The appellant applies against a decision from the Consumer and Commercial Division made on 29 August 2024 when work orders were made. Oral reasons for decision were given at the hearing.
There were three grounds of appeal:
1. Ground 1 was that the Tribunal failed properly to assess the evidence of financial mismanagement by the first respondent including documents that demonstrated over payments and non-compliance with an agreed payment plan;
2. Ground 2 was that the Tribunal overlooked the impact of the first respondent's execution of major design variations without council approval which resulted in unlawful construction; and
3. Ground 3 was that the Tribunal's work order did not include several critical defects that were clearly listed in the original application.
The appellant sought leave to appeal because he stated:
1. the decision was not fair and equitable;
2. the decision was against the weight of evidence; and
3. significant new evidence is now available that was not reasonably available at the time of the hearing.
[2]
Appeal jurisdiction
Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT' Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law, or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).
As regards the leave of the Appeal Panel, clause 12(1) of Schedule 4 of the NCAT Act states:
'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).'
In Collins v Urban [2014] NSWCATAP 17 an appeal panel stated at [74-78]:
'Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that:
If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12].
The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].
If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved, then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence.'
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:
"(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
An appeal does not entitle a party to revisit the substance of what was said or done at the first hearing. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an appeal panel stated:
'An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.'
[3]
Directions
At a directions hearing on 9 October 2024, orders were made to prepare the appeal for final hearing. One of the orders made which bound all parties was that they were to lodge with the Appeal Registry:
'If oral reasons were given and/or what happened at the hearing at first instance is being relied upon by' (either party) 'in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing.'
The Tribunal Member whose orders are the subject of this appeal gave oral reasons for his decision at the hearing. The appellant failed to provide a typed transcript of any part of the hearing, or a sound recording of the hearing.
[4]
Settlement
At the hearing we were informed that a Settlement Agreement had been signed between the appellant and the first respondent which resolved Grounds of Appeal 1 and 3. A copy of the Settlement Agreement was handed up.
The appellant indicated that he wished to proceed with Ground 2 of his appeal against the second respondent only. That had the consequence that the appeal against the first respondent in respect of ground 2 was withdrawn and that the whole of the appeal against the first respondent should be dismissed.
Section 59 of the NCAT Act states:
'The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if -
(a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and
(b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement.'
The Settlement Agreement was in writing and was signed by the appellant and the first respondent, thereby satisfying s 59(1)(a).
The terms of the settlement agreement were that:
1. The appellant would withdraw Grounds of Appeal 1 and 2 as against the first respondent;
2. The first respondent would carry out and complete two urgent defect repairs by 31 December 2024;
3. The first respondent acknowledged that he remained responsible and accountable for addressing defect issues during the building warranty period including, but not limited to structural issues, gyprock issues and roof leaking issues; and
4. The first respondent would pay the appellant $15,000.00 in monthly instalments of $1,000.00 commencing in December 2024;
We are satisfied that we have the power to make a decision in the terms of the Settlement Agreement, or in terms that are consistent with the main terms of the Settlement Agreement.
The terms of the Settlement Agreement have been signed by the Appeal Panel for the purposes of identification and placed on the Appeal File where they may be inspected, if necessary.
To give effect to the settlement between the appellant and the first respondent, we will dismiss the appeal against the first respondent pursuant to s55(1)(a) of the NCAT Act which states:
'The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances -
'if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,'
[5]
Ground 2
The appellant stated to us that he proposed to proceed with Ground 2 of his Appeal against the second respondent.
Ground 2 of the Appeal was in full:
'That the Tribunal overlooked the impact of the first respondent's execution of major design variations without counsel approval which resulted in unlawful construction The absence of Mr. Khaled Kabbout from responding to the court order and attending the hearing prevented crucial cross-questioning about his role through Cedar Design, which signed the lockup stage agreement. Despite Cedar Design's involvement, the actual implementation of the full construction up to the Occupancy Certificate was carried out by Mohammad Dannoun as a sole trader of Marvel Group. All project communications and payments were conducted directly between the owner and Mohammad Dannoun, leaving no clear accountability for Mr. Kabbout's role in overseeing or coordinating the construction.
This messy situation and unlawful construction led to significant additional costs for the owners, totaling $10,800 on top of Cedar Design's invoice for the work. These costs were incurred to rectify the unauthorised works that should have been avoided had the respondents properly obtained council approvals. The Tribunal's failure to address these procedural lapses and financial impacts contributed to an unfair and inequitable decision.'
When the appellant has not provided the Appeal Panel a typed transcript of the reasons for decision given by the Tribunal Member at first instance, or a typed transcript of any other part of the hearing that he thought was relevant or a sound recording of the entire hearing, the Appeal Panel is not in a position to know what occurred at the hearing, or the basis for the decision reached by the Tribunal Member including importantly what evidence he gave weight to in reaching his decision and what, if any, evidence was not accepted. In those circumstances the Appeal Panel is unable to make findings that the decision at first instance was not fair and equitable, or against the weight of evidence.
As stated above, an appeal does not provide the appellant with the opportunity to run his case again. Likewise, the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states: "an appeal is not an opportunity to have a second go at a hearing". It is not sufficient for an appellant to disagree with the outcome of a Tribunal decision and to contend that there should have been a different outcome: the appellant must demonstrate either that an error was made on a question of law, or that there is a basis upon which leave to appeal should be granted.
For the reasons provided in [22] and [23] in circumstances where the appellant was directed to but failed lodge with the Appeal Registry a typed transcript of the relevant parts of the hearing or a sound recording of the entire hearing if oral reasons were given and/or what happened at the hearing at first instance was being relied upon, we refuse leave to appeal on the grounds that the decision was not fair and equitable and against the weight of the evidence.
[6]
Significant new evidence is now available that was not reasonably available at the time of the hearing
The appellant has also indicated that he seeks leave to appeal because significant new evidence is now available that was not reasonably available at the time of the hearing.
The evidence referred to by the appellant in connection with Ground 2 is:
1. An email from the second respondent to the appellant dated 1 July 2022; with attachment dated 28 October 2021; and
2. A Building Information Certificate from Liverpool City Council dated 12 March 2024.
Insofar as the appellant seeks to rely on new evidence, the question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with, was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. That decision and the authorities referred to, establish at [40] that in order to obtain leave to appeal because the appellant may have suffered a substantial miscarriage of justice because significant new evidence is now available that was not reasonably available at the time of the hearing, the test is whether the material the appellant now seeks to rely upon was unavailable because "no person could have reasonably obtained the evidence", Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23].
This ground for leave to appeal does not allow the introduction of new evidence because at the time of the hearing the appellant was unaware of the need to rely on the evidence, or because the desirability of the new evidence becomes apparent after the first instance proceedings are concluded and the Tribunal decision handed down.
The appellant has not provided a basis for establishing that the new evidence that he now seeks to rely on was unavailable at the hearing because no person could have reasonably obtained the evidence.
Consistent with Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown we interpret clause12(1)(c) of Schedule 4 of the NCAT Act to mean that leave to appeal may be granted if the appellant suffered a substantial miscarriage of justice because the new evidence was unavailable at the hearing because no person could have reasonably obtained the evidence.
Support for this construction is to be found in Chapman v McLaughin [2016] NSWCATAP 212 at [37] where an appeal Panel stated:
'… The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.'(Emphasis added)
The interpretation we stated at [30] and the effect of the authorities we have referred to results in us finding that the appellant is not entitled to rely on the new evidence that he has referred to, as it came into existence well before the hearing and in relation to one of the documents, was actually sent to him. If that were not the case, the principle of finality of litigation would seriously be eroded as parties would be free to consider the decision handed down and then to seek out new evidence which would overcome any evidential deficiencies disclosed by the reasons given in support of the decision.
The appellant's application for leave to appeal based on clause12(1)(c) of Schedule 4 of the NCAT Act is refused.
[7]
Disposition of the hearing
The appeal against Mohammad Dannoun is dismissed pursuant to section 55(1)(a) of the Civil and Administrative Tribunal Act 2013 on the basis of the signed terms of Settlement Agreement handed up at the hearing of the appeal.
Leave to Appeal on Ground of Appeal 2 against Khaled Khabbout is refused.
The Appeal is dismissed.
[8]
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: 20 December 2024