OPES Lifestyle Homes Pty Ltd v KMA Concrete Constructions Pty Ltd

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: OPES Lifestyle Homes Pty Ltd v KMA Concrete Constructions Pty Ltd [2026] NSWCATAP 275 Hearing dates: 10 August 2026 Date of orders: 03 September 2026 Decision date: 03 September 2026 Jurisdiction: Appeal Panel Before: G Blake AM SC, Principal Member A Bell SC, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is otherwise dismissed. (3) The Appellant is to pay the costs of the appeal of the Respondent on the ordinary basis as agreed or assessed. Catchwords: APPEALS — Appeal on question of law – Scope of question of law APPEALS — Leave to appeal — Principles governing – Leave to appeal refused APPEALS – Whether appellant permitted to raise issues on appeal not raised at first instance – Principles – Certain issues not permitted to be raised Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 38, 80, 81, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), rr 38, 38A Home Building Act 1989 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 14 Cases Cited: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184 Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34; (2012) 188 LGERA 169 Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 73 Calin v The Greater Union Organisation Pty Ltd

(1991) 173 CLR 33; [1991] HCA 23 Collins v Urban [2014] NSWCATAP 17 Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 Edwards v Skyways Ltd [1964] 1 WLR 349 Hill v Forteng Ply Ltd [2019] FCAFC 105; (2019) 138 ACSR 344 Hungry Jack’s Pty Ltd v Fourtounas [2020] NSWCA 325 Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 Maygood Australia Pty Ltd v The Owners – Strata Plan No 85338 [2020] NSWCATAP 237 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 Park v Brothers [2005] HCA 73; (2005) 222 ALR 421 Sarai v N1 Loans Pty Ltd [2026] NSWCA 107 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Star Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2026] NSWCATAP 127 Suttor v Gundowda (1950) 81 CLR 418; [1950] HCA 35 Tesseract International Pty Ltd v Pascale Construction Pty Ltd (2021) 138 SASR 106; [2021] SASCA 8 The Owners - Strata Plan No 60182 v Bornzin [2019] NSWCATCD 30 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Upper Hunter County District v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429; [1968] HCA 8 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Yuen v Thom [2016] NSWCATAP

243 Texts Cited: JD Heydon, Heydon on Contract (2019, Thomson Reuters) Category: Principal judgment Parties: OPES Lifestyle Homes Pty Ltd (Appellant) KMA Concrete Constructions Pty Ltd (Respondent) Representation: Counsel: A Langshaw (Appellant) I Chatterjee (Respondent) Solicitors: HWLE Lawyers (Appellant) Michael Atkinson & Associates (Respondent) File Number(s): 2026/00103247 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 17 February 2026 Before: Dr K George, Senior Member File Number(s): 2024/00420211; 2025/00192562

REASONS FOR DECISION Overview This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal made on 17 February 2026 in two proceedings under the Home Building Act 1989 (NSW) between the builder, OPES Lifestyle Homes Pty Ltd (OPES), and its subcontractor, KMA Concrete Constructions Pty Ltd (KMA), relating to residential building work carried out on three parcels of land known as lots 4, 5 and 17 at Kellyville in New South Wales (the 17 February 2026 Decision). The Tribunal relevantly made a money order of $35,098.00 in favour of KMA representing the amount owing under varied contracts for the construction of concrete slabs on lots 4 and 5, otherwise dismissed the application of KMA and dismissed the application of OPES. In this appeal OPES has challenged the money order on two grounds: the Tribunal erred in concluding that the parties entered into a legally binding variation of their written contract for the carrying out of the concrete works because of one or more of uncertainty of the varied terms, the lack of consideration for the variation, and the lack of intention to create an immediately binding variation; the Tribunal erred in concluding that KMA had performed the works it completed in accordance with the terms of the varied contract. We have found that the Tribunal did not make the alleged errors. OPES did not raise the grounds of

lack of consideration for the variation and lack of intention to create an immediately binding variation before the Tribunal and should not be permitted to do so on appeal. The terms were sufficiently certain for there to be a legally binding variation. There was evidence that KMA had performed the works it completed in accordance with the terms of the varied contract. We have therefore refused leave to appeal, otherwise dismissed the appeal and made an order that OPES pay the costs of the appeal of KMA on the ordinary basis as agreed or assessed. Before dealing with each of these grounds in turn, we have summarised the background to the appeal, the relevant history of the appeal, and the jurisdiction and approach of the Appeal Panel. The background to the appeal The dealings between the parties OPES carries on a property development business, and its director is Medhat Eleisawy (Mr Eleisawy). In 2024, Mr Rabih Abdallah (Mr Abdallah) was employed as its Construction Manager. KMA carries on a general concreting business, and its directors are Matthew Smith (Mr Smith) and Kelly Smith (Ms Smith). Since October 2020, KMA has constructed 44 concrete slabs for OPES. On 4 May 2024, OPES and KMA entered into a written contract whereby KMA agreed to construct a concrete slab on each of lots 4, 5 and 17 for $32,263.00 inclusive of GST. Relevantly the contract for lots 4 and 5 (the Lot 4

Contract and the Lot 5 Contract respectively) included plans (the Contract Plans) as follows: the Lot 4 Contract: drawing no A2001 revision 02 described as “Lot 04 Floor Plan, Electrical/RCP”, which was issued for the construction certificate, is dated 20 December 2022 and depicts the following information: the boundary of the lot and the location of the lip of the kerb at an unspecified distance from the eastern boundary; a concrete slab with the levels for the house section (RL 71.850) and the garage section (RL 71.700) which is located closest to the eastern boundary between the northern end and the middle; the levels 585mm south from the northern end (RL 72.550), the middle (RL 72.180) and an unspecified distance from the southern end (RL 71.730) of the eastern boundary located approximately halfway between the boundary and the lip of the kerb; the Lot 5 Contract: drawing no A2003 revision 02 described as “Lot 04 Floor Plan, Electrical/RCP”, which was issued for the construction certificate, is dated 20 December 2022 and depicts the following information: the boundary of the lot and the location of the lip of the kerb at an unspecified distance from the eastern boundary; a concrete slab with the levels for the house section (RL 71.350) and the garage section (RL 71.200) which is located closest to the eastern boundary between the northern end and the middle; the levels

545mm south from the northern end (RL 72.550) and the middle (RL 72.180) of the eastern boundary located approximately halfway between the boundary and the lip of the kerb. On 30 May 2024, KMA issued its invoice to OPES for the works for lot 17. On 3 June 2024, KMA issued its separate invoice to OPES for the works for lots 4 and 5. OPES did not pay the balance of the invoices for lot 4 ($2,263.00) and lot 17 ($572.00), any of the invoice for lot 5 ($32,263.00) and an invoice for removal of rubbish ($660.00). OPES refused to pay the monies owing under the invoices for lots 4 and 5 because it alleged that the concrete slabs were defective because they were not constructed in accordance with the levels in the Contract Plans. KMA denied that the slabs for lots 4 and 5 were defective because they were constructed in accordance with an oral variation to the Lot 4 Contract and the Lot 5 Contract. This dispute resulted in the following two proceedings in the Consumer and Commercial Division of the Tribunal between the parties which were heard at the same time and with evidence in one being evidence in the other: proceedings 2024/00420211 in which KMA was the applicant and OPES was the respondent (the KMA CCD Proceedings); proceedings 2025/00192562 in which OPES was the applicant commenced and KMA was the respondent (the OPES CCD Proceedings). The KMA CCD Proceedings On 12 November

2024, Ms Smith commenced the KMA CCD Proceedings by lodging an Application in which she claimed an order for the payment of $36,816.22 for works carried out and completed at lots 4, 5 and 17. On 6 December 2024, the Tribunal made orders including orders joining KMA and removing Ms Smith as the applicant. On 9 April 2025, the Tribunal made orders including orders for the lodging of points of claim by KMA and points of defence by OPES. On 17 April 2025, KMA lodged its Points of Claim (the KMA Claim) which relevantly included the following allegation: “7. On 13 May 2024 the Agreement was varied whereby the slab heights on Lots 4 and 5 were to be constructed so that the garage finished floor level was constructed to the same height as the gutter. Particulars Oral conversation between Rabih Abdullah and Matthew Smith on 13 May 2024.” On 20 May 2025, OPES lodged its Points of Defence (the OPES Defence) which relevantly included the following response to the KMA Claim: “7 In relation to Paragraph 7 of the Claim, OPES: i. denies the allegation that an agreement was reached to vary slab heights and further says that KMA proceeded to vary the approved slab works and deviate from the design required by the Approved Drawings, without consent or approval; and ii. further says that, to the extent that KMA alleges that the works were done in accordance with a Variation to the Contract (which

is denied), that Variation rendered the Contract illegal, void and unenforceable. Particulars: Section 20(2) of the Design and Building Practitioners Act 2020 (NSW) (Act) makes it an offence for any variation works to be made to a regulated design in the absence of a design with the variation having been prepared by a registered design practitioner.” The OPES CCD Proceedings On 20 May 2025, OPES commenced the OPES CCD Proceedings by lodging the following documents: an Application in which it claimed an order for the payment of $175,351.00 for the cost of rectifying the defective works for lots 4 and 5, and the refund of moneys paid under the Lot 4 Contract; its Points of Cross-Claim (the OPES Claim) which relevantly included the following allegation: “7. At no relevant time were the Agreements varied or modified.” On 4 June 2025, KMA lodged its Points of Defence (the KMA Defence) which relevantly included the following response to the OPES Claim: “3. In response to paragraph 7 of the Points of Cross-Claim the Respondent: a. says that on 13 May 2024 the Lot 4 Agreement and Lot 5 Agreement were varied by the garage finished floor level was to be constructed at the height of the gutter. Particulars Oral conversation between Rabih Abdallah on behalf of the Applicant and Matthew Smith on behalf of the Respondent. b. otherwise deny the allegations.” The hearing on 2 February 2026 The

hearing of the two proceedings took place on 2 February 2026 before Senior Member Dr K George. There was an agreed statement of facts. The written evidence of the parties was contained in a Court Book which relevantly included the lay evidence of KMA comprising statements of Mr Smith and Ms Smith, and lay evidence of OPES comprising three statements of Mr Eleisawy and a statement of two other persons. Oral evidence was given by Mr Smith. There were written opening submissions and closing oral submissions. Mr Smith in his statement relevantly gave the following evidence: on 13 May 2024 at 9.27am, he sent the following text to Mr Abdallah: “Hey mate Lot 4 garage is about 800mm below the road and it has a 150mm step down into the garage I think it would be much better to so a 75mm step down into garage so the driveway is nicer as well?” on 13 May 2024 at 9.30am, Mr Abdallah sent the following text to him: “Hi Matt Let me review and I’ll get back to you.” (Punctuation errors in the original) later on 13 May 2024, after the text exchange, Mr Abdallah attended lot 4 and they had a conversation about both lot 4 and lot 5 to the following effect (the first 13 May 2024 Mr Smith/Abdallah conversation): “Mr Smith: “Why are these slabs so much lower than the road?” Mr Abdallah: “I don’t know.” Mr Smith: “Do you want to lift them up so the garage is a similar height to the gutter because

the slab is about 800 mm lower than the gutter at the moment and the driveways will be really steep. You will have a heap of extra soil to remove. That one is exactly the same.” (pointing to Lot 5). Mr Abdallah: “Leave it with me. I will get back to you.” (Punctuation errors in the original) about two hours later, Mr Abdallah told him words to the effect (the second 13 May 2024 Mr Smith/Abdallah conversation): “I’ve been given the go ahead to lift both slabs up.” the garage finished floor level for lots 4 and 5 was similar to the gutter height. Mr Eleisawy in his first statement relevantly gave the following evidence: in or around September/October 2024, he arranged for as built drawings to be prepared for lots 4 and 5 because KMA had constructed the concrete slabs at the wrong levels; he exhibited a document which is described as “Plan Showing Slab & Levels over Lot 4 & 5 in Proposed DP 271328” of Dichen Liu, Registered Surveyor, dated 28 October 2024 and recorded the following levels (the 28 October 2024 Liu Plan): lot 4: garage section (RL 72.72); lot 4: house section (RL 72.8); lot 5: garage section (RL 71.860; lot 5: house section (RL 71.94). Mr Smith in his oral testimony relevantly gave the following evidence: in cross-examination (Tcpt, 2 February 2026, pp 29-30): “388. Mr Langshaw: And so, raising the entire building by something in the order of 800 millimetres. You were the main person who might take advantage from that, because it would mean less benching work to be done, wouldn’t it?

389. Mr Smith: Yeah. … 392. Mr Langshaw: Can you answer my question Mr Smith. You didn’t have any conversation or suggest to Mr Abdullah any reduction in the contract price?

393. Mr Smith: No.” in re-examination (Tcpt, 2 February 2026, p 32): “434. Mr Chatterjee: You accepted that you received some benefit from not excavating down the 800 millimetres. Can you please identify to the Tribunal what that benefit was?

435. Mr Smith: Maybe, a couple hours less machine work, like digging it down.

436. Mr Chatterjee: Can you quantify that in terms of a dollar figure?

437. Mr Matthew Smith: I own my own excavator, but I had 4 or 5 guys there that day [unclear] perhaps $400 or $500.” OPES in its written opening submissions relevantly stated: “OPES’ Position on the Alleged Variation Instruction 35. In short, OPES says that: … (c) in the alternative, even if the Alleged Variation Instruction was given, KMA has: i. given no evidence and not identified the specific levels that it says it was directed to construct the slabs to pursuant to the Alleged Variation Instruction; ii. given no evidence to demonstrate that it complied with that Alleged Variation Instruction. That is, there is no evidence to demonstrate that the as-built levels accord with the levels directed in the Alleged Variation Instruction; (d) in the alternative, even if the Alleged Variation Instruction was given and KMA complied with I it (which is denied), OPES would nevertheless have been required to demolish the slabs and reconstruct them because: i. the Alleged Variation Instruction, on KMA’s own pleadings and evidence, only directed the garage slab level to be varied and not the ground floor slab level. Specifically, at paragraph 3(a) of the KMA Points of Defence, KMA allege that the Alleged Variation Instruction “varied... the garage finished floor level” and this same assertion is made in the MBS Statement with no reference being made to any change to the ground floor slab

level; and ii. KMA does not dispute the clear evidence in the First ME Statement that both the garage slab levels and the floor slab levels were not constructed in accordance with the Approved Drawings. To put that another way, even if the Alleged Variation Instruction was given (which on KMA’s own pleadings and evidence allegedly only concerned the garage slab level), the works were nevertheless defective and required demolition and reconstruction because the floor slab level was incorrect. Specifically, for Lot 4, the floor level slab as off by 0.95m and for Lot 5, the floor level slab was off by 0.59m. As such, the question of whether the Alleged Slab Variation was ever directed (and if it was, whether it operated to vary the Lot 4 and Lot 5 Contracts) is, in reality, an irrelevant distraction. The reason for this is because, even if (which is denied) the garage floor slabs were constructed at the correct levels, the ground slab levels were not (and there is no pleading or evidence before the Tribunal to the contrary) and in the premises, OPES was not liable to pay KMA for the defective works and KMA is liable to OPES for the costs of demolishing and reconstructing the labs to the appropriate levels.” Counsel for OPES in his opening oral submissions: relevantly said the KMA Claim “is answered in whole by, what I’ll call for convenience, the cross-claim” (Tcpt, 2 February

2026, p 11); made no submissions as to why any purported variation of the Lot 4 Contract and the Lot 5 Contract was not legally binding (Tcpt, 2 February 2026, pp 11-13). Counsel for OPES in his closing oral submissions: relevantly made submissions as to the alleged variation of the Lot 4 Contract and the Lot 5 Contract (Tcpt, 2 February 2026, pp 38-40): “489. Mr Langshaw: The sole Defence, as I understand it, to the cross-claim is the contention, and I’m putting this in precise terms for a reason that there was an oral variation to the existing contract, that this allowed the slabs to be laid in the form of which they were actually. We’ve heard a lot about the conversation, and whether the conversation is accepted or not. What is actually being asked of you to find and it’s important to appreciate this is that there was an intention to form a binding contract and that’s something to occur at the time that it was then carried out.

490. Mr Langshaw: Now my friend, of course, bears the onus of establishing that such a contract of variation, contractual variation, was in fact entered into and became binding of the party and to establish those terms. … … 492. Mr Langshaw: Against that body, against those objective circumstances, for lack of any independent corroboration in the single written document is stark. The text message that is relied upon [unclear] .. .does not corroborate the alleged conversation. If anything, it weighs against the conversation. … It is important to also note, [unclear] .., that there are contrasting degrees of precision in which changes to levels are discussed in the text message to that day compared to the alleged oral conversations. Compare and contrast a discussion of that nature with a discussion in the terms that are said to have contractual effect advanced by Mr Smith at paragraph 16 of his statement. Do you want to lift them up to a similar height to the gutter. The Tribunal can take up the plans, one can see how problematic that discussion is and how difficult it is for one to discern some contractual variation. I’m looking at the lot 4 ground plan, which was the one with the one that was being discussed. Now the finished floor level fixed for the garage is 71.700. One goes to the top corner. There is a reference level of 72.550. So that’s a 850 millimetres fall. Maybe

that’s what’s being discussed, but then if one comes down to the one in the reference of to judge your attention opening in the middle of the page 72.180, so there’s only a fall of 400. So there is by contrast, the manner in which the parties communicated in writing, there is in this oral conversation a stark lack of any clarity as to what is in fact being discussed at all of what is being contemplated by way of a contractual variation. In context of a highly regulated residential building industry [unclear]..., that preceded upon approved formal drawings would expect if there was a serious discussion which would have [unclear]. … 495. Mr Langshaw: Coming then to the question of whether a contract was formed, that there remains to this point as a stark lack of clarity about what KMA contends was in fact agreed as to the revised approval levels. The evidence doesn’t clarify this as I’ve taken you to the gutter levels are not even consistent across the front of the driveway. …” made no submissions as to whether the concrete slab were constructed at the varied levels if the Lot 4 Contract and the Lot 5 Contract were found to have been varied. Counsel for KMA in his closing oral submissions in reply responded to a question of the Tribunal about the submission of OPES that there were insufficient details about the terms of the variation to create a binding variation (Tcpt, 2

February 2026, pp 42-43): “511. Mr Chatterjee: I say that the terms are perfectly clear. The slabs should be lifted so that they are consistent with the gutter. There’s. There’s not really any evidence before the Tribunal to say that was impossible or difficult to understand. Mr Smith had no difficulty in understanding those instructions. He carried out work in accordance with those -instructions. My learned friend wants to infer from two reference points on a plan that this was difficult to do, but there is no objective evidence that it was difficult to do, and Mr Smith clearly had no problem in following it.” The 17 February 2026 Decision On 17 February 2026, the Tribunal constituted by Senior Member Dr K George made the 17 February 2026 Decision comprising: the following orders (the 17 February 2026 Orders): “1 OPES Lifestyle Homes Pty Ltd is to pay KMA Concrete Constructions Pty Ltd the amount of $35,098.00 within 14 days of the date of these orders. 2 The application by KMA Concrete Constructions Pty Ltd is otherwise dismissed. 3 The application by OPES Lifestyle Homes Pty Ltd is dismissed. 4 OPES Lifestyle Homes Pty Ltd is to pay KMA Concrete Constructions Pty Ltd’s costs of both proceedings, on the ordinary basis, as agreed or as assessed. 5 If either party wishes to contend that a different costs order should be made, order 4 ceases to have effect and the following

orders apply: (a) Any application for a different costs order, supported by submissions (not exceeding 3 pages) and evidence, is to be filed and served within 14 days of the date of these orders. (b) Any submissions (not exceeding 3 pages) and evidence in response are to be filed and served within 28 days of the date of these orders. (c) Any submissions in reply (not exceeding 3 pages) and evidence in reply are to be filed and served within 35 days of the date of these orders. (d) Each party’s submissions should indicate whether they agree that costs be determined on the papers, ie without the need for a further hearing. 6 Within 14 days of the date of these orders, KMA Concrete Constructions Pty Ltd is to file and serve submissions (not exceeding 3 pages) regarding the enforceability of the Interest Term of the contracts, together with a calculation of the total amount of interest it claims up to the date of these orders. 7 Within 28 days of the date of these orders, OPES Lifestyle Homes Pty Ltd is to file and serve submissions in response (not exceeding 3 pages). 8 Within 35 days of the date of these orders KMA Concrete Constructions Pty Ltd is to file and serve submissions in reply (not exceeding 3 pages). 9 Each party’s submissions should indicate whether they agree that the issue of interest be determined on the papers, ie without the need for a further hearing. 10 In the

alternative to filing submissions regarding the Interest Term, KMA Concrete Constructions Pty Ltd may notify the Tribunal and the other party that it withdraws its claim for interest.” a statement of reasons which relevantly included the following findings: having accepted Mr Smith’s evidence of the content of the conversation, “Mr Abdallah did instruct Mr Smith to raise the slabs of lots 4 and 5 to a level whereby the garage sections of the slabs were similar to the height of the road/gutter”; the conversation between Mr Abdallah and Mr Smith created a legally binding variation for the following reasons: in response to OPES’ submission “there was a stark lack of clarity” about what was agreed between Mr Abdallah and Mr Smith, “the agreement was clear that the level of the lot 4 slab and the level of the lot 5 slab would be raised so that the garage section of the slab was level with the gutter/road”; the words of Mr Abdallah that he had ‘approval’ to do so, and Mr Smith acting on those words indicate the agreement was intended to be legally binding; Mr Abdallah had ostensible, if not actual, authority to agree to variations to the contracts on behalf of OPES; she accepted Mr Smith’s sworn evidence that KMA completed the concrete works in accordance with the variation. There was no evidence before the Tribunal to contest this evidence. The history of the appeal On 12 March

2026, OPES appealed against the 17 February 2026 Decision by lodging a Notice of Appeal in which it: challenges orders 1 and 3 to 10 of the 17 February 2026 Orders; sets out the following grounds of appeal: “1 The Tribunal erred in concluding that the parties entered into a legally binding variation of their written contract for the carrying out of concrete works, and should instead have concluded: a. the terms of the alleged variation were insufficiently certain to have immediate and binding contractual effect; b. further or in the alternative, the alleged variation was unsupported by consideration; and c. further or in the alternative, the parties did not intend to be immediately legally bound by the terms of the oral discussion found by the Tribunal to have occurred. The Tribunal should have concluded that no legally binding variation of the parties’ written Contract had occurred.

2. The Tribunal erred in failing to consider or conclude, or alternatively in implicitly concluding, that KMA had performed the works it completed in accordance with the terms of the varied contract it found to have been operative. The Tribunal should have concluded the works did not satisfy the varied requirement it found to have been operative.” seeks leave to appeal on the grounds that the 17 February 2026 Decision was not fair and equitable, and was against the weight of evidence. On 1 April 2026, KMA lodged its Reply to Appeal in which it contended that each of the grounds of appeal does not raise an error of law, and further cannot be raised on appeal as it was not raised before the Tribunal and affected its forensic choices. OPES relied on the following written submissions and its counsel made oral submissions: submissions dated 11 May 2026 (the OPES Appeal Submissions); submissions in reply dated 10 June 2026 (the OPES Appeal Submissions in Reply). KMA relied on written submissions dated 10 June 2026 (the KMA Appeal Submissions) and its counsel made oral submissions. At the hearing, OPES handed up a document headed “Questions arising on appeal” which lists the following questions: “1. Was the Tribunal’s conclusion that a binding contract of variation was entered into erroneous and/or against the weight of evidence (ground 1(c))?

2. Was the term of the varied contract found by the Tribunal sufficiently certain to have legal effect (ground 1(a))?

3. Was the contract of variation found by the Tribunal supported by legally sufficient consideration (ground 1(b))?

4. Was the Tribunal’s conclusion that KMA had performed the varied term of the contract it found open on the evidence (ground 2)?

5. Was the Tribunal’s conclusion that KMA had performed the varied term of the contract it found erroneous and/or against the weight of evidence (ground 2)?” Counsel for OPES submitted, and counsel for KMA agreed, that questions 2, 3 and 4 raises a question of law and that questions 1 and 5 requires leave to appeal. The jurisdiction and approach of the Appeal Panel Section 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) allows a party to proceedings in which the Tribunal makes an internally appealable decision to appeal the decision to an Appeal Panel. Internal appeals against an internally appealable decision may be made in the case of any kind of decision (including an ancillary decision) other than an interlocutory decision as of right on a question of law, or with the leave of the Appeal Panel on any other grounds: NCAT Act, s 80(2)(b). The nature of a question of law within s 80 (2)(b) of the NCAT Act and applicable principles have been discussed in several recent Appeal Panel decisions: see for example Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique Commercial Group) at [25]-[40]; and most recently, Star Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2026] NSWCATAP 127 at [24]-[33], [38]-[41]. We note the following principles: a question of law must be a “pure” question of law and does not include a

mixed question of fact and law; the process of ‘applying’ a legal principle to the facts of a case involves a mixed question of fact and law: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 73 at [42]-[43] (Beech-Jones J); see also Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [48], [60] and [109] (Bathurst CJ and Bell P with Johnson J at [128], Garling J at [136] and Lonergan J at [137] agreeing); the question of whether there was no evidence to support a factual finding is a question of law, not a question of fact: Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 at [33] (French CJ), at [90]-[91] (Hayne, Heydon, Crennan and Kiefel JJ); see also Unique Commercial Group at [25(9)]. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are where it is satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable, or the decision of the Tribunal under appeal was against the weight of evidence, or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with): NCAT Act, Sch 4, cl 12(1)(a), (b) and (c). It is an established principle that an

appeal court may order a new trial in a case where on conflicting evidence a verdict is found which is said to be against the weight of the evidence if it concludes that “the jury, viewing the whole evidence reasonably, could not properly find it; ... [t]he party seeking a new trial on this ground needs an exceptionally strong case because it must be shown that ‘the evidence so preponderates against the verdict as to shew that it was unreasonable and unjust’”: Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42 (Mason CJ, Deane, Toohey and McHugh JJ); [1991] HCA 23. This principle has been applied by the Appeal Panel in determining whether a decision of the Tribunal is against the weight of evidence within cl 12(1)(b) of Sch 4 of the NCAT Act: Collins v Urban [2014] NSWCATAP 17 at [77(2)]. Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the decision was arguably wrong: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] (Gleeson JA with

Macfarlan JA at [1] and Payne JA at [67] agreeing). Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice: Hungry Jack’s Pty Ltd v Fourtounas [2020] NSWCA 325 at [9] (Basten JA with White JA at [18] agreeing); cited with approval together with another authority in Unique Commercial Group at [42]-[43]; see also Collins v Urban at [84(2)]. Except where the appeal is a new hearing under s 80(3) of the NCAT Act, the appeal is a rehearing on the materials before the Tribunal and any additional or further evidence received to determine whether the orders that are the subject of the appeal are the result of some legal, factual or discretionary error: Yuen v Thom [2016] NSWCATAP 243 at [14]-[22]. The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to any one or more of orders that the appeal is to be dismissed: NCAT Act, s 81(1)(a). The issues for determination The following issues arise for determination: whether OPES is precluded from raising any of the grounds of appeal; the grounds of appeal to the extent that OPES is not precluded from them; the costs of the appeal. In considering with each of these issues we have summarised the submissions of the parties. Before dealing with these issues, we have discussed an

inconsistency in the 17 February 2026 Decision. An inconsistency in the 17 February 2026 Decision During the hearing we pointed out that there was an inconsistency in the 17 February 2026 Decision as to the level for the concrete slabs required by the variations to the Lot 4 Contract and the Lot 5 Contract. The first finding is that “Mr Abdallah did instruct Mr Smith to raise the slabs of lots 4 and 5 to a level whereby the garage sections of the slabs were similar to the height of the road/gutter”. The second finding is that “the agreement was clear that the level of the lot 4 slab and the level of the lot 5 slab would be raised so that the garage section of the slab was level with the gutter/road”. The second finding is also inconsistent with the words of Mr Smith “so the garage is a similar height to the gutter” in the first 13 May 2024 Mr Smith/Abdallah conversation. Neither party disagreed with our suggestion that the Tribunal should be understood as having made the finding in the 17 February 2026 Decision that the level for the concrete slabs required by the variation to the Lot 4 Contract and the Lot 5 Contract was that the garage section was to be similar to the height of the road/gutter. Whether OPES is precluded from raising any of the grounds of appeal The KMA Appeal Submissions KMA in the KMA Appeal Submissions relevantly: submits that the case run by OPES on appeal

is materially different from the case it ran in closing submissions below, which in turn was materially different again from the case that it pleaded and led evidence on. What was in dispute between the parties up until the hearing below was whether the conversation (the first and second 13 May 2024 Mr Smith/Abdallah conversations) took place or not, rather than any contention that, if the conversation did take place, no binding variation arose because the terms of the conversation were insufficiently clear, or that there was a lack of consideration. That had a material effect on the evidence that it chose to lead, as well as forensic decisions it made. In particular, and as the contest on the issue of the variation seemed confined to the question of whether the conversation took place in the terms as alleged, none of OPES’s witnesses were cross-examined; submits that any amendment to the case to include an allegation that the slabs were not constructed in accordance with the oral direction would have run into the real issue that the slabs had since been demolished by OPES, which as a matter of fact would have wholly precluded any objective determination of that question, and which would have severely prejudiced its ability to respond. Those were also matters that were not put to Mr Smith in cross-examination, and OPES’s witnesses were not cross-examined on the issue as it was

unaware that there was any contest in relation to those matters; as to ground 1(a), submits that the fact that OPES had never raised in pleadings or evidence any contention that the terms of the variation were too uncertain to form a binding contract affected the evidence led on the issue. It was never suggested to Mr Smith that he could not or did not understand that instruction, or that the site conditions were such that it was hot possible to do so. The significance of the road sloping between two points for one of the lots (raised by counsel for OPES in his closing oral submissions at [492]) was never put to, or explored in the cross-examination of Mr Smith. No evidence of the site conditions was ever led by OPES, and it had no opportunity to lead evidence on the issue; as to ground 1(b): submits that no case was also ever led below that the variation was ineffective by reason of a lack of consideration, in pleadings, the evidence, or oral or written submissions; refers to Coulton v Holcombe (1986) 162 CLR 1 at 7-8; [1986] HCA 33 (Coulton), and submits that evidence could and likely would have been led on the issue; refers to two cases which establish the principle that “something that is of ‘practical benefit’ or ‘factual benefit’ or the avoidance of a ‘disbenefit’ or detriment that is of practical benefit” is sufficient to amount to consideration including Hill v Forteng

Ply Ltd [2019] FCAFC 105; (2019) 138 ACSR 344 (Hill v Forteng) at [11]-[22] (Kerr, Bromwich and Wheelahan JJ); submits that both parties here received practical benefits - OPES received the practical benefit of altered construction such that there was no need for the construction of a steep driveway, and removal of excess soils; and it received the practical benefit of (slightly) lowered construction costs, and the continuation of a good, working commercial relationship with OPES which was, at the time, a reliable and steady supply of work. Further evidence could have been led of those matters, and these matters could have been cross-examined on. OPES should not now be allowed to agitate this ground; as to ground 2, submits that no case was pleaded and no evidence was led by OPES that the works by it did not conform with the variation. Mr Eleisawy was not cross-examined on the 28 October 2024 Liu Plan as no positive case was led at the time that KMA’s works did not comply with the variation. Nor was objection taken to that evidence despite the fact that Mr Eleisawy does not identify who took the measurements, when, how, or what qualifications that person has because no positive case was being taken against KMA that the works did not comply with the variation. This allegedly critical evidence was not raised in any fashion with Mr Smith in cross-examination. Leave should not be

granted for OPES to fundamentally alter its case on appeal on a matter that could and should have been raised below. This ground should also be dismissed. The OPES Appeal Submissions in Reply OPES in the OPES Appeal Submissions in Reply relevantly submits: in assessing whether a party is raising a new point on appeal, it is “necessary to look at the actual conduct of the proceedings”, referring to Water Board v Moustakas (1988) 180 CLR 491 at 497; [1988] HCA 12 (Moustakas) and Park v Brothers [2005] HCA 73; (2005) 222 ALR 421 at [34]; where a question is raised for the first time on appeal which involves an issue of construction, or on facts admitted or proved beyond controversy, “it is not only competent but expedient in the interests of justice, to entertain the plea”, referring to Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, cited with approval in Suttor v Gundowda (1950) 81 CLR 418 at 438; [1950] HCA 35 (Suttor); the Tribunal has a statutory imperative to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms: NCAT Act, s 38(4). Consistent with that imperative, proceedings before the Tribunal do not as a matter of course proceed by way of strict pleadings; there was a complete joinder of issue of whether there was

no variation of the Lot 4 Contract and the Lot 5 Contract in the OPES CCD Proceedings arising out of the allegation that there was no such variation in the OPES Claim at [7] and the denial of the allegation and assertion of a specific variation in the KMA Defence at [3]. The position in the KMA CCD Proceedings arising out of the allegation in the KMA Claim at [7] and the denial of the allegation in the OPES Defence at [7] was substantively the same; there can be no doubt from those pleadings that KMA was required to prove the existence of a legally binding variation to the parties’ written contract in the terms that it alleged. That carried with it an obligation to prove and establish the requisite elements of a binding contract sufficient to vary the parties’ written contract, and its discharge of those varied obligations; its counsel (OPES in his closing oral submissions at [489]) raised the issues of intention to form a binding contract and the carrying out of the variation works. KMA did not, at any time during the hearing below, make any submission that it was taken by surprise by those submissions, or otherwise not in a position to proceed with the hearing; grounds 1(a) and (c) were squarely in issue in the KMA CCD Proceedings; as to ground 1(b): that this ground was in issue was readily apparent from the denial and joinder of issue in respect of its pleading of the

alleged contract of variation. Moreover, it was an issue on which KMA bore the onus of proof. It was, therefore, in issue notwithstanding that it was not the subject of argument. This ground turns only upon the construction of the oral contract of variation against the existing facts as found by the Tribunal; It could not have realistically been the subject of any further evidence (which, if it existed, ought in any event have been adduced by KMA in order to discharge its own onus). The issue relating to the absence of consideration first emerged in the cross-examination of Mr Smith, in which he gave evidence that there had been no discussion about or suggestion of a reduction in the contract price. In re-examination Mr Smith gave evidence as to the work and cost saving to KMA arising from the alleged variation of contract. What emerged from that evidence, and the terms of the contract found by the Tribunal, is that no consideration was given by KMA for those benefits it contends to have received by way of the alleged variation of contract. KMA’s substantive answer, which is tied up with its generalised assertion that further evidence could have been adduced on this issue, misses the mark. It was common ground that the parties’ written contract was in force. The sole change effected by the alleged variation was a reduction, to the benefit of KMA, of the work required to be

undertaken by KMA. The contract price remained the same. The posited benefits to it advanced by KMA as consideration are simply restatements of those essential facts, and identify nothing in the nature of valuable consideration; even if the argument was not open to it to advance by reference to the pleadings, there is no prejudice to KMA in permitting the issue to be raised on this appeal; as to ground 2, KMA had the onus to prove that it had fully discharged its contractual obligations arising from what it contended to be a legally binding variation. It made clear in its written opening submissions at [35(c)] that there was an issue as to whether KMA had demonstrated its discharge of its alleged varied contractual obligations. No other evidence has been, or could realistically be, identified that could have been adduced by KMA at the hearing, beyond the bare conclusory assertion of Mr Smith. There is no identifiable prejudice to KMA in the argument being advanced on appeal. Consideration Ambush is not an acceptable feature of modern litigation including in the Tribunal and a party is entitled to know the case it has to meet: The Owners - Strata Plan No 60182 v Bornzin [2019] NSWCATCD 30 (Bornzin) at [77] citing Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34; (2012) 188 LGERA 169 at [33] (Beazley JA with Whealy JA at [61] and Sackville AJA [62] agreeing). We do not

accept that the obligation of the Tribunal under s 38(4) of the NCAT Act to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms in any way derogates from this principle. In Maygood Australia Pty Ltd v The Owners – Strata Plan No 85338 [2020] NSWCATAP 237 at [76]-[77], the Appeal Panel observed that the applicant and the Tribunal were entitled to proceed on the basis that the Points of Defence identified the issues which the respondent intended to raise and agreed with the principle in Bornzin at [77]. In Moustakas at 497 the majority of the High Court (Mason CJ, Wilson, Brennan, and Dawson JJ) explained the applicable principles where a new point is raised on appeal and referred to various authorities including Suttor at 438 and Coulton at 7-8: “More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. In deciding whether or not a point was raised at trial no narrow or

technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. … the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged …. It is necessary to look to the actual conduct of the proceedings to see whether a point was or was not taken at trial, especially where a particular is equivocal.” (citations omitted) In Park v Brothers at [34] the High Court (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) applied these principles to a case in which there were no formal pleadings. The principles in Moustakas at 497 are applied to appeals in the Tribunal: Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184 at [122]. We accept that there was a joinder of issue as to whether there was a variation of the Lot 4 Contract and the Lot 5 Contract in the OPES CCD Proceedings arising out of the allegation that there was no such variation in the OPES Claim at [7] and the denial of the allegation and assertion of a specific variation in

the KMA Defence at [3]. We do not accept that there was an implied joinder of this issue in the KMA CCD Proceedings in the absence of a procedural rule equivalent to r 14.27(2) of the Uniform Civil Procedure Rules 2005 (NSW) (which states that if there is no reply by a plaintiff to a defence, there is an implied joinder of issue on that defence) or the making of a procedural direction for the lodgement of points of reply. However, while KMA bore the onus of proving there was a variation of the Lot 4 Contract and the Lot 5 Contract to alter the level of the concrete slab, this did not entail proving the elements of certainty, intention and consideration to constitute a legally binding agreement and performance of the varied works. To the extent that these elements were in issue, OPES in accordance with the principle in Bornzin at [77] should have specifically raised its contentions in the OPES Defence, and procured a variation of the procedural directions in the OPES CCD Proceedings and lodged points or reply raising these issues. We do not accept that any of the grounds of appeal were raised by the informal pleadings in one or both of the KMA CCD Proceedings and the OPES CCD Proceedings. However, when regard is paid to the actual conduct of the KMA CCD Proceedings and the OPES CCD Proceedings, we are satisfied that the issues identified in grounds 1(a) and 2 were raised as

follows: as to ground 1(a), the uncertainty of the variation was implicitly raised by OPES in its written opening submissions at [35(c)(i)], and directly raised in OPES’s closing oral submissions (Tcpt, 2 February 2026, pp 39-40 at [492], [495]) and responded to in KMA’s closing oral submissions (Tcpt, 2 February 2026, pp 42-43 at [511]). The Tribunal engaged with this issue and these submissions in the 17 February 2026 Decision at [70]-[71]; as to ground 2, the failure of KMA to have performed construction works in accordance with the varied contract was directly raised by OPES in its written opening submissions at [35(d)]. The fact that KMA did not cross-examine Mr Eleisawy about this issue and the 28 October 2024 Liu Plan in particular is a forensic choice it made. The fact that OPES did not address this issue in its closing submissions does not alter the fact that it was a live issue as evidenced by OPES’ written opening submissions at [35(d)]. The Tribunal engaged with this issue in the 17 February 2026 Decision at [83]. We are satisfied that the issue identified in grounds 1(b) and 1(c) were not raised in the KMA CCD Proceedings and the OPES CCD Proceedings. As to ground 1(b), we are not satisfied that all the facts relevant to the issue of consideration for the variation of the Lot 4 Contract and the Lot 5 Contract were established beyond controversy and so do not accept

the submission of OPES that the issue of whether there was consideration for the variation could not have realistically been the subject of any further evidence. KMA could have adduced evidence in chief and cross-examined Mr Eleisawy as to the benefit received by OPES by the variation including the avoidance of the removal of excess soils because there was no need for the construction of a steep driveway. The Full Federal Court in Hill v Forteng, having considered the authorities which establish that consideration for the variation of a contract could be found by the conferral of a “practical benefit” at [11]-[22], made observations as to the importance of fact finding when determining the existence of consideration for the variation of a contact at [22]-[24]: “[22] … what must be found for consideration to render a contract variation binding is something more than one party to the existing contract simply forgoing an existing contractual right. … [23] The difference between finding, or not finding, such consideration, can turn on subtle variations in the facts. … [24] … It is, in essence, a fact-finding exercise, albeit requiring legal characterisation.” As evidence could have been given to establish consideration for the variation from the conferral of a “practical benefit”, we do not accept that all the facts on this issue have been established beyond controversy and the

submission of OPES that there is no prejudice to KMA in permitting the issue to be raised on this appeal. As to ground 1(c), while OPES in its closing oral submissions (Tcpt, 2 February 2026, p 38 at [489]) referred to the Tribunal being asked to find that “there was an intention to form a binding contract and that’s something to occur at the time that it was then carried out”, it did not make any submission that there was no intention by the parties to be immediately bound by the variation. OPES has not made any submission that there was no relevant evidence that could have been adduced on this issue. We are not satisfied that all the facts on this issue have been established beyond controversy. Even if we had been so satisfied, we would not have found it expedient and in the interests of justice to entertain the point in this appeal when KMA was not given notice that intention was in issue. It is not to the point that the Tribunal engaged with this issue in the 17 February 2026 Decision at [72]; It follows that OPES should not be permitted to raise grounds 1(b) and 1(c) in this appeal. Ground 1(a) The OPES Appeal Submissions OPES in the OPES Appeal Submissions relevantly submits: the Contract Plans were highly precise and prescriptive. That was particularly so in relation to the ground level slabs to be constructed on each of lots 4 and 5 - they contain specific FFLs and

dimensions by reference to surrounding survey marks; by contrast, the terms of the varied contractual requirements found by the Tribunal – being to construct the slabs “level with the gutter/road”, were so ambiguous and unclear as to be meaningless. So much is apparent from the topography of both lots shown on the Contract Plans. Once that topography is appreciated, the inherent ambiguity of the varied contractual term found by the Tribunal is evident. A ground floor slab in a residential dwelling must, by its very nature, be approximately level throughout. Was the ground floor slab to be level with the gutter/road at the northern end of each lot (such that it would be above ground level at the southern end), the southern end (such that it would be below ground level at the northern end), or some intermediate position? It cannot have been intended that, given the degree of variance provided by the topography, this would have simply been left to the choice of KMA. Conversely, however, the varied term found by the Tribunal cannot provide the answer through any available process of construction or implication; the Tribunal should, accordingly, have concluded that the terms of the varied contract it found to have been entered by the parties were void for uncertainty and unenforceable. The KMA Appeal Submissions KMA in the KMA Appeal Submissions relevantly submits that the slope of

lots 4 and 5 is plainly insufficient evidence on which to find that the instruction conveyed to Mr Smith (which on its face is cogent) was so uncertain as to be incapable of forming a binding contract. KMA’s Oral Submissions Counsel for KMA in his oral submissions referred to Tesseract International Pty Ltd v Pascale Construction Pty Ltd (2021) 138 SASR 106; [2021] SASCA 8 (Tesseract v Pascale) at [57]. Consideration We are not satisfied that this ground which has been reformulated as question 2 raises a question of law. It involves a mixed question of fact and law because it necessarily requires the process of ‘applying’ a legal principle to the facts of a case. It follows that OPES requires leave to appeal on this ground. In Upper Hunter County District v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429; [1968] HCA 8 (Upper Hunter) the High Court considered whether a clause in a contract was void for uncertainty. Barwick CJ at 436-437 (with McTiernan J at 439, Kitto J at 439, and Windeyer J at 444 agreeing) explained the applicable principles: “But a contract of which there can be more than one possible meaning or which when construed can produce in its application more than one result is not therefore void for uncertainty. As long as it is capable of a meaning, it will ultimately bear that meaning which the courts, or in an appropriate case, an arbitrator, decides is

its proper construction: and the court or arbitrator will decide its application. The question becomes one of construction, of ascertaining the intention of the parties, and of applying it. Lord Tomlin’s words in this connexion in Hillas & Co. Ltd. v. Arcos Ltd. ought to be kept in mind. So long as the language employed by the parties, to use Lord Wright’s words in Scammell (G.) & Nephew Ltd. v. Ouston is not “so obscure and so incapable of any definite or precise meaning that the Court is unable to attribute to the parties any particular contractual intention”, the contract cannot be held to be void or uncertain or meaningless. In the search for that intention, no narrow or pedantic approach is warranted, particularly in the case of commercial arrangements. Thus will uncertainty of meaning, as distinct from absence of meaning or of intention, be resolved.” (citations omitted) These principles have been applied in numerous subsequent decisions. Recently, in Sarai v N1 Loans Pty Ltd [2026] NSWCA 107, the New South Wales Court of Appeal considered whether the provisions relating to the payment of interest were void for uncertainty. Ball JA at [27] (with Mitchelmore JA at [1] and Free JA at [37] agreeing) said only in those rare cases where it is impossible to determine the intention of the parties from the contract as a whole will a court conclude that the contract, or some part

of it, is void for uncertainty, citing various authorities including Upper Hunter at 436-437. These principles were also applied by the South Australian Court of Appeal in Tesseract v Pascale at [18]-[19] (Doyle JA); at [57] (Livesey J with Kelly P agreeing). The contractual intention required to provide contractual certainty is not the subjective intention of either or both of the parties but such mutual contractual intention as the words and conduct attributed to the parties might convey to a reasonable person having the background knowledge reasonably available to both of them. That is a question of fact: Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 (Crown Melbourne) at [53]-[54] (Gageler J). Words of approximation do not generate uncertainty sufficient to prevent contractual validity, even where they give one party some discretion in performance: JD Heydon, Heydon on Contract (2019, Thomson Reuters) at [3.410], citing Edwards v Skyways Ltd [1964] 1 WLR 349 (Edwards v Skyways). In Edwards v Skyways, the issue was whether a promise made by representatives of the employer company at a meeting with representatives of a trade union to make an “ex gratia” payment to employees leaving through redundancy created a legally enforceable right to payment. Megaw J found that the promise was enforceable. His Lordship at 357-358 rejected the

submission based on the agreement containing the words “approximating to” that the promise is not enforceable because its terms are too vague and they leave a discretion to the company. We do not accept the submission of OPES that the revised level for the concrete slab in the variation of the Lot 4 Contract and the Lot 5 Contract was so ambiguous and unclear as to be meaningless. The fundamental problem with this submission is that it is based on each variation requiring that “the level of the Lot 4 slab and the level of the Lot 5 slab would be raised so that the garage section of the slab was level with the gutter/road.” It falls away when, as we have pointed out, the Tribunal should be understood as having made the finding that the required level was that the garage section was to be similar to the height of the road/gutter. Having regard to the principles in Upper Hunter at 436-437, Crown Melbourne at [53]-[54] and Edwards v Skyways at 357-358, we do not accept that these words of approximation prevent the variation from being sufficiently certain to be legally binding. The mutual intention of the parties was that the level would not be a precise level but one that was similar to the level of the road/gutter. For these reasons we are not satisfied that OPES may have suffered a substantial miscarriage of justice because the 17 February 2026 Decision was not fair and

equitable within cl 12(1)(a) of Sch 4 of the NCAT Act. Even if we had been so satisfied, we would not have exercised the discretion under cl 12(1)(a) of Sch 4 of the NCAT Act to grant leave to appeal on this ground because this ground does not raise an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It follows that ground 1(a) is not made out and we have decided to refuse leave to appeal on this ground. If, contrary to our finding, this ground raises a question of law and OPES has a right of appeal, then for the reasons already given we would not have been satisfied that the Tribunal made an error in finding that the variation of the Lot 4 Contract and the Lot 5 Contract was sufficiently clear to have legal effect. Ground 2 OPES contends that it is entitled to appeal as of right on this ground because question 4 as explained by its counsel during the hearing should be understood as raising the question of whether there was no evidence on which the Tribunal could find that KMA completed the concrete works in accordance with the variation and there was no contradictory evidence. Alternatively, OPES contends that it should be granted leave to appeal on this ground because this finding was against the weight of evidence. The OPES Appeal Submissions OPES in the OPES Appeal

Submissions relevantly submits: the impugned finding was not open to the Tribunal, such that it constituted an error of law; the impugned finding was against the weight of evidence because the Tribunal appears to have overlooked the 28 October 2024 Liu Plan which was critical evidence of central importance. If leave to appeal were refused that would result in an injustice to OPES which is reasonably clear or plainly and readily apparent, in the sense described in Collins v Urban at [84]; contrary to the Tribunal’s conclusion, the Contract Plans and the 28 October 2024 Liu Plan contained unchallenged direct evidence of the levels of the slabs that had in fact been constructed by KMA, and of the surrounding levels along the eastern boundary of each of lot 4 and lot 5 which fronted the road: Lot FFL reference As constructed Northerly RL Middle RL Southerly RL 4 Garage 72.72m 72.550m 72.180m 71.730m Internal slab 72.8m 5 Garage 71.86m 71.730m 71.410m N/A Garage 71.94m the slabs that KMA in fact constructed were in all cases substantially above the road level along the eastern frontage of each lot, even taken at the highest northerly point. The KMA Appeal Submissions KMA in the KMA Appeal Submissions confines its submissions as to whether OPES should be permitted to raise this ground. KMA’s Oral Submissions Counsel for KMA in his oral submissions relevantly submitted: there was no

cross-examination of Mr Smith on the evidence in his statement that the garage finished floor level for lots 4 and 5 was similar to the gutter height; the Contract Plans are dated 20 December 2022. OPES’s submission is based on an assumption that the gutter height was the same in 2024. The OPES Appeal Submissions in Reply OPES the OPES Appeal Submissions in Reply relevantly made the following submission in relation to the evidence of Mr Smith in his statement that the garage finished floor level for lots 4 and 5 was similar to the gutter height: once the topography of the site is understood, it is so unclear as to be meaningless; it is in any event no more than a conclusory assertion of KMA’s discharge of a contractual requirement. Consideration We are satisfied that this ground which has been reformulated as question 4 as explained by counsel for OPES raises a question of law. We are not satisfied that the Tribunal made an error in finding that there was no contradictory evidence to the evidence of Mr Smith that KMA completed the concrete works in accordance with the variation. The Contract Plans and the 28 October 2024 Liu Plan taken together do not constitute contradictory evidence for the following reasons: the Contract Plans are dated 20 December 2022. They do not contain a level for the gutter and the road but a level on the nature strip which is an unspecified distance

from the lip of the kerb. In any event, even if these levels depict the approximate level for the gutter and the road, there is no evidence that the levels remained the same in 2024 when the construction of the concrete slab was undertaken; the 28 October 2024 Liu Plan does not depict the gutter and the road or record their levels; taken together they do not enable any finding to be made as to whether the level of the concrete slabs was similar to the height of the road/gutter. It follows that ground 2 is not made out. If, contrary to our finding, the Contract Plans and the 28 October 2024 Liu Plan taken together constitute evidence on the issue of whether KMA constructed the concrete slabs for lots 4 and 5 in accordance with the variation, then we would not have been satisfied that the finding of the Tribunal that KMA completed the concrete works in accordance with the variation was against the weight of evidence for the following reasons: the submission of OPES based on the topography of the site falls away when, as we have pointed out, the Tribunal should be understood as having made the finding that the required level was that the garage section was to be similar to the height of the road/gutter; in circumstances where taken together they do not enable any finding to be made as to whether the level of the concrete slabs was similar to the height of the road/gutter there is

no basis for a finding that the evidence so preponderates against the impugned finding as to shew that it was unreasonable and unjust. For these reasons we would not have been satisfied that OPES may have suffered a substantial miscarriage of justice because the finding of the Tribunal that KMA completed the concrete works in accordance with the variation was against the weight of evidence within cl 12(1)(b) of Sch 4 of the NCAT Act. Even if we had been so satisfied, we would not have exercised the discretion under cl 12(1)(b) of Sch 4 of the NCAT Act to grant leave to appeal on this ground because this ground does not raise an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It follows that we would have decided to refuse leave to appeal on this ground. The costs of the appeal Both parties agreed that r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) was applicable to the KMA CCD Proceedings and the OPES CCD Proceedings and so r 38A(2) is applicable to this appeal. They also agreed that the costs of the appeal should follow the event. We are satisfied that these concessions were correctly made. We are also satisfied that the amount in dispute on this appeal is more than $30,000.00: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57]. As KMA has been

wholly successful we have decided that OPES should pay the costs of the appeal of KMA on the ordinary basis as agreed or assessed. Orders We make the following orders: Leave to appeal is refused. The appeal is otherwise dismissed. The Appellant is to pay the costs of the appeal of the Respondent on the ordinary basis as agreed or assessed. ** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 September 2026