Arnold v Crawford

Questions of Law

1. The appellants have not expressly, in the Notice of Appeal, sought to rely on a question of law to ground the appeal as of right. Since the questions of law become the subject matter of the appeal, it is necessary to identify with precision the questions of law: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22]. Nevertheless, whether there is a question of law must be approached as a matter of substance; and further, where the appellant is unrepresented it may be appropriate to adopt a "more generous or benevolent approach" in assessing whether a notice of appeal adequately identifies any question of law: Kudrynski v Orange City Council [2024] NSWCA 33 at [50]-[51] (per Griffiths AJA; Meagher and Kirk JJA agreeing) concerning an appeal from the Land and Environment Court.
2. The Appeal Panel in Cominos v Di Rico [2016] NSWCATAP 5 at [13] identified several cases where the Appeal Panel itself reviewed an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance, in order to discern grounds of appeal that may either raise a question of law or provide a basis for leave to appeal. We propose to adopt that course.
3. The first three grounds of appeal contest that the Tribunal erred in relation to certain findings of fact. Whereas no evidence to support the finding raises a question of law; in contrast, a mere error in the fact-finding process does not: as explained by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at p 156B-F. The fourth ground points to an illogicality in the Tribunal's reasoning. In effect, once there has been a finding that the retaining wall is part of the fence and the fence is inadequate, it stands to reason that the respondent should pay some amount towards the cost of the retaining wall. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, the joint majority (Hayne, Kiefel and Bell JJ) explained at [72] that where the decision-marker has "reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense."
4. The final ground concerns the Tribunal's failure to take account of the ancillary costs, such as home building insurance, not part of the building works quote. This raises the issue of a breach of procedural fairness in that a critical submission of the appellant is said to have been ignored. Notably, s 38(2) of the NCAT Act preserves the rules of natural justice. A failure to consider key evidence and submissions may constitute a denial of procedural fairness or reveal a constructive failure to exercise the jurisdiction: FLK v Transport for NSW [2023] NSWCATAP 140 at [22]-[27] and cases there cited. Whether there has been a breach of procedural fairness raises a question of law: Kudrynski v Orange City Council [2024] NSWCA 33 at [52]; Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [202].

Leave to appeal

1. In accord with clause 12, Schedule 4 of the NCAT Act, the appellants relied on the contentions that the decision was not fair and equitable, was against the weight of the evidence and that there was significant new evidence. The Appeal Panel must be satisfied that the appellants may have suffered a substantial miscarriage of justice as a result of one or more of those factors.
2. The Notice of Appeal relevantly states: "The errors in understanding, as noted in [the grounds of appeal], have resulted in the difference in the existing and proposed retaining walls being exaggerated, and possibly being considered as 'landscaping', thereby resulting in costs of the proposed retaining wall being excluded from the Orders 1(f) and 1(h). Given that [the Tribunal] has concluded that the existing and proposed retaining walls support the fence and form part of the fencing work, we believe the costs of concrete, blocks, etc (as itemised in the Valley Garden Landscapes quote) represent a significant component of the fencing work and should be included in the determination / Order. As a consequence, we believe the Respondent's contribution has been unfairly understated by $10,717.00 (i.e. $17,322.50 less $6,605.50). … The Applicant and Respondent documentation both present evidence of a retaining wall of 400mm being required. The Order made by the Tribunal therefore appears to overlook the requirement for the retaining wall cost to be shared."
3. General principles in relation to granting leave to appeal were considered in Collins v Urban [2014] NSWCATAP 17 at [80]-[84].
4. It is necessary to show that there was a significant possibility that a different, more favourable result would have been achieved. For reasons set out below, the Appeal Panel is so satisfied and leave to appeal is granted.

Extension of time

1. The appellants require an extension of time. The Decision was delivered 12 September 2023 and on 15 September 2023 there was a variation to the orders to take account of the circumstance that by that time the appellants' preferred contractor was no longer in business. On 18 September 2023, the appellants approached the Tribunal for a variation to the orders and reasons declining that variation were provided on 25 September 2023. The Notice of Appeal was filed within 14 days of that date (9 October 2023); but was nonetheless late. Rule 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) specifies the time for filing an appeal. We may, however, extend time for filing the Notice of Appeal pursuant to s 41 of the NCAT Act.
2. In Jackson v Land and Housing Corporation (NSW) [2014] NSWCATAP 22 at [22] the relevant principles were outlined by the Appeal Panel. In Kelly v Szatow [2020] NSWSC 407 at [28]-[32], the Court summarised the principles that apply to an extension of time to appeal. Relevant considerations include the length of the delay, the reason for such delay, the strength of the appellant's case and whether the respondent would be prejudiced by granting the extension.
3. The appellants bear the onus of demonstrating that strict compliance with the time limits would result in an injustice: see Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30.
4. Here, there are reasonable prospects of success, there is a reasonable explanation for the delay, the delay itself is minor and there is no suggestion of prejudice in the relevant sense. We grant the necessary extension.

New evidence

1. As a preliminary issue, we consider the "new evidence" ground. The appellants relied on an alternative quote to that dismissed by the Tribunal as being unreliable; and also some building elevation plans.
2. The Appeal Panel is not satisfied that the building elevation plans are "new", in the sense of not reasonably being available at the hearing; although we note the appellants' submission that they could not be located in time. There is insufficient evidence for the Appeal Panel to be satisfied that reasonable searches were done.
3. The alternative quote is from Bring to Life Landscaping (Bring to Life). This piece of evidence is in a slightly different position to the elevation plans. The quote is dated 16 June 2023. This is before the date of the hearing, which was 11 August 2023, but after the date that the appellants submitted their evidence to the Tribunal. At page 57 of their materials on the appeal and included in materials before the Tribunal at first instance, it is stated: "Several other fencing contractors have been contacted to provide alternative quotes. At the time of submitting these documents, no quotes have been received."
4. Whilst we accept the additional quote had not yet been obtained at the time the documents were lodged, it had been obtained by the date of the hearing. The appellants were self-represented and did not seek leave to rely on the late service of the document. Whilst the appellants' position is understandable, strictly, the document is not new evidence as contemplated by the legislation.
5. The Appeal Panel would not grant leave to appeal on the basis that there is significant new evidence.

Was the quote from Valley Garden Landscapes reliable

1. As noted above, the appellants contend that the Tribunal made several errors in its fact findings. Most notably, the appellants contend that it was simply incorrect for the Tribunal to find that the quote from Valley Garden Landscapes Pty Ltd (Valley Garden), relied upon at the hearing, related to work other than in respect of the new dividing fence. We are satisfied that this submission is correct.
2. A careful reading of the quote indicates that it simply relates to the dividing fence and not the more general landscaping work to be done. The opening sentences of the quote read: "We thank you for the opportunity for valley garden landscapes Pty Ltd to quote on your landscape project. Please find below your fully itemised quotation for your southern boundary." (Emphasis added)
3. The total is said to be a total for "landscape works". Despite the reference in the first sentence and the total to general "landscape" work, the quote, on its face and having regard to the itemisation of the work to be done, relates solely to the dividing fence. The references to site clearance and excavation and other items relate to the dividing fence. The Tribunal was in error to conclude otherwise.
4. Even if this does not rise to the level of satisfying a no evidence ground, we are satisfied that as a result of the misreading of the quote, the Tribunal, wrongly, heavily discounted the quote when determining the correct proportion of costs to be shared by the parties and the appellants were deprived of a significant chance for a more favourable result, due to a decision that was against the weight of the evidence or not fair and equitable. We would therefore grant leave to appeal on this ground.
5. The issue then is whether or not we should remit the matter or entertain a rehearing of the issues in accordance with s 80(3) of the NCAT Act.
6. In our view, it would be consistent with the guiding principle under s 36 of the NCAT Act to facilitate the "just, quick and cheap resolution of the real issues in the proceedings" and with the objects as identified in s 3 of the NCAT Act, to entertain a rehearing of the matter; including by receiving the Bring to Life quote, pursuant to s 80(3) of the NCAT Act.
7. As foreshadowed above, the Valley Garden quote was solely referable to the costs of work in respect of the dividing fence. The total for the quote was $29,695.00. This is more than corroborated by the quote from Bring to Life Landscaping, which totals $34,215.82. This later quote was designed to address the submission that the Valley Garden quote contemplated a "more than adequate" fence. The quote from Bring to Life addressed this concern by limiting the height of the retaining wall to 400 mm throughout. Even so, that quote is higher than that of Valley Garden.
8. The respondent nevertheless maintained the submission that the new fence envisaged by Valley Garden was more than was necessary for an adequate dividing fence and the quote from Bring to Life too was excessive. The respondent relied on a quote from PCL and APR Pty Ltd. That quote envisaged a "colorbond" fence and a retaining wall of treated pine sleepers. The total cost of this quote was $15,600 plus GST. The respondent reiterated the submission that the retaining wall could be more cheaply and yet adequately achieved with timber sleepers.
9. Whilst noting the respondent's submission, we are mindful that one of the Tribunal's orders was that the dividing fence be constructed and realigned as contemplated by Valley Garden. Originally, the order (dated 12 September 2023) read: "(c) the dividing fence and any retaining wall is to be constructed/realigned by the contractor, Valley Garden Landscapes, pursuant to the quotation dated 15 January 2023."
10. In that quote, Valley Garden had contemplated a besser block retaining wall.
11. Ultimately, this order was amended and by order dated 15 September 2023, now reads as follows: "(c) the dividing fence and any retaining wall is to be constructed/realigned by a contractor as chosen by the written agreement of the parties or if there is no agreement, as chosen by the applicant."
12. Notwithstanding the change in identify of the contractor, there is no basis for us to consider an alternative style of building than that contemplated under the quote by Valley Garden. We reject the respondent's contention that timber sleepers are adequate.
13. As a result, the Appeal Panel is satisfied that the Tribunal erred in discounting the Valley Garden's quote and the appellants succeed on this ground.
14. We are fortified in our conclusion by the Bring to Life quote which is in a higher amount than that quoted by Valley Garden.
15. The first two grounds of appeal deal with some specific facts found by the Tribunal as to the height of the retaining wall. However, we have determined that it is not necessary to descend into this level of fact finding given the Tribunal's orders. In the result, we are not satisfied that the Valley Garden quote was excessive.

Was the conclusion of the Tribunal illogical

1. The appellant's fourth ground contends that it was illogical for the Tribunal to find on the one hand that the fence was inadequate and that the retaining wall could not simply be moved; and on the other hand, to refuse any costs for the retaining wall to be shared by the respondent. For the reasons we have upheld the appeal in relation to the third ground of appeal, we would uphold this ground.
2. We are satisfied the Tribunal erred in excluding the costs associated with building the retaining wall from the costs to be shared. Whether this error rises to the level of legal irrationality or not, the Tribunal's conclusion was not fair and equitable, and it was against the weight of the evidence. As a result, the appellants missed a chance of a more favourable result.
3. It stands to reason that some costs must be outlaid for a new retaining wall and therefore it follows that the respondents should properly share in the reasonable costs of the retaining wall. The Tribunal accepted the retaining wall should be besser block, in accordance with the quote from Valley Garden. Further, the Appeal Panel has already rejected the respondent's contention that the retaining wall should be timber. Whilst there was some doubt about the necessary height of the retaining wall, we are satisfied that the Valley Garden quote was not excessive. As noted earlier, the Bring to Life quote was substantially higher again.

Was there a breach of procedural fairness

1. The appellants maintain that the Tribunal overlooked their submission that in addition to the costs of building the dividing fence, as itemised in the quote from Valley Garden, there were ancillary costs. The Appeal Panel is satisfied that this is the case. The Fencing Notice that accompanied the original application to the Tribunal, at item 4, indicates a capped amount of $5000 for ancillary costs described as follows: "boundary survey(s), construction/architectural plans, structural engineering, DA lodgement and council contribution, private certifier, home warranty insurance, project management, etc."
2. The Appeal Panel is satisfied that this was a critical submission of the appellants that was indeed overlooked. There is no basis proffered by the respondent to suggest that these costs are not properly referable to the dividing fence and should not be shared.

Conclusion

1. The Appeal Panel is satisfied that the appellants have made out a basis for the total costs of $34,645.00 (representing $29,645 quote form Valley Garden and $5,000 capped allowance for ancillary costs) to be shared equally.

Orders 1. Time to file the Notice of Appeal extended to 9 October 2023. 2. Leave to appeal granted. 3. Appeal allowed. 4. Order (1)(f) made 12 September 2023 is set aside and in lieu, the appellants and respondent are to pay for the costs of the fencing work in equal proportions up to a cap of $34,645.00. 5. Order (1)(h) made 12 September 2023 is set aside and in lieu, the respondent is to the pay the appellants her portion of the costs of the fencing work, being $17,322.50 within (7) days of the appellants giving the respondent a copy of the receipt for payment of the costs of the fencing work to the contractor or the delivery of these reasons, whichever is the later.

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: 12 April 2024