Akkari v Sartor

Preliminary issues

1. It is necessary first to consider two preliminary issues.
2. The first issue is jurisdiction. Mr Akkari submits that the renewal proceedings, in respect of which this appeal is brought, were statute-barred. He submits that the building works were completed in 2005, and that under the relevant statutory provisions at the time the respondent had seven years from the date of completion of the building work to file a claim. Mr Sartor and Mr Fairchild did so, the proceedings resulting in the agreement referred to at [4] above. Mr Akkari submits that as the renewal proceedings were commenced in January 2014, they were out of time and the Tribunal had no jurisdiction to hear or determine the matter.
3. The right of renewal referred to was a reference to the then relevant legislation the Consumer Trader and Tenancy Tribunal Act 2001, ss 43(1) and (2) of which relevantly provide: 1. If the Tribunal makes an order in relation to any proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. 2. If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.
4. The renewal proceedings are simply a continuation of proceedings HB 11/36863; they are not new or second proceedings in the sense contended for by Mr Akkari. As proceedings HB 11/36863 were commenced in time, so too has the renewal application HB 14/01639 been filed in time.
5. Accordingly, Mr Akkari's submissions on this issue are rejected.
6. The second issue is whether Mr Akkari should be granted an extension of time in which to file his notice of appeal.
7. The decision appealed from was made on 22 October 2014 and the appeal was filed on 27 November 2014. Unless the Tribunal grants an extension of time under s 41 of the Civil and Administrative Tribunal Act 2013 (the Act), appeals must be lodged relevantly within 28 days from the day on which Mr Akkari was notified of the decision to be appealed or given reasons for the decision (whichever is the later): see rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014.
8. Mr Akkari states in the notice of appeal that he received notice of the decision on 27 October 2014. Accordingly, his notice of appeal was filed three days late.
9. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel considered the principles which govern the granting of an extension of time. The Appeal Panel stated at [22] that generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider the length of the delay, the reason for the delay, the prospects of success (that is usually whether the applicant has a fairly arguable case); and the extent of any prejudice suffered by the respondent (to the appeal).
10. Here the extent of the delay is three days. The reason for the delay is explained as follows: I have not been able to reach Mr Barry Morris to clarify his report. I have been made aware from his office, that he has been very busy after his return to work from 10 November 2014, and leading to the Christmas period.
11. In their Reply to the Appeal Mr Sartor and Mr Fairchild have not stated that they object to the Appeal Panel extending the time for the making of the appeal. We take the absence of any objection to mean that they do not assert they would suffer any prejudice as a result of the extension of time. They did state at the hearing that the matter should be finalized as it has been going on for some years, but that is a consequence of the matters referred to above, including the renewal of the proceedings by them. In the circumstances, given that for the reasons identified below we consider there is merit in Mr Akkari's appeal, we have determined that the time for the filing of the notice of appeal should be extended to 27 November 2014.

Appellant's submissions

1. The Act sets out the basis upon which appeals from decisions of the Consumer and Commercial Division of the Tribunal can be made. Pursuant to s 80 of the Act an appeal may be made as of right on any question of law (s 80(2)(b)), or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).
2. Ms McMahon of Counsel, who appeared for Mr Akkari, did not claim that the Tribunal made an error of law. Rather, she claimed that Mr Akkari suffered a substantial miscarriage of justice, in that the decision appealed from was against the weight of the evidence. If this is the case then leave to appeal is required.

Procedural Fairness

1. Ms McMahon also submitted that Mr Akkari was denied procedural fairness, in that Mr Akkari, who was not represented at the Tribunal, was taken by surprise by the conduct of the hearing in that the Tribunal suggested compensation would be ordered in the absence of the parties reaching an agreement. It is to be noted that Mr Sartor and Mr Fairchild (who were the applicants seeking the renewal), had not sought compensation in the renewal application. The unfairness or prejudice to Mr Akkari was said to be that he was denied the opportunity to seek to have costings prepared for the carrying out of the allegedly defective or absent rectification work.
2. Ordinarily, a denial of procedural fairness is an error of law: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8], referred to in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [17].
3. It is convenient to deal with this matter first. In short we are not persuaded, on the materials before us, that this ground is established. To establish procedural fairness in the conduct of a hearing by a Tribunal member, we would have thought that a transcript of the hearing be provided, or at least the sound recording, to establish such fundamental matters as what the Tribunal member said and how they conducted themselves so as to deny the appellant procedural fairness. In the circumstances we are cannot be satisfied that Mr Akkari did not consent to the course proposed and then taken by the Tribunal. We see no denial of procedural fairness as claimed. We turn now to Mr Akkari's primary submission.

Decision against the weight of the evidence

1. Clause 12 of the Act provides that an Appeal Panel may grant leave only if it is satisfied Mr Akkari 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 expression "miscarriage of justice" was considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. There the Appeal Panel stated at [71] that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived Mr Akkari of a chance that was fairly open of achieving a better outcome than occurred.
3. Mr Akkari's primary submission that the decision below was against the weight of the evidence is said to arise in three ways.
4. First, Mr Sartor and Mr Fairchild had relied on a building inspection report dated 28 February 2014 prepared by Mr Angelo Antiodormi of Property & Building Assessments Pty Ltd (PBA)(the Antidormi Report). Mr Akkari relied on a building report of Mr Barry Morris of Kellyridge Homes Pty Ltd t/as Building & Construction Reports)(the Morris Report) dated 27 June 2014.
5. Mr Akkari submits that the Tribunal, having noted that Mr Antidormi's conclusions were not "generally referenced to any particular code, standard, guidelines or indeed any requirement under the consent orders" (see reasons at [17]), nonetheless "accepted at face value" what Mr Antidormi said in the Antirdormi Report. Mr Akkari submits this is "clearly unjust" in that the onus of proving that an item is defective lies with Mr Sartor and Mr Fairchild. He submits that if the evidence relied on by them makes no reference as to how any item offends an industry code or standard then that item cannot or should not be proved by mere assertion in the Tribunal below. This injustice is further exacerbated, so it is said, by the fact that Mr Antidormi did not attend the hearing and so Mr Akkari, who was unrepresented, had no opportunity to test the assertions made.
6. We see substance in this submission.
7. Secondly, Mr Akkari also submits that the Tribunal erred in ordering compensation in respect of two matters. The first was external rendering (items 5.03 to 5.16 in the Scott Schedule). For this matter the Tribunal ordered compensation in the amount of $18,493.03. Mr Akkari claims that he had re-rendered the faulty areas and repainted the entire walls. The second matter was the balcony floor tiles (item 5.05 in the Scott Schedule). Here Mr Akkari states that the work had been carried out.
8. In relation to the external rendering, Mr Morris concluded at p 11: In view of the above the writer is of the opinion that there is no outstanding works necessary and accordingly no repair costs.
9. On the other hand the respondent's expert Mr Antidormi, in his report dated 28 February 2014, stated at p 21 (section 10.1.3): I am of the opinion that the following works needs to be carried: 1. fill all horizontal and vertical movement/control joints to wall applications with "Sika-Flex Pro: or similar; 2. create weep holes to the rear west . . . 3. electrician to secure and make good external wall light to the north elevation wall; 4. if found, apply 1 x coat of Dulux Acratex 968 to the curved parapet walls to 1st floor front elevation 5. if found, identify repair areas where Acratex Acraprime has not been applied, remove paint surface, apply Acratex Acraprime, then apply 1 x coat Acratex 968 Elastometric 6. remove drummy render form effected to gate, patch, repair and paint/make good.
10. However, and this is Mr Akkari's principal submission, the Scott Schedule made no provision for any of matters (d), (e) or (f) above. As noted above, under the terms of the agreement of 9 July 2013 Mr Sartor and Mr Fairchild accepted the obligation of the cost of the application of finishing coat to the external surfaces. Additionally, and in any event as the Tribunal found, Mr Akkari asserts, and the Morris Report concludes, that the rectification work was in fact completed.
11. At p 22 of his report Mr Antidormi (section 10.1.4) then sets out the costs of those repairs being a total of $18,493.00. As Ms McMahon's written submissions state: "the completion costs were said to be $18,493. The [respondents'] expert costings at page 22 of his February 2014 report at 6.5-6.6 [sic - 6.10?] include work that were never part of the work order and were indeed specifically noted to be the responsibility of the [respondents] (being the 2 coats of paint) This amounts to $15,104.10. (underscoring as in original, footnote omitted)
12. As to the balcony tiles, again Mr Akkari asserts that the work was completed. Again, we note that the Tribunal's reasons state that Mr Akkari returned to the premises and undertook rectification work, a matter corroborated by the Morris Report.
13. Thirdly, Mr Akkari submits that an examination of the Antidormi Report shows that the report states that the costs for the carrying out of the rectification works in relation to the external walls includes: "if found", labour to apply one coat of Acratex 968 to the curved parapet walls; and "if found", labour to remove the paint surface to the existing rendered and to apply one coat of Acratex Acraprime and two coats of Dulux Acratex
14. This, in our view, is a fundamental problem. Mr Akkari, correctly, submits that this cannot amount to a finding by an expert that this rectification work required to be undertaken. It is an opinion that, if the work is found to be required to be undertaken, then the costs is as he sets out. We consider that the use of the descriptor "if found" prevented the Tribunal from finding that the expert concluded that the rectification work had not in fact been undertaken.
15. As to whether the decision being appealed was against the weight of evidence, guidance is given in the decision of Collins v Urban. In that case the Appeal Panel stated at [77] - [79]: 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: . . . (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality 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 - Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].
16. The Appeal Panel considers that, for each of the three submissions advanced by Mr Akkari, both individually and cumulatively, the conclusion of the Tribunal that those matters require rectification and that a sum of money be ordered in lieu of an order of a rectification order is against the weight of the evidence.
17. We would grant leave to appeal in respect of this matter and allow the appeal.

The reasons of the Tribunal

1. Further, the Appeal Panel is of the view that there is another, more fundamental, difficulty with the Tribunal's reasoning and decision.
2. As noted, the Antidormi report is dated 28 February 2014 and the Morris Report 27 June 2014, some five months later. The Tribunal preferred the Antidormi Report. It is appropriate to set out the Tribunal's reasoning for this preference. The Tribunal stated: 25 However, in carrying out the role he was allocated under the Consent Orders, Mr Antidormi forwarded an email to [Mr Akkari] on 14 September 2012 [sic - 2013] (the September email). Having considered the content of this document, which generally tends to be more detailed than the three documents that form part of the Consent Orders and noting the role of the author, Mr Antidormi, in the rectification works, I have found this to be persuasive evidence. 26 Thus, if from the September email I can be reasonably satisfied as to the rectification work which Mr Antidormi required and which (pursuant to the Consent Orders) the appellant was bound to carry out, and in his report, Mr Antidormi states those matters require further rectification, I accept Mr Antidormi's evidence.
3. With respect, we see difficulties with this reasoning. The September email referred to by the Tribunal is an email from Mr Antidormi to Mr Akkari, and sets out work required to be undertaken as at 14 September 2013. We do not consider it provides a proper basis on which to prefer Mr Antidormi's opinions set out in his expert report of 28 February 2014, following an inspection held on 12 February 2014, in circumstances where Mr Morris' report is dated 27 June 2014. The Tribunal gives no adequate reasons why it preferred the Antidormi report to that of the more recent Morris report.
4. We also find it surprising that no reference was made to dates of the two reports in the Tribunal's reasons. The difference in the date on which each report was prepared may explain why Mr Antidormi concluded that, as at 28 February 2014, the works had not been rectified but Mr Morris concluded that, as at 27 June 2014, the works had been rectified. We note that we were informed from the Bar table during the appeal hearing that these works had in fact been completed by November 2013 and that Tribunal itself found that there was "no issue" that Mr Akkari undertook the rectification work.
5. In this context we note that s.62(3) of the Act relevantly provides that written reasons of the Tribunal must set out: 1. the findings on material questions of fact, referring to the evidence or other material on which those findings were based, 2. the Tribunal's understanding of the applicable law, 3. the reasoning processes that lead the Tribunal to the conclusions it made.
6. A failure by a Tribunal to comply with s 62(3) will constitute a failure to provide proper reasons, and thus be an error of law for the purposes of s 80 of the Act: Murnane Carpentry Pty Ltd v Kalinovski [2015] NSWCATAP 30 at [14]. Regrettably, we have come to the conclusion that in this instance there was such an error.
7. We note the observations of Johnson J in Moloney v Collins [2011] NSWSC 628 at [63] - [65], made in the context of a civil hearing in the Local Court: 63 Failure to give reasons as required by law may itself disclose 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. 64 The duty does not require the trial Judge 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].
8. In Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 McColl JA, with whom Ipp JA and Bryson AJA agreed, stated: 57 The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 (at 728); Beale (at 442) per Meagher JA. 58 The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Mifsud (at 728) per Samuels JA; Hull v Thompson [2001] NSWCA 359 (at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). While a judge is not obliged to spell out every detail of the process of reasoning to a finding (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171) per Mahoney JA, (at 182) per Handley JA), it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis (at 259) per Kirby P, (at 270) per Mahoney JA, (at 280) per McHugh JA; applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (at [40]) per Gleeson CJ, Gummow and Heydon JJ. 59 The reasons must do justice to the issues posed by the parties' cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge " 'enter into' the issues canvassed and explain why one case is preferred over another"; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [1999] EWCA Civ 811; [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J. . . . 66 Because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that of other witnesses: Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [130] - [131]) per Hayne J (with whom McHugh J (at [26]) and Gummow J (at [27]) agreed)); see also Najdovski v Crnojlovic [2008] NSWCA 175 (at [21]) per Basten JA (Allsop P and Windeyer J agreeing).
9. In our view this error of law is, of itself, sufficiently significant to warrant the grant of an extension of time to appeal and to allow the appeal.
10. For the above reasons, we have reached the conclusion that the appeal should be allowed and the matter should be remitted to the Tribunal, differently constituted, for a rehearing. A directions hearing should be held to deal with issues of the evidence to be relied on at the rehearing.

Orders

1. For the above reasons, we make the following orders: 1. The time for the filing of the notice of appeal is extended to 27 November 2014. 2. The appeal is allowed. 3. Set aside the orders of the Consumer and Commercial Division of the Civil and Administrative Tribunal made on 22 October 2014 and remit the matter to the Consumer and Commercial Division constituted by a member other than the member who made the original decision, to be determined in accordance with these reasons and otherwise according to law.

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: 07 May 2015