Clarke v Tapp

NCAT Appeal Panel|2015-04-13

J Grew (Respondents) Solicitors: G Casey (Appellant) JS O'Connor, Harris & Co (Respondents) File Number(s): AP 14/46534 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 8 August 2015 Before: D Goldstein File Number(s): HB 11/10213

Introduction

The appellant is a builder who has appealed against two decisions of the Consumer and Commercial Division of the Tribunal made on 8 August 2014. The first decision was to extend time for the home owners to apply for costs in relation to home building proceedings that were determined on 6 December 2013. The second decision was to order that the builder pay the home owners costs. The main issue is whether the Tribunal had the power to extend time and, if so, whether leave should be given for the builder to appeal against that decision. Our conclusion is that the Tribunal did have power to extend time but there is no issue of principle or clear injustice that would warrant setting aside that decision. The appeal should also be dismissed in relation to the costs decision itself because the Tribunal made no error of law in making that decision.

Background

The parties entered into a home building contract dated 28 September 2008. In September 2010 the builder filed an application in the Consumer, Trader and Tenancy Tribunal seeking to recover $267,469.79 from the home owners (HB 10/43667). The home owners then filed an application for $104,000.00 in respect of defective work allegedly carried out by the builder (HB 11/10213). Both matters were heard together on 23 May 2012, 14 and 15 May 2013. Separate reasons were published on 6 December 2013. In HB 10/43667, the Tribunal decided in favour of the builder and ordered the home owners to pay the builder $257,433.46. In HB 11/10213 the Tribunal decided in favour of the home owners and ordered the builder to pay the home owners $49,260.00.
In each proceeding, the Tribunal directed that any costs application be made within 21 days. The Tribunal also directed that any response be made within 21 days of receiving the application for costs and any reply be made within a further 14 days.
The builder filed a costs application in relation to HB 10/43667 on 27 December 2013 which was the last day of the 21 day period. The homeowners did not file an application for costs at that time but they did appeal to the District Court against the Tribunal's decision. That appeal was discontinued on 7 April 2014 and the homeowner filed their application for costs on 12 May 2014.
On 27 June 2014 the Tribunal directed that the homeowners serve the application for an extension of time and the costs application on the builder. The Tribunal also directed that the builder file and serve submissions in response to each of those applications. The builder filed submissions on 28 July 2014 opposing an extension of time and submitting that, if time was extended, an order for costs should not be made.

Tribunal's decision

On 8 August 2014, the Tribunal extended the time the homeowners to file an application for costs to 12 May 2014.
Because the proceedings were commenced in the Consumer Trader and Tenancy Tribunal, the Tribunal applied the law as it was immediately before the abolition of the Consumer Trader and Tenancy Tribunal on 1 January 2014: Civil and Administrative Tribunal Act 2013 (NSW), Sch 1, cl 6 and 7. That law was the Consumer Tenancy and Trader Act 2001 (NSW). Section 81 of that Act gave the Tribunal power to extend time for the doing of anything 'under any Act' in respect of which the Tribunal has jurisdiction: (1) Despite any other provision of this or any other Act, the Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any Act in respect of which the Tribunal has jurisdiction. (2) Such an application may be made even though the relevant period of time has expired.
The Tribunal found that there was an acceptable excuse for the delay in applying for costs until 7 April 2014 which is the date the homeowners discontinued a District Court appeal against the Tribunal's decision. The Tribunal also found that there was no explanation for the delay between 7 April and 12 May 2014, the date the application for costs was made. Nevertheless the Tribunal did not consider that that unexplained delay meant that the application for an extension of time should be refused. The Tribunal also rejected the builder's submission that the application amounted to an abuse of process.
In relation to the costs application itself, the Tribunal quoted s 53 which provides that the general rule is that parties pay their own costs but that the Tribunal may award costs in accordance with the regulations. Regulation 20(4) of the Consumer, Trader and Tenancy Tribunal Regulation 2009 provides that: In any proceedings in respect of which the amount claimed or in dispute is more than $30,000, the Tribunal may award costs in relation to the proceedings in such circumstances as it thinks fit.
The Tribunal found that it had jurisdiction to make an order under reg 20(4) because the homeowners claimed $104,000 and an order was made in their favour of $49,260. The Tribunal's reason for awarding costs is set out in [19]: Since the applicants were successful in their application, I can see no reason why the usual order as to costs should be applied. That is the respondent should pay the applicants' costs of and incidental to this application.
We assume that the Tribunal intended to say that it could see no reason why the usual order as to costs should not be applied.

Is the decision to extend time an internally appealable decision?

Under s 80(1) of the NCAT Act, the Appeal Panel has jurisdiction to hear an appeal in relation to "an internally appealable decision". An "internally appealable decision" is a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction: NCAT Act, 32(4). The Tribunal's internal appeal jurisdiction is set out in s 32(1): 32 Internal appeal jurisdiction of Tribunal (1) The Tribunal has "internal appeal jurisdiction" over: (a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and (b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its internal appeal jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) However, the internal appeal jurisdiction of the Tribunal does not extend to: (a) any decision of an Appeal Panel, or (b) any decision of the Tribunal in an external appeal, or (c) any decision of the Tribunal in proceedings for the exercise of its enforcement jurisdiction, or (d) any decision of the Tribunal in proceedings for the imposition of a civil penalty in exercise of its general jurisdiction. Note : The decisions above may be appealable to the Supreme Court and, in some cases in relation to civil penalty decisions made by the Tribunal (whether under this Act or enabling legislation), the District Court. See section 73 and Part 6. [Emphasis added.]
There is no dispute that the home building proceedings were for a general decision in proceedings. A "decision" is defined in s 5 of the NCAT Act to include "giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission." [Emphasis added.] Because the decision to extend time was a "decision" as defined in s 5, we are satisfied that the Appeal Panel has jurisdiction.

On what grounds may the builder appeal against the decision to extend time?

The decision to extend time was made under s 81 of the CTTT Act. It is an interlocutory decision as defined in s 4 of the NCAT Act: "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, (i) any other interlocutory issue before the Tribunal. [Emphasis added.]
An interlocutory decision may only be appealed with leave of the Appeal Panel: NCAT Act, s 80(2) (a).
The legislation does not provide any guidance as to the considerations that are relevant when determining whether to grant leave to appeal against an interlocutory decision. Those principles must be derived from the objects of the Act and the nature of the appeal.
The 'guiding principle' of the NCAT Act is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 36. In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings: NCAT Act, s 36(2).
The purpose of requiring leave to appeal from interlocutory decisions is to minimise costs and to make sure that the real issues in dispute are determined justly and quickly. The importance and complexity of the subject matter is also relevant. The decision to extend time is a matter of practice and procedure. It does not determine the parties' substantive rights. Ordinarily leave will be granted if there is a reasonable excuse for the delay.
While there is no rigid test or criteria for the granting of leave in cases such as this, the Court of Appeal has recently set out the relevant principles applicable to courts in Clarke v New South Wales [2015] NSWCA 27 at [20]: On the present application, Mr Clarke must demonstrate something more than that conclusions the primary judge reached in the exercise of her Honour's discretion pursuant to UCPR 14.28 and 13.4 were arguably wrong: Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. To succeed in challenging the exercise of such a discretion, he must establish an error in the House v R sense (House v R [1936] HCA 40 ; (1936) 55 CLR 499 at 504-5), namely that her Honour made an error of legal principle and/or a material error of fact, took into account an irrelevant consideration, failed to take into account, or give sufficient weight to, a relevant consideration or arrived at a result so unreasonable or unjust as to suggest such an error: see also Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45].
An applicant for leave must demonstrate something more than that the decision maker was "arguably wrong". Ordinarily, what is required is that there is an issue of principle, questions of general public importance or an injustice which is reasonably clear": Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 at [4].

Has the builder established grounds for leave to appeal?

The builder submitted that the Appeal Panel should grant leave to appeal against the decision to extend time because the Tribunal did not have power to make that decision. Alternatively, the builder submitted that if it did have power, it should not have made the decision.
The builder submitted that the Tribunal lacked power to extended time because: 1. it directed that any application for costs "must be lodged in the Tribunal and served on the costs respondent within 21 days of the date of this order" and no application was made within that time; 2. under s 81 of the CTTT Act, time may only be extended "for the doing of anything under any Act in respect of which the Tribunal has jurisdiction" and time was not extended "under any Act".
The use of the word "must" in the direction does not imply that an application for an extension of time will not be entertained. The direction to apply for costs within a certain time did not result in a self-executing order that each party is to pay his or her own costs under s 53 of CTTT Act. Even though orders and directions are generally written in a mandatory style, the Tribunal retains the power to determine its own procedure including extending time for the making of an application for costs: CTTT Act, s 28(1), s 83.
We also reject the builder's submission that the Tribunal had no jurisdiction to extend time because that decision was not made "under any Act" as required by s 81 of the CTTT Act. The Tribunal only has the powers given to it in legislation so any power that is exercised must logically be made "under any Act." In this case the relevant powers include the power to determine its own procedure and to make procedural directions: CTTT Act, s 28(1) and s 29. The Tribunal may extend time under s 81(b) even if the time has expired.
The builder's alternative submission assumes that the Tribunal did have jurisdiction to extend time but that the discretion miscarried. The power to extend time is discretionary: Gallo v Dawson (1990) 93 ALR 479; 64 ALJR 458 at 459 per McHugh J. According to the builder, the Tribunal erred in the exercising its discretion because it: 1. did not act as expeditiously as is practicable: CTTT Act, s 28(5)(a); and 2. the homeowners did not apply for a stay of the Tribunal's decision when they appealed to the District Court and did not respond to the builder's costs application in proceedings HB 10/43667.
The Tribunal found that the homeowners did not have any explanation for the delay in making a costs application between 7 April 2014 and 12 May 2014. That finding does not automatically mean that the Tribunal, acting expeditiously, must refuse to extend time. The builder appears to be submitting that the Tribunal failed to take into account a relevant consideration, namely the unexplained delay.
It is not an error of law for a decision maker to fail to take into account a relevant consideration unless it is bound to take into account that consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. As Deane J said in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375, the decision-maker is not to be criticised for failing to consider everything which the affected party has chosen to include in an "exhaustive list of all the matters which the decision-maker might conceivably regard as relevant."
Even if the unexplained delay was something that the Tribunal should have taken into account, the homeowners must demonstrate something more than that the Tribunal's conclusion was "arguably wrong": Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. There is no issue of principle, question of public importance or clear injustice in relation to the decision to extend time which would justify leave being granted to extend time.

On what grounds may the builder appeal the costs order?

There is no dispute that a decision to award costs is an "internally appellable decision". A decision concerning the awarding of costs in proceedings is an "ancillary decision": NCAT Act, s 4(1). An appeal can be brought against such a decision "as of right on a question of law and with leave on any other ground": NCAT Act, s 80(2)(b).

Grounds of appeal on questions of law

The only ground of appeal relating to the costs order itself appears to be that the Tribunal did not take into account the fact that the home owners were only partially successful in relation to their claim. The claim was for $104,000 and the Tribunal ordered that the builder pay $49,260.
Under reg 20(4), the Tribunal has a discretion to award costs 'as it thinks fit'. On a question of law appeal, the exercise of a statutory discretion such as that in reg 20(4) can only be overturned in limited circumstances: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505-506. Those circumstances were summarised recently by the Court of Appeal in Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 at [14] by Beazley P, Emmett JA and Tobias AJA. The Court held that any attack on a discretionary decision must fail "unless it can be demonstrated that the decision maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning."
The builder did not identify how the discretion had miscarried in this case. On the basis of the submissions his case could be characterised as that the Tribunal failed to take into account, or gave insufficient weight to the fact that the home owners were only partially successful. As we said in relation to the decision to extend time, it is not an error of law for a decision maker to fail to take into account a relevant consideration unless it is bound to take into account that consideration.
We are not persuaded that the Tribunal erred in the way in which it exercised its discretion to award costs. The builder did not seek leave to appeal on any "other grounds".

Orders 1. Leave is refused for the appellant to appeal against the decision to extend time to apply for costs. 2. The Tribunal's decision that:The respondent must pay the applicants' costs of and incidental to these proceedings, such costs to be assessed in accordance with Division 11 of part 3.2 of the Legal Profession Act 204, if not otherwise agreed is affirmed. 3. 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. 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: 07 May 2015

Consumer Trader and Tenancy Tribunal Act 2001(NSW)

Consumer Tenancy and Trader Act 2001(NSW)

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