3D Design & Build Pty Ltd v Kay

NCAT Appeal Panel|2017-01-18

Introduction

This is an appeal against an order made on 29 September 2016 which required the appellant ("the builder") to pay the respondent ("the home owner") the sum of $29,609.40.
The builder was represented before the Internal Appeal Panel of the NSW Civil and Administrative Tribunal ("the Tribunal") by Mr Steven Pohl, a director of the builder. The home owner appeared in person.
For the reasons set out below, we have decided to dismiss the appeal.

Background

It is useful to set out a brief overview of the history of the matter.
Proceedings between these parties originally came before the Consumer and Commercial Division of the Tribunal as applications under the Home Building Act 1989 (NSW) (HB Act). The dispute between the parties arose from a contract pursuant to which the builder undertook to perform residential building work for the home owner.
The proceedings were originally determined on 30 January 2015. On that date, the Tribunal made a work order in favour of the home owner on the home owner's application (HB 14/33898) and a money order in the sum of $22,240 in favour of the builder on the builder's application (HB 14/32008).
The relevant work orders made by the Tribunal on 30 January 2015 in favour of the home owner were: 5. By consent, the Tribunal orders that the respondent(s): 3D Design & Build Pty Ltd 15 Belgenny Avenue CAMDEN NSW 2570 Australia is to cause the undertaking of the following work in a proper and workmanlike manner on or before 31-Mar-2015. Details of Work order: Undertake and carry into effect, taking all necessary steps and retaining any and all sub-contractors as may be required to give effect to the works, the schedule of rectification works contained within paragraphs 5.1.1 - 5.1.7 inclusive of the report of GP Design Pty Ltd dated 26 September 2014, which is contained within Ex.2, Tab 46 of the materials received in evidence before the Tribunal on 30 January 2015. Additionally, 6. By consent, the Tribunal orders that the respondent(s): 3D Design & Build Pty Ltd 15 Belgenny Avenue CAMDEN NSW 2570 Australia is to cause the undertaking of the following work in a proper and workmanlike manner on or before 31-Mar-2015. Details of Work order: Undertake and carry into effect (taking all necessary steps and retaining any and all sub-contractors as may be required to give effect to the works) the schedule of rectification works contained within the Rectification Order made by the Department of Fair Trading dated 12 May 2014, which is contained within Ex. 1, Green divider, Tab 3 of the material received in evidence before the Tribunal on 30 January 2015.

Tribunal's reasons

The Tribunal below heard both matters on 15 June 2016. On the same date, consent orders were made in relation to the remitted proceedings so that the only matter left for consideration by the Tribunal was the renewal application.
The Tribunal reserved its decision in relation to the renewal application. Its decision was published on 29 September 2016 (Kay v 3D Design & Build Pty Ltd [2016] NSWCATCD 81).
The Tribunal (at [9]) extended the time for the home owner to file her renewal application pursuant to s 41 of the CAT Act. The Tribunal also allowed (at [10]) the home owner to make certain amendments to her renewal application pursuant to s 53 of the CAT Act. These matters were not the subject of the grounds of appeal before us.
In its written reasons (at [11]), the Tribunal noted that in the renewal proceedings, the home owner sought orders under s 48O(1)(a) of the HB Act that the builder pay her $70,000 because the builder had not complied with orders 5 and 6 of the work order dated 30 January 2015.
In the written reasons (at [23]), the Tribunal member made clear that in his view, the only issues in the renewal proceedings are whether or not the work referred to in orders 5 and 6 of the Tribunal's work order of 30 January 2015 has been carried out by the respondent [builder] and if not the money order to be made in the applicant's [home owner's] favour pursuant to clause 8(2) of schedule 4 of the Civil and Administrative Act.
The Tribunal member then proceeded to consider the evidence in relation to orders 5 and 6 of the work order made on 30 January 2015. He dealt first with the work referred to in paragraphs 5.1.1-5.1.7 of the report of GP Design Pty Ltd dated 26 September 2014 contained within order 5 of the Tribunal's work order dated 30 January 2015. He then dealt with the schedule of rectification works contained within the Rectification Order made by the Department of Fair Trading dated 12 May 2014 contained within order 6 of the Tribunal's work order dated 30 January 2015.
The Tribunal concluded (at [141]) that the home owner had established that following items referred to in the Tribunal's work order dated 30 January 2015 had not been completed by the builder:

items 5.1.3, 5.1.6, 5.1.7 set out in the report of GP Design Pty Ltd dated 26 September 2014 and
items 22, 28, 41 and 43 of the Rectification Order made on 12 May 2014 by the Department of Fair Trading

As a consequence, the Tribunal determined that the builder must pay to the home owner the sum of $29,609.40.

Scope and nature of appeal

The decision under appeal is an "internally reviewable decision": ss 4 and 32(4) of the CAT Act. A party may appeal an internally reviewable decision on any question of law or with the leave of the Appeal Panel on any other ground: s 80(2)(b) of the CAT Act.
Appeals on any other grounds from decisions made in the Consumer and Commercial Division are governed by sch 4, cl 12 of the CAT Act. 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
Section 81 of the CAT Act sets out the orders that may be made on appeal: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal.

Proceedings before the Appeal Panel

At a call over on 24 November 2016, a differently constituted Appeal Panel made directions to both parties requiring the filing and serving of evidence and submissions by specified dates.
Relevantly, Direction 1 required the builder: to lodge with the Tribunal and provide to the respondent [home owner] by 15/12/2016: (a) All the evidence provided to the Tribunal below on which it is intended to rely; (b)The Appellant's [builder's] written submissions in support of the appeal; and (c)The sound recording of the hearing at first instance, if what happened at the hearing is being relied on and a typed copy of the relevant parts.
Similar directions were made in respect of the home owner.
Further, the Tribunal's directions made the following notation: NOTE: (1) If a party does not lodge with the Tribunal and provide to the other parties documents, sound recordings and submissions as directed above, that party may not be allowed to rely on those documents, sound recordings and submissions at the hearing of the appeal.
On the same date, the Appeal Panel stayed until further order the order of the Tribunal below requiring the builder to pay to the home owner the sum of $29,609.40. The stay was made conditional upon the builder paying $29,609.40 to the Tribunal by 1 December 2016 to be held pending determination of the appeal. The builder paid that amount on 24 November 2016.
The hearing of the appeal took place on 18 January 2017. At the conclusion of that hearing we reserved our decision.

Notice of Appeal

The builder filed a Notice of Appeal and submissions in support of the appeal.
The builder did not identify any errors of law in the Tribunal's decision and nor were we able to identify any.
Although it is not evident from the Notice of Appeal lodged by the builder on 27 October 2016, we understood from the builder's written submissions filed on 16 December 2016, and the builder's representative confirmed in the oral submissions at the appeal, leave is sought to appeal against the Tribunal's findings that the builder did not comply with items 5.1.3, 5.1.6 and 5.1.7 of order 5 of the work orders made on 30 January 2015.
The primary basis given by the builder, as we understood it, for seeking leave to appeal against these findings was that the decision in respect of each finding was against the weight of the evidence (Sch 4, cl12(1)(b) of the CAT Act). We also understood the builder to rely on evidence that had not been before the Tribunal below. We have considered this in terms of Sch 4, cl 12(1)(c) of the CAT Act which, as previously outlined in full, provides that the Appeal Panel may grant leave to appeal if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because "significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)".
In the written submissions filed on 16 December 2016, the builder also made submissions about the findings in relation to items 5.1.4 and 5.1.5 in respect of liability. The Tribunal below, however, found in favour of the builder in relation to these two items. In oral submissions, the representative for the builder confirmed that he did not seek leave to appeal against the findings in relation to those two items given that the findings were in the builder's favour. Nevertheless, the builder asked us to accept that given the findings made in relation to items 5.1.4 and 5.1.5, that it was illogical for the Tribunal to have made the finding that it did in relation to item 5.1.3 and that the Tribunal's findings and orders in respect of item 5.1.3 were therefore against the weight of the evidence.
The builder also provided a number of documents as attachments to the Notice of Appeal and to the written submissions filed on 16 December 2016.
The builder relied on a report dated 15 June 2014 authored by John Donovan of Donovan Associates ("Donovan Associates report").
The builder did not file or serve a report dated 29 May 2015 authored by Mr M Craig of Tyrells Property Inspections Pty Ltd ("the May 2015 Tyrells report"). The builder's representative told us that he thought that the Tyrells report would be before the Appeal Panel even though neither he nor the home owner filed it in the Appeal proceedings.
It was unclear to us why the builder's representative formed this view particularly given the directions made at the callover on 24 November 2016 to the effect that each party was to give to the Tribunal and the other party "all the evidence provided to the Tribunal below on which it is intended to rely" and the notation that if a party did not comply with those directions, the party may not be allowed to rely on those documents at the hearing of the appeal.
Ultimately, the builder's representative did not press the tender of the report.

Reply to appeal

The home owner filed a Reply to Appeal on 23 November 2016 and written submissions in reply to the Notice of Appeal. The home owner supports the decision made by the Tribunal below and disputed that the findings made against the builder were against the weight of the evidence. The home owner also disputed that there was new evidence submitted by the builder that should be accepted by the Appeal Panel.
The home owner attached a number of documents to her written submissions. This included reports dated 26 September 2014 and 20 April 2016 each authored by Mr Geoffrey Pryke of GP Design Pty Ltd (respectively the "September 2014 GP Design report" and "April 2016 GP Design report"). Both of these reports were submitted as evidence before the Tribunal below.
The home owner filed in the appeal proceedings a report by the same author dated 22 December 2016. This report was brought into existence after the date of the Tribunal proceedings below.
A party seeking to adduce fresh evidence in an appeal may only do so with the leave of the Appeal Panel and in accordance with well-established principles (see Gallagher v R [1986] HCA 26; (1986) 160 CLR 392, 402 (Mason and Deane JJ), 399 (Gibbs CJ); QP v RP [2014] NSWCATAP 59, [34]-[37]). If the Appeal Panel is to exercise its discretion in favour of the party applying for leave, it must be "affirmatively satisfied" that, having regard to the findings of the Tribunal at first instance, the further evidence, if tendered at the hearing conducted by the Tribunal was "likely to have produced a different result" (Building Professionals Board v Hans [2008] NSWADTAP 13, at [54]; ZCK v NSW Trustee and Guardian [2016] NSWCATAP 200, at [25]). Importantly, it is the decision at first instance that the Appeal Panel must examine and it is not relevant to an examination of that decision whether the circumstances have changed since that time (QP v RP [2014] NSWCATAP 59, at [37]).
As the new report dated 22 December 2016 came into existence after the date of the hearing before the Tribunal below, it was not evidence that was relevant to the Tribunal's decision at that time. On this basis, we find that the report should not be admitted on appeal. It could not have produced a different result and leave to adduce this evidence is refused.

Leave to appeal - General principles

As noted previously, when considering an application for leave to appeal from a decision of the Consumer and Commercial Division to the Appeal Panel, the Panel is required to be satisfied of the matters set out in cl 12 of Sch 4 to the CAT Act before leave may be granted.
Clause 12 does not require that the Appeal Panel must be satisfied that, in this case the builder, has actually suffered a substantial miscarriage of justice. All that is required is that the builder "may have suffered such a miscarriage: Collins v Urban [2014] NSWCATAP 17, [68].
A decision can be said to be "against the weight of the evidence" where the evidence preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach: Collins v Urban [2014] NSWCATAP 17, [77(2)] (citations omitted). If in those circumstances the builder may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved, then the Appeal Panel may be satisfied that the builder may have suffered a substantial miscarriage of justice because the decision was against the weight of the evidence: Collins v Urban [2014] NSWCATAP 17, [78].
In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred: Collins v Urban [2014] NSWCATAP 17, [79].
Even if the builder has satisfied the requirements of cl12 of Sch 4 to the CAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the CAT Act.
The principles which govern the granting of leave to appeal pursuant to s 80(2)(b) of the CAT Act are summarised in Collins v Urban [2014] NSWCATAP 17 at [84].

Rectification works contained within item 5.1.3 of the GP Design Pty Ltd report dated 26 September 2014

As set out in the Tribunal's reasons (at [26]), item 5.1.3 of the report of GP Design Pty Ltd dated 26 September 2014 refers to the following work: The northern balcony posts are to be repaired or replaced to incorporate bolted connections for the top and bottom connections. The top and bottom connections can consist of M20 stainless steel bolts to use the existing 22 MM diameter counter sunk holes. However, the bottom connection needs to be assessed to ensure there is sufficient edge distance around the bolt holes for the vertical steel cleat of the base plate. Otherwise fabricate new base plates to suit the post holes or replace all three posts.
The written reasons of the Tribunal make the following findings about this work: 27 The respondent [builder] relies on the report of Donovan Associates at pages 13 and 14 of exhibit 1. I do not find that report to be of assistance since it pre-dates the GP Design Pty Ltd report which was relied upon by the Tribunal to frame the work order in item 5.1.3. Further it is conceded by the respondent [builder] that the report does not deal with the top connection referred to in the passage quoted above. 28 Exhibit A at pages 26 and 27 contains a letter from GP Design Pty Ltd dated 20 April 2016. The letter is addressed to the applicant and states that GP Design who, are structural engineers, attended the applicant's site on 5 and 17 February 2016. GP Design stated that as of 5 February 2016 the respondent had not completed the rectification work to items 5.1.4 and 5.1.5 in a satisfactory manner or had not undertaken items 5.1.3 and 5.1.6 at all. GP Design went on to state that work identified was undertaken by local builder, BM Total Building Pty Ltd under its instruction and supervision. 29 I accept the evidence contained in the letter from GP Design Pty Ltd dated 20 April 2016 that the respondent had not undertaken item 5.1.3 at all. 30 I find on the evidence before the Tribunal that the respondent has not completed this work.
In support of his contention that the finding in relation to 5.1.3 was against the weight of the evidence, we understood the builder to make the following submissions: 1. The Tribunal below should have preferred the evidence contained in the Donovan Associates report dated 15 June 2014. The builder drew our attention to the conclusion reached by the author of that report as follows: The uplift capacity of the Pryda Post Anchor is much greater than the maximum uplift force on the anchor. In our opinion, this use of Pryda Centre Fix Post Anchor with 2M10x75mm coach screws through the 135x135mm post and 2M10x75mm coach screws connecting the Post Anchor to the timber balcony is structurally adequate and fit for purpose. 1. This report was not given sufficient weight and the builder could not understand why the Tribunal favoured the April 2016 GP Design report over the 15 June 2014 Donovan Associates report. The Tribunal below should have preferred the conclusion reached in the Donovan Associates report that the work was "structurally adequate and fit for purpose". The knowledge of the author of the Donovan's report is superior to that of GP Design Pty Ltd. 2. Although the Donovan Associates report does not specifically mention the top connection, it does deal with the bottom connection. The builder submitted that "what is good for the bottom is good for the top". 3. The builder did not put in new posts as they were satisfactory, based on the opinion in the Donovan Associates report. It was the connections that needed to be upgraded and they were. 4. Five "observers" were unanimously satisfied that the rectified work had been completed and was completed to industry standard. These observers were: 1. Craig Hardy and Michael Hardy who are certifiers of "Local Certifiers Group". An email from Craig Hardy confirmed the type and size of the screws which needed to be used to fix/attach the bottom of the post to the post support, the post support to the timber framework beneath the flooring and also the screws required to fix the top of the post to the beam. According to the builder, Craig and Michael Hardy were required as the PCA (certifier) of the dwelling to complete a mandatory frame inspection of the rectified work prior to the walls and ceiling linings being installed. Work would not have been able to proceed if any of the work was deemed unsatisfactory; 2. Michael Craig representing Tyrells who inspected the work; 3. Graham Sherrard JP, Licenced Builder Lic No 227864, Dip Building and Construction, who concluded in his report that the work had also been completed satisfactorily; 4. John Donovan from Donovan Associates, who has provided a certificate confirming the coach screws and the post supports are more than satisfactory. In addition, an email from John Donovan confirmed the screws nominated by Craig Hardy were more than suitable for the purpose to fix/attach the bottom of the post to the post, the post support to the timber framework beneath the flooring and also the screws required to fix the top of the post to the beam. 1. Photographs submitted by the builder to the Appeal Panel demonstrate that the posts were changed. 2. A video attached on disc demonstrates that the work was completed and also confirms the coach screws used were screws specified by the Certifier. The Certifier also made reference to the Australian Standards confirming which screws needed to be used. 3. GP Design have no photographic evidence, they were not present at the time of the work being completed, yet they are prepared to provide expert witness evidence with no evidence backing up their statement.

Consideration

As noted by the Tribunal below in its written reasons, the June 2014 Donovan Associates report pre-dated the September 2014 GP Design report. It was this latter report that formed the basis of order 5 of the work order made by the Tribunal originally on 30 January 2015. The Tribunal considered the report and did not find the Donovan Associates report to be of assistance. This appears to be a logical approach if for no other reason that the fact of the work order made by the Tribunal on 30 January 2015, which included the required rectification work in item 5.1.3 of the September 2014 GP Design report, indicates that the work, at that time, required rectification. It is difficult to see how the Tribunal erred in the weight that it accorded the June 2014 Donovan Associates report given that the report pre-dates the making of the work order and asserted that the very same work that was stated in the work order to require rectification was fit for purpose. The Tribunal also appeared to give limited weight to the Donovan Associates report because of the concession made by the builder (which was also made before us) that the Donovan Associates report does not deal with the adequacy of the top connection.
Against this, the Tribunal considered the April 2016 GP Design report. We note that the work requiring rectification in item 5.1.3 was described in that report as "The tie down connections at the top and bottom of the three northern balcony posts have been properly secured". The report concluded that the work set out in 5.1.3 had not been undertaken and the work identified had been subsequently undertaken by BM Total Building Pty Ltd under the instruction and supervision of GP Design Pty Ltd.
The Tribunal gave limited weight to the opinion expressed in the Donovan Associates report for the reasons noted by the Tribunal member and preferred the evidence contained in the April 2016 GP Design Pty Ltd report. We find no error in the Tribunal member doing so.
It was open to the builder for the purposes of the renewal proceedings heard on 15 June 2016 to obtain appropriate expert evidence in response to the April 2016 GP Design report challenging the contents of that report but the builder did not do so.
During the appeal hearing, the builder referred us to the opinions of other professionals as being relevant to the issue of whether the work set out in item 5.1.3 had been completed.
The builder referred us to the views of Craig Hardy and Michael Hardy from the Local Group. He submitted that unless and until appropriately certified, work would not have been able to proceed on site.
During the appeal hearing, however, the builder conceded that no evidence to this effect from Mr Craig or Michael Hardy or from the Local Group was put before the Tribunal below. The decision of the Tribunal below cannot be against the weight of evidence if in fact that evidence was not placed before it. Nor did we understand the builder to submit that this was significant new evidence that should lead us to grant leave to appeal pursuant to sch 4, cl 12(1)(c) of the CAT Act. Indeed it is not clear how the builder could have done so as there was no written report or statement by Mr Craig or Michael Hardy filed in the appeal proceedings. Rather, the builder seemed to suggest that work, appropriately certified, must be free from defect. It would also appear difficult to see how such evidence, even if available, was not reasonably available at the time the proceedings under appeal were being dealt with.
The builder withdrew any reference to a report by Graham Sherrard JP, Licenced Builder Lic No 227864, Dip Building and Construction, who, according to the builder, concluded that the work had been completed satisfactorily. This report was not put before us.
The builder's written submissions made reference to the May 2015 Tyrells report who inspected the work. However, the builder did not explain the relevance of the views expressed in the Tyrell's report to this finding made by the Tribunal below and whether the Tyrell's report addressed the rectification work required by item 5.1.3 of the April 2016 report of GP Design Pty Ltd which formed part of paragraph 5 of the 30 January 2015 work order. We note that the most recent Tyrell's report was dated 29 May 2015, some time prior to the renewal proceedings and prior to the April 2016 report prepared by GP Design Pty Ltd. If the builder wished to contest the views presented by the home owner's experts at the 15 June 2016 hearing, then it could have adduced expert evidence.
In our opinion it cannot be said that the "evidence in its totality preponderates so strongly against the Tribunal's conclusion that it appears to be objectively unreasonable": Collins v Urban at [77].
The builder submitted a number of photographs (attached to the Notice of Appeal) and referred to a video showing the installation of screws. As noted in the home owner's written submission (at [27], Respondent's Submissions in Reply to the Notice of Appeal), this photographic material is not supported by dates, descriptions or submissions. In any event, there was nothing before us to indicate that the photographic material was not reasonably available at the time the proceedings under appeal were being dealt with (Sch 4, cl 12(1)(c) of the CAT Act).
As previously noted, the builder asked us to accept that given the findings made in relation to items 5.1.4 and 5.1.5, that it was illogical for the Tribunal to have made the finding that it did in relation to item 5.1.3 and was therefore against the weight of the evidence.
Item 5.1.4 requires the provision of "structural blocking beneath all first floor balcony balustrade connections so that it is connected to the floor joists…"
Item 5.1.5 required the builder to "Expose the balustrade connections for the first floor balcony adjacent to Bedroom 1 and rectify as required in accordance with item 5.1.4 above".
The Tribunal's consideration of the evidence in relation to this work is set out at [31]-[38]. Unlike the evidence in relation to items 5.1.3, which went to whether the required work had been undertaken at all, the conflict in the expert evidence in relation to items 5.1.4 and 5.1.5 was whether the rectification work had been completed to a satisfactory standard. The Tribunal found in favour of the builder in relation to both of these items.
In doing so, the Tribunal clearly explained why it preferred the builder's expert evidence. It placed limited weight on the opinion provided in the April 2016 GP Design report as to the work not being carried out satisfactorily as "[d]etails of the unsatisfactory nature of the respondent's work were not provided which I find detracts from the veracity of the GP Design Pty Ltd evidence" (at [36]). In addition, the receipt for the work undertaken by BM Total Building Pty Ltd, under the instruction and supervision of GP Design Pty Ltd, did not, according to the Tribunal (at [37]), "obviously refer to" to the work referred to item 5.1.4. The Tribunal made a finding that the builder had complied with this aspect of the work order (at [37]).
In relation to item 5.1.5, the builder relied on the same evidence as referred to in item 5.1.4 (see [40]) and the Tribunal "for the same reasons as stated in connection with item 5.1.4" made a finding that the builder had complied with this aspect of the work order (at [43]).
We are unable to accept the builder's submission on appeal that there is an inconsistency in the Tribunal's findings in relation to item 5.1.3 on the one hand, and items 5.1.4 and 5.1.5 on the other such that the finding in relation to 5.1.3 is illogical and against the weight of the evidence The Tribunal sets out in detail the competing evidence about items 5.1.4 and 5.1.5 as to whether the required work had been completed to a satisfactory standard. The findings were not inconsistent with the finding in relation to item 5.1.3 that the required work had not been completed at all.

Rectification works contained within item 5.1.6 of the September 2014 GP Design report

As set out in the Tribunal's reasons (at [44]), item 5.1.6 of the report of GP Design Pty Ltd dated 26 September 2014 refers to the following work: Ensure all timber framing components over first-floor steel beams are fixed to the steel beams (B1, B3 and B5) in accordance with the specifications of the engineering details by Donovan Associates.
The written reasons of the Tribunal below make the following findings about this work: 45 The applicant relies on page 4 of exhibit A to demonstrate that 'One of the bottom plates showing no tie downs as per the Donovan's engineering detail'. The applicant also submits that the Tyrrells reports in exhibit 1 do not address this item. 46 The respondent refers to page 50 of the Tyrrells report which is the front cover of the report. The respondent was unable to refer to specific evidence to establish that this work had been rectified. It stated words to the effect 'Some document somewhere exists to show that the work has been rectified'. Be that as it may, the respondent has not produced any evidence to persuade me that this item of work has been rectified. 47 In addition as stated above, the GP Design Pty Ltd letter dated 20 April 2016 states that the respondent had not undertaken item 5.1.6 at all. 48 I will accept the applicant's evidence that the work has not been rectified.
In support of his contention that the finding in relation to 5.1.6 was against the weight of the evidence, we understood the builder in written and oral evidence to make the following submissions: 1. Three "observers" were unanimously satisfied that the work had been completed. They all deemed the work completed to industry standard. These observers were: 1. Craig Hardy and Michael Hardy, who are certifiers from the Local Certifiers Group. According to the builder's written submission, as the PCA certifier of this dwelling, Craig and Michael Hardy are required to complete a mandatory frame inspection of the rectified work prior to the walls and ceiling innings being installed. Work would have stopped if any of the work was deemed unsatisfactory; 2. Michael Craig representing Tyrells. 1. Photographs provided to the Appeal Panel show, according to the builder, that the screws were installed in Beam 1 (photo 17) and that a Gal T Bar, used to support brickwork, was installed at Beam 3. Photo 12, which shows a steel hoop iron strap above the brickwork, demonstrates that the work was done. GP Design could not have viewed the latter work while the gyprock was in place. 2. Beam 5 is a steel beam which was screw fixed like Beam 1 from the underside. This was viewed by Craig and Michael Hardy confirming the work was completed correctly. 3. The Tribunal member gave too much weight to the April 2016 GP Design report. The May 2015 Tyrells report stated that the work was completed correctly. It should have been preferred.

Consideration

The submission made by the builder as to his understanding of the views of Craig Hardy and Michael Hardy of the Local Group is attended with the same difficulties that we set out at [58] above.
The builder also referred us to photographs that are asserted to establish that the work required in item 5.1.6 has been carried out. The photographs are not supported by dates or expert evidence as to the significance of what is contained in the photographs. If the material is new evidence that was not put before the Tribunal below, then the builder did not explain why evidence was not reasonably available at the time the proceedings under appeal were being dealt with (sch 4, cl12(1)(c) of the CAT Act).
We also note the builder's submission that the May 2015 Tyrells report stated that the work was completed correctly. It is not clear upon which basis the builder makes this submission given that the May 2015 Tyrells report does not, as noted in the reasons of the Tribunal below (at [45]-[46]), make reference to this item.
It was open to the Tribunal, on the evidence available to it, to accept the evidence contained in the April 2016 GP Design report about this aspect of the work order. For the reasons set out above, it could not be said that the finding made by the Tribunal was against the weight of the evidence or that there was significant new evidence that was not reasonably available at the time of the hearing.

Rectification works contained within item 5.1.7 of the September 2014 GP Design report

The Tribunal set out its findings in relation to this item at [49]-[53].
As set out in the Tribunal's reasons (at [49]), item 5.1.7 of the report of GP Design Pty Ltd dated 26 September 2014 refers to the following work: Replace all external wall cladding fixings with stainless steel nails.
The written reasons of the Tribunal below make the following findings about this work: 50 The parties stated to me that they had no evidence at all in relation to this item. The applicant stated that it relied on a document it filed in Appeal Proceedings AP 15/42268, Kay v 3D Design & Build Pty Ltd. As stated above the Appeal documents are not in evidence in these proceedings. 51 The respondent has referred to paragraph 3.1.6 of page 52 of Exhibit 1 to establish that it has complied with this item of the work order. Paragraph 3.1.6. states that 'All external fixings to be certified from suppliers that they are suitable for this location. By Builder'. There is no certification provided. Page 55 of exhibit 1 paragraph 4.1.40 is also relevant to this item. It states that this item of work has been completed. 52 Despite the parties submissions I have had regard to the letter from GP Design Pty Ltd dated 20 April 2016 as referred to above. GP design stated: Furthermore section 4.1.29 of the Tyrrells report, states that the nail fixings employed to the wall cladding are fit for purpose as per cladding manufacturer's specifications has been completed. The replacement of the nail fixings has not been undertaken at this stage. It is our opinion that the existing galvanised nail fixings do not comply with the manufacturer's specifications, which specifies stainless steel fixings for severe marine environment. This recommendation was made in Section 5, Item 5.1.7 of our report dated 26 September 2014 and forms part of the Work Orders (Item 5) dated 30 January 2015 by NCAT' 53 I accept the GP Design Pty Ltd evidence extracted above. As a result I find that this item of work has not been rectified.
In support of its contention that the finding in relation to 5.1.7 was against the weight of the evidence, the builder made the following submissions: 1. The nails used to attach the cladding comply with the National Construction Code 2014. The author of the April 2016 GP Design report has offered an opinion, not fact, by suggesting that galvanised nails do not comply with the BGC board manufacturers recommendations. Further, the author of the 2016 GP Design Pty Ltd report incorrectly states that the manufacturer specifies stainless steel nails when in fact they recommend the use of stainless steel fixing gun brads. 2. The work order that the GP Design engineer refers to has been completed. The work suggested that the galvanised nails that were visible needed to be removed and replaced with stainless steel brads. That work was completed.

Consideration

Many of the builder's submissions in relation to this item focussed on whether galvanised nails were fit for purpose as opposed to stainless steel fasteners. In the builder's view, item 5.1.7 of the work order had been completed as "the galvanised nails that were visible needed to be removed and replaced with stainless steel brads. That work was completed. That was all I was requested to do".
The builder's submission clearly sets out a belief that the author of the April 2016 GP Design report was incorrect in the views he expressed about this issue. However the builder conceded that he had not put to the Tribunal member the builder's view that the opinions expressed in the April 2016 report were incorrect.
Much of the material provided by the builder in support of this ground had not been put before the Tribunal member in the original proceedings. Clause 12(1)(c) to Sch 4 of the CAT Act does not permit the losing party to simply address shortcomings in or bolster the evidence on which they relied in the original proceedings (Knight v Oztrack Pty Ltd [2015] NSWCATAP 119, [44]). There was no suggestion in the builder's submission that this new evidence was not reasonably available at the time the proceedings under appeal were being dealt with.
The reasons of the Tribunal (at [51] and at [134] in relation to item 41 of paragraph 6 of the work order) make reference to the view expressed in the May 2015 Tyrells report that this item of work has been completed. That view appears to have been expressed in response to item 41 of paragraph 6 of the work order which was in the following terms: "carry out remedial work to ensure the cladding to facades is installed as per manufacturer's specifications".
However, item 5.1.7, which the report of GP Design Pty Ltd specifically addressed, is in different terms ("Replace all external wall cladding fixings with stainless steel nails") and the evidence provided in the April 2016 GP Design report was that the work had not been completed in accordance with that item.
We note that the most recent Tyrells report was dated 29 May 2015, some time prior to the renewal proceedings and prior to the April 2016 report prepared by GP Design Pty Ltd. If the builder wished to contest the views presented by the home owner's expert at the 15 June 2016 hearing, then it could have sought further evidence to do so.
It was open to the Tribunal member, on the available evidence, to accept the view expressed in the April 2016 GP Design Pty Ltd report that the work required by item 5.1.7 was incomplete. We were not of the view that this finding was against the weight of the evidence.

Conclusion

Not being satisfied that the builder may have suffered a miscarriage of justice because of the grounds set out in cls 12(1)(b) or (c) of Sch 4 to the Act the application for leave to appeal must be dismissed.

Orders 1. The appeal is dismissed. 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: 17 May 2017

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