Cuthbert v The Owners - Strata Plan No. 34194 - [2023] NSWCATAP 107 - NSWCATAP 2023 case summary

The Grounds of Appeal

The Contractor's grounds of appeal stated that he "felt that the Owners - Strata Plan 34194 had failed to prepare the site for lead paint removal which constituted a constructive denial of access. I claimed the unpaid amount of $8,693.75, the balance of the contact for blocks C and D, Platypus Gardens, Cooma, as compensation for denial of access".
The Contractor submitted that the order that he pay the Owners $23,866.50 should be "set aside", and the Owners ordered to pay him $8,693.75.
The Contractor sought leave to appeal, on the basis that the decision of the Tribunal was not fair and equitable and that the decision was against the weight of evidence. The Contractor filed an outline of submissions of 11 paragraphs with references to documents in his Appeal Bundle which were submitted to support those challenges. All 11 of the Contractor's submissions in support of his grounds of appeal commenced "It is not fair and equitable".
The principles governing the appeal are not in doubt and require only brief reiteration. Section 80 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) relevantly provides: "(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. (2) Any internal appeal may be made … (b) as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds; (3) the Appeal Panel may: (a) decide to deal with the internal appeal by way of new hearing if it considers that the grounds for the appeal warrant a new hearing."
The Contractor did not seek that the appeal proceed by way of "new hearing" and, having regard to the issues involved, we would not have granted such an application in any event.
As is plain from his Notice of Appeal, the Contractor does not appeal in reliance upon any question of law. The Contractor accepted that he needed leave to appeal. The principles governing that application were explained to the Contractor. A number of other relevant procedural matters were also explained to the Contractor, who represented himself throughout the proceedings.
It was explained to the Contractor that the appeal was not an opportunity for him to run his case again or have a "second chance" (Ryan v BKB Motor Vehicle Repairs Pty Limited [2017] NSWCATAP 39). In Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, the Court said (citations omitted) that: "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong."
Consistent with authority, the Appeal Panel has adopted a broad interpretation of the grounds of appeal, doing so not prejudicing the Owners who at all material times have been legally represented (Prendergast v Western Murray Irrigation Limited [2004] NSWCATAP 69).
As was explained to the Contractor, it is not the role of the Appeal Panel to "even up the contest" between the parties, to give him legal advice, or to craft grounds of appeal for him which he has not raised (ZNX v ZNY [2020] NSWCATAP 41) unless the issues go to the jurisdiction of the Tribunal, or are otherwise considered necessary to resolve the appeal. Neither of those matters applies in the present appeal.
In Bauskis v Liew [2013] NSWCA 297, at [67] to [70], the Court of Appeal said: "First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties … Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties … Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the Court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant … Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. …"
Although the Contractor did not refer to it, as his appeal is against a decision of the Consumer and Commercial Division, the provisions of Sch 4 clause 12 of the CAT Act apply to any "new evidence" upon which the Contractor seeks to rely. Clause 12(1)(c) states that "significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)".
In oral submissions, the Contractor stressed that his "primary argument" was that "the Owners changed the scope of works", inferentially by requiring him to take steps to remove lead paint which had previously been applied at the premises, and undertake further, and extensive work, to return the timber surfaces to a "bare" state before applying the three coats of paint called for by the parties' contracts.
The Appeal Panel encouraged the Contractor, in his own interests, to focus his oral submissions on the outline which he had gone to the trouble of preparing. Perhaps not surprisingly given his lack of legal training, and financial interest in the proceedings, the Contractor appeared to struggle to focus on the submissions he prepared in support of his grounds of appeal. In fairness to the Contractor, the Appeal Panel has considered each of his grounds of appeal. Our decisions with respect to them, and reasons for those decisions are as follows.
The Contractor submitted (1): "It is not fair and equitable that the only quotation the Tribunal relied on was from MB Fisher Building Services Pty Limited. The Tribunal stated that no alternative quotation was submitted by [the Contractor], yet I was not informed that I could, or asked if I would, submit an alternative quotation. In my renewal of proceedings application, I submitted a compensation claim of $8,693.50 being for denial of access to site. This is an alternative quotation, yet was overlooked by the Tribunal."
The Appeal Panel has approached the Contractor's contentions on the basis that, as asserted in his Notice of Appeal, the decision may also have been against the weight of the evidence. As the only quotation before the Tribunal was a quotation from Fisher upon which the Owners relied, unless reliance upon that quotation was erroneous, that was the only quotation upon which the Tribunal could rely. In other challenges, which we shall address, the Contractor challenged various aspects of the quotation.
The Contractor conceded that he had been aware of the Fisher quotation for 10 months prior to the hearing which resulted in the decision of 14 December 2022. His own renewal application filed on 8 June 2022 referred to that report. Nothing to which we have been referred establishes that the Contractor was denied the opportunity to submit an alternative quotation. Nothing to which we have been referred establishes that the Tribunal denied him procedural fairness by not advising the Contractor that he could submit an alternative quotation. The Contractor should have anticipated that the Owners would rely upon the Fisher quotation at the hearing in December 2022.
The apparent equating of a "compensation claim" with a quotation is, with respect to the Contractor, misconceived. The former was a claim, the latter was evidence which may have supported a claim. The Tribunal undoubtedly knew, as its reasons recorded, what the Contractor was claiming and the basis for it. On his case before the Tribunal, the Contractor had no reason to advance an "alternative quotation". Nothing to which the Contractor has referred the Appeal Panel suggests that he disputed the reasonableness of the Fisher quotation, his case being that he should simply be paid the balance of monies to which he would have been entitled had he completed the painting works in accordance with his contracts with the Owners. This submission cannot advance the Contractor's case.
The Contractor submitted (2): "It is not fair and equitable that the Tribunal relied on the quotation from MB Fisher Building Services Pty Limited, when MB Fisher Building Services Pty Limited have claimed $2,960 in GST despite not being registered for GST. This is fraudulent and it is against the law for an entity to claim GST when they are not entitled to."
In support of this contention, the Contractor relied on an internet search on 24 January 2023 with respect to Fisher's "current details" as recorded by the Australian Business Register maintained by the Australian Government. The extract, which was "last updated" on 14 September 2022, recorded that the company at that time was "not currently registered for GST". As is readily apparent from the document, that information, if it was relevant, was readily available to the Contractor at the time of the hearing on 14 December 2022, and the Contractor does not suggest otherwise.
The Owners' submission in response was that, at the time Fisher provided its quote, well prior to September 2022, it was registered for GST. Nothing to which the Appeal Panel has been referred establishes that that was not the case. This complaint has no substance.
The Contractor submitted (3): "It is not fair and equitable that the Tribunal accepted the quotation from MB Fisher Building Services Pty Limited for $32,560, when I sought to complete the rectification works for $8,693.50. The Owners stated that due to concerns about surface adhesion, I must strip all of the painted surfaces back to bare timber before repainting, yet the quotation from MB Fisher Building Services Pty Limited does not include this. The Tribunal accepted MB Fisher Building Services Pty Limited's quotation despite being different to the scope of works the Owners demanded from me. MB Fisher Building Services Pty Limited's quotation is for a lesser standard and quality than what I intended to provide."
As the reasons of the Tribunal recorded, the Contractor made clear that he would not complete rectification works unless the premises were vacated whilst he did so. For the reasons which it recorded, the Tribunal rejected his claims in that regard. In those circumstances, the Contractor would not complete the rectification works.
The Appeal Panel raised with the Contractor on a number of occasions the apparent inconsistency between his assertion that the Owners Corporation "changed the contract" by requiring him to "strip all of the painted surfaces back to bare timber before repainting" and the fact that the quotation from Fisher upon which the Owners relied did not include the cost of doing that extra work. The Appeal Panel invited the Contractor to explain how, in those circumstances, any attempt by the Owners to "change the contracts" had any adverse consequences for him, as the Tribunal accepted the Fisher quote which did not include the costs of undertaking that more extensive - and expensive - rectification work. With respect to him, the Contractor was unable to explain why, put crudely, the Owners had not potentially "done him a favour" by relying upon the lesser of the quotes which it had obtained for the rectification work.
The Owners' solicitor confirmed that, in the event that the appeal were successful, and the proceedings remitted for a new hearing, as would have been the inevitable consequence of a successful appeal, the Owners would be seeking a much higher sum than the sum referred to in the Fisher quotation. In other words, success with his appeal may well have proved a less than pyrrhic victory for the Contractor. In those circumstances, the Contractor was offered the opportunity to have a brief discussion with the Owners' solicitor to see whether a compromise could be reached. The Contractor refused, as he was entitled to, the opportunity to have such a discussion.
Even if, which has not been established, the Tribunal erred in some identified way with respect to the Owners' asserted attempts to "change the contracts", given that the orders made by it did not reflect any increase in the cost of rectification work as a consequence of such changes, this challenge fails.
The Contractor submitted (4): "It is not fair and equitable that the Tribunal relied on the quotation from MB Fisher Building Services Pty Limited despite them not having the necessary building licences. MB Fisher Building Services Pty Limited are not licensed in NSW and are not able to contract for works over $5,000. This is fraudulent and it is against the law for an entity to contract for building work without holding the necessary licences."
In support of this contention the Contractor relied upon an internet search made on 26 January 2023 of an unidentified website headed "Verify.licence" which recorded "no results found" for Fisher, presumably with respect to licences issued under the Home Building Act 1989. The provenance of the internet search is unclear but, it is assumed that it accurately records what was found at the time. As is not in doubt, this information was readily available to the Contractor well prior to the hearing before the Tribunal in December 2014.
More significantly, and relevant to this and the Contractor's fifth submission, is the response of the Owners that, by reference to an ASIC search (Owners' Bundle p124) it is apparent that Fisher is wholly owned by Matthew Fisher, who holds a current Contractor's Licence according to the search appearing at Owners' submission p121.
The search with respect to Fisher (Owners' Bundle p147) records that, according to information last updated on 14 September 2022, Fisher was registered for GST from 17 July 2014 to 30 June 2022. As is not in doubt, it is for the Contractor to establish his grounds of appeal. Nothing to which the Contractor has referred demonstrates that this ground is made out.
The Contractor submitted (5): "It is not fair and equitable that a money order is awarded based upon a quotation that is illegal and fraudulent. The quotation from MB Fisher Building Services Pty Limited is a shame [sic] because: - the website stated on MB Fisher Building Services Pty Limited's quotation is not active - the email stated on MB Fisher Building Services Pty Limited's quotation is not active - the quote is more than 12 months old and is outdated - MB Fisher Building Services Pty Limited is claiming GST when they are not entitled to - MB Fisher Building Services Pty Limited are not licensed to carryout any building work in NSW, yet they are still contracting for work. - by law, building licence numbers must be shown on all advertising. MB Fisher Building Services Pty Limited's quotation does not advertise any licence number. - the quotation from MB Fisher Building Services Pty Limited does not include the second page. Only the first of 2 pages have been submitted. The quotation has not been submitted in full and in its entirety."
In its submissions in response to this challenge, in addition to the matters to which we have referred with respect to submission 4, the Owners submitted that Mr Fisher and his wife now trade as "Snowy Monaro Property Maintenance" which is registered for GST. Pages 144 and 145 of the Owners' Bundle are consistent with that submission. It was further submitted that Snowy Monaro Property Maintenance maintains a current website presence, p146 of the Owners' Bundle being consistent with that assertion. The Owners submitted that it was "true that the MB Fisher quotation for rectification works is dated 6 January 2022. That is, the cost of rectification was $32,560 in January 2022. In today's climate of inflation and labour shortage it is highly unlikely it would be less now. In addition the Appellant chose not to contest quantum".
It is not in doubt that the Contractor did not choose to contest the quantum of the Fisher quote, at first instance or on appeal. We agree that the second page of the quote (at Owners' Bundle p120) was not relevant. The Contractor has not suggested that the quotation was incomplete or unclear.
Nothing to which the Contractor has referred the Tribunal establishes that this challenge has merit. It is to be remembered that the Fisher quote establishes the reasonable cost of rectification work. Acceptance of it by the Tribunal did not oblige the Owners to engage Fisher to do the work.
The Contractor submitted (6): "It was not fair and equitable that the Tribunal dismissed my Points of Difference schedule. My attempts to negotiate the contract and rectification work via a Points of Difference schedule were dismissed by the Tribunal and it stated that it saw no substance in my submission. The Tribunal was not fair and equitable in dismissing my Points of Difference schedule because: - the Tribunal specifically ordered the parties to consult, narrow any differences and report on agreed or remaining points. The Owners refused to consult, negotiate or narrow any differences which is a contempt of the Tribunal's orders. The Owners' refusal to consult was not taken into account by the Tribunal, - the Tribunal stated there is no issue with Charles Cuthbert being his own expert."
The Owners submitted, correctly, that the "points of difference was simply[an aide memoire] and nothing more. It was not relevant or evidence".
Although we do not accept that the Points of Difference was "not relevant", it was not evidence, and could not be treated as such by the Tribunal. Significantly, the Contractor has not referred us to any relevant evidence which was before the Tribunal to which it did not have regard, or any evidence to which it did have regard which was submitted to have been irrelevant to the determination of the proceedings. It is correct that the Tribunal did not find substance in the Contractor's submissions but, as the reasons of the Tribunal confirm, that was only after the submissions, and the evidence before the Tribunal were afforded proper, genuine and realistic consideration (Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33, at [9]).
As was explained to the Contractor, although the refusal to negotiate or attempt to settle the proceedings, if the Owners in fact did so, may have been relevant to questions of costs, that was not a matter to which the Tribunal should, in the circumstances of this case at least, have had any regard. Moreover, as the orders of the Tribunal make clear, the Owners' position was totally vindicated and that of the Contractor rejected. This challenge has no substance.
The Contractor submitted (7): "It is not fair and equitable that MB Fisher Building Services Pty Limited's quotation was not questioned before the money order was awarded. MB Fisher Building Services Pty Limited should have been questioned on the following: - the quotation amount, - the scope of works, - the validity of the quotation, - whether any rectification work would actually be performed by MB Fisher Building Services Pty Limited."
Whilst the author of the Fisher quotation could have been questioned on all of those matters, it was for the Contractor to do so. There was no obligation on the Tribunal to advise him to do so. As we have earlier recorded, the Contractor was aware of the existence and terms of the Fisher quotation for 10 months prior to the hearing. In his own application filed 8 June 2022 the Contractor referred to that quotation. Although a lay person, the Contractor represented himself during the contested proceedings before the Tribunal in February 2022, on a stay application in October 2022 and before the Tribunal in the hearing which gave rise to the orders currently under appeal.
With respect to the Contractor, the quantum of the Fisher quotation was irrelevant to the question of whether to make a money order, although it was relevant to the quantum of any such order. To the extent that the Contractor challenges the making of a money order, nothing to which the Appeal Panel has been referred suggests that the Tribunal erred in making such an order having regard to its rejection of the basis upon which the Contractor said that he would return to complete rectification work. The only quotation for rectification work was the Fisher quotation and the Contractor did not challenge it. In those circumstances, it was open to the Tribunal to accept the Fisher quotation. This challenge fails.
The Contractor submitted (8): "It is not fair and equitable that the owners were not cross-examined on their compensation claim during the hearing of HB22/30019."
The short answer to this contention is that the orders of the Tribunal did not include any compensation component. The Owners were awarded the costs of rectification work only. If the owners were to be cross-examined, it was for the Contractor to do that, not the Tribunal. This challenge has no merit.
The Contractor submitted (9): "It is not fair and equitable that the Tribunal relied on the quotation from MB Fisher Building Services Pty Limited because it is not for the same scope of works. To complete the rectification work, the Owners required me to strip all of the painted surfaces back to bare timber before repainting. The quotation from MB Fisher Building Services does not include stripping the painted surfaces back to bare timber before repainting."
The Contractor referred (p35 Contractor's Bundle) to the Fisher quotation, which clearly does not include stripping the painted surfaces "back to bare timber". The other document upon which he relied (p53 Contractor's Bundle), an email to the Contractor from the Owners' solicitor of 23 February 2022, which did refer to stripping back the coated areas "to bare before new paint is applied" was not reflected in the claim before the Tribunal, or the sum awarded by the Tribunal ten months later.
We have earlier referred to the fact that, despite the expert opinion evidence upon which the Owners relied suggesting that stripping back to "bare timber" was appropriate, the award in favour of the Owners did not include any provision for doing so. This challenge has no merit.
The Contractor submitted (10): "It is not fair and equitable that the Tribunal relied on the quotation from MB Fisher Building Services Pty Limited because it does not include lead paint removal. To complete the rectification work, the Owners required me to remove the existing lead paint from all of the painted surfaces. Additional safety procedures need to be followed to remove lead paint because it is a hazardous material. The quotation from MB Fisher Building Services Pty Limited is not for the same scope of works and it does not include lead paint removal."
The scope of works which the Fisher quotation included did not include work which the Contractor submitted that the Owners had sought to impermissibly impose upon him by changing the "scope of works" provided for by his contracts with it. As is not in doubt, and has never been disputed in the appeal, the Contractor made clear to the Tribunal that he would only undertake rectification works if the occupants of the Owners' premises vacated whilst he did so. For the reasons which the Tribunal recorded, which have either not been challenged, or not been successfully challenged before the Appeal Panel, that basis for his undertaking the rectification works was rejected. In those circumstances, the only requiring determination was the sum to which the Owners were entitled in order to complete the rectification works in accordance with the original scope of works. This challenge has no substance.
The Contractor submitted (11): "It is not fair and equitable that the Tribunal awarded the money order against a contract which is finished, paid in full and also abandoned by the Owners. The Owners have paid contract number 1 in full. The Tribunal ordered that the work in contract number 1 is completed, save for defects. The Tribunal ordered that contract number 1 is finished. It is not fair and equitable that the money order was awarded against a contract which has been paid in full and defects are covered under a two year statutory warranty."
The Owners submitted in reply that "the fact that the contract has ended does not end the statutory warranties contained in the Home Building Act", that the contract was "not abandoned by the Owners who continue to enforce it" and that the enforcement of the contract was commenced within the two year period. Each of those submissions is in our view correct.
Nothing to which the Contractor has referred us establishes that any statutory warranty period precluded the Owners from successfully recovering the cost of rectification of defective works undertaken by the Contractor. This challenge has no merit.
For completeness we record that the Appeal Panel has looked at the series of colour photographs which the Contractor attached to his Appeal Bundle. It is not in doubt, and never has been, that the Contractor undertook work at the premises, and has been paid, and will retain the benefit of certain payments for that work. The case before the Tribunal was about rectification and/or completion works. Nothing in the photographs provided by the Contractor advances his claim.
Although not referred to in his detailed submissions, the Contractor appeared to assert that the Tribunal could not permissibly offset payments with respect to contract 1 or, perhaps contract 2 either, against the cost of rectification and/or completion work which was the subject of the money order made by the Tribunal. As the Tribunal's reasons record, how it arrived at the figure payable by the Contractor is not in doubt, and involves no legal error or unfairness. As was explained to the Contractor, all the Tribunal did by netting off what was payable to the Contractor against what he was found to be liable to pay to the Owners was to avoid an exchange of cheques whereby the Owners tendered payment to him of the sum of $8,693.50, being the $875 payable to him pursuant to Order 2 of the orders of 10 February 2022, and the sum of $7,818.50 to which he would have been entitled pursuant to Order 4 of the Tribunal of 10 February 2022.

Cuthbert v The Owners - Strata Plan No. 34194

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Cases Cited (7)

Cited By (1)