kostas at [120] Basten JA observed (speaking generally rather than specifically as to s 67(3)) that there was no support for the proposition that this Court should engage in fact finding for itself. At that time appeals from the Tribunal went to the Supreme Court, not the District Court. In Kostas v HIA Insurance Services Pty Ltd at [30]-[32] French CJ said that his Honour's observation took inadequate account of s 75A of the Supreme Court Act . The possible role of s 75A had previously been discussed in, for example, Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230 at [94]-[102] per Spigelman CJ. The plurality in Kostas v HIA Insurance Services Pty Ltd found it unnecessary to express a view (at [88]). However, there is no equivalent to s 75A in the District Court Act 1973.

127 The structure of the provisions and the terms of s 67(3) are against the District Court having a general power to decide the proceedings which had been before the Tribunal. As earlier described, the District Court is concerned with a decision on a question with respect to a matter of law, and error in the decision is the question the subject of the appeal. The opening words of s 67(3), "After deciding the question the subject of such an appeal ... ", set the scene of a limited decision of a particular question by the District Court. There are then two alternatives. One applies where the District Court can translate its decision of the question into the order which should have been made by the Tribunal. The other applies when that can not be done, whereupon the proceedings are to be reheard by the Tribunal with the benefit of the District Court's decision on the question. That leaves fact-finding for the Tribunal, unless necessary for the District Court in determining whether it has jurisdiction, consistently with the initial confinement to appeal where there is dissatisfaction with decision of a question with respect to a matter of law.

128 Had it been no more than construction of the contract as executed, on the undisputed fact of the document, it may be that the District Court could have found that Dr Edyp and Ms Baumung were parties to the contract. Her Honour appears to have come to her finding in that way, because Dr Edyp and Ms Baumung were named as two of the three owners. But there was more to it.

129 The contract was in a standard HIA form. It annexed Brazbuild's quotation addressed to Dr Edyp, Ms Baumung and Healthy Living and a schedule of proposed progress payments. In particulars in the schedule it was said that the contract was between Dr Edyp, Ms Baumung and Healthy Living as owner and Brazbuild as builder. Dr Edyp, Ms Baumung and Healthy Living were named as owner on the cover sheet.

130 The execution did not fully accord with this. In the space for signature by "Owner 1" were the name of Healthy Living and Dr Edyp's signature on its behalf; in the space for signature by "Owner 2" were Ms Baumung's name and signature. There was no space for signature by an "Owner 3", and no such signature. The initialling on other pages was sometimes by Dr Edyp and not by Ms Baumung, but usually by both Dr Edyp and Ms Baumung. The schedule of proposed progress payments was signed by Dr Edyp as director of Healthy Living, and not by Ms Baumung.

131 There was some evidence before the Tribunal of communications prior to the execution of the contract, apart from the quotation, possibly material to the identity of the contracting parties.

132 In his statement dated 6 July 2007, Mr Brazel said that he provided a draft contract on 28 March 2006 and received a duly executed copy on 23 April 2006.

133 In her statement dated 9 August 2007, Ms Baumung said that at an early meeting Mr Brazel was told that Dr Edyp and she "will have everything in our company's name, R & S Healthy Living Pty Ltd", and later that Mr Brazel knew "from the very start" that their purpose was "to have a combined business from home dwelling". In a separate statement dated 12 August 2007 Dr Edyp affirmed Ms Baumung's statement as his "own version of the events related to the dispute".

134 A statement of Mr Brazel dated 7 February 2008 included, as a response to the combined business from home dwelling assertion -

"It was the owner who introduced R & S Healthy Living P/L to the deal, asking for it to be added to the contract after I had initially drafted the contract using the individual names of Mr Reuben Edyp [sic] and Ms Sonja Baumung. That is why R & S Healthy Living appears after the owner's names on page 1, Schedule 1, 'Particulars of contract'."

135 A statement by Dr Edyp dated 10 March 2008 appeared to take issue with this, saying that Mr Brazel had written "R & S Healthy Living" on the first drawings "right from the start", and that Mr Brazel filled out the contract including the name of Healthy Living and said, "This is the way it has to be filled out, you have to write your names, and under your names 'for and on behalf of R & S Healthy Living'."

136 A statement of Mr Brazel dated 20 March 2008 made an issue more apparent. He said that Healthy Living "was added to the contract at the owners [sic] request" and that they "requested that the owners be included in the contract".

137 Had the identity of the contracting parties been contested in the Tribunal, the partly non-conforming execution and this evidence could possibly have borne upon that matter. The case for Dr Edyp and Ms Baumung being parties to the contract was strong - perhaps that was why the proceedings in the Tribunal had proceeded on that basis - but the identity of the contracting parties was not a simple matter of construction of the contract as it had been executed.

138 The evidence before the Tribunal was put before the District Court. A finding in the District Court was similarly not a simple matter of construction of the contract as it had been executed: it involved fact-finding beyond the findings made by the Tribunal. Although the District Court did not address the further material, but apparently came to its finding because Dr Edyp and Ms Baumung were named as two of the three owners, it engaged in fact-finding beyond its jurisdiction.

(b) The basis for the orders

139 This can be simply stated. It was found in the District Court, for jurisdictional purposes, that the matter proceeded before the Tribunal on the basis that all three of Dr Edyp, Ms Baumung and Healthy Living were parties to the contract. The Tribunal's error was failing to complete the exercise of its jurisdiction. The order the Tribunal should have made in completing the exercise of its jurisdiction, on the basis aforementioned, was an order against all three of Dr Edyp, Ms Baumung and Healthy Living. No further fact-finding was necessary, and this fell within the mandate in s 67(3)(a) of the Act.

140 The District Court's excess of jurisdiction was not material to the result. Relief should be refused on discretionary grounds.

Addendum

141 I have read the reasons of Allsop P and Basten JA. I respectfully continue to differ from Basten JA, and suggest that a clear fundamental distinction between appeal under s 67 of the Act and judicial review under s 69 of the Supreme Court Act is difficult to maintain in the face of s 67(8). I consider that my reasoning is consistent with that of Allsop P, and commend as a practical approach what his Honour has said about identifying the alleged error and asking whether it was the subject of an express or implied decision of a question and whether the question was with respect to a matter of law.

Orders

142 Dr Edyp and Ms Baumung first filed a summons seeking leave to appeal from the decision of the District Court. No doubt realising that the appeal did not lie, they then amended the summons to claim relief by way of judicial review instead of relief by way of appeal.

143 I propose the orders -

(1) Amended summons filed on 21 December 2010 dismissed.

(2) Applicants pay the respondent's costs including the costs of the summons seeking leave to appeal.

144 BASTEN JA : This matter involved a dispute in relation to residential building work, as described in the Home Building Act 1989 (NSW). The contract was terminated before major building work was undertaken and the builder commenced proceedings in the Consumer, Trader and Tenancy Tribunal ("the Tribunal"), seeking damages for wasted expenditure and loss of profits. The builder identified the "owners" with whom it had contracted as a company, R & S Healthy Living Pty Ltd, and Dr Edyp and Ms Baumung, the applicants in this Court. The order of the Tribunal, as handed down on 22 December 2008, was in the following terms:

"R & S Healthy Living Pty Ltd is to pay Brazbuild Pty Ltd the sum of $46,184.44 on or before 13 March 2009."

145 The builder sought to have the order varied to include the applicants as parties obliged to pay the specified amount. Receiving no response to requests to the Tribunal to vary the order, the builder lodged an appeal in the District Court, pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the CTTT Act"). The only issue in the District Court concerned the failure of the Tribunal to include the applicants as parties responsible for making payment to the builder. The District Court granted the relief sought, holding the individuals liable for the judgment against their company in the Tribunal. The applicants seek to set aside that order as having been made in excess of the appellate jurisdiction of the District Court. In the absence of any application by the builder to invoke the supervisory jurisdiction of this Court, the application should be granted.

A limited statutory right of appeal

146 The outcome in this case turns on the scope of the appeal available to a party dissatisfied with a decision of the to the District Court, pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the CTTT Act "). An appeal is available against the decision of the Tribunal of "a question with respect to a matter of law".

147 As recently explained by four members of the US Supreme Court, "[a] 'question' is ordinarily understood to be '[a] subject or point open to controversy'. ... Thus a 'question' ... must be a dispute, either of fact or of law, the resolution of which will advance the determination of" the dispute between the parties: See Wal-Mart Stores Inc v Dukes 131 S Ct 2541; 564 US...; 79 USLW 4527 (2011), opinion of Ginsburg J, Breyer, Sotomayor and Kagan JJ joining at pp2-3. In this case, there was no "question", because the parties were agreed on the proper approach as to the liability of the individuals, if the "owners" were found liable, and there was, therefore, no decision.

148 It is not in doubt that if, as the District Court found, the proceedings were conducted in the Tribunal on the basis that if the company were liable, so were the applicants, in making an order which omitted the applicants, there was a constructive, if not an actual, failure, on the part of the Tribunal to exercise its jurisdiction according to law. There is also no doubt that the error could be remedied by an order made in this Court in the exercise of its supervisory jurisdiction with respect to the decision of the Tribunal. However, the respondent did not (and does not) seek such an order from this Court.

149 The point in issue is undoubtedly a procedural issue, the resolution of which may appear not to do justice between the parties. However, anxiety to do justice in the individual case, as reflected in the aphorism "hard cases make bad law", can have major repercussions beyond the circumstances of the individual case.

150 If s 67, properly construed, does not extend to the present case, to refuse the applicants relief will be to sanction the conferral on the District Court of a supervisory jurisdiction to grant relief in the nature of the prerogative writs, which was not contemplated by the legislature.

151 Once the District Court concluded that the dissatisfaction of the builder with respect to the order of the Tribunal did not involve a question in the sense of a dispute, nor was it a matter which the Tribunal decided, it should have refused relief.

Nature of "decision"

152 No one has suggested that the District Court had any jurisdiction in relation to an order of the Tribunal except in respect of an appeal against a "decision". However, the case-law in this Court has held for many years that the appellate jurisdiction extends to questions with respect to matters of law not expressly decided by the Tribunal, but "necessarily made", in order for the Tribunal to reach its decision: Smith v Collings Homes Pty Ltd [2004] NSWCA 75 at [60] (Handley JA). What that language potentially obscures is the statutory requirement that the Tribunal should have decided a "question" with respect to the matter of law against which an appeal may be brought. For example, a finding that a defendant breached a particular contractual obligation to a plaintiff necessarily involves the acceptance that there was a contract between the plaintiff and the defendant, which contained a particular term. In one sense, acceptance of those matters would have been necessary steps in reaching the conclusion as to breach. However, if there were no dispute as to the existence of the contract, nor as to its terms, these necessary elements of the conclusion did not involve "questions" which were decided by the Tribunal. Accordingly, they could not give rise to an appeal, not simply because they were new points of law (see Handley JA in Smith v Collings Homes at [61]) but because they had not been decided by the Tribunal.

153 The consequences of an expansive reading of s 67 are twofold. First, it has the potential to eliminate the distinction between rights of appeal with respect to a decision of a tribunal on a question of law and a right of appeal for error of law against a decision of a tribunal. The different statutory language has been recognised as significant in decisions of this Court with respect to a wide variety of State statutes, at least since 1982: Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720 at 722B (Hutley JA), 725-726 (Samuels JA) and 729B (Mahoney JA); see generally authorities discussed in B&L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 ; 74 NSWLR 481 at [47]-[53] and [56]-[70] (Allsop P, Giles JA and I agreeing). Secondly, a broad reading of s 67 has the potential to undermine the distinction between appellate review and the exercise of the supervisory jurisdiction of the Supreme Court. Where the appellate jurisdiction is not vested in the Supreme Court but in the District Court, this has significant ramifications for the administration of justice in the State.

154 Neither of these considerations necessarily leads to a particular construction of s 67: they do, however, require a court to be conscious of the broader ramifications of any particular construction for the administration of justice in this State. Nor is it intended to imply that there is any watertight distinction between appellate and other forms of review. A right of appeal limited in some way to questions of law will inevitably overlap with review for relief in the nature of certiorari for error of law on the face of the record. The point is that, absent statutory direction, it should not be assumed that the jurisdictions are coterminous.

155 Further, an adequate understanding of the significance of the issues may not be sufficiently achieved by restraining the reasoning to that which is necessary to determine the particular case; it may be necessary to consider whether a particular approach can have significant consequences in other circumstances.

Errors of law

156 Turning to the first consideration, the work and the starting point of the consideration must be "[t]he language of the statute": Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [89] (Hayne, Heydon, Crennan and Kiefel JJ). As their Honours further noted, categorisation of different statutory provisions is not the "starting point" for such an analysis: ibid. Consistently with their Honours' approach, it is important to identify significant features of the language of the relevant statute, particularly where it differs from the language of appeal provisions in respect of other tribunals. Minor variations might be thought to have no effect on the outcome because the identified purpose of various statutory formulations was seen to be the same. However, where this Court has held (in judgments to which no challenge was made) that variation in legislative language was intended to achieve different effects, this Court must follow its earlier authorities. A line of authority in this Court prior to Kostas had established that a section in terms such as those of s 67 did not permit appeals in respect of any error of law affecting the judgment of the Tribunal.

157 If cases upholding a different approach in respect of such provisions had been overruled by the High Court, the course to be taken by this Court would be clear. Neither French CJ nor the plurality indicated that such an approach was required. By emphasising that the starting point of the exercise of statutory construction is the language of the statute, the joint judgment suggested some support for the distinctions currently drawn.

158 This Court might wish to reconsider earlier decisions. However, if not required to do so by High Court authority, it is doubtful whether it should undertake that course in a case where no party challenges the existing lines of authority and no party suggested that the joint judgment in Kostas required that course.

159 There are undoubtedly two views as to how the various statutes permitting appeals limited to questions of law should be approached. On one view, minor variations in wording do not indicate a legislative intention to adopt different bases of appeal. This approach would have the merit of simplicity and uniformity, although it would not avoid all the questions of construction which have arisen. The alternative approach requires the differences in language to be recognised and respected. So far, this approach has been adopted, on the basis that where a single legislature adopts different language for a similar purpose in different statutes, it should be taken to have intended the differences to have effect. Particularly is that so where uniformity of language is eschewed after court decisions (such as Histon and its progeny) holding differences in terminology to be significant, even though the reason for adopting different language in relation to different tribunals is obscure.

160 The present case turns on a somewhat different issue. It is whether a failure by the Tribunal to act in accordance with an agreed position adopted by the parties which involved no question, implied or otherwise (because there was no dispute tendered for resolution) and therefore involves no decision on such a question, would permit intervention by way of judicial review (which it clearly does), but also intervention on appeal (which is at least contestable). The answer to that question is not dictated by Kostas ; nor would any authority in this Court require that the appeal provision be given such a construction. Furthermore, as a matter of principle, there is good reason why it should not.

161 The reason of principle flows from the need to construe the provisions of Part 6 of the CTTT Act coherently: Kostas at [70]. Part 6 recognises the supervisory jurisdiction of this Court to grant relief by way of orders in the nature of prerogative writs: s 65(1). Section 65 limits the availability of such relief to the following circumstances:

(a) where the jurisdiction of the Tribunal was disputed and the Tribunal gave an erroneous ruling as to its jurisdiction, or refused or failed to give such a ruling;

(b) where the Tribunal made an order in the absence of jurisdiction, and

(c) where, in making an order, a party was denied procedural fairness.

162 Three aspects of s 65 should be noted. First, it recognises that where jurisdiction is asserted, the order of the Tribunal is not final and will be subject to review in the supervisory jurisdiction of this Court. Whether, in that respect, it seeks to limit the supervisory jurisdiction in a manner not compatible with the principles articulated in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531, need not be explored. It does, however, recognise that review for procedural unfairness is available.

163 Secondly, it encompasses rulings as to jurisdiction, where the matter has been put in issue (s 65(2)), and the making of "an order" without jurisdiction: s 65(3)(a). Putting to one side the question of prohibition prior to the Tribunal completing its proceedings, this language reflects the general principle in respect of prerogative relief (and especially certiorari), which requires an order affecting the rights of the parties as the subject matter for review. On the other hand, the language differs from that with respect to either the referral of a question of law to the Supreme Court (pursuant to s 66) or, where the question of law with respect to a matter of law is decided by the Tribunal, the right of appeal granted by s 67.

164 Thirdly, by the method of a privative clause, subject to exceptions, s 65 effectively precludes from the relief available under s 69 of the Supreme Court Act 1980 (NSW), review for error of law on the face of the record. That exclusion is not inconsistent with the constitutional limitation on the legislative power of the State identified in Kirk. The privative effect of s 65(1) is not said to be 'subject to this Part' but 'except as provided by this section'. At a time when an appeal was taken to the Supreme Court under s 67, it was necessary to give these provisions a construction which did not deprive the apparent purpose of s 65 of content.

165 Questions with respect to matters of law are dealt with in both ss 66 and 67. Section 66 envisages that a question with respect to a matter of law may arise in the course of proceedings and permits the Tribunal either to decide the question or to refer it to the Supreme Court for decision. (That provision was not amended in 2008 to permit referral to the District Court.) If it refers the question, the Tribunal must await the outcome of the decision of the Supreme Court and then proceed in a manner consistent with that decision: s 66(3)(c). Where it decides the question, the party dissatisfied with the answer may appeal pursuant to s 67; the powers of the Court are identified in s 67(3). In respect of both a referral and an appeal, a reference to "a matter of law" is said to include a reference to "a matter relating to the jurisdiction of the Tribunal": ss 66(5) and 67(8). This would seem, as noted by Spigelman CJ in Kostas in this Court, to allow a referral or an appeal with respect to any matter relating to the jurisdiction of the Tribunal, including a jurisdictional fact: see HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 at [6]. For an appeal, there must still be a decision of the Tribunal with respect to the matter, as required by s 67(1).

166 Reading ss 66 and 67 as part of the statutory scheme for determining questions of law, might cast doubt upon the conclusion that any question of law which formed a necessary step in reaching the conclusion of the Tribunal could be the subject matter of appeal, whether identified by the parties and the Tribunal or not. However, that line of reasoning is precluded by authority in this Court confirmed by the High Court in Kostas .

167 Of direct relevance to the determination of the present proceedings is the conclusion that the statutory scheme separately recognises the availability of judicial review and rights of appeal. Relief in the present case is clearly available by way of judicial review: there is no reason to rewrite the provision relating to appeals to provide review under that provision.

168 The reasoning so far has proceeded by reference to an analysis of the legislation as it stood prior to September 2008, when both judicial review and appellate review took place in the Supreme Court. The reasoning is not weakened by the transfer in September 2008 of the appellate jurisdiction to the District Court. Indeed, it would be surprising if the legislature had intended, by a side-wind, to confer jurisdiction to grant relief in the nature of prerogative writs, on the District Court, for a particular category of cases. Of course, such an intention might be inferred if there were prior authority in favour of that construction of s 67. Apart from the express statutory language of s 67(8), expanding the meaning of "matter of law" in a particular respect, as at September 2008, there was no such authority.

Conclusions

169 In order to determine whether the complaint made by the builder fell within the appellate jurisdiction, the primary judge was required to consider what had happened in the Tribunal. She determined, as a matter of fact, that the matter had proceeded in the Tribunal on the basis that, if the applicants' company were properly held liable for the payment claimed by the builder, the individuals would also be liable, as parties to the contract. There was, in other words, no question with respect to a matter of law raised in relation to the possibly disparate liability of the applicants and their company. There was, therefore, no question for the Tribunal to decide. To 'imply' the existence of a question would be to contradict the District Court's finding of fact. It is not appropriate to imply the existence of decision in the absence of a dispute, constructive or otherwise. Accordingly, the District Court should have dismissed the appeal.

170 One point remains. The builder could have invited this Court to refuse relief in the exercise of its discretion: it did not do so in its written submissions, but raised this matter at the end of oral argument: Tcpt p 37(30). The basis relied on appears to have been that it was the applicants' fault that the Tribunal fell into error. This point was raised belatedly and not adequately developed. The proffered basis is unpersuasive. On the reasoning set out above an order was made in the District Court without jurisdiction; it has not been acted on; it was originally challenged by a timely, but inappropriate appeal, there being no right of appeal in such a matter, but the procedure being corrected without unreasonable delay; futility was not asserted. No reason was given why the builder did not itself seek alternative relief. Although the substantial justice of the case might be thought to warrant withholding relief, that contention was never clearly put and, therefore not debated. Relief should not be withheld on a discretionary basis.

171 In upholding the appeal from the Tribunal, the District Court acted without jurisdiction and its decision should be set aside.

172 So far as the substantive obligations to pay money are concerned, the merits no doubt lie with the builder. Both parties have been entangled in a procedural thicket which has no doubt resulted in costs exceeding the amount in issue in the Tribunal. The builder could, at any time before the judgment of this Court, have, if it sought to do so, sought judicial review in this Court. It did not take that step.

173 Whether either party should be obliged to pay the other's costs of the present proceedings on the findings explained above, is a matter which need not be addressed, as this is a minority judgment.

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Decision last updated: 02 August 2011