Denkov v Langov

Background

1. Mr and Mrs Langov entered into a written building contract with Mr Denkov on 9 February 2015. The terms of the contract were the subject of the detailed reasons for decision published on 23 August 2017, following a two day hearing in June 2017.
2. The principal issue for determination was whether Mr Denkov and/or Kolemain Construction Pty Ltd (Kolemain) was/were the builder/s within the meaning of the HB Act. The Tribunal was satisfied that Mr Denkov, in his personal capacity, entered into a contract for the provision of residential building services. The Tribunal found that the striking out by Mr Denkov of the word "builder" and its replacement with the words "Project Manager" did not change a contract for the provision of residential building work into a contract for project management work. The Tribunal further found that the work carried out by Mr Denkov was in fact residential building work.
3. At [38] of the Decision the Tribunal set out the thirteen matters which caused it to reach those conclusions. These matters included the following: 1. Mr Denkov signed a contract for the provision of residential building services as a "builder": par 38; 2. Mr Denkov was on site on a daily basis: par 38 and (11); 3. While Mr Denkov was not responsible for ordering steel beams, he supervised the work of the steel fixers "James" and "Killey" and the steel installation. The Tribunal accepted that the Langovs had engaged engineers to certify the steel beams, but that Mrs Langov relied on Mr Denkov to co-ordinate the site and to oversee the installation of the beams, and that Mr Langov specifically requested that Mr Denkov co-ordinate the steel shop drawings for the first floor slab with the engineer. The Tribunal was satisfied that this is residential building work, not project management work: par 38; 4. Mr Denkov and his team were incapable of installing the steel beams and Mr Langov and Mr Denkov agreed to bring outside tradespersons on site to assist with the steel construction. When steel fixers attended the site, Mr Denkov continued to provide instruction for the installation of the beams until he was asked to "stop interfering": par 38; 5. Mr Denkov was on site and oversaw the pouring of the concrete and Mr Denkov, in his capacity as the builder, oversaw and coordinated the pool area concreting and was responsible for the concrete being poured, free of defects, and in accordance with the plans and specifications: par 38; 6. Mr Denkov, using the Kolemain trade account, ordered materials such as steel, excavators, forklifts, reinforcement steel, bricks, aggregate and other building materials for the site from time to time: par 38; 7. Once the slab was poured Mr Denkov knew or ought to have known that the slab was not poured in accordance with plans and specifications. Alternatively, once the steel beams were unable to be installed Mr Denkov was aware of the defective nature of the slab: par 38; 8. After Mr Denkov refused to provide bricklaying services a bricklayer was sourced by Mr and Mrs Langov but was supervised and paid for by Mr Denkov in his capacity as the supervising builder on site. The homeowners paid Mr Denkov and Mr Denkov paid the bricklayers in cash: par 38; 9. Mr Denkov sourced the concreter for the pool area and organised a concreter to attend site, Mrs Langov did not enter into a contract with a concreter, there being no evidence of a separate contract, oral or otherwise between the Langovs and a concreter: par 38;
4. The Tribunal was not satisfied that Kolemain was a party to any contract. The Tribunal found that, other than the ABN number of Kolemain appearing at Schedule 1 of the contract, there was no mention of Kolemain as a contracting party.
5. In relation to damages, the only expert evidence before the Tribunal was the expert report of Mr Cavallo of Independent Building Inspections. At [21] of the Decision, the Tribunal stated: . . .The report remains untraversed and unopposed. [Mr Denkov] whilst legally represented at all times, [chose] not to obtain a defect report in reply. It has been acknowledged by Mr Denkov, through his legal representative that in the event Mr Denkov and Kolemain Constructions are found to be liable for defective work, the damages are assessed as per the Cavallo report of June 2016. No expert evidence in reply to the Cavallo report has been filed or served.

Notice of Appeal

1. The Notice of Appeal was filed on 20 September 2017 (the Notice). The Notice states that Mr Denkov is seeking leave to appeal for the reasons set out in the attachment to the Notice.
2. The Notice also states that Mr Denkov requires an extension of time in which to file the Notice. That statement was incorrect. The Tribunal Rules require that appeals such as Mr Denkov's be filed within 28 days of being notified of the decision. The Notice was filed on the 27th day after Mr Denkov was notified of the Decision. Therefore no extension of time is required.
3. Appeals from a decision of the Consumer and Commercial Division of the Tribunal on a question of law may be brought as of right, that is without the leave of the Appeal Panel. Appeals on any other ground may be brought only by a grant of leave: see s 80(2) of the Act.
4. Where an appellant is not legally represented, it is appropriate for the Appeal Panel to consider whether the grounds of appeal raise a question of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. In Prendergast, the Appeal Panel set out a non-exhaustive list of questions of law that might arise from Tribunal decisions. In summary, the questions of law identified are whether there has been a failure to provide proper reasons; whether the Tribunal identified the wrong issue or asked the wrong question; whether a wrong principle of law had been applied; whether there was a failure to afford procedural fairness; whether the Tribunal failed to take into account relevant (that is mandatory) considerations; whether the Tribunal took into account an irrelevant consideration; whether there was no evidence to support a finding of fact; and whether the decision is so unreasonable that no reasonable decision-maker would make it.
5. Mr Denkov has not identified any arguable error of law. We have examined the Notice, the attachments and both sets of Mr Denkov's submissions. We have not identified any arguable error of law. Accordingly, in our view, Mr Denkov requires leave to appeal in respect of any other claimed error.

Appeals on other grounds

1. Clause 12 of Sch 4 to the Act provides that, in appeals from the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 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).
2. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel conducted a review of the relevant cases at [65] - [79] and concluded at [84] that: In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1 issues of principle; 2 questions of public importance or matters of administration or policy which might have general application; 3 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; 4 a factual error that was unreasonably arrived at and clearly mistaken; or 5 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.
3. Furthermore, as was explained in Pholi v Wearne [2014] NSWCATAP 78 at [31]: Even if the appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
4. Three pages of grounds of appeal/submissions were attached to the Notice. However, at the hearing, Mr Denkov, who was assisted in presenting his case by his son, Mr Daniel Denkov, told us that we could disregard those submissions, as they were superseded by submissions filed on 1 December 2017 appearing behind Tab 1 of a folder of documents filed on that date. Despite Mr Denkov telling us to disregard the submissions attached to the Notice, we have taken them into account where they assist us in understanding Mr Denkov's grounds of appeal.
5. Six principal submissions are made in Mr Denkov's submissions of 1 December 2017. As will be seen, some of these submissions overlap. We shall consider each submission in turn.

Submission One

1. Mr Denkov submits that the Tribunal erred in finding Mr Denkov responsible for "all the building work". Mr Denkov submits that some of the defects in respect of which damages were awarded "were performed" after he was "eradicated" from the site, and that certain defects were as a result of work carried out by Mr and Mrs Langov as owner/builders. Further emphasis was placed on the fact that Mr Denkov was not given an opportunity to inspect the defects.
2. Mrs Langov effectively submits that this submission challenges the Tribunal's ultimate finding that Mr Denkov was in fact the contracted builder. They submit that par [37] of the Decision (which, as noted, sets out some 13 factors supporting the Tribunal's finding that Mr Denkov was the builder) and the use of the standard Housing Industry Association Contract (which, as Mrs Langov observes, "the Tribunal found speaks for itself (Reasons at [32])") suggest that there was no error in the Tribunal's findings, and that its findings were clearly open to it on a logical and rational basis. Mrs Langov further submits that the works that Mr Denkov attempts to divorce himself from as a builder (namely the brickwork, the steel beams, the basement waterproofing, the corrective roof sheeting and the defective window installation) constitute the entirety of the building works the subject of her claim. Mrs Langov further states, relying on par [21] of the Decision (see par [18] above), that Mr Denkov had ample time to address those issues if he wished to by way of expert evidence.
3. We consider that this ground seeks to reagitate matters which were squarely before the Tribunal and in respect of which the Tribunal made findings which were open to it and not against the weight of the evidence. We decline to grant leave in respect of the matters the subject of this submission.

Submission Two

1. The second submission is that Mr and Mrs Langov caused "their own defects in relation to Bricks, Steel beams and Window Installation". Mr and Mrs Langov supplied their own bricklayers with personal contact specifically between owner and contractor including insurances. Mr Denkov submits that this confirms that he had no contractual obligation or liability in regard to the brickwork. In this respect, he relies on the affidavit of Mr Mahmut Korkmaz sworn 1 March 2017. In relation to the steel beams, Mr Denkov says that they were ordered by the Langovs before he was appointed "as Project Manager". Mr Denkov further says that once he advised the Langovs of the poor quality of the beams, they hired a third party to complete the installation, and Mr Denkov was told "not to be a part of the steel installation": by Mrs Langov. In this respect Mr Dankov relies on SMS text correspondence from Mrs Langov. In relation to the window installation, Mr Denkov states that the Langovs appointed their own window installer. Again, he relies on text messages to support this contention.
2. Mrs Langov submits that, in relation to the brickwork, the Tribunal accepted her evidence and that of Mr Langov that Mr Denkov oversaw the building works in their entirety, including the brickworks, see Decision at [35] and 38). Mrs Langov submits that this finding was open to the Tribunal on the materials which were before it. We agree. In relation to the steel beams. The Tribunal found that Mr Denkov supervised the fixing of the steel beams and continued to provide instructions after outside trades persons were brought in to assist, see Decision at 38 and (4). Mrs Langov also submits that that finding was open to the Tribunal on the materials which were before it. We agree. As to the window installation, Mrs Langov submits that this issue was fully addressed by the Tribunal, and that the matters raised by Mr Denkov are not new and simply demonstrate that Mr Denkov was dissatisfied with the findings of the Tribunal.
3. The Tribunal was satisfied that all the building works were carried out by Mr Denkov and that no exclusions applied (apart from plumbing and electrical works as agreed by the parties): (see Decision at 38).
4. Again, we consider that this ground seeks to reagitate matters which were before the Tribunal and in respect of which the Tribunal made findings which were open to it and not against the weight of the evidence. We decline to grant leave in relation to this submission.

Submission Three

1. The third submission is that Mrs Langov failed to mitigate her loss. The respondent submits that this matter was not raised at the Tribunal hearing and should not be entertained on appeal. We agree, for the reasons set out in pars [8] and [9] above. It is a submission which could have been met with evidence if it had been raised below.
2. Mrs Langov submitted that this submission may relate to s 48MA of the HB Act. That section provides that a court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome. Mrs Langov submits, correctly, that this issue was dealt with by the Tribunal at pars [101]-[103] of the Decision, which noted that Mr Denkov was not licensed as at the time of the Tribunal hearing. That fact alone is ordinarily sufficient to preclude the making of an order requiring the builder to carry out rectification work. See M & M Building Pty Ltd v Keith [2017] NSWCATAP 88 and Galdona v Peacock [2017] NSWCATAP 64 and the general discussion of the applicable principles in this context in Kumar v Sabharwal [2017] NSWCATAP 200 at [26] to [31]. There was a suggestion at the appeal hearing that Mr Denkov had in fact regained his licence shortly after the Tribunal hearing or possibly coincident with that hearing, but, as we understand the situation, that evidence was not before the Tribunal.
3. We decline to grant leave in respect of the matters the subject of this submission.

Submission Four

1. The fourth submission relates to Mr Denkov's "role as a Project manager". Mr Denkov submits that he was appointed as a project manager and subcontractor to the Langovs as owner/builders, to work alongside the site manager. He submits that the parties agreed that he would be the project manager. He relies on a number of pieces of correspondence between the parties to support this submission.
2. This submission simply re-agitates Mr Denkov's dissatisfaction with the Tribunal's finding that he was, in fact, the builder. As we have stated above, that finding was open to the Tribunal. We decline to grant leave in respect of the matters the subject of this submission.

Submission Five

1. The fifth submission is that Mr Denkov "made a mistake by using the wrong contract". He says his intention was to offer his services as project manager and specifically not to hold the position of a builder in order not [to] be responsible for the damages caused by others". He says that mistake made his intent not to be the builder impossible. He submits that the mistake is sufficiently fundamental that the contract "should be voided" as a result.
2. At the appeal hearing Mr Denkov confirmed that this issue had never been argued before the Tribunal. By reason of the principles we describe at pars [8] and [9] above, we do not consider it appropriate to consider this argument now. It is clearly a matter which could have been the subject of evidence if it had been raised below.
3. We decline to grant leave in respect of the matters the subject of this submission.

Submission Six

1. The sixth submission relates to defective concreting, basement waterproofing and rectification of roof sheets. In relation to the defective concreting, Mr Denkov submits that the alleged defect is not a result of the concrete being placed in the incorrect position, but the fact that the steel beams were designed incorrectly. In relation to the basement waterproofing, which was an issue arising from the fact that there was water penetration into the basement, Mr Denkov submits that the source of the water leaks was not specific "and do not make sense Not enough evidence". As to the roof sheets, Mr Denkov submits that the roof sheeting had not been finished at the time he was removed from the site, and that he was not given the opportunity to complete the works.
2. The respondent submits that that submission once again appears to raise arguments in respect of the findings of fact in relation to the defective building works, and that Mr Denkov is simply cavilling with the Tribunal's findings and reagitating matters of fact and evidence which were raised, considered and determined by the Tribunal.
3. We agree. Leave to appeal on this ground should be refused.

Conclusion

1. There is substance in Mrs Langov's submission that this is a case where Mr Denkov, dissatisfied with the decision of the Tribunal, seeks to cavil with the factual findings of the Tribunal, and to recast his case before the Appeal Panel. As we noted above, an applicant for leave to appeal must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
2. In our view, Mr Denkov has not established that the Tribunal's Decision is wrong. Nor has he established that an issue of principle arises or that there is any other justification for the grant of leave. We consider that the Tribunal was correct to order Mr Denkov to pay Mrs Langov $161,066.
3. Accordingly, we would refuse Mr Denkov leave to appeal, and otherwise dismiss the appeal.
4. A stay of the decision of the Tribunal until further order was granted to the appellant on 5 October 2017. The appeal having been wholly unsuccessful, that stay should be lifted.

Costs

1. The respondents seek an order for costs. Section 60 of the Act provides that: (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant.
2. However, rules 38 and 38(A) of the Rules provide: 38 Costs in Consumer and Commercial Division of the Tribunal (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if: (a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10 (2) of Schedule 4 to the Act in relation to the proceedings, or (b) the amount claimed or in dispute in the proceedings is more than $30,000. 38A Costs in internal appeals (1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of: (a) enabling legislation, or (b) the Division Schedule for the Division of the Tribunal concerned, or (c) the procedural rules. (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.
3. In this case the amount in issue at first instance exceeded $30,000. Accordingly, by reason of r 38, the provisions that applied to the determination of costs in the proceedings below differed from those set out in s 60 of the Act. It follows that, by reason of r 38A, the provisions applicable to the determination of questions of costs in this appeal are those applicable at first instance, that is r 38(2)(b). As the amount in issue in the appeal exceeded $30,000, it is not necessary that special circumstances be established before an award of costs may be made. The usual rule in relation to costs is that costs follow the event. The appeal has been wholly unsuccessful. Accordingly, we propose to order appellant pay the respondents' costs of the appeal as agreed or assessed.
4. If the appellant wishes to submit that some other order should be made, or that there be no order as to costs, he should provide written submissions to the respondents and the Tribunal within 21 days of the receiving these reasons. We propose to determine any application received by the appellant "on the papers", and without a further hearing. However, the appellant may address the issue of whether there should a hearing to determine costs in his submissions.
5. Unless the appellant files written submissions within 21 days the appellant is to pay the respondent's costs as agreed or assessed.

Orders

1. The Appeal Panel orders that: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The stay of the order of the Tribunal is lifted.

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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: 05 January 2018