Candy Events Pty Ltd v Thrain Pty Ltd t/as Digital Solutions Group [2025] NSWCATAP 164 | Case summary

This is an appeal under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) from a decision made in the Consumer and Commercial Division (CCD) of the NSW Civil and Administrative Tribunal (the Tribunal) under the Fair Trading Act 1987 (NSW).
In both the Tribunal and at the appeal proceedings, the applicant/appellant was represented by a director (Ms C Jackman) and the respondent was also represented by a director (Mr R Lambert). For the purposes of this decision, the submissions made by Ms Jackman and Mr Lambert are attributed to the appellant and the respondent respectively.
The appellant had engaged the respondent to provide a website. In the Tribunal proceedings, the appellant claimed that the website was incomplete and unfit for purpose. At first instance, the appellant sought a full refund, damages to rectify the website and loss of income, in the amount of $89,747.16.
The Tribunal took this to be a consumer claim within the meaning of s 79E of the Fair Trading Act 1987 (NSW) (FTA) for breach of the consumer guarantees under the Australian Consumer Law, specifically ss 54, 55, 60 and 61.
The Tribunal dismissed the claim on 22 May 2024.
The appellant lodged a Notice of Appeal on 15 November 2024.
For the reasons which follow, we have decided that the appellant has failed to establish that the Tribunal at first instance made an error on a question of law or that leave to appeal should be granted. As the Notice of Appeal was filed out of time, leave to extend time has not been granted and the appeal will be dismissed.

Proceedings in the Consumer and Commercial Division

The matter was heard in the Tribunal on 20 May 2024. The applicant/appellant complained of delays on the part of the respondent in providing a functioning website that met her specifications. In January 2022, the respondent had first told her that he could provide a functioning website within four to six weeks. However, after one year, basic functions were not working and, in the appellant's view, there were fundamental issues across the entire site. In July 2023, the appellant said that she terminated the agreement because she was not happy with the design of the website. She subsequently engaged other contractors to help with that task.
In the Tribunal at first instance, the respondent contended that when the appellant had approached him in January 2022, he had told her that it would cost between $80,000 to $100,000 to provide a website like she had described. She had asked for a website at a lower cost and the respondent suggested it would be cheaper to purchase an existing template theme which would require a substantial amount of custom programming for her purposes. The respondent claimed the appellant had agreed and he commenced work on the project under various sub-projects. The final sub-project commenced in June 2023.

Weighing the parties' evidence, the Tribunal found the evidence as to the respondent failing to provide a functioning website was conflicting. The appellant had maintained that, from the commencement of the contract in January 2022 through to July 2023, the respondent persistently failed to provide a functioning website, whereas, in direct conflict with that claim, the respondent's evidence was that over that period, the appellant would initiate new additional projects for which she was issued invoices and which she paid. The Tribunal further found the evidence to be conflicting as to whatever difficulties were encountered throughout the period in which the respondent undertook work for the applicant and whether those difficulties were due to the respondent and not due to incompatibility of the different changes the applicant was wanting to be made.
The Tribunal considered the appellant's documentary evidence but found that the fact that she engaged with the respondent for 18 months, continuing to expand the original scope of the work to be performed by the respondent, conflicted with her claim that the respondent's work was defective.
The Tribunal concluded:

19. The Tribunal finds the evidence before it about the respondent's work and the applicant's claim that it was defective is conflicting. Possibly that conflict could have been resolved had the applicant produced expert evidence in line with the Tribunal's procedural direction on that matter. Such evidence could have stated whether or not the specific issues raised by the applicant as amounting to flaws in the respondent's work could be said to amount to breaches of the guarantees of the ACL in question. Such evidence could have provided a standard to be met in particular circumstances where specifications for the product to be made and service to be provided were constantly changing. For the reasons given above the Tribunal does not consider the audit reports provided by the applicant as independent expert evidence.

20. For the reasons given, the Tribunal finds that the evidence before it as to whether or not the respondent has breached the guarantees of the ACL in question is conflicting. As that is the case the applicant has not discharged the onus of proof on her to demonstrate on the balance of probabilities that the respondent breached those guarantees. Accordingly the Tribunal dismisses this application.

The Notice of Appeal was filed on 15 November 2024, outside of the required time under the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules).
The appellant indicated in the Notice of Appeal that leave of the Appeal Panel was sought for the appeal under s 80(2)(b) and cl. 12 of sch. 4 of the NCAT Act on the basis that the appellant may have suffered a substantial miscarriage of justice because:

(1) The decision was not fair and equitable; she had insufficient time to present her case; there were contradictory testimonies and misrepresentations; new evidence had arisen post hearing; there were discrepancies in project expectations; in comparison with her previous NCAT case in which the appellant had been successful; audit decision oversight; the respondent's representative's allegedly strategic reinstatement as a justice of the peace and clarification of communication gaps (the first leave ground); and

(2) The decision was against the weight of evidence: The appellant outlined the evidence presented by both parties, contending that respondent's evidence had omitted a crucial email which could have influenced the Tribunal's decision (the second leave ground); and

(3) Significant new evidence had arisen that was not reasonably available at the time of the Tribunal hearing in the form of guidelines produced by SSW Melbourne (a software development company) (the SSW guidelines) as to the claimed failure by the respondent to adhere to standards and practises and an email from the respondent (the third leave ground).

The appellant sought to amend her original claim, seeking an order for $47,556.79 as a refund and $52,443.21 (up to the maximum claim of $100,000) for compensation for consequential losses.

The appellant filed three bundles of documents on 16 January 2025, 21 January 2025 and 3 March 2025. Two of these bundles of documents were filed after the service date in the directions, being 17 January 2025.
The bundles consisted of the following documents:

(1) The documents provided to the Tribunal at first instance (16 January 2025); and

(2) Tax invoices for further works on the website (21 January 2025); and

(3) A mixture of submissions and legal advice letters to the appellant (3 March 2025).

The appellant acknowledged that some of the materials submitted were not before the Tribunal at first instance, although they were in existence at the time. As the Appeal Panel stated in Chapman v McLaughin [2016] NSWCATAP 212 at [37]:

... The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.

The test of whether evidence was reasonably available at the time is an objective test, that is, whether the evidence was unavailable because no person could have reasonably obtained it (Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]; Bele-Verdy v The North Coast Community Housing Company Ltd [2025] NSWCATAP 13 at [52]- [54]).
The appellant has indicated the reason for the inclusion of the additional evidence after the Tribunal hearing was to address the issues in the written decision and also address the reasons for the delay in lodging the appeal.
The appellant argued that the materials were relevant to challenge the credibility of the respondent's oral evidence at the Tribunal hearing. The appellant further claimed the respondent misled the Tribunal, including denying what they had earlier admitted in writing, and therefore, the appellant could not reasonably have known that evidence in relation to these issues would be required.
There are two types of new evidence which the appellant has sought to rely upon in the appeal proceedings; evidence which has come into existence after the Tribunal's hearing (such as the letters from solicitors regarding the reasons for the delay in lodging the appeal and tax invoices from solicitors post-dating the Tribunal's decision) and evidence which was in existence at the time of the Tribunal's hearing, but was not produced by the appellant in those proceedings (such as the email from the respondent sent on 11 January 2022 and the SSW guidelines). We will consider each type of evidence, and whether the appellant should be allowed to rely upon it in the appeal, as it arises in the consideration below.
The appellant did not provide a transcript or recording of the hearing on 20 May 2024.

The respondent answered the points raised in the appellant's Notice of Appeal. The respondent contended that the website was complete in every respect and that the respondent had included in its evidence a link containing a video showing the site operating. The respondent sought for that the appeal to be dismissed.
The respondent filed a bundle of documents on 18 February 2025, consisting of the documents before the Tribunal at first instance. It was not disputed that these documents were the respondent's full bundle before the Tribunal at the hearing.

Under rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) an internal appeal must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is later), unless the Tribunal grants an extension under s41 of the NCAT Act. Section 41 NCAT Act gives the Tribunal the power to extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
The Notice of Appeal was lodged nearly five months out of time.
In Yang v New South Wales Land and Housing Corporation [2025] NSWCA 58 (Yang), Kirk JA considered the question of an extension of time to lodge an appeal in the context of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Kirk J noted (at [24]) the findings of Ward JA in Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406, at [42], that in such circumstances the Court is to have regard to what the interests of justice require in all the circumstances of the case, including "the reason why the appeal was not lodged in time; the period for which an extension is sought; any prejudice to the opposing party; and the apparent prospects of success on the appeal", where the latter issue involves considering whether there is a "fairly arguable case" in circumstances where there was a reasonable explanation for the delay and no significant prejudice. This is consistent with the Appeal Panel decision in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (at [22]).

The appellant was approximately 150 days out of time to lodge the Notice of appeal.
In submissions attached to her Notice of Appeal and at the appeal hearing, the appellant outlined difficulties regarding her confusion as to which party she should sue and in obtaining correct legal advice. She outlined her experiences with several sets of lawyers over the months following the Tribunal hearing.
The Appellant attached copies of emails with lawyers in May, July and September 2024 and a copy of her request for the sound recording of the hearing. This evidence post-dated the Tribunal hearing at first instance and is relevant to the request for an extension of time. It is therefore appropriate to allow the appellant to rely on this evidence in support of her extension of time request.
The respondent submitted that the differentiation between the company and its trading name was clearly shown on every invoice. Another company, Story Untold Pty Ltd was an unrelated company. If there was confusion, the time for clarifying the correct entity was upon receiving the orders.
The respondent further submitted that any delay in responses from solicitors was not a reason for the appellant not lodging the Notice of Appeal within the 28 day period. Most solicitors would act urgently if advised that there is a deadline; but if the appellant had not advised the solicitor of this, they could not be responsible for the delay.
In Winter v The Queen [2013] NSWCCA 231, the Court of Criminal Appeal commented on the need for an appellant to explain the entire period of the delay. At [26], Bellew J (with whom Hoeben CJ at CL and Barr AJ agreed) said:

One final observation should be made in relation to this issue. For the reasons I have already outlined, the affidavit evidence adduced in the present case to explain the delay was inadequate. In any case where an extension of time is sought, and particularly when the delay is as extensive as it is in the present case, there is an onus placed upon the applicant to adduce evidence which fully explains that delay. That explanation must necessarily include a clear articulation of the steps taken to prosecute the appeal, and a comprehensive explanation for any periods of apparent inactivity.

We note that in Impala Kitchens Pty Ltd v O'Donoghue [2025] NSWCATAP 49 (Impala) a differently constituted Appeal Panel found that delays caused by solicitors were sufficient explanation for a short delay (23 days) in lodging the Notice of Appeal in that case.
In this case, however, the delay was nearly five months. The last of the emails from the solicitors was dated 10 September 2024, yet the Notice of Appeal was still not lodged until 15 November 2024. The appellant had requested a copy of the sound recording (although no sound recording or transcript were provided to the Appeal Panel) shortly after the hearing and was competent also to lodge an appeal within time. The length of the delay is excessive and is not adequately explained by any difficulties in engaging competent legal representation.

The appellant submitted that extending the time frame for lodging the notice of appeal would allow her to pursue a fair hearing and uphold the integrity of the legal process. It would ensure finality and accuracy for the respondent and legal certainty. If the time frame were not extended, she would be denied the opportunity to contest a decision that she believed to be incorrect and there might remain unresolved substantive issues for the respondent.
In response, the respondent noted that it was very difficult for any respondent if an extension of time to appeal were granted after the matter had been heard and 28 days had elapsed. To grant an extension of time of 150 days outside the 28 days would be unfair, particularly where there were no exceptional circumstances. An appeal was not an opportunity for a retrial and it was necessary for the appellant to show that the Tribunal had made an error or that there was a miscarriage of justice.
In oral submissions, the respondent raised issues in relation to costs of attempting to gather materials to defend an appeal after such an excessive amount of time.
In Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 at [3], Mc Hugh J considered a request for an extension of time in which to appeal to the High Court and held:

When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a "vested right to retain the judgment". It would make a mockery of O.70, r.3 if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of legal knowledge is a misfortune, not a privilege. Since I am firmly of the opinion that the proposed appeal of the applicant cannot possibly succeed, however, it is unnecessary to determine what conclusion I would have reached in this matter if I had thought that the appeal was arguable.

As noted by the Appeal Panel in Webb v Secretary, Department of Communities and Justice [2025] NSWCATAP 47 at [49] (Webb), exceptions should be made where the interests of justice so require and meritorious cases should not be shut out due an inflexible application of rules.
It is rare that a respondent would not suffer some prejudice by extending time to appeal after the respondent was entitled to the relief of litigation being final, even if only by losing the finality that the conclusion of the appeal period brings. Here, although the respondent was able to retrieve the documents submitted to the Tribunal at first instance electronically, we accept that granting an extension of time in which to appeal would prejudiced the respondent's "vested right to retain the judgment" once the appeal period is at an end.

Having failed to establish adequate reasons for the delay or to demonstrate no prejudice to the respondent, we must also consider appellant's prospect of success in the appeal and whether she has a "fairly arguable case".

The basis upon which appeals from decisions of the Tribunal may be brought is identified in s 80 of the NCAT Act, which 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) of the NCAT Act).

As the Appeal Panel observed in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (16 October 2024) (Unique), referring to relevant authorities at [25] - [40], a question of law means a pure question of law. It is not a mixed question of fact and law, and it does not depend on facts not found.
Accordingly, appeal grounds based on a question of law, must be articulated with precision. The categories of questions of law are not closed but will include the application of the wrong principle of law, or a failure to accord natural justice (i.e., procedural unfairness) by not responding to substantial, clearly articulated arguments based on established facts, which alternatively, may also constitute a constructive failure to exercise jurisdiction.
In Unique at [27] - [28] the Appeal Panel made allowance for circumstances such as in the present case, where a question of law is not specifically articulated in the Notice of Appeal, but appears in substance:

"27. Where, however, there is a question of law in substance, a court (and, it follows, an Appeal Panel) has discretion (to be exercised judicially and in the interests of justice) to direct its formal notification in an amended notice of appeal: Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [60]. In appropriate circumstances, the Appeal Panel may elect to waive the requirement to formally lodge an amended notice of appeal, given its mandate to act "with as little formality as the circumstances of the case permit ... without regard to technicalities or legal forms": NCAT Act, s 38(4); Wollondilly at [19]. Where the party is not legally represented, a more generous approach is warranted: Kudrynski at [50]-[51]. This is an aspect of ensuring procedural fairness.

28. When dealing with self‑represented parties, the Appeal Panel has in many instances considered for itself whether a question of law is raised, applying [Prendergast] at [12]."

The considerations involved in delineating a question of law have been widely discussed; see particularly Kirby P in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (Azzopardi).
In Donohoe v Albulario [2025] NSWSC 9 (Donohoe) at [30] - [33], Basten AJ gives guidance in relation to establishing whether a question of law has been raised. We particularly note His Honour's view that:

30 In construing the phrase "question of law", statements of principles are less likely to be of assistance than close attention to the nature of the issue identified by the appellant and the statutory context in which the appeal arises. Reformulating the statutory criterion as referring to a "question of law alone", or as excluding "a mixed question of fact and law", may prove a distraction...

We have engaged in the process of considering whether there is a question of law that has in fact been raised (see also Cominos v Di Rico [2016] NSWCATAP 5 at [13]).
We consider that the appellant's contentions that she was not given sufficient time to present her arguments or respond to the respondent's contentions might raise a question as to whether the applicant had been accorded procedural fairness.

The Tribunal must accord procedural fairness to the parties and act impartially as set out in sub-ss 38(2) and (5) of the NCAT Act. The failure to accord procedural fairness must be material and be capable of affecting the decision: Kudrynski v Orange City Council [2024] NSWCA 33 at [49]; YJM v Public Guardian [2024] NSWCATAP 216 at [18]; FleetServ Pty Ltd v Maiden Co Pty Ltd [2023] NSWCATAP 268 at [23] and Impala [71] - [77].
Similarly to the Appeal Panel in Webb at [30] if we were satisfied that an alleged breach of procedural fairness was material, we would be satisfied it raised a question of law.

Clause 12 of Sch 4 to the NCAT Act provides that the Appeal Panel may grant leave to appeal a decision from the CCD pursuant to section 80(2)(b) of the NCAT Act only if it is 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).

The Appeal Panel considered the meaning of a substantial miscarriage of justice for the purposes of cl 12 of sch 4 to the NCAT Act in Collins v Urban [2014] NSWCATAP 17 at [76], stating that a substantial miscarriage of justice 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.

The principles to be applied by an Appeal Panel in determining whether leave to appeal should be granted are well settled. In Collins v Urban the Appeal Panel concluded at [84] that:

(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal, only in matters that involve:

(a) Issues of principle; or

(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; or

(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.

It is important to note that an appeal is not an opportunity for the losing party to rerun the party's case (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]).

The first ground of appeal raised by the appellant was that the decision was not fair and equitable, as the Member had preferred the evidence of the respondent over that of the appellant. The appellant alleged the respondent had misrepresented evidence in relation to their previous acceptance of responsibility for delays and non-function of the website. Therefore, the respondent's evidence should be deemed unreliable, and it was not fair and equitable to prefer the respondent's evidence.
The Appeal Panel in Dhorajiwala PCT Pty Ltd v Peacock [2022] NSWCATAP 313 at [39] noted the following when considering whether a decision was fair and equitable:

... that whether a decision was not fair and equitable will involve a consideration of whether there has been an unfairness in the way the proceedings have been conducted or some other denial of procedural fairness.

Although we are unable to discern any basis for the claim the decision was not fair and equitable, the issues raised by the appellant are considered below.
The appellant has raised that the respondent had admitted in writing, text or messages, that they were responsible for both the delays in completion and for the issues with functionality of the website. The appellant claimed the respondent had then changed the narrative at the hearing to deny any responsibility.
Further, the appellant claimed the respondent made a number of promises about to the website and its functionality, that were not delivered upon.
The appellant's evidence was voluminous and disorganised, leaving the appellant unable to take the Appeal Panel to examples of the respondent's admissions, or examples of promises made to the appellant by the respondent.
The appellant also referenced the limited time she had to present their case at the hearing as a procedural unfairness. The appellant submitted that she had been given much longer to present her case in another previous unrelated matter with a different respondent, in which the appellant had been successful.
The respondent submitted that each party had been given ample time to put their case to the Tribunal and the respondent denied misleading the Tribunal.
Neither party had provided a transcript or sound recording to demonstrate any limitation in the time for the appellant to present their case at the Tribunal hearing on 20 May 2024.
The appellant made further submissions regarding the respondent "strategically reinstating his status as a Justice of the Peace" prior to the Tribunal hearing. The appellant did not make out the relevance of this submissions and, even if it had occurred (which the respondent denied) we do not consider that it would have impacted on the Tribunal's decision.
We are not persuaded this ground of appeal was made out.

The appellant submitted the decision was against the weight of evidence because the appellant had provided voluminous evidence, not dissimilar to evidence provided in a previous case against a former web developer engaged by the appellant, which had been successful. Therefore, as that case was successful, so should this case have been successful.
The Appeal Panel in Collins v Urban at [77] noted the following when considering whether a decision was against the weight of evidence:

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.

The appellant could not take us to the supporting evidence demonstrating that the respondent had made admissions or entered into blackmail, by threatening to withhold access to the website unless the applicant continued to engage the respondent.
The appellant further referred to paragraphs in the written decision where the Tribunal's description of the evidence from the parties is conflicting as evidence of the Tribunal being confused. The Tribunal's references to "conflicting" evidence are not equivalent to confusion on the part of the Tribunal Member. Rather, it is clear from the context of the decision that the Member is determining that the appellant has failed to make out her case. The Appeal Panel is not persuaded by the appellant's interpretation of the Tribunal's decision and the decision does not disclose any confusion on the part of the Tribunal Member.
The appellant could not take the Appeal Panel to the evidence of promises in functionality and revenue to be attracted by the website made by the respondent.
Additionally, the Appeal Panel does not have the transcript to determine what oral evidence was given at the Tribunal hearing.
On the evidence available to the Appeal Panel, we are not persuaded that the Tribunal gave insufficient weight to the appellant's evidence or that the conclusions of the Member were not ones that a reasonable Tribunal member could reach.

It was submitted by the appellant that significant new evidence had arisen that was not reasonably available at the time of the Tribunal hearing. The evidence referred to appeared to be the tax invoices demonstrating losses claimed by the appellant.
The Appeal Panel addressed considerations of whether evidence is significant new evidence in Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 at [108-109] where it was stated:

108. The appellant also relied upon the ground in cl 12(1)(c) of Schedule 4 to the Act. Under cl 12(1)(c) the Appeal Panel may grant leave if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because:

significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

109. In order to fall within this paragraph the appellant must be able to point to evidence which:

(1) is significant; and

(2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.

The appellant has included several tax invoices showing the works the appellant required on the website. These invoices appear to be the costs of a new website and do not indicate the works to be rectification works.
Further, as mentioned above, the appellant could not identify within the evidence where the respondent had made admissions or promises that had not been delivered.
We are not persuaded that the tax invoices constitute significant new evidence not reasonably available to the appellant at the time of the Tribunal hearing, nor that the appellant may have suffered a significant miscarriage of justice. Accordingly we are of the view that it is inappropriate to allow the appellant to rely on that evidence.
Additionally and in the alternative, had the tax invoices been before the Tribunal, the Appeal Panel is not persuaded that the Tribunal gave insufficient weight to the appellant's evidence, nor that the conclusions of the Tribunal were not ones that could reasonably be made.
The appellant further sought to rely on the SSW Guidelines as evidence pointing to deficiencies in the website platform, as well as an email which was in existence at the time of the Tribunal hearing but which had not been tendered by the respondent.
The appellant was unable to explain why the Appeal Panel should consider this evidence to be significant new evidence which was not reasonably available at the time the proceedings under appeal were being dealt with. It was the appellant's obligation to make out her case in the Tribunal. The fact that the respondent did not present an email which was in existence at the time of the Tribunal hearing is not a basis for the appellant now claiming that it should be taken into account by the Appeal Panel.
There was nothing to suggest that the SSW Guidelines came into existence after the Tribunal's hearing. If the appellant wished for the SSW Guidelines to be taken into account in determining the proceedings, it was open to her to provide those guidelines at the Tribunal hearing. Even if they had come into existence after the hearing, they would not be relevant in the appeal. The appeal is not an opportunity for the appellant to rerun her case, and if the guidelines were new, they would not have had any impact on the respondent's work three years earlier.
We do not consider that it is appropriate to allow the appellant to rely on this evidence in the appeal, nor does it constitute significant new evidence for the purposes of granting leave to appeal.
Given our findings, it is not necessary to consider issues which go to the Appeal Panel's discretion to grant leave to appeal.

Question of Law - whether the Tribunal failed to accord procedural fairness to the appellant

A further consideration, identified by the Appeal Panel on examination of the appellant's documents, is whether the appellant had been afforded procedural fairness in the time allowed to present their case to the Tribunal.
Neither party has provided a copy of the transcript or sound recording to show the length of time each party was given to present their case or any denial of further time by the Tribunal. The appellant has not adduced any evidence to show that she was unreasonably refused time to present further evidence or make further submissions before the Tribunal.
The appellant has not established any breach of procedural fairness in the Tribunal proceedings.

We have reached the conclusion that the explanation for the length of delay in lodging the Notice of Appeal does not justify the delay and granting an extension of time would prejudice the respondent's vested right to retain the judgment once the appeal period was at an end. As discussed above, the appellant has not established any of the four grounds of appeal and she has therefore not demonstrated a "fairly arguable case" in the appeal. Therefore, the extension of time should be refused.

The Appeal Panel has determined, for the reasons above, that an extension of time should be refused, and the appeal should be otherwise dismissed.

The appellant indicated that also sought her costs in the appeal from the respondent in the event that she was successful in the appeal.
Under ss 60(1) and 60(2) of the NCAT Act, each party to proceedings in the Tribunal is to pay the party's own costs and the Tribunal may award costs in relation to an appeal only if it is satisfied that there are special circumstances warranting an award of costs.
In proceedings commenced in the CCD, by reason of the operation of s 35 when read with par (a) of the definition of "procedural rules" and the definition of "Tribunal rules" in s 4(1) of the NCAT Act, s 60 is subject to the NCAT Rules.
Rule 38 of the NCAT Rules relevantly provides:

38 Costs in Consumer and Commercial Division of the Tribunal

(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.

(2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if -

...

(b) the amount claimed or in dispute in the proceedings is more than $30,000.

Rule 38A of the NCAT Rules relevantly provides:

38A Costs in internal appeals

...

(2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.

For the purpose of r 38A of the NCAT Rules the amount claimed or in dispute is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57].
The amount claimed or in dispute in the Tribunal and the amount claimed or in dispute in the Appeal Panel was more than $30,000. Rule 38A applies in these proceedings. However, as rule 38A applies, in ordinary circumstances, costs would follow the event and an award of costs would be made to the successful party. The appellant is the unsuccessful party and has not provided any reasons why she should otherwise be awarded any costs.
The respondent did not seek costs, nor did he foreshadow that a costs application might be made.
Accordingly, we make no order as to costs, with the intention that each party pays its own costs.

(1) The application for an extension of time to lodge the Notice of Appeal is refused.

(2) The appeal is 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.

Administrative Tribunal Act 2013

Administrative Tribunal Rules 2014

Civil Procedure Rules 2005

Candy Events Pty Ltd v Thrain Pty Ltd t/as Digital Solutions Group

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