A1 Granny Flats Pty Ltd v Liu

Grounds of Appeal

1. The appellant claims that the Decision was not fair and equitable, and against the weight of the evidence.
2. In relation to the Decision not being fair and equitable, the Builder provided five pages of detailed submissions attached to the Notice of Appeal setting out errors he submits were made by the Tribunal: see Attachment A to the Notice of Appeal. The Builder provided a further 10 pages of submissions in his bundle of materials filed on 28 January 2022.
3. In relation to the decision being against the weight of the evidence, the Builder submits that based on the evidence presented by the parties to the Tribunal, the Decision was against the evidence and implied contract conditions were not taken into consideration. Again, the Builder relies on Attachment A to the Notice of Appeal.

Reply to Appeal

1. In its Reply to Appeal, the Homeowner simply states that she respected and obeyed the decision of the Tribunal. Attached to the Reply to Appeal was her response to the Builder's Attachment A to the Notice of Appeal.

Other materials

1. In addition to the Notice of Appeal and Reply to Appeal, both parties filed a large amount of documentation. It is not necessary to list all this material but the Builder's materials included 146 pages of documents filed on 28 January 2022 which included further submissions, and the evidence on which it relied at the Tribunal hearing.
2. Similarly on 15 February 2022, the Homeowner provided three bundles of materials amounting to approximately 170 pages of documents.
3. Finally, on 28 February 2022, the Builder filed a further 54 pages of materials, including 13 pages of submissions in reply, in response to the Homeowners' materials.

Nature of an appeal

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

A question of law

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right.
2. In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).
3. We have undertaken that exercise, but we cannot identify any error of law in the Notice of Appeal. Accordingly, the appellant requires the leave of the Appeal Panel to bring the appeal.

Leave to appeal

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
3. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

Preliminary observations

1. We make three observations at the outset of our consideration of the appeal.
2. The first is that an appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. And, as the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states, "an appeal is not an opportunity to have a second go at a hearing".
3. It appears to the Appeal Panel that the Builder is simply attempting to conduct its case all over again. Mr John Dimov, the Manager of the Builder who represented the Builder at the appeal hearing, told us that he had not been able to attend the Tribunal hearing as he had been ill. Mr Dimov sought to give evidence on the appeal which he had been unable to give at the Tribunal hearing. This included conversations he had had with the Homeowner. We explained to him that this was not permissible.
4. Secondly, and related to the first observation, is that the Builder provided close to 20 pages of submissions and grounds of appeal in chief, and a further 13 pages of submissions and further grounds in reply. It is beyond the scope of these reasons to deal with each and every one of the matters raised. In this respect, while it is the obligation of the Tribunal to set out relevant findings necessary to determine the matter, it is not necessary to make findings on every argument and every submission, particularly where the arguments advanced are numerous and of varying significance, and may not be supported by evidence, and we have not done so: see CEU v University of Technology Sydney [2018] NSWCATAD 13 at [79]; Bajic v Paraskevopoulos [2018] NSWCATAP 192 at [55].
5. The third observation is that the Appeal Panel stated in Bartel v Ryan [2018] NSWCATAP 231 at [25] that the High Court of Australia said in Coulton v Holcombe [1986] HCA 33 at [9] that it is elementary that a party is bound by the conduct of their case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against them, to raise a new argument which, whether deliberately or by inadvertence, the party failed to put during the hearing when they had an opportunity to do so: see too Palm Homes Pty Ltd v Kav's Constructions Pty Ltd [2015] NSWCATAP 113 at [27].
6. Mr Dimov raised a number of matters which he candidly admitted had not been raised before the Tribunal. As we explained during the hearing, this is not permissible.
7. Mr Dimov also raised other matters which he (or Mr S Dimov who also made some representations on behalf of the Builder) claimed had been raised orally at the Tribunal hearing but did not appear in any of the Builder's written submissions. As we do not have the benefit of a sound recording or transcript of the Tribunal proceedings, despite directions of the Appeal Panel if the Builder wished to rely on either, we had concerns that the Builder was seeking to raise arguments which we could not be certain were raised before the Tribunal.
8. Where such a point was not taken or argument was not made before the Tribunal, it is unfair to the Homeowner to allow the Builder to raise it on appeal.
9. We turn now to the Builder's principal grounds of appeal which Mr Dimov raised in his oral submissions. Principal grounds of appeal
10. The first principal ground of appeal is the Builder's submission that the Tribunal erred in finding that the terms and representations of the Tender formed part of the terms of the Contract.
11. We do not consider that the appeal can succeed on this point.
12. First of all, there is no finding by the Tribunal that the terms and representations of the Tender formed part of the terms of the Contract. Indeed, the Tribunal noted at [20] that cl 4D of the Contract expressly provided that the whole of the terms, conditions and warranties of the Contract are as set out in the contract and are not varied or affected by reference to any prior negotiations, stipulations or agreement, whether written or verbal. What the Tribunal found was that oral representations made by Mr Martin and contained in the Tender itself induced the Homeowner to later sign the Contract. Based on the evidence before the Tribunal, and given the considered treatment of this issue by the Senior Member in her reasons, we see no error.
13. In any event, as was conceded by Mr Dimov, this argument was not raised before the Tribunal.
14. The second principal matter raised by the Builder was that the Tribunal erred in not considering that the Homeowner herself caused various delays, principally through her excessive number of changes of variations. Here the Builder noted that under the terms of the Tender the applicant was entitled to four changes (for which the Builder could charge $350), but she had in fact requested 16 changes.
15. Putting aside the facts that:

• the Builder's primary submission was that the terms of the Tender did not form part of the Contract, [2]
• Mr S Dimov stated in 5 of his statement attached to the Builder's cross application that there had been (only) "eleven revisions of the Plans", again, Mr Dimov conceded that this issue was not raised before the Tribunal, and that there was no evidence about these matters before the Tribunal.

1. The third principal matter raised by the Builder follows the second matter, namely that the Tribunal erred in not finding that the Contract price had increased by reason of the Homeowner's requested changes.
2. As it appears there was no evidence on this point, and in any event was not necessary for the Tribunal to make a finding on this issue in coming to its decision to award the Homeowner compensation pursuant to s 236 of the ACL, we see no substance in this ground of appeal.
3. The fourth principal matter was that the Tribunal erred in finding that the Homeowner was induced by the representations of Mr Martin and the representations contained in the Tender to sign the contract. It was common ground that Mr Martin did not give evidence to the Tribunal, but the Homeowner did. In those circumstances, the Tribunal was entitled to find at [22] that it accepted the evidence of the Homeowner that representations were made to her orally prior to signing the Tender and then entering into the Contract.

Other grounds of appeal

1. While we have discussed the Builder's principal oral grounds of appeal above, we thought it appropriate to discuss briefly the grounds appearing in Attachment A attached to the Notice of Appeal. In truth many of these "grounds" are not grounds of appeal at all.
2. For instance, the first two grounds are that: 1) At paragraph 19, the member acknowledged that the feasibility report, which forms part of the tender document signed by the applicant clearly provides that a granny flat may be permissible under a Complying Development Certificate (CDC) or through a Development Application (DA) - it provides no assurance that a (CDC) can be obtained. 2) Having accepted this crucial element of the agreement, the member, at paragraph 21 also accepted that this was accurately reflected in the signed contract between the parties. So, any initial unrealistic expectations that the applicant may have had should no longer bear any relevance as all documentation was based on realistic outcomes as they became known to both parties - there was no misrepresentation, both parties acted on available information and changed expectations as the design and approval process moved forward.
3. The first ground does not amount to a submission that the Tribunal erred. It is simply a background statement leading to the second ground of appeal. At [21] of the Decision, of which the Builder complains, the Tribunal stated that: Thus, Ms Liu has signed a Contract that says that approval may be either via CDC or by lodgement of it [sic] development application. Therefore this would not be a ground for arguing that there is a breach of Contract.
4. There is simply no substance in either of these "grounds".

Third ground of appeal in Attachment A

1. The third ground of appeal follows on from the second ground of appeal and relates to [22] of the Decision where the Tribunal stated: However I accept the evidence of Ms Lou that representations were made orally prior to her signing the Tender document in December 2019 and then entering into the contract on 29 January 2020 that the CDC route would succeed. In addition, the Tender document support the view that she was encouraged to believe that CDC would be approved
2. The Builder submits that: At paragraph 22, the member wrongfully asserts that the Tender document encouraged the applicant to believe that a CDC would be approved - this goes against the weight of the evidence. The respondent, as a matter of common industry wide business practice, suggests that, where projects are compliant with CDC guidelines, that the application should be made under the CDC approval process, as this is typically quicker than a DA application. However, it is not possible to give any assurance that CDC approval would be appropriate in every case - this is a matter for private certifiers that carry out a proper assessment of all relevant issues. The private Certifiers act for the applicant to ensure there is no conflict of interest with the builder.
3. We do not know whether or not any submission about "common industry wide business practice" was made to the Tribunal, nor do we know whether the Builder submitted to the Tribunal that was not possible to give any assurance that CDC approval was appropriate in every case.
4. There is no substance in this ground of appeal. This appears to be an example of the Builder attempting to run its case again.

Fourth, seventh and fourteenth grounds of appeal in Attachment A

1. These grounds can be considered together, as they all deal with the commencement date of the building works. The Builder submits that the Tribunal erred in various ways. We have dealt with effect of these submissions above, namely that these are examples of the Builder making a submission on appeal which was not made before the Tribunal and not supported by evidence before it.

Fifth ground of appeal in Attachment A

1. The fifth ground of appeal is extremely lengthy, relates to [32] to [46] of the appeal, and deals with the Contract price. We have dealt with this point above. It is irrelevant to Tribunal's decision to award the Homeowner as compensation for misleading and deceptive conduct $13,600 by way of a "rent guarantee" which Tribunal found at [65] was a guarantee made by the Builder to the Homeowner.
2. It follows this ground of appeal lacks substance.

Sixth ground of appeal in Attachment A

1. The sixth ground of appeal is that the Member failed to consider that the cost of a fire safety report was not a construction item and could not have been included in the construction cost of $106,500.
2. This has no relevance to the decision that the Tribunal finally came to.

Eighth ground of appeal in Attachment A

1. The eighth ground of appeal is a generalised, "rolled up" submission that the Tribunal's findings "in the bulk, against the weight of the evidence, that the Member felt consider that the [Homeowner] did not plead on the basis that there was misrepresentation by the [Builder]", and submits that the Tribunal failed to consider that the project did not commence due to an unresolved dispute between the parties.
2. We see no substance in this ground of appeal.

Ninth ground of appeal in Attachment A

1. The ninth ground of appeal is that: The member failed to recognise the rights of the [Builder] under the contract and in paragraph 63 wrongfully attributed alleged losses suffered by the [Homeowner] to the conduct of the [Builder]. Conduct that is strictly in accordance with the contract.
2. This is a generalised submission which is rejected. In [63], the Tribunal simply concluded that the Homeowner had suffered loss and damage due to the misleading and deceptive conduct of the Builder given the Tribunal's reasons, this conclusion appears to be justified.

Tenth, Eleventh and Twelfth grounds of appeal in Attachment A

1. These grounds all submit that the Tribunal variously failed to consider the conditions Council had placed on the granting of a Development Application.
2. As we have noted above, there is no evidence to show that this point was taken before the Tribunal.

Thirteenth ground of appeal in Attachment A

1. The thirteenth ground of appeal is that the Tribunal orders seek to "punish the [Builder] to carry out its business in a manner that is industry standard and compliant with all statutory requirements and contractual obligations". In the circumstances the Builder submit that the Decision should be overturned.
2. The Builder conceded that there was no evidence of industry practice before the Tribunal. This ground of appeal is a submission without substance.

Fifteenth ground of appeal in Attachment A

1. The fifteenth ground of appeal is that the signed Tender provided for a payment of $4,000 for cancellation of the Contract to compensate the Builder for the subsidise cost of the development application approval. The Builder submits that this is payable under the Contract and is a condition that is intrinsically linked to the release of documentation that the member issued in per second order. The Builder submits that the Tribunal "offered no valid explanation for excluding this from the orders".
2. This submission is difficult to understand although it may be relevant to the Builder's cross application, which we consider below.

Other grounds set out in submissions of 28 January 2022

1. For completeness, we have also considered the Builder's lengthy submissions of 28 January 2022. The first seven pages are simply a chronological recitation of the underlying facts. In pages 8 to 10 the Builder sets out additional reasons why the Decision was not fair and equitable.
2. No additional grounds of appeal are raised other than ones we have already referred to. That is to say, the Builder again refers to the Tribunal's conclusions relating to the commencement date of the granny flat, to the scope of work being changed by the Homeowner and are otherwise repetitious.
3. We see nothing in those submissions warranting a grant of leave to appeal

Conclusion

1. We noted above that an appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again, and is not an opportunity to have "a second go at a hearing".
2. It appears to the Appeal Panel that the Builder is simply attempting to conduct its case all over again, and to make submissions and to raise issues which were not raised before the Tribunal.
3. To the extent that the appeal raises errors other than errors of law, we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
4. In relation to each of the above matters, leave to appeal is refused.

Appeal in relation to cross application

1. The Builder also appealed in relation to the Tribunal's decision to dismiss its cross application.
2. A failure to provide adequate reasons for a decision is an error of law (Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 13) and leave to appeal is not required.
3. At par [4] of the Decision the Tribunal noted that the Builder had filed a cross application seeking payment of the sum of $8,430.00. At [70], in its orders, the Tribunal dismisses that application.
4. Regrettably, no reasons at all were given for coming to this conclusion.
5. In the Appeal Panel observed in Carbery v Warringah Rugby Club Ltd [2021] NSWCATAP 153: [18] The Appeal Panel stated in Camilleri v Eastlake [2018] NSWCATAP 176 at [26]: It is correct that a failure to give reasons is an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279. However, the extent and content of the reasons required will depend upon the particular case and the issues under consideration: Moloney v Collins [2011] NSWSC 628. The duty does not require a court or tribunal to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings: Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58].
6. In the absence of any reasons, this part of the appeal must be allowed, and the matter remitted to the Tribunal for determination. The matter should be listed for directions and the Tribunal can determine what evidence should be permitted at the rehearing.

Orders

1. The Appeal Panel orders: 1. The appeal in relation to the cross application filed by the appellant and dismissed in the reasons for decision in matter HB 21/25364 is allowed and the matter remitted to the Consumer and Commercial Division of the Tribunal for determination by another member. 2. In relation to the balance of the appeal, leave to appeal is refused, and the appeal is otherwise dismissed.

Endnotes

1. We note that the cross application was not allocated a separate file number.
2. Although from time to time the Builder submitted that the Tender and the Contract should be read together; for example the Builder submitted that the "rent guarantee" in the Tender prevailed over any term of the Contract. The result is that the Builder's position was not consistent. 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: 14 March 2022