Craig Anthony Bennett v Brendan Lavery atf Access Family Trust

Craig Anthony Bennett v Brendan Lavery atf Access Family Trust - [2014] NSWCATAP 118 - NSWCATAP 2014 case summary — Zoe

The appeal hearing - appearance by telephone and adjournment applications 7At the hearing of both appeals on 19 November 2014 the appeal panel was provided by the Registry staff with an email received from the homeowner dated 17 November 2014 in which the homeowner (represented by Mr Teh) sought to appear by telephone. In that email he indicated that he lived "very far away" at Mount Victoria in the Blue Mountains. He requested that the hearing be conducted by telephone and indicated that he would be "appreciative if leave could be granted". 8By reason of the receipt of email referred to above, the appeal panel commenced the appeal hearing by causing Mr Teh to be telephoned and the hearing of the appeal commenced in the presence of the builder and with Mr Teh on the telephone. Mr Teh then sought leave to appear by telephone. 9Mr Teh's request to appear by telephone was based upon the fact that he lived at Mount Victoria and he submitted that were he to be absent from home there would be no one at home to look after his house in the event of bush fires or to look after his dog. Mr Teh submitted that there would be no disadvantage to the builder or to the appeal panel by his appearance by telephone because all documents were "in front of you". The builder opposed Mr Teh's application. 10In response to the observation from the presiding Member that the application was made very late, Mr Teh pointed to the fact that he had earlier included, in documents filed by him, notification that he would prefer not to have to attend an appeal hearing in Sydney. 11In the Reply filed by Mr Teh on 19 August 2014 he included a statement that he wanted the hearing to occur in the Blue Mountains and gave the following reason: "I am living in Mount Victoria and it takes at least 2.5 hours to get into Sydney depending on traffic". 12Mr Teh had appeared by telephone at the call over on 19 August 2014. The orders then made do not canvas the possibility of an application to appear by telephone at the hearing of the appeal. 13The appeal panel refused Mr Teh's application giving oral reasons. In addition the appeal panel indicated that more detailed reasons would be issued subsequently. These reasons follow. 14In the view of the appeal panel it is desirable for parties to an appeal to be physically present or represented at the hearing of the appeal. A physical presence assists the making of submissions and the ability of the appeal panel to enquire into and to test the points put forward by a party. Reference to documents is facilitated by the physical presence of the parties or their representative and is made more difficult if a party is referring to documents over the telephone. Where, as here, one of the parties seeks leave to adduce fresh evidence the need for a party to be physically present is more important because of the possibility of the appeal panel and the other party wishing to examine or cross-examine in respect of the proposed new evidence. 15However, in some circumstances the Tribunal does permit a party to appear by telephone but only with leave. For example, the Tribunal's Guideline Number 1 headed "Internal Appeals" provides information to parties conducting an appeal. Paragraph 55 of that Guideline states: "Where appropriate an appeal directions hearing may be conducted by telephone". 16The guideline also describes that appeals will usually be conducted by an oral hearing at a venue which is generally in Sydney or an appeal may in certain circumstances be conducted on the papers. 17The Tribunal issued a notice of hearing on 20 August 2014 giving details of the time and place of hearing. That notice states that the parties "are required to appear" at the designated venue. 18The Consumer and Commercial Division of the Tribunal has also published procedural direction number 1 concerning adjournments. Paragraph 10 provides information to a party who cannot attend a hearing personally and, in particular, provides how a party may appear by telephone. Paragraph 10(c) provides that if a party would like to appear by telephone then the party must contact the Divisional Registrar within 7 days of the date of the hearing and supply a telephone number so that the "possibility of telephone hearing can be discussed with the party. Telephone hearings are not granted as a right and the Tribunal will decide if a telephone hearing will be granted". 19The appeal panel's reasons for the refusal of the application by Mr Teh to appear by telephone are as follows: (a)The reason for Mr Teh's inability to be in Sydney is not persuasive. The foreshadowed difficulty stated in the reply was the length of the driving time to Sydney. There was no suggestion that he could not travel because of the fear of bushfires or concern for the welfare of his dog. The first reason arguably conflicts with the latter in that the first reason suggests that he does in fact travel to Sydney whereas the second reason suggests that he is not able to travel to Sydney. Furthermore, the property which is the subject of the proceedings is a property beneficially owned by Mr Teh (according to his own statement) and that property is in Sydney. It is reasonable to assume that Mr Teh does from time to time travel to Sydney. In short the reasons for seeking to appear by telephone are not persuasive. (b)The application to appear by telephone did not occur until 17 November 2014 at the earliest. It is a late application and one not earlier foreshadowed to the builder. (c)The appeal panel was of the view that difficulties often arise in fully ventilating issues which arise during an appeal if the hearing is conducted with one party present by telephone. Those difficulties include the possibility of problems with telephone reception. Indeed, Mr Teh complained that when he appeared by telephone at the call over he could not fully hear what the other party was saying. A further difficulty arises in the experience of the appeal panel in referring to evidence and being confident that the parties and the members of the appeal panel are looking at the same documents. 20Following the oral delivery of the appeal panel's decision to refuse the application to appear by telephone, Mr Teh applied for an adjournment of the hearing and failing an adjournment of the hearing of both appeals then an adjournment at least of the home owner's appeal. 21Mr Teh's basis for the adjournment application was that in the light of the appeal panel's decision to not allow him to appear by telephone he would like the hearing of the appeals adjourned so that the hearings could be relocated to a more convenient location. 22The appeal panel gave brief oral reasons for refusing the application and indicated that it would give more detailed reasons subsequently. These are those reasons: (a)Again in the opinion of the appeal panel the reason Mr Teh is unable to travel to Sydney is unpersuasive. There was no evidence of any bushfire threat or evidence that Mr Teh's dog could not care for itself. Mr Teh had not sought to apply for an adjournment before the hearing and had not foreshadowed any adjournment application to the other party. (b)In the opinion of the appeal panel the builder would have been put to some inconvenience if either or both appels were adjourned to another day. (c)The appeal panel also has obligations under Section 36 of the Act to facilitate the "just, quick and cheap resolution of the real issues in the proceedings". In the opinion of the appeal panel it would be inconsistent with those requirements as set out in Section 36 to adjourn the hearings. 23As a consequence of the refusal to adjourn the hearings and of the decision to refuse leave for Mr Teh to appear by telephone, the appeal panel discontinued the telephone call with Mr Teh and proceeded to hear the appeals in the presence only of the builder.

[4]

The builder's appeal 24The builder's notice of appeal disputes the findings below in respect of four alleged defects. No question of law was identified. The appeal is accordingly brought under the provisions of Section 80 (2) (b) of the Act which permits an appeal with leave on grounds other than on any question of law. However those other grounds are limited by the provisions of Clause 12 of Schedule 4 of the Act. Clause 12 provides as follows: Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80 (2) (b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if: (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order. 25It is appropriate to deal with the builder's appeal by considering each of the alleged defects which the builder has identified in the notice of appeal and supporting submissions.

[6]

Item 14 - First Floor bathroom 30The Tribunal below ordered the builder to pay $7010 on the basis that the evidence of the homeowner's experts (namely SDR and Shavar) was to be accepted in concluding that the falls in the first floor bathroom floor were defective and hazardous. In particular, the grated drain was found to be higher than the floor tiles creating a valley or an undulating area in the floor tiles along the length of the grate which holds water. 31The builder contended that the homeowner accepted the fact the shower enclosure would have no screen and that therefore water would pond on the floor. 32The homeowner on the other hand contended that the water does not drain to the floor waste as it should, but collects and forms a puddle which is a hazard to users. 33In the opinion of the appeal panel it was open to the Tribunal below to conclude that the defect in the fall, as reported by the homeowner's experts, constituted a defect for which the builder was responsible. It does not seem to the appeal panel to be relevant that the homeowner elected not to have a shower screen. Although one would expect that a shower with no screen would permit a greater quantity of water to fall on the floor than would have been the case if there had been a screen, water should nevertheless be capable of draining to the grate. Here, on the evidence which the Tribunal found the water would not drain to the grate. 34The builder also submitted that the homeowner's expert had miscalculated the costs which formed the basis of the award made by the Tribunal below. However, the evidence tendered by the builder on appeal and in particular annexure 6 being the SBR report cost estimate clearly sets out the quantities adding up to the finding of $7010. Whilst there is a reference to the sum of $4580 it appears that that is a typographical error when one considers the quantities particularised. 35In addition, the builder submitted that this defect was a "closed item" which meant that an agreement had been reached that the defect had been remedied. The appeal panel does not accept this submission. Simply because the parties agreed that a defect had been remedied does not subsequently preclude a homeowner from enforcing statutory warranties under the Home Building Act 1989 (the Act) provided of course that a breach of warranty can be proved. 36The appeal panel finds that the decision of the Tribunal below was reasonably available to it and was not against the weight of evidence. Accordingly the order below should stand.

[8]

Item 20 - Basement floor slab 38The decision below with respect to this item was that the builder ought to pay to the homeowner the sum of $12,200 by reason of a defect to the basement floor slab. The particular defect was that there was no step down rebate installed in the slab at the external door frame to prevent the ingress of water. The basis for the decision below was the finding that the observations of the homeowner's expert (SBR) were preferred and the member found that there was an obvious defect as the outside patio floor was flush with the floor slab and there was no rebate step. 39The builder contended that the decision below failed to consider an email of 6 September 2009 from the homeowner instructing that the slab not be cut. This submission is rejected. The decision below clearly considered the correspondence of 6 September 2009. In any event it is the view of the appeal panel that that email contains no instruction of the kind the builder contends. 40The builder conceded that the relevant plans and specifications required a rebate but sought to adduce evidence that the owner had raised the paving to the strip drain height subsequent to the completion of the building works without the knowledge or permission of the builder as part of the homeowner's landscaping work. The builder described that as the cause of the problems concerning the prevention of water ingress. 41The difficulty for the appeal panel is that there is no evidence to support the assertions of the builder and, in addition, there is no basis for adducing such new evidence concerning subsequent landscaping works. In other words, the builder did not tender evidence to support this submission either below or on appeal. The appeal panel is not persuaded that the finding was against the weight of the evidence. Accordingly the order should stand. 42Before finishing with this item, it is necessary to refer to the builder's contention that the design of the slab as supplied to the builder by the homeowner contained no requirement for rebate. This submission is rejected because the finding below was that the architect's plan included a rebate.

[11]

Merits of the homeowner's appeal 48It is incumbent upon the appeal panel to identify for the unrepresented litigant any questions of law that may be arguable on appeal. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 recently considered the requirements for establishing an "error of law" giving rise to an appeal as of right. The Appeal Panel at para 11-12 said 11 As noted above, an appeal to the Appeal Panel lies as a matter of right on a question of law. The notice of appeal does not articulate in express terms any question of law. It is necessary that a question of law be stated with precision, as an appellant's right to appeal arises from the question of law. Additionally, the question of law is the subject matter of the appeal: see for instance Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50]; in relation to appeals to the Federal Court of Australia, from the Administrative Appeals Tribunal, which lie only on "questions of law"; and Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [35] in relation to s 67 of the Consumer, Trader and Tenancy Tribunal Act (2001) (NSW) where appeals to the District Court lay only where that Tribunal had decided a question with respect to a matter of law. 12 In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent. 49The Notice of Appeal did not articulate, in express terms, any question of law. The importance of the question of law was noted by the Appeal Panel in Prendergast. Without expressing exhaustively all possible questions of law, the Appeal Panel in Prendergast cited the following at [13]: (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 50In this appeal the parties were not legally represented and the Notices of Appeal did not satisfactorily or with precision set out any error of law as categorised above. The Appeal Panel has perused the evidence and submissions provided by the homeowner and is satisfied that the only questions to be determined in the homeowner's appeal are questions of fact requiring leave. The appeal panel proceeded on that basis to consider the following alleged defects:

[12]

Item 4 - The living room balcony 51The Tribunal below declined to make a finding that the living room balcony was defective because of a leak from the glass roof and roof frame. The Tribunal found that there was "insufficient evidence that any water leak which required rectification is attributable to defective work by the respondent (builder)." The decision preferred the evidence of RHM (the builder's expert). The homeowner's contention is that the report of RHM withheld important information concerning the state of the roof. In particular, the homeowner alleges that RHM went onto the roof and would have seen defects in the roof as recorded in new evidence which the homeowner sought to adduce on appeal. 52The difficulty that the homeowner has is that the assertion that RHM withheld information is based simply on the notion that the defects as recorded in recently obtained photographs demonstrate obvious defects which must have been apparent to RHM at the time of inspection but that RHM failed to include observations of obvious defects in their report. The complaint appears to be that the expert failed in its obligation to independently report to the Tribunal. Any such objection should have been raised at the time the evidence was tendered below. The second difficulty is that the homeowner at all times bore the onus of proof and should have supplied evidence at the hearing of defects in the roof and failed to do so. 53In effect, the homeowner is seeking to adduce fresh evidence which could have been brought before the Tribunal at first instance and seeks to impugn the integrity of RHM based upon the speculative idea that RHM must have seen the defects but withheld that information. 54The opinion of the appeal panel is that the findings by the member below were reasonably open to the member. 55The homeowner has failed to meet the requirements of clause 12 Schedule 4 of the Act and in particular has not demonstrated that the evidence now sought to rely upon was not reasonably available at the first instance hearing. The appeal panel rejects this ground of appeal.

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Judgment (18 paragraphs)

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