Builtex Constructions Pty Ltd v Ang

NCAT Appeal Panel|2018-09-24|Before: Before J

Summary

In these reasons we will refer to the appellant as the Builder and the respondent as the Homeowner.
These are appeals from two decisions of the Tribunal. Both appeals were filed on 29 June 2018. It is logical however to deal with them in the following order.
Appeal AP 18/29534 is an appeal in relation to the decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) in proceedings HB 17/48553 on 19 March 2018. We shall refer to this as the first appeal. The Builder appeals in respect to order 3, namely that it pay the Homeowner $41,659.00 immediately. This order was made in the absence of the Builder. In this appeal the Homeowner conceded that the Tribunal should not have included an amount of $3,500.00 in respect of accommodation costs. In that respect, the Builder is granted an extension of time to lodge the appeal and the appeal is allowed. Otherwise the appeal is dismissed.
Appeal AP 18/29526 is an appeal in relation to the decision of the Tribunal in proceedings HB 17/16905 on 10 May 2018. We shall refer to this as the second appeal. This was the Builder's application to set aside the decision of the Tribunal in HB 17/48553 ordering it to pay the Homeowner $41,609.00. The Tribunal dismissed the set-aside application. For the reasons set out below, in this appeal we have decided to refuse to extend the time for the filing of the Notice of Appeal, and to otherwise dismiss the appeal.

Nature of the appeal - first appeal

Section 80 of the NCAT Act provides that an appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Relevantly, an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel considered the requirements for establishing an "error of law" giving rise to an appeal as of right. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast referred at [13] to the following as constituting errors of law: 1. whether there has been a failure to provide proper reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law has been applied; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (mandatory) consideration; 6. whether the Tribunal took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; 8. whether the decision was so unreasonable that no reasonable decision-maker would have made it.
Any other ground of appeal requires leave. Ordinarily it is appropriate to grant leave to appeal only in matters that involve an issue of principle, a question of public importance, an injustice which is reasonably clear or if the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result: see Collins v Urban [2014] NSWCATAP 17 at [84].
The grounds of appeal are stated as follows. We have added paragraph numbers for convenience: [1] The Tribunal, in making the orders, failed to afford procedural fairness to the appellant. [2] The Tribunal erred in finding there was no evidence to support the application. [3] The Tribunal erred in failing to accept and give appropriate weight to the evidence of Dr Tan and the email of Guangbin Xu in the absence of any challenge [to] that evidence and in the absence of affording the appellant an opportunity to be heard in relation to such criticism. [4] The Tribunal erred in failing to consider the extent of any prejudice to the parties should the application be refused and whether any prejudice to the [appellant] could be cured or moderated by any other order of the Tribunal. [5] The Tribunal erred in finding that the appellant was liable in damages to the applicant for a failure to hand over documents necessary for the occupation certificate despite Clause 22 of the contract.
Grounds (1) and (3) raise a question of law, namely a failure to afford procedural fairness: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]; referred to in Prendergast at [13(4)]. We note that ground (3) also raises an issue for which leave is required, namely the weight to be given to the evidence of Dr Tan and the email of Guangbin Xu.
Accordingly, the appellant can appeal as of right in relation to these grounds. Leave is required in relation to the other grounds.

The second appeal

The second appeal is an appeal from a decision of the Tribunal refusing to set aside the decision made on 19 March 2018. The set aside application was made pursuant to cl 9(1) of the Civil and Administrative Tribunal Regulation 2013. That clause provides that: 9 Additional power to set aside or vary decision determining proceedings (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.
The Appeal Panel in Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 stated: 38. Thus, a decision on a set aside application is not a decision concerning an "interlocutory issue" in proceedings before the Tribunal for the purposes of the definition of "interlocutory decision". On this basis, it should be concluded that a set aside decision is not an interlocutory decision within the meaning of s 4(1). 39. Further, the definition of "ancillary decision" in s 4(1) of the Act includes "a decision … consequential on … a decision determining proceedings". Since a set aside application under cl 9 can only be made after, and in respect of, a decision that determines proceedings, a set aside decision naturally falls within the description of a decision consequential on a decision determining proceedings. 40. For these reasons, the Appeal Panel is of the view that the set aside decision of 19 January 2015 was an ancillary decision for the purposes of s 80(2)(b) of the Act. Accordingly, in so far as the grounds of appeal relied on by the appellants raise questions of law, leave to appeal is not required.
Given the passage set out above in Hammond, leave is not required in respect of the second appeal.

Procedural History

It is appropriate to set out the procedural history of the matters.

HB 17/48553

On 14 November 2017, the Homeowner filed her application electronically. She sought total compensation of $36,125.00 and work orders.
The matter was listed for a directions hearing on 11 December 2017. On that occasion, there was no appearance by the Builder. The matter was adjourned for hearing and orders made for the management of the matter, including the filing of evidence. The Homeowner was ordered to file her evidence by 22 December 2017, the Builder by 30 January 2018.
By notice dated 2 January 2018 the parties were notified the matter was set down for hearing on 19 March 2018.
No evidence had been filed by the Builder as directed.
On 16 March 2018, Ms Jessica Chen, the Estimating Director of the Builder, requested an adjournment of the hearing. She relied upon a medical certificate, prepared by a Dr Christopher Tan, dated 16 March 2018. It stated: THIS IS TO CERTIFY THAT Mrs Qi Chen has a medical condition and will be unfit for work form [sic - from] 16/03/2018 to 19/03/2018 inclusive.
This application was refused on 16 March 2018 for the following reasons: The [Builder] is a company. Another officer of the [Builder] may appear at the hearing and present the case in response. The [Builder]'s medical certificate does not state why the [Builder] may be unfit to appear in the Tribunal due to her condition. The matter remains listed on the above date and your attendance at the hearing is required. NOTE: Any party seeking an adjournment should refer to NCAT Consumer and Commercial Division Guideline on 'Adjournments', which can be viewed at www.ncat.nsw.gov.au.
On 19 March 2018 at 12:17PM the Tribunal received an email from Mr Guangbin Xu. That email stated: As discussed with in this morning 11:50am on the phone between Guangbin Xu (Director of [the Builder]) and NCAT, due to the sickness of Qi Chen, she could not attend in the hearing day. She is taking the medicine, and feels dizzy and vomiting. She always has this problem in last 20 years and needs to take some medicines during this period, so she is unfit to work and she has the doctor record. It's not in her control. Guangbin Xu is the other director [of the Builder] but I don't speak English and didn't know whole thing with this case, and didn't organise interpreter for me yet. On the other hand only Qi Chen deal with Virgina Ang and signed the contract with her, I cannot represent with her to decide and explain this case. It's not fair for us, you should give the opportunities to both parties to resolve this case. As above reasons, please read consider my request by [the respondent] to reschedule the hearing day,
The hearing commenced on 19 March 2018 at 1:15 PM. Accordingly, this email was received approximately an hour before the commencement of the hearing. When the hearing commenced, there was no appearance by anyone on behalf of the Builder. However, it is clear this email was brought to the attention of the Member who heard the matter, as he refers to it expressly in order (1).
The Tribunal decided to proceed in the Builder's absence and relevantly states in written reasons that: 1. The application by the [Builder] to adjourn is refused because: a) there is no evidence to support the application. b) the other party is in attendance with evidence and so would be disadvantaged. c) The medical certificate of Dr Christopher Tan dated 16 March 2018 does not disclose the medical condition from which Ms Chen is suffering and it is given little probative value and so does not justify the adjournment sought. Additionally, Guangbin Xu's e-mail of 19 March 2018 12:17 PM does not assist the [Builder]'s request for an adjournment nor provide grounds that justify an adjournment. 2. The Tribunal is satisfied that service of notice of the hearing has been duly served on the respondent and the Tribunal considers justice requires the matter be dealt with in the absence of the party.
The third order made by the Tribunal was that the Builder pay the Homeowner the sum of $41,659.00 immediately.
We note that the detailed reasons for decision described the Homeowner's evidence as "uncontested" (see par [7]). Presumably this is a reference to the fact that the appellant did not file any documents pursuant to the directions of the Tribunal. We note that in the decision of the Tribunal in HB 18/16905, express reference is made to the failure of the Builder to file any evidence.

HB 18/16905

By application dated 9 April 2018, the Builder sought to set aside the decision of 19 March 2018 in HB 17/48553. This application was made pursuant to reg 9(1)(b) of the Civil and Administrative Tribunal Regulation 2013. That regulation provides that the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.
Applications to set aside decisions must be made within seven days: reg 9(3). In other words, this application was filed two weeks' late. This appears to have been overlooked by the Tribunal as it is not referred to in its reasons for decision. Nevertheless, the Tribunal decided not to set aside the decision of 19 March 2018 for the following reasons: The application to set aside the decision in matter number HB 17/48583 has been considered and the following orders are made: 1. The application is dismissed because although the orders made on 19/3/2018 in matter number HB 17/48583 were made in the absence of the applicant the Tribunal is not satisfied that the party's absence resulted in their case not being adequately put to the Tribunal. Reasons: The respondent failed to comply with Tribunal directions to provide evidence for any hearing and accordingly the evidence of the applicant was uncontested. There was insufficient evidence to support an adjournment request and no basis to oppose the cost of rectification.
We turn now to the grounds of appeal in respect of the two appeals.

Grounds (1) and (3) - denial of procedural fairness

These grounds can be deal with together.
As the Appeal Panel noted in Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [77], justice generally requires that parties against whom orders are made must be given a reasonable opportunity of appearing and presenting their case: Cameron v Cole (1944) 68 CLR 571 at 589. In the Tribunal, s 38(5)(c) of the NCAT Act provides that the Tribunal is to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. The Appeal Panel continued at [78]: If a party has been given such an opportunity, however, and has deliberately not taken it, there may well be no relevant injustice if the decision is allowed to stand: see, for example, CMT [2014] NSWCATGD 11 at [68(a)]. In this regard, the issue of why the party was absent from the hearing may be very significant: see, for example, Homeark Constructions v Hillside Excavations [2014] NSWCATAP 77 at [37], [39] and [40].
It is undeniable that the Builder was given a chance to be heard. It was sent and it received the Notice of Hearing; it sought an adjournment which was denied. There were at least two directors, and no satisfactory explanation was advanced as to why the other director could not attend, or why an employee could not attend on its behalf.
In any event, the Tribunal's ruling was a discretionary one. As the Appeal Panel noted in Clements v Murphy [2018] NSWCATAP 152, such discretionary decisions can be challenged on appeal only on the bases outlined in House v R (1936) 55 CLR 499, namely (at 504-505): The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Mr Xu's email was received barely an hour before the hearing was due to commence, and his opinion as to Ms Chen's medical condition could be given little, if any, weight. It was not surprising therefore that this email did not persuade the member to grant the adjournment. Given these matters, and the fact that the Builder had not filed any evidence, we find the decision not to grant the adjournment justified. We are not persuaded that the Member failed properly to exercise his discretion in the manner described by in House v R.

Grounds (2) and (3)

Grounds (2) and (3), to the extent that ground (3) raises the weight of evidence point, can be considered together. While the appellant asserts that they raise errors of law, we disagree. True it is that a finding of fact with no evidence is an error of law (Prendergast, at [13(7)]), however has not occurred here. What the appellant is submitting is that the decision was against the weight of the evidence. This much is clear from pars [49] and [50] of the appellant's submissions.
The appellant submits that the Tribunal erred in finding that there was no evidence to support the adjournment application. That statement of the Tribunal needs to be placed in context. The Tribunal stated that: The application by the [appellant] to adjourn is refused because: a) there is no evidence to support the application; b) the other party is in attendance with evidence and so would be disadvantaged. c) The medical certificate of Dr Christopher Tan does not disclose the medical condition from which Ms Chen is suffering and it is given little probative value and so does not justify the adjournment sought. Additionally, Guanghbin Xu's email of 19 March 2018 12:17 PM does not assist the [appellant's] request for an adjournment nor provide grounds that justify an adjournment.
The statement in par (a) that "there is no evidence to support the application" is literally not correct, as it inconsistent with par (b) where the Tribunal refers to the evidence before it. We are satisfied that he appropriate meaning the Tribunal meant to convey in par (a) was that there was not sufficient evidence to justify an adjournment.
We are not satisfied that either of these grounds 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.

Ground (4)

The Builder submits that the Tribunal erred in failing to consider the extent of any prejudice to the parties should the application be refused and whether any prejudice to the Homeowner could be cured or moderated by any other order of the Tribunal.
It is not correct that the written reasons do not refer to this aspect. The Tribunal explicitly referred to prejudice to the Homeowner. Given that the guiding principle of the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (NCAT Act, s 36(1), we are not satisfied that this 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.

Ground (5)

The Builder submits that ground (5) raises a question of law, as it involves the interpretation of a contract. We disagree that it raises a question of law for that reason. As the Appeal Panel stated recently in Syed Ahmad Shoaib Ali Pty Ltd v Jandson Pty Ltd; Jandson Pty Ltd v Syed Ahmad Shoaib Ali Pty Ltd [2018] NSWCATAP 228 at [71], the proper construction of vital agreements or contracts is a question of law. This is not the situation here.
The Builder submits that the Tribunal erred in awarding $3,500 for the failure to provide the documents necessary for the respondent to obtain an occupation certificate. The appellant submits that "it is not clear" how this order can stand in the face of cl 22(b) of the contract.
It is not necessary to consider this ground any further. The respondent conceded the point at the appeal hearing. To this extent, the time for filing the Notice of Appeal should be extended, leave to appeal granted and the appeal allowed.

Second appeal

The grounds of appeal are stated in the Notice of Appeal as follows (again we had provided paragraph numbers for convenience): [1] The Tribunal erred in failing to provide adequate reasons for its decision. [2] The Tribunal erred in applying the wrong test when failing to take into account all relevant considerations in failing to consider the further evidence produced by the Appellant that was not originally before the Tribunal in matter HB 17/48553 on the application for an adjournment. [3] The Tribunal erred in applying the wrong test when failing to take into account all relevant considerations in failing to consider the evidence that the appellant proposed to provide on the substance of the applicant's contentions and hearing. [4] The Tribunal erred in failing to find that the decision was made in the absence of the appellant and that such absence has resulted in the parties case not being adequately put to the Tribunal.
We shall deal with each ground in turn. As noted leave is not required: Hammond. It is convenient to consider grounds (2) , (3) and (4) first.

Grounds (2), (3) and (4).

Ground (2) is that the Tribunal erred by failing "to consider the further evidence produced by the [Builder] that was not originally before the Tribunal in matter HB 17/48553 on the application for an adjournment". This ground is misconceived. There only further evidence in relation to the adjournment were assertions of Ms Chen such as: My absence from the final hearing was caused by my illness, although we have made out best efforts to adjourn the matter in order to present our case properly Physically she was still unfit to appear at the hearing on that day, and it was too late to see the doctor issuing another medical certificate satisfying the requirement of the Tribunal before the hearing.
We see no substance in this ground.
Ground (3) is that the Tribunal "erred in applying the wrong test when failing to take into account all relevant considerations in failing to consider the evidence that the appellant proposed to provide on the substance of the applicant's contentions and hearing".
The Builder has not articulated what exactly was the "wrong test" which it submits that the Tribunal wrongly applied. Furthermore, there was no independent expert evidence provided to the Tribunal (or to the Appeal Panel). Indeed, the Notice of Appeal for the second appeal (also repeated in the Notice of Appeal for the first appeal) refers to the Builder intending to obtain an expert report in relation to defects.
The Builder submits that the Tribunal failed to expressly refer to the evidence filed by the Builder in support of its set aside application. We note that this evidence was not placed before us on appeal; what was placed before us was the affidavit of Ms Chen's solicitor Ms Ying. This affidavit refers to the steps taken by Ms Chen after she received notification of the Tribunal's decision of 19 March 2018.
Nevertheless, we have inspected the file for the set aside application ourselves. There was no evidence filed by the Builder, although there were submissions relating to the operation of cl 22 of the contract (now no longer relevant). In relation to any defects, the Builder states in the application that it intends to obtain a building report.
Given that there was no independent or expert evidence before the Tribunal on the set aside application, we see no error in the Tribunal concluding that it was not satisfied that the Builder's absence resulted in its case not being adequately put to the Tribunal .
As to ground (4), we are not persuaded that the Tribunal erred as claimed. The orders made on 19/3/2018 in matter number HB 17/48583 were made in the absence of the Builder. The Builder had not filed evidence pursuant to directions. Accordingly, the Builder's absence did not result in its case not being adequately put to the Tribunal.

Ground (1): Adequacy of reasons

The concept of adequacy of reasons has been considered in many cases. The relevant principles may be stated as follows: 1. reasons need not necessarily be lengthy or elaborate; the scope of the reasons to be given is related to the function to be served by the giving of reasons: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443; 2. a judge or tribunal member is obliged to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, per Kirby P at 259; 3. there is a balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal: Beale at 443;
Beale is also authority for the proposition that an appeal court (here the Appeal Panel) will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice.
We are not persuaded that this is the case. The reasons for the Tribunal's decision are set out in par [31] above. While brief, they adequately address the matters required to be considered under reg 9(1)(b).

First appeal

As noted above, given the respondent's concession in relation to the $3,500, time should be extended for the filing of the Notice of Appeal in relation to the first appeal.

Second appeal

The principles applicable to an application to extend time were discussed by the Appal Panel in Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22. 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 appellant's 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. It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable.
As the President remarked in Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22 at [21]: Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced.
That is not to say that exceptions should not be made where the interests of justice so require. In order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice: Gallo v Dawson [1990] HCA 30; 93 ALR 479. 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 appellant's 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. It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable.
As to the first appeal, given our conclusions of the merits of each ground of appeal, we think the appropriate order is to refuse to extend the time in which to file the Notice of Appeal. It follows that the second appeal should otherwise be dismissed.

Orders

The Appeal Panel makes the following orders in AP 18/29526: 1. The appeal is upheld for the purposes of order 2 below and is otherwise dismissed. 2. The order made on 19 March 2018 is amending by substituting "$38,159.00" for "$41,659.00". 3. The time for the filing of the Notice of Appeal is extended to 29 June 2018.
The Appeal Panel makes the following orders in AP 18/29534: 1. the application to extend the time for the filing of the Notice of Appeal refused; 2. the appeal is otherwise 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: 08 November 2018

Civil and Administrative Tribunal Regulation 2013(NSW)

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