Brown v Tourni

Scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law.
3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. The Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on that basis that the decision of the Tribunal under appeal was not fair and equitable, against the weight of evidence or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
4. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
5. Further, the Appeal Panel must also consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
6. In appeals, such as this one, involving a self-represented litigant who cannot clearly articulate grounds of appeal and distinguish between questions of law and errors of fact in relation to which leave to appeal is required, it is appropriate for the Appeal Panel to consider the material provided on the appeal to identify what the grounds of appeal are (Prendergast at [12]).
7. As far as we can ascertain the homeowner is raising the following grounds: 1. An error of law in that the Member took into consideration a report (the Seely Report) which was withdrawn at the outset of the hearing. 2. An error of law that the Tribunal did not consider part of the claim raised, mainly a pipe that had been cracked while the consent works were being undertaken. 3. A leave ground that the decision was against the weight of evidence because the Tribunal had considered the contractors costings instead of her experts.

The Seely Report

1. The appellant claims that she was informed by the respondent's solicitor at the beginning of the proceedings on 14 December 2018 that they would not be relying on the Expert Report prepared by Mr Roy Seely. That report was commissioned for the respondent to undertake inspection of the plumbing works.
2. In the Tribunal's reasons for decision the Senior Member refers to the documents he took into consideration. The respondent had lodged a folder of documents with the Tribunal on 7 December 2018. Apart from a written outline of submissions, the folder contained an affidavit of Mr John Tourni sworn 5 December 2018, an affidavit of Mr George Tourni, the director of Kapiti Tiling & Waterproofing Pty Ltd ("Kapiti"), sworn 6 December 2018, and a report of Roy Seely of Watergate Plumbing dated 6 December 2018. The Tribunal received the respondent's folder in accordance with a direction made on 3 December 2018 granting the respondent a further extension of time (i.e. to 7 December 2018) so as to comply with the orders and directions of the Tribunal made on 4 September 2018. The applicant, Ms Brown said she was prejudiced because she did not receive the respondent's folder of documents until Monday 10 December 2018; however, when offered an opportunity to make an adjournment application she declined to press such application. Both parties therefore asked the Tribunal to hear and determine this application on the basis of the written material before the Tribunal supplemented by their oral evidence and submissions. Mr Tin was subject to cross examination, as was Mr John Tourni and Mr George Tourni.
3. Further, in directions made by the Appeal Panel on 31 January 2018 the appellant was directed to identify the parts of the sound recording that she was relying on in her written submissions. While the transcript reveals that the appellant challenged the expertise of the report, we can find no evidence from the transcript that the Senior Member made a ruling that the report would be disregarded or was withdrawn. On that basis this appeal ground fails and we find no error of law on that basis.

Works completed by the respondent on the work order

1. The appellant alleges an error of law on the basis that the Tribunal did not consider part of the claim raised, mainly that the respondent had caused the undertaking of defective works to the concrete slab and the PVC branch drain, while the consent works were being undertaken.
2. Clause 8 of sch 4 of the NCAT Act states: (1) If the Tribunal makes an order in exercise of a Division function in 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. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. (4) When proceedings have been renewed in accordance with this clause, the Tribunal: (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order. (5) This clause does not apply if: (a) the operation of an order has been suspended, or (b) the order is or has been the subject of an internal appeal.
3. A proper construction of cl 8(4)(a) was examined in the Appeal Panel case of Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 and summarised as follows: 52. Our conclusions on the proper construction of cl 8(4)(a) of Sch 4 to the NCAT Act can be summarised as follows: (1) On a renewal application, the Tribunal can make an order that is materially different from the order made when the proceedings were originally determined. (2) Such an order must be suitable or fitting in light of the general law principles, whether legal or equitable, and statutory provisions applicable to the type of relief claimed on the renewal application as well as all other relevant circumstances, whether occurring before or after the proceedings were originally determined, including the fact that the order originally made has not been complied with within the time specified in the order and that a renewal application has been made. (3) Such an order must be one that the Tribunal has authority to make under the NCAT Act or the relevant enabling legislation. (4) Such an order must be one that the Tribunal had authority to make when the proceedings were originally determined, having regard to the specific legislative provisions under which the original application was made, but the order does not have to be an order that would have been appropriate in the circumstances when the proceedings were originally determined. 53. In the light of this construction, we do not accept that the Tribunal on the renewal application did not have authority to make an order for the payment of money by way of damages. The orders that the Tribunal can make on a renewal application are not limited only to those which would have been appropriate in the circumstances as they were when the proceedings were originally determined. Accordingly, we reject the appeal to the extent it is based on ground 5 and the relevant elements of ground 1.
4. On those principles, it was open to the Tribunal to make an order that was materially different from the order made when the proceedings were originally determined. The applicant alleges that the damage to the pipe occurred out of an attempt to comply with the work order. We do not find on the principles set out above that would prevent the Tribunal from making such an order and certainly s48O(1)(a) of the HBA allows the Tribunal to make a money. A money order for breach of statutory warranty was one that the Tribunal had authority to make when the time the application was made and as such one which the Tribunal may have made at the time the renewal application was decided.
5. At paragraphs 13 and 16 of the decision, the Tribunal explained; 13. In the circumstances, the Tribunal was satisfied that order 3(b) made on 22 July 2016 had not been carried into effect; however, responsibility between the parties for non-compliance with the orders is less clear. It appeared on the written materials provided by the parties, and supplemented by their oral submissions at today's hearing, that the principal reason for non-compliance with the order to carry out works within a defined scope was that the applicant formed the view that the works were not being carried out with due care and skill and in compliance with the relevant Australian Standards, considered that the whole of the bathroom had to be demolished and then reinstated and on that basis, had denied access to the respondent and Kapiti from on or about 4 July 2018. The respondent's evidence was that they remained at all material times ready willing and able to complete the works within the scope put in order 3(b) made on 28 May 2018, alternatively, they put on evidence to the effect that the reasonable cost of completing the works within the scope of works contained in order 3(b) made on 28 May 2018 was $4,988.50 (not the $29,106.77 put in the Tin report). 14. The Tribunal finds that there can only be renewal of the order made on 28 May 2018 (i.e. within a particular scope of works). When asked about the scope of works referred to in the order 3(b) made on 28 May 2018, the applicant's expert, Mr Tin, conceded that he had prepared a scope of works and Scott Schedule (with items of defective or incomplete work totalling $29,106.77) without reference to order 3(b). Nor does the Tin report address the works outstanding as was required by direction 2 made on 4 September 2018. 15. The Tribunal's enquiry on this renewal application cannot be to reconsider the substantive merits of the applicant's claim in the original application; yet that is what, in substance, the applicant's application (supported by the Tin report and the Scott Schedule totalling $29,106.77) is asking the Tribunal to do.
6. The Tribunal ultimately found that the appellant had prevented the respondent from completing the works, however it did not examine whether that had arisen out of the respondent completing the works in such a way that the works would ultimately be defective. The respondent claims this was simply an attempt by the appellant to go behind the consent orders.
7. Beginning at paragraph 86 of Mr Tin's report dated 9 October 2018 (the appellant's expert) Mr Tin notes he was asked to comment on the rectification of the work completed by the builder to date. He notes defects to the concrete slab and the PVC branch drain. He notes a defect resulting from the failure to install the sanitary plumbing and drainage to comply with standards. He has also included costings for an amount of $29,106.77.
8. The Appeal Panel finds that the Tribunal failed to consider this issue raised by the appellant and that there was an error of law based on an insufficiency of reasons. (See para 13 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69)
9. In the circumstances we set aside the orders made by the Tribunal and remit the proceedings to the Tribunal to re-determine the matter in accordance with these reasons. The Tribunal will need to consider whether the appellant is entitled to any amount for defects to the concrete slab and the PVC branch drain that arose out of compliance with the work order. The Appeal Panel directs that the decision is to be made on the evidence that has been provided to the Tribunal to date and no further evidence should be allowed, except for cross examination of the experts and witnesses on the documents that have been provided.
10. It should be noted that it is not entirely clear from the evidence before us whether the works to the concrete slab and PVC pipes were done by the respondent in the course of complying with the work orders and it should not be assumed that we have come to that conclusion. Rather, it is clear that the Tribunal did not deal with this part of the claim and did not give reasons for it and it is on that basis that the matter is remitted to be decided. It may be that ultimately the Tribunal does not find that the work arose out of compliance with the work order or that the works were not defective.
11. It is also noted that the applicant has sought leave to appeal on the basis that the decision was against the weight of evidence because the Tribunal considered the costing provided by the respondent and not the appellant.The Tribunal considered the costs to complete the works and did not consider what it would cost to rectify damages caused by any work undertaken in the course of complying with the work order. By way of comment, we note that attached to the report of Mr Tin is a Scott schedule which itemises various works. Depending on whether the Tribunal determines if there has been damage caused by the respondent in undertaking the consent work orders, the costings could be determined from the detailed Scott schedule provided by Mr Tin, depending on whether the Tribunal accepts they are relevant to the damage.

Conclusion and orders

1. The matter is to be remitted to the Tribunal to decide the matter and the following orders and directions are made: 1. The appeal is allowed. 2. Order 1 made by the Tribunal in matter HB 18/31241 is set aside and the matter is remitted to the Tribunal to determine the renewal application in accordance with these reasons.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 09 August 2019