Cao v Lavish Construction and Developments Pty Ltd

NCAT Appeal Panel|2022-10-31|Before: Blake AM

Introduction

Neither of the parties in their respective submissions addressed the issue of whether the appeal is competent.
At the commencement of the hearing, we raised the issue of whether the appeal is competent by reason of the failure of the Tribunal to make an order. Ms Cao submitted that the Liability Decision was a "decision" within the meaning of the NCAT Act and so the appeal was competent, while Lavish submitted that the Liability Decision was not a "decision" within the meaning of the NCAT Act and so the appeal was incompetent. Further, neither Ms Cao nor Lavish consented to the making of a work order if the Appeal Panel has power to cure any failure by the Tribunal to have made a decision by a consent order.
Before considering this issue, it is appropriate to set out the applicable statutory provisions and legal principles.

NCAT Act

Part 1 (ss 1-6) contains provisions dealing with preliminary matters. Section 4(1) contains definitions, and relevantly provides: 4 Definitions (1) In this Act - … ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including - (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings. … decision - see section 5. … interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following - (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal. internal appeal, internal appeal jurisdiction and internally appealable decision - see section 32. …

HB Act

Part 3A Division 5 (ss 48N-48N) contains provisions dealing with the powers of the Tribunal in relation to building claims. Section 48O deals with the orders which the Tribunal may make, and relevantly provides: 48O Powers of Tribunal (1) In determining a building claim, the Tribunal is empowered to make one or more of the following orders as it considers appropriate - … (c) an order that a party to the proceedings - (i) do any specified work or perform any specified service or any obligation arising under this Act or the terms of any agreement, or …

The applicable legal principles

In Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 (Lam) at [20] the Appeal Panel held that an expression of doubts or opinions which does not involve making an order or doing any of the other things mentioned in s 5(1) of the NCAT Act does not amount to a "decision" and, accordingly, such an expression of doubts or opinions cannot be the subject of an internal appeal under s 80 of the NCAT Act. This is especially so where the doubts or opinions were expressly not relied upon in reaching the decision and making the orders actually made.
In Australian Press Council Inc v Southey [2022] NSWCATAP 127 (APC) at [31]-[41] the Appeal Panel made the following observations about the meaning of "decision" in the NCAT Act: "[31] The term "decision" is used to refer both to administrative decisions reviewable by the Tribunal (see, for example, NCAT Act, s 30(1)) and to the Tribunal's own decisions (see, for example, NCAT Act, s 29(1)). Notwithstanding the breadth of the term "decision," as defined, it seems to us unlikely that the legislature intended that every finding of law made in the course of the Tribunal's written reasons (whether in relation to the construction of a provision, or any other legal matter) would be a "decision" which may be the subject of an appeal to the Appeal Panel. It may be that the term "decision" has a more confined meaning when used in relation to decisions of the Tribunal than it does when used in relation to decisions of administrators. It is not necessary, however, to determine that question in order to resolve this appeal. [32] The High Court considered the meaning of the term "decision" in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. The ADJR Act defined "the making of a decision" in terms almost identical to those in which the term "decision" is defined in the NCAT Act. The ADJR Act conferred a right to apply for judicial review of a decision of an administrative character made under an enactment. [33] Mason CJ considered that the definition of "the making of a decision" did "not elucidate significantly" the meaning of "decision" in the ADJR Act (at 335). His Honour observed (at 337) that a "conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment." His Honour concluded (at 338) that the term "decision" in the ADJR Act referred to an ultimate or operative determination. [34] In Custom Credit Corporation Ltd v Commercial Tribunal of New South Wales (1993) 32 NSWLR 489, the New South Wales Court of Appeal considered a provision of the Commercial Tribunal Act 1984 (NSW). Subsection 20(3) gave the presiding Chairman or Deputy Chairman of the Tribunal power to determine a question arising in proceedings with respect to a matter of law, or to refer the question to the Supreme Court for decision. Subsection 20(5) provided: "Where, in proceedings before the Tribunal, the Chairman or a Deputy Chairman decides a question with respect to a matter of law, a party to the proceedings who is dissatisfied with the decision may appeal to the Supreme Court against the decision of the Chairman or Deputy Chairman." [35] The New South Wales Court of Appeal held that s 20(5) permitted interlocutory appeals. The three members of the Court gave separate judgments, each analysing the terms of the statute. Each found that the legislation authorised the making of appeals from interlocutory decisions. [36] The Court of Appeal considered in Daley v Hughes (2014) 86 NSWLR 729; [2014] NSWCA 268 what was meant by the conferral of a right of appeal from a "decision" of a costs assessor to the Supreme Court under s 208L of the Legal Profession Act 1987 (NSW). The purported decision in question did not have any immediate operative effect as between the parties. Tobias AJA (with whom Meagher and Emmett JJA agreed) referred to Mason CJ's judgment in Bond, the decision in Custom Credit, and other relevant authorities. His Honour held at [81] that s 208L(1) was not intended to create an appeal right where there was a ruling on a question of law of a preliminary or interlocutory nature. That provision created an appeal right "at the end of the assessment process or at least only upon a formal determination by the costs assessor" (at [82]). [37] The NCAT Act contemplates that a party may appeal to the Appeal Panel, with leave, from an interlocutory decision of the Tribunal (s 80(2)(a)). To this extent, the NCAT Act is different from the legislation considered in Bond's case and in Daley v Hughes. "Interlocutory decision" is defined as follows in s 4(1) of the NCAT Act: … [38] Each of these decisions, with the possible exception of the last category, involves the Tribunal making an order or direction under a statutory power. For example, the power to direct that a summons be issued is conferred on the Tribunal by s 48(1) of the NCAT Act. The power to make rulings on the admission of evidence is part of the Tribunal's power to determine its own procedure (NCAT Act, s 38(1)). None of these decisions are properly described as steps in the reasoning of the Tribunal. [39] … The term "interlocutory" is not defined. It is relevantly defined in the Macquarie Dictionary as follows: "Law temporary or provisional, pending final judgement or determination; interim: interlocutory injunction." … [40] Paragraph (i) of the definition of "interlocutory decision" refers to "any other interlocutory issue before the Tribunal," thus implicitly indicating that paragraphs (a) to (h) of the definition all identify interlocutory issues. Having regard to the types of decision identified in those paragraphs, we do not consider that the legislature intended that a finding as to a question of law made in the reasons for decision given in a final determination is an "interlocutory decision." [41] If requested to provide reasons for a "decision," the Tribunal is required to provide a written statement of reasons setting out findings on material questions of fact, the Tribunal's understanding of the applicable law and its reasoning processes (NCAT Act, s 62(3)). There is nothing in the language of s 62 to suggest that setting out the applicable law or reasoning processes in the Tribunal's written reasons is itself the making of a "decision.""

Consideration and determination

We are satisfied that the Tribunal did not make a work order, or any order, in the Liability Decision. The Liability Decision expressly requires the parties to notify the Registry if they require a work order to be made. The parties accepted that they had not approached the Registry for the making of an order. The reference in the Costs Decision to the Tribunal having made an order is obviously a mistake.
We are also satisfied that the Liability Decision other than the procedural order for the making of submissions on costs is not a decision within s 5 of the NCAT Act for the following reasons: 1. while the definition of "decision" in s 5(1) is inclusive, having regard to Lam at [20] and APC at [31]-[41] we do not accept that there can be decision unless there is an ultimate or operative determination in the proceedings; 2. while the Tribunal stated that it planned to make orders substantially in accordance with Lavish's Short Minutes of Order, this statement is not an ultimate or operative determination. Not only was a work order yet to be made, but also the Tribunal had not determined the precise terms of the work order. Thus, there has not been the making of an order within s 5(1)(a) of the NCAT Act. Further, the failure to make a work order does not constitute a decision within s 5(2)(d) of the NCAT Act because the HB Act does not specify any time for the making of a work order under s 48O(1)(c)(i) of the HB Act; 3. similarly, the finding of the Tribunal with the regard to the capacity of the rainwater tank required to be installed by Lavish is not an ultimate or operative determination, but a step along the way in a course of reasoning leading to dismissal of the claim of Ms Cao for a work order for the provision of a water tank with a capacity of 3,000 litres.
It follows that there is no internally appealable decision within s 32(4) of the NCAT Act so far as paras 1 and 2 of section 5A of Part 1 of annexure A of the notice of appeal against which Ms Cao can appeal pursuant to s 80(1) of the NCAT Act. The appeal against this part of the Liability Decision is incompetent and should be dismissed. It will be a matter for Ms Cao whether she asks the Registry for a work order to be made.
In view of our decision that the appeal against this part of the Liability Decision is incompetent the remaining issues as to whether an extension of time to appeal should be granted, whether any of grounds 1 to 4 are made out, and whether leave to appeal should be granted, do not arise for determination.
We are also satisfied that the Liability Decision so far as the procedural order for the making of submissions on costs is a decision within s 5(1)(a) of the NCAT Act. The fact as set out at [66] below that this order was beyond the power of the Tribunal to make does not prevent it from being a decision pursuant to s 5(2)(b) of the NCAT Act. Having regard to APC at [37]-[40] this procedural order is properly to be characterised as being within para (i) of the definition of "interlocutory decision" in s 4(1) of the NCAT Act. Thus, there is an internally appealable decision within s 32(4) of the NCAT Act so far as para 3 of section 5A of Part 1 of annexure A of the notice of appeal against which Ms Cao can appeal pursuant to s 80(1) of the NCAT Act. The Tribunal has internal appeal jurisdiction over the decision by reason of it being a decision made by the Tribunal in proceedings for a general decision within s 32(1)(a) when read with ss 28(1) and (2)(a) and 29(1)(a), (2)(a) and (3) of the NCAT Act. The appeal against this part of the Liability Decision is competent.

Whether an extension of time to appeal should be granted

Introduction

Ms Cao concedes that the appeal was not lodged within the time of 28 days prescribed under r 25(4)(c) of the NCAT Rules. It is therefore necessary to consider whether she should be granted an extension of time to appeal under s 41 of the NCAT Act.
Before considering this issue, it is appropriate to set out the applicable legal principles and the evidence of Ms Cao.

The applicable legal principles

The relevant principles for the granting of an extension of time to appeal under s 41 of the NCAT Act are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [21] and [22]: "[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, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that 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. [22] The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) 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 - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]."

The evidence of Ms Cao

In the Cao Affidavit Ms Cao relevantly gives the following evidence: "2. I received the Tribunal's decision on liability in HB21/37298 dated 9 May 2022 (Liability Decision), by email on 9 May 2022. 3. I received the Tribunal's decision on costs in HB21/37298 dated 22 June 2022 (Costs Decision), by email on 22 June 2022. 4. On and from 22 June 2022, I took steps to take legal advice on the Liability Decision and the Costs Decision. 5. Until I received the Costs Decision, I had not appreciated the full impact of the errors in the Liability Decision, or how they would carry through into the Costs Decision. 6. Until I took advice on the Liability Decision and the Costs Decision, I did not understand those decisions or my appeal rights or the time limits which applied to the appeal rights arising from each decision."

Consideration and determination

As to the criteria in Jackson at [22(3)]: 1. the length of the delay is 43 days, being the time between 7 June 2022 and 20 July 2022; 2. Ms Cao has provided an adequate explanation for the delay from 22 June 2022, but not prior to that date; 3. Ms Cao's prospects of success are strong for the reasons set out in [66] to [68] below; 4. there is no evidence that Lavish will suffer any prejudice.
In view of the procedural order being an interlocutory decision the relevant question if an extension of time is granted is whether leave to appeal should be granted. This means that ground 5 so far it is relates to this interlocutory decision is not to be considered as a separate question of law but to the extent necessary on the issue of leave to appeal.
Neither party addressed the question of leave to appeal by reason of the procedural order being an interlocutory decision and whether the Tribunal had jurisdiction to make the order.
A decision concerning the awarding of costs in proceedings consequential on a decision determining proceedings is within para (b) of the definition of "ancillary decision" in s 4(1) of the NCAT Act. As the Tribunal for the reasons in [55] and [56] above did not make a decision determining the proceedings, it had no jurisdiction to make an ancillary decision with respect to the costs of the proceedings. It follows that it is arguable that the exercise of the discretion to make an interlocutory decision providing for submissions of the parties with respect to the costs of the proceedings miscarried.
In these circumstances the interests of justice require that Ms Cao should be granted an extension of time to 20 July 2022 to appeal against this interlocutory decision.

Whether leave to appeal should be granted and if so the appeal should be allowed

For the reasons set out at [66] and [67] above, leave to appeal should be granted in respect of the interlocutory decision.
We are satisfied that the exercise of the discretion to make the interlocutory decision miscarried in circumstances where the Tribunal had no power to make a decision on the costs of the proceedings. The Tribunal acted upon a wrong principle in making the interlocutory decision when it had no power to make a costs decision. It is therefore unnecessary to consider ground 5 and whether leave to appeal should be granted so far as it is contended that in making this order the Tribunal failed to afford procedural fairness to Ms Cao. It follows that the interlocutory decision should be set aside.

Issues arising for determination in respect of the Costs Decision

Whether the Tribunal had jurisdiction to make the decision

For the reasons set out at [66] above, the Tribunal did not have jurisdiction to make the Costs Decision. It is therefore unnecessary to consider grounds 1 to 4 and whether leave to appeal should be granted. It follows that the appeal should be allowed and the Costs Decision should be set aside. If the Tribunal makes a work order, then it will be a matter for the parties whether they seek any order for costs in the respect of the proceedings.

The costs of the appeal

Each of Ms Cao and Lavish sought an order for the costs of the appeal against the other on the basis that r 38A(2) of the NCAT Rules is applicable to the appeal.
In TriCare (Hastings) Limited v Allen [2015] NSWCA 344 (TriCare) at [15]-[16] the New South Wales Court of Appeal (Ward JA, Simpson JA and Tobias AJA) held that, in circumstances where the appeal was dismissed as incompetent and the issue of the competency of the appeal was first raised by the Court at the commencement of the hearing, each party should pay their own costs of the appeal.
Whether 38A(2) of the NCAT Rules or s 60 of the NCAT Act is applicable to the appeal we have decided, having regard to TriCare at [15]-[16], that in the circumstances that there should be an order that each party should pay their own costs of the appeal. However, as we have not heard submissions on this issue, we have made procedural orders providing for the parties to make an application to vary this order.

Orders

We make the following orders: 1. The time for lodgement of the notice of appeal so far as it relates to the interlocutory decision made by the Tribunal on 9 May 2022 is extended to 20 July 2022. 2. Leave to appeal against the interlocutory decision made by the Tribunal on 9 May 2022 is granted. 3. The appeal against the interlocutory decision made by the Tribunal on 9 May 2022 and the decision of the Tribunal made on 22 June 2022 is allowed. 4. The interlocutory decision made by the Tribunal on 9 May 2022 and the decision of the Tribunal made on 22 June 2022 are set aside. 5. The appeal is otherwise dismissed as incompetent. 6. Subject to the outcome of any costs application pursuant to order (7) below, each party is to pay their own costs of the appeal. 7. If any party wishes to make an application to vary order (6) above, the applicant (the costs applicant) must file and serve a costs application, including submissions limited to five pages and any evidence in support, on or before 14 days from the date of this decision. 8. Any respondent to the costs application is to file and serve any submissions limited to five pages and any evidence in reply on or before 28 days from the date of this decision. 9. The costs applicant is to file any submissions limited to three pages in reply on or before 35 days from the date of this decision. 10. The parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers. 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: 16 December 2022

Commercial Tribunal Act 1984(NSW)

Legal Profession Act 1987(NSW)

egard Pty Ltd v Ballinger [2021] NSWCATAP 321 Prendergast v Western Murray Irrigation Ltd [2004] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Tom v Commissioner for Fair Trading [2022] NSWCATAP 303 TriCare (Hastings) Limited v Allen [2015] NSWCA 344 Texts Cited: None cited Category: Principal judgment Parties: Xi (Catherine) Cao (Appellant) Lavish Construction and Developments Pty Ltd (Respondent) Representation: Counsel: B Jacobs (Appellant)

The scope and nature of internal appeals

Internal appeals against an internally appealable decision may be made in the case of an interlocutory decision with leave of the Appeal Panel, and in the case of any other kind of decision (including an ancillary decision) as of right on a question of law, or with the leave of the Appeal Panel, on any other grounds: s 80(1) and (2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
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, which relevantly includes whether there was a failure to afford procedural fairness.
Whether a court or tribunal has jurisdiction or power to make a decision or take some other step in the proceedings raises a question of law: Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [26]-[27] (Bathurst CJ and Bell P) (Johnson J at [128], Garling J at [136] and Lonergan J at [137] agreeing).
An appeal in relation to the miscarriage of the exercise of a statutory discretion relating to practice and procedure under the NCAT Act in the sense of House v R (1936) 55 CLR 499 (House v The King) at 504-5; [1936] HCA 40 raises a question of law: see, for example, Tom v Commissioner for Fair Trading [2022] NSWCATAP 303 at [87]. Similarly, an appeal in relation to a costs decision which suggests that the discretion of the Tribunal may have miscarried in the sense of House v The King at 504-5 raises a question of law. Otherwise leave to appeal must be sought: Nelson v The Owners - Strata Plan No.49504; The Owners - Strata Plan No.49504 v Nelson [2020] NSWCATAP 194 (Nelson) at [42].
In House v The King at 504-5 Dixon, Evatt and McTiernan JJ stated: "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."

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