Owner’s building appeal refused: occupation certificate supported habitability finding (NCAT, 2026)

What happened

An owner bought an apartment from Deicorp Projects (Showground) Pty Ltd and brought a home building claim in the Consumer and Commercial Division of NCAT. He asked to be reimbursed money connected with the sale of the premises and raised defects in the apartment. Part of the claim was $21,442.69 for what he said was the uninhabitability of the apartment, made up of interest income he said he would have earned on his savings if he had not used them to buy the property.

On 8 May 2026 the tribunal dismissed the claim. It found the property was habitable because an occupation certificate, issued by an independent certifier before settlement, confirmed the property was suitable for occupation in line with the relevant building codes and standards. The tribunal also recorded that the owner was given the chance to inspect the unit before settlement and took it up, and that although he reported some defects for the developer to address, as is common at a pre-settlement inspection, he did not suggest at any time before settlement that the property was uninhabitable. In his oral evidence at that hearing the owner said the rooms were very small, that he has a condition he described as claustrophobia, and that he did not feel comfortable and could not stay there.

The owner filed a notice of appeal on 21 May 2026, within the 28 days allowed by the Civil and Administrative Tribunal Rules 2014 (NSW). He was self-represented at the appeal hearing and was assisted by an interpreter; the developer was represented by its in-house counsel. He filed written submissions on 20 July 2026 but did not give the Appeal Panel copies of the evidence he had put before the tribunal at first instance, or any further documents. The developer filed a bundle that included its own submissions, its first-instance material, an affidavit and exhibits, a transcript of the hearing, a copy of the decision and a recording of the hearing on a USB.

What each side wanted

The owner asked for leave to appeal on two grounds: that the decision was not fair and equitable, because he had not been able to properly put his case in oral submissions, and that the decision was against the weight of evidence, because the tribunal failed to properly consider his defect photographs, his defect material and his oral evidence about the defects, and gave too much weight to the occupation certificate at the expense of that defect evidence when deciding whether the apartment was habitable. His written submissions also raised a third basis, that there was significant new evidence not available at the time of the hearing. The developer resisted the appeal in its reply and asked that it be dismissed.

What the tribunal decided

The Appeal Panel made two orders: leave to appeal is refused, and the appeal is otherwise dismissed.

No money was ordered to be paid by either side. The first-instance dismissal of the owner's claim, including the $21,442.69 claimed for alleged uninhabitability, was left standing.

Why the tribunal decided it that way

Under section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), an appeal from NCAT can be brought as of right on a question of law — a legal question that does not depend on which version of the facts is accepted — but on any other ground the Appeal Panel's leave is needed. The Appeal Panel worked through whether a question of law had actually been raised and found that none had, so both grounds needed leave.

Leave from a Consumer and Commercial Division decision is governed by clause 12 of Schedule 4 to that Act. It can only be granted if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, or was against the weight of evidence, or because significant new evidence has come up that was not reasonably available earlier. Earlier Appeal Panel decisions set out what those tests mean: a substantial miscarriage of justice means a significant possibility that a different and better result would have been reached, and "against the weight of evidence" means the evidence as a whole points so strongly the other way that no reasonable tribunal member could have reached the conclusion. An appeal is also not a chance for the losing party to run the case again.

On the fairness ground, the Appeal Panel looked at the transcript the developer had supplied, because the owner had not pointed to any particular part of the transcript or recording. The transcript showed the tribunal inviting the owner to take it through his material with his interpreter and to take it slowly, the owner later saying "That's all", further evidence being given through the hearing, and the owner confirming at the end that he had nothing further. The Appeal Panel was not shown any procedural irregularity or any point where the owner said he had more evidence or submissions to make, and so was not persuaded the hearing was run unfairly.

On the weight of evidence ground, the Appeal Panel noted the owner had not given it a copy of the evidence he relied on below. Reading the reasons, the tribunal had not relied on the occupation certificate alone: it also recorded the pre-settlement inspection and the fact that the owner had raised defects but never suggested the apartment was uninhabitable before settlement. The Appeal Panel also noted that an occupation certificate under the Home Building Act 1989 (NSW) is an occupation certificate under the Environmental Planning and Assessment Act 1979 (NSW), and that section 6.10 of that Act stops such a certificate being issued unless the completed building is suitable for occupation or use in line with its classification under the Building Code of Australia. Treating the certificate as indicating the premises were suitable for occupation was therefore not an error, and no legal basis or authority was offered against the tribunal's findings. The new evidence point could not be considered because no new evidence was actually filed.

What this means if you are in a similar position

If you are in a similar position, this decision shows how narrow an NCAT appeal is. Losing at a hearing does not by itself open an appeal. Unless you can identify a question of law, you need leave, and leave is only available where the decision was not fair and equitable, went against the weight of evidence, or there is significant new evidence that was not reasonably available before. Arguing that the member should have weighed the material differently is generally treated as asking to run the case again, which is not what an appeal is for.

The practical points in this decision are about evidence. The Appeal Panel could not assess a complaint that evidence was ignored because the material from the first hearing was never put before it, and the complaint about not being heard was tested against a transcript that the other side had supplied. Where a ground depends on what happened at the hearing, the panel looks for the specific part of the transcript or recording. The decision also shows what an occupation certificate carries: because the planning legislation prevents one being issued unless the completed building is suitable for occupation under its Building Code classification, a certificate is meaningful evidence on habitability, even though the tribunal in this case looked at other matters as well.

Where building work or a new home has problems, the step most people take first is a written notice to the builder or developer that lists each defect, attaches photographs and asks for the work to be fixed by a set date, with any tribunal application coming after that notice has been given and not answered.

How to apply: our step-by-step guide to a NCAT application. More decisions: NCAT cases and builders and building defects.

Source: Pillay v Deicorp Projects (Showground) Pty Ltd trading as Deicorp Projects (Showground) Pty Ltd [2026] NSWCATAP 350 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.