De Marco v Macey

NCAT Appeal Panel|2020-11-02

Solicitors: Tibby Morgenstern Solicitors (Appellant) Comino Prassas Solicitors (Respondents) File Number(s): AP 20/33463 (2020/370959) Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 8 July 2020 Before: C Paull, Senior Member File Number(s): HB 19/08505

Introduction

This an internal appeal against a decision made in the Consumer and Commercial Division of the Tribunal on 8 July 2020, concerning an application brought by the owners under the Home Building Act 1989 (NSW) (HBA): HB 19/08505.
In HB 19/08505, the Tribunal ordered the builder to pay the owners the sum of $317,919 by 6 August 2020.
The builder has appealed the Tribunal's decision. For the reasons set out below, we have dismissed the builder's appeal and corrected a numerical error in the primary order and reasons.

Scope and nature of internal appeals

Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2).
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: 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 had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 to the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. 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 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) in Schedule 4 may have been suffered 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.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 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.

Builder's grounds of appeal; extension of time

An appeal AP 20/22780 was filed by the owners on 7 August 2020, with a stay application filed on 5 August 2020. The appellant states in the notice of appeal that they received the decision of the Tribunal on 8 July 2020. The appeal ought to have been filed by 5 August 2020, the date the stay application was made. No issue was taken in relation to the time of the filing of the formal appeal, which on the form itself was dated 5 August 2020. For avoidance of doubt, we extend time for filing the appeal, if such extension be required, to and including 8 July 2020. On 13 August 2020 by consent a stay was granted until the date of hearing being 2 November 2020. No extension application was made at the appeal hearing.
On 13 August 2020 leave for legal representation was granted to both parties.
The grounds of appeal as pressed were as follows: 1. The Tribunal erred in law in its alleged failure to accord procedural fairness when "it refused to give the [self-represented builder] sufficient time to consider and respond to the extensive oral submissions of the solicitor for the [owners]" and "ended the hearing without notice" with resulting failure to give a fair hearing and to "ensure the [builder] was not subjected to actual or apprehended bias". 2. The Tribunal erred in law in its finding that the costs claimed under the new builder's contract for remediation and completion were correctly quantified on one or more of the following bases: no or insufficient supporting evidence; the finding was so unreasonable that no reasonable decision-maker would make it; the Tribunal did not "sufficiently consider" whether the evidence reasonably admitted of a different conclusion and "did not reasonably consider whether the [new builder's] quotation contained items for which were already included in the [builder's] quotation and in the contract price". 3. The Tribunal erred in law and in fact in concluding the amount of the owners' liability when the Tribunal did not consider whether the evidence reasonably admitted of a different conclusion and did not consider the effect of the difference between actual cost and estimated costs (for the purpose of calculating contract price) of the provisional and personal choice items.

Tribunal findings in summary

At [25]-[40] of the reasons for decision, the Tribunal set out a detailed history of the preparation for hearing and the conduct of the hearing.
At [41]-[46] of the reasons for decision, the Tribunal analysed the builder's evidence. It referred to the builder's exhibit R1 as "a collection of documents which are hard to fathom and based on primary documents that for the most part have not been identified or disclosed". It referred to the builder agreeing the written contract price at $770,000 with agreement to oral variations. The builder said that he was paid $745,117 including agreed variations of $20,112.70, which was higher by $30,443 than the $714,674 the owners said (with substantiation in documents in evidence) that they had paid the builder. It referred to the builder's claim that cl 12 of the contract - that he would submit a progress claim every 14 days - effectively meant that the builder was paid for however much, or little, he did in the relevant 14 day period. The purpose was to ensure sufficient liquidity flow. This ended when the owners' bank forced execution of a PC schedule that caused liquidity issues and his delays. The forced change and its effect prohibited the owners from exercising their right to terminate, with the result that he should have been allowed to rectify and complete.
At [53]-[58] of the reasons for decision , the Tribunal said there was nothing in the evidence that the builder was "forced" to vary the payment method he alleged. Rather, he signed the revised payment schedule and there was in evidence a "litany of texts" from July 2017 to February 2018 requesting the builder's return to work and his absence of response, plus the owners' bank raising breaches of the loan agreement by failure to complete. Further, some sub-contractors remained unpaid. There was no dispute that a Fair Trading report noted the seven-month delay at 30 April 2018, that a rectification order was to issue, that no rectification work was done and that the owners followed the contractual termination procedure.
At [59]-[60] of the reasons for decision, the Tribunal referred to the absence of evidence supporting the builder's allegation that the owners employed contractors directly and so breached the contract, plus no evidence of termination by the builder. The Tribunal accordingly found a valid termination by the owners on 26 February 2019.
At [61]-[73] of the reasons for decision , the Tribunal analysed the defective work evidence in coming to a conclusion that, on balance, the owners had established all items of defective work identified by the independent expert they retained, for which the builder was liable. In that process, the Tribunal: 1. recognised that the owners' expert's opinion was not unquestioningly accepted simply because the builder chose not to retain independent expert evidence but, rather, extensively cross-examined the owners' expert and summarised the builder's position in a responsive Scott schedule; 2. pointed to the absence of substantiation for hypotheses and scenarios that the builder put to the owners' expert, which rendered of no forensic benefit concessions made by the owners' expert on the assumed hypothesis or scenario; 3. pointed to the owners' expert's "considered and detailed evidence" that withstood "robust cross-examination" that reflected the builder's "firm grasp on the issues at hand"; 4. pointed to the absence of a relevant basis for the builder's references, without more, to the defects being included in the quotation of the new builder to remedy defects; 5. pointed to the irrelevance of the builder's approach that he was entitled to complete and remediate in the face of a finding that the owners were entitled to terminate; 6. pointed to the absence of substantiation of alleged documents and conversations and alleged compliance with codes and standards; 7. gave specific examples from the range of defects that illustrated the foregoing.
At [74]-[77] of the reasons for decision, the Tribunal found, for reasons largely similar to those for defective work, that the builder was liable for incomplete work and did not substantiate any departure from the contract amounts for PC and provisional items.
At [78]-[80] of the reasons for decision, the Tribunal set out the basis for the finding that the owners were entitled to their excess storage costs based on documentation in evidence and on the builder's dela.
At [81]-[82] of the reasons for decision, the Tribunal pointed to the inability to make a work order as the new builder had almost completed the work. The inferred basis, on which there has been no complaint in a ground of appeal, was that the builder's attitude and the establishment of an objective breakdown of relationship - in particular, the long period in which the builder did not respond to communications from the owners to come back onsite - displaced the statutory preference under HBA s 48MA for a work order and confirmed that it was reasonable for the owners to mitigate their loss by engaging a new builder.
In ordinary principles of contract law imported into construction contracts, an owner's claim for monetary compensation requires the owner to act reasonably in relation to the claimed monetary loss in order for the claimed loss to be recoverable: cp HBA s 18BA(1), (5). This includes giving the builder a reasonable opportunity to remediate or complete, or to minimise damages by remediating what it can and will do: cp HBA s 18BA(1), (3)(b), (5). The owner may be justified in a reasonable loss of confidence in the willingness and ability of the builder to do the remediation and completion. The evidential onus is on the builder to prove that the owner acted unreasonably: Owners SP 76674 v Di Blasio Constructions PL [2014] NSWSC 1067 at [42]-[48], adopted in Owners SP 78465 v MD Constructions PL [2016] NSWSC 162 at [26]-[30] and GPM Constructions PL v Baker [2018] NSWCATAP 119 at [38]. This is consistent with the orthodox principles at general law: TCN Channel 9 PL v Hayden Enterprises PL (1989) 16 NSWLR 130 at 158; principles summarised in Downer EDI Rail PL v John Holland PL [2018] NSWSC 326 at [585] and authority there cited.
If the owner has acted reasonably then, since the builder is a wrongdoer, it will not defeat the owner's claim that the builder can suggest other and more beneficial alternative methods of remediation: Unity Insurance Brokers PL v Rocco Pezzano PL (1998) 192 CLR 603 at 654; Karakominakis v Big Country Developments PL [2000] NSWCA 313 at [187]. Section 48MA of the HBA does not reverse or otherwise disturb this evidential onus. Section 48MA requires the decision-maker to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome. In having regard to a principle that states a preferred outcome, the basis for the principle to operate still needs to be established.
At [81]-[90] of the reasons for decision, with the arithmetical errors that we have already dealt with, the Tribunal allowed the costs for remediation and completion in the new builder's quotation of $530,000 and pointed to the owners' documented substantiation of their claim. The Tribunal pointed to the builder taking issue with some but not all of the quoted costs and not producing evidence to support his disagreements. The Tribunal said that "a commercial quote of the cost to rectify and complete work by a builder in the market place must be considered a good indication of the fair and reasonable cost of the work".
None of the foregoing findings was challenged specifically in the grounds of appeal apart from the acceptance of the new builder's quotation and the procedural matters.

Procedural fairness

We have been provided with comprehensive transcript of the hearing and written and oral submissions on that transcript. It is necessary to consider the selected passages with which we were presented in their context.
We have also taken into account, as context for what occurred at final hearing, the Tribunal's findings about the builder's apparently haphazard conduct of the preparation for hearing. The builder was given opportunities and extensions of time with which he did not comply. The Tribunal comprehensively set out at [25]-[40] the procedural history of the matter. That history was not challenged on appeal beyond the limited aspects raised in the builder's submissions, which touch on the pre-hearing findings of failure to prepare by the builder.
In our view the transcript reveals thorough care by the Tribunal throughout the proceedings to accord the builder procedural fairness in the face of conduct by the builder that did not comply with the duties of co-operation required under s 36 of the NCAT Act. This included providing time overnight and some extra time on the last day of hearing to allow the builder to consider what he was going to say about well-known issues on material that had long been in evidence. There was no explanation why preparation for submissions had not occurred. The owners' solicitor addressed nothing new in relation to the evidence and the submissions were entirely predictable. It was clear at the end of the evidence that the matter was to proceed the next day and that each party would complete oral submissions.
The Tribunal split the time to provide submissions on last hearing day equally between the parties and pushed the owners to finish before allocated lunchtime to do so. The hearing ended early in the afternoon because the builder had nothing further to say and proposed he needed to more time to prepare.
As recorded above, the Tribunal found that the builder had "a firm grasp on the issues at hand". That firm grasp was demonstrated in the belated material he was allowed to put into evidence, the questions he asked and the lines of argument he put forward.
The builder had been provided with repeated indulgences in preparation. A belated realisation of the need to provide something further should not have been allowed to prejudice the other party who, for the most part, had advanced a timely and comprehensive presentation of their case . A party who does not comply and co-operate, without proper explanation, notice or justification, should not be granted last-minute indulgences at the expense of the other party: Italiano v Carbone [2005] NSWCA 177 at [85]-[86].
The same applies to a choice not to take advantage of a grant of leave for legal representation; a choice of self-representation by one party is not in itself a legitimate basis for using the other party's choice to obtain legal representation to justify an indulgence at the last moment.
It was submitted that the Tribunal ought, in the context of the builder having difficulties in presenting his case, offered the opportunities of written submissions or a further adjournment to prepare. There was no formal application for further time or for an adjournment. The Tribunal gave the builder, even during submissions, long intervals to consider his next submission. It was at the very last moment that the builder said he needed more time: D4pm T 19-21. There was no substantiated justification provided as to why such a further concession would accord procedural fairness to both parties in the context of the procedural history and delays which the Tribunal described.
The builder had not provided a written response or submission between the commencement of the proceedings in April 2019 and immediately prior to the initial hearing date in December 2019, despite numerous opportunities and directions. In December 2019 he filed his material late and that was admitted. However, despite directions to do so, he chose not to reply in March 2020 to the owners' response in February 2020.
The builder did not demonstrate what additional benefit the builder would have obtained from an adjournment and/or the opportunity to make written submissions. It seems to us that the primary points in the builder's defence were made by him, given his grasp of the issues, as best could be made on the state of the builder's own evidence and were considered by the Tribunal..
The builder did not put forward a basis twhich have warranted an adjournment at such a late stage: see, eg, O'Neill v T & I Engines PL [2015] NSWCATAP 77 at [22].
Further, there is no basis for the allegation of bias and any inference of pre-judgment was withdrawn before us during oral submissions. Constraints were caused by the builder's lack of compliance with the directions procedures that are designed to facilitate a party's preparation and presentation of the party's case.he Tribunal's evident frustration at points with the builder and his conduct did not translate into a denial of a proper opportunity to present his case.
The Tribunal expressed at points an equivalent, if not greater, level of frustration with the owners' expert and others on the owners' side of the record for failures in preparation and presentation: see, eg, D1 pp 100-101 for the expert and throughout D2 and D3 transcript for the owners and their solicitor. This frustration with the owners' side of the record was entirely justified in respect of, not only preparation failures, but also numerous disruptive interventions by Mr Macey when he thought his solicitor, who was there to present the case, was not sufficiently making a point.
Apart from those expressions of frustration at each party's conduct of its case, in our view the Tribunal appropriately, in the context of a case that had preparation and presentation issues on both sides, sought to clarify the issues and the evidence in an even-handed manner. The builder has not demonstrated that the Tribunal's conduct in relation to the builder's submissions gives rise to a reasonable apprehension that the Tribunal would decide the case other than on its legal and factual merits: see, eg, Wootten v Godfrey [2019] NSWCATAP 255 at [24] and authority there cited.
In our view the Tribunal's questioning and interventions were a legitimate exercise in eliciting from the parties, and then testing with them, the grounds of the owners' claim and the builder's defence and what evidence had been provided in support. The degree of questioning and intervention with the builder was greater simply because his case lacked preparation and presentation. We reject the submission that the Tribunal's behaviour in that respect, including any frustration, was "demeaning" to the builder; rather, it was intended to understand the builder's case.
Finally, there was no means to identify from the transcript or other material before us who Mr Macey may have been speaking to at some points while giving his evidence in a telephone hearing, except on one occasion when the Tribunal said that it was the owners' solicitor. The main indication that there was background chatter in fact came from the Tribunal's intervention to identify that it was occurring and to seek to close it down in a telephone hearing when in-person hearings were not available, which was the appropriate course.
We accordingly reject these grounds of appeal.

Findings on remediation and completion cost

A review of the transcript and submissions discloses, in our view, no error of law or fact, or basis for grant of leave.
In closing submissions, the builder agreed that the new builder's contract scope of works did not exceed his: D4pm T 16.15-17.1. In closing submissions the builder also stated that his estimates of what had been expended from PC and PS allowances were not substantiated by documentation in evidence: D4pm T 6-20. On that matter the builder, contrary to his submissions on appeal, bore the onus of proof if he sought to challenge documented allowances in the contract with the owners. As a result of the builder's lack of substantiation on this point it was not possible, beyond the analysis that led to the owners' concession which we have already recorded in varying the final ordered amount, to deduct further amounts from the new builder's allowances (or add them to the owners' contract price beyond what was added) for such matters. (The owners' analysis was referred to in summary from the documentation in re-examination of the male owner: D3 T 95.26-96.20, 101.22-.24.)
There was error of law, or grounds for leave, in respect of the Tribunal's findings at [83]-[84] of the Tribunal's reasons for decision. The Tribunal preferred the new builder's quotation to alternative quantifications such as the estimated remediation cost put forward by the owners' expert. The Tribunal gave a reasoned consideration for its preference and it was open on the evidence for the Tribunal to do so.
In that respect, we note that in his opening remarks at the primary hearing the builder said at D1 p10.21-.29: "I thought the problem here was the differential cost to complete. Now, the Scott schedule [prepared by the owners' expert and responded to by the builder belatedly] has got nothing to do with that because a builder has been engaged so we know what the cost to complete is, right? So the Scott schedule has got no reference to my mind to this because now with progress past the Scott schedule there's someone working on the site for a set amount of money to correct them out, am I liable for the lo[t] of that? Am I liable for a part of it? Am I liable to none of it, right?"
During opening the owners made clear that they were claiming the cost in the contract with the new builder, which was the lowest of three quotes received: D1 p 24.16-.19, p 25.26-26.3, p 33.29-34.10. This reflected their statements in written material in their tender bundles that went into evidence. There appeared to be no dispute that a new builder was in place with a quoted amount. Further evidence of those matters was accordingly not required as is now contended in the builder's submissions on appeal. The owners' expert's report on estimated completion combined with cost of remediating defects was less (at $400,000) than the new builder's quoted cost but by a significantly smaller margin than contended by the builder. As already stated, the new builder's quotation was the lowest of three quotations which had been obtained. .Another quote was for about $590,000 and the highest quote was about $200,000 higher than the accepted new builder quotation.
The Tribunal's findings on compensable loss were within the range of reasonable outcomes and did not fail to take into account relevant considerations or fail to consider relevant matters in the evidence on this topic and there is nothing in this ground that would justify a grant of leave to appeal.
We accordingly reject these grounds of appeal. We note that we have already made a correction to the amounts inadvertently miscalculated by the Tribunal.

Costs of appeal

Rule 38A of the Rules applies the same costs rules as applied in the Division when there is a departure under the Division rules (such as under Rule 38) from CATA s 60. Here both claims always exceeded $30,000 so the ordinary costs rules apply.
The starting point for exercise of costs discretion on the usual principles is that costs follow the event. "The event" is usually the overall outcome of the proceedings; that is, did the successful party have to go to the Tribunal (in this case) to get what it achieved, rather than being offered at least that relief. If there are distinct issues on which the party seeking relief did not succeed, that may be taken into account in the exercise of costs discretion.
Here there appears to be no reason not to apply the usual principle that costs follow the event. The owners are accordingly entitled to their costs of the appeal. No party has made any submission that costs should be other than on the ordinary basis or that the question of costs should be deferred. However, we have made the costs order subject to any application for an alternative costs order.

Orders

The orders we accordingly make are as follows: 1. Time for filing the appeal is extended to 8 July 2020. 2. The order made by the Tribunal on 8 July 2020 is varied to substitute for the builder to pay the owners the amount of $389,184 (instead of $317,919). 3. The appeal is otherwise dismissed. 4. Order that the appellant pay the respondents' costs of the appeal on the ordinary basis as agreed or assessed, subject to any application for an alternative costs order. 5. Any application for an alternative costs order, together with evidence and submissions in support of the application, is to be filed and served within 14 days of the date of these orders. 6. Any evidence and submissions in response to an application for an alternative costs order is to be filed and served within 14 days thereafter.

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: 28 September 2021

At a glance

Court

Decision date

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Judgment (11 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (12)

Cited By (2)