Denkov v Langov

[2018] NSWCATAP 9

NCAT Appeal Panel|2017-12-11

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Source facts

Court

NCAT Appeal Panel

Decision date

2017-12-11

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

REASONS FOR DECISION

This is the appeal of the appellant, Mr Kole Denkov, against the decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) of 23 August 2017, Langov v Denkov; Denkov v Langov [2017] NSWCATCD 69 (the Decision).
There were two matters before the Tribunal. The first was the claim of Mr and Mrs Langov against Mr Denkov and Kolemain Constructions Pty Ltd (Kolemain), a building company associated with Mr Denkov (HB 16/23186). They sought damages in the sum of $169,864 for defective and incomplete building work. The second involved claims by Mr Denkov against the Langovs for $139,000 (alternatively $38,000 or $73,000) on the "just and equitable basis"; a claim of $123,760 for project management fees and a claim of $16,487 in respect of his final invoice.
One of the primary issues that the Tribunal had to determine was whether Mr Denkov and/or Kolemain was a builder within the meaning of the Home Building Act 1989 (the HB Act) in respect of residential building work performed for Mr and Mrs Langov. The Tribunal found that Mr Denkov was a builder within the meaning of the HB Act, and ordered Mr Denkov to pay Mrs Langov (as the other party to the building contract), $161,066 within 28 days. That order has been stayed, pending the outcome of this appeal.
The Tribunal found that Kolemain was not a party to any contract with the Langovs or either of them. The Tribunal dismissed each claim made by Mr Denkov against the Langovs.
For the reasons that follow, we have decided not to grant leave to Mr Denkov to appeal, and otherwise to dismiss the appeal. It follows that the stay of the orders of the Tribunal below granted on 5 October 2017 should be lifted.

[2]

Preliminary

There are a number of preliminary matters to note. The first is that at the appeal hearing Mr Denkov sought to rely on evidence that had not been before the Tribunal. As we explained during the appeal hearing, the general rule is that on an appeal a party can only rely on evidence which was before the Tribunal, unless it was not reasonably available at the time of the Tribunal hearing (see cl 12(1)(c) of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (the Act)). This general rule was discussed in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. The Appeal Panel stated at [23]ff: . . .the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24. Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c). 25. Further, to grant leave simply on the basis of whether a party had been unsuccessful in their attempt to obtain evidence would allow any party who has a personal excuse for not providing evidence otherwise reasonably available an opportunity to seek leave to appeal any decision of the Tribunal. Such an outcome would not promote finalisation of the real issues in dispute in a just, quick and cheap manner, as an opposing party would be liable to face a successful appeal and a rehearing merely because of the personal circumstances of the person who failed to procure necessary evidence.
Mr Denkov sought to rely at the appeal hearing on a number of documents which were not before the Tribunal. These documents included brochures and information sheets prepared by Dincel Construction (the manufacturer of the modular formwork utilised in constructing the basement) and email correspondence between Kolemain and the Langovs. As we understood Mr Denkov's explanation, the reason these documents were not tendered at the initial hearing was that his legal representatives had failed to prepare the case adequately, to advise him on what evidence he needed, and otherwise failed to represent him adequately at the hearing. We do not consider that this is an adequate or proper reason to allow Mr Denkov to rely at the appeal hearing on material not relied on at the Tribunal hearing. It cannot be said the material was not reasonably available at the time of the initial hearing. We will have no further regard to such materials in these reasons.
The second matter to note is that there were a number of matters which Mr Denkov sought to argue at the appeal which had not been argued or raised at the Tribunal. For instance, at the appeal, Mr Denkov submitted that he had "made a mistake by using the wrong contract", and that that mistake was sufficiently fundamental that the contract "should be voided" as a result.
As we explained to Mr Denkov, the usual rule is that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to principle to allow a party, after a case had been decided against them, to raise a new argument which, whether deliberately or by inadvertence, they had failed to put during the hearing when he had an opportunity to do so: see Coulton v Holcombe (1986) 162 CLR 1 at 8; [1986] HCA 33, quoting with approval University of Wollongong v Metwally (No. 2); (1985) 59 ALJR 481, at p 483; [1985] HCA 28, referred to by the Appeal Panel in Palm Homes Pty Ltd v Kav's Constructions Pty Ltd [2015] NSWCATAP 113 at [27]. See too Drivas v Burrows [2014] NSWCATAP 87 where the Appeal Panel observed: "32. The considerations favouring finality of litigation are at least as strong, and probably stronger, in the case of the Tribunal given the importance attached to the expeditious and inexpensive disposition of proceedings [under the] Civil and Administrative Tribunal Act. 33. Generally, a new point will not be allowed where the consequence would have to be a new trial because "evidence could have been given which by any possibility could have prevented the point from succeeding": Suttor v Gundowda ([1950] HCA 35; (1950) 81 CLR 418 at 438.3).
The third preliminary matter to note is that it appeared that most, if not all, of Mr Denkov's complaints about the conduct of the Tribunal hearing related to the conduct of that hearing by his then legal representatives. That matter is not relevant to our consideration, which is whether or not the Decision is attended by error. It is a matter for Mr Denkov whether he seeks legal advice in respect of any alleged failings of his former legal representatives.
The fourth matter to note is this. Consistent with directions made, Mr Denkov had provided us with a copy of the sound recording of the Tribunal hearing. However, he did not provide us with any transcript, of the whole or any part of the hearing, on which he wished to rely at the appeal hearing. Basically, he told us that a transcript would not assist him, principally because of the manner in which his solicitor had conducted the hearing, including failing adequately, or at all, to cross-examine the Langovs and their witnesses.
The final matter to note is that, although both Mr and Mrs Langov were parties to the original application and that application was brought against both Mr Denkov and Kolemain, the Tribunal made an order that Mr Denkov pay moneys to Mrs Langov and did not make orders in favour of Mr Langov or against Kolemain.
The appeal was brought in the name of Mr Denkov alone and the notice of appeal named only Mrs Langov as a respondent. Rule 29(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) provides that any person other than the appellant who was a party to the proceedings before the Tribunal at first instance is a party to an appeal from a decision of the Tribunal at first instance. Neither Mr Langov nor Kolemain appeared or were represented at the hearing. No orders were sought against either of those parties on the appeal. We are satisfied that both Mr Langov, as Mrs Langov's husband, and Kolemain, as a company associated with Mr Denkov, were aware of the appeal proceedings. In the circumstances, beyond noting that Mr Langov and Kolemain were strictly parties to the appeal, we will deal with the appeal on the basis that only Mr Denkov and Mrs Langov were active parties to the appeal.

[3]

Background

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.
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.
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;
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.
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.

[4]

Notice of Appeal

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.
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.
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.
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.
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.

[5]

Appeals on other grounds

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).
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.
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.
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.
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.

[7]

Submission Two

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.
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.
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).
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.

[13]

Costs

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.
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.
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.
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.
Unless the appellant files written submissions within 21 days the appellant is to pay the respondent's costs as agreed or assessed.

[15]

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

Denkov v Langov

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Judgment (15 paragraphs)

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