This is an appeal by a homeowner against the rejection of claims she made against the respondents under the Home Building Act 1989 (NSW) for alleged faulty and incomplete building works undertaken at her home in Dunedoo, New South Wales.
The Tribunal held that the Ms Dubow's case failed because she failed to prove the terms of the contract(s), the scope of works contracted for and the amount she paid to the respondents.
Ms Dubow contended that the Tribunal's findings were erroneous and that she had been denied procedural fairness.
In our opinion the Tribunal erred in relation to the question of payment because that issue had nothing to do with Ms Dubow's cause of action for defective and incomplete work. However, the balance of the appeal failed because no error was demonstrated in the Tribunal's findings and there is no evidence that Ms Dubow was denied procedural fairness. As the error in relation to payment did not affect the result of the proceedings, the appeal is dismissed.
Our reasons for coming to those conclusions are set out below.
[2]
Background
Ms Dubow is a former solicitor and barrister. The first respondent is a handyman trading under the name Terry's Garden Care. Terry's Garden Care was a trading name and was not, on the evidence, a corporation.
Mr Clint Liddell, the son of the first respondent, is trade qualified as an asphalt technician but generally works as a labourer and handyman. The second respondent, who did not participate in the proceedings below or on the appeal, is (according to Mr Clint Liddell) a tiler by trade. For ease of reference, we shall refer to Mr Clint Liddell and Mr Tim Ticknell as the "workmen" unless there is a need to distinguish between them.
Ms Dubow purchased her property at Dunedoo in May 2022. The building on the property had formerly been a scout hall. She said that it was "full of building materials" and was in need of extensive renovation to be made fit for occupation.
Ms Dubow said she sought quotes for building work from electricians and builders utilising various websites and a list of tradesmen she obtained from a local hardware store. One website she utilised was Hipages.
She received a message from Mr Ticknell (according to her Application Form) and a message from Mr Clint Liddell (according to her affidavit evidence), through Hipages and purportedly from the Hipages entry for Terry's Garden Care. A date and time was arranged for the workmen to attend at Ms Dubow's property to discuss what work was required. In her oral submissions on the appeal Ms Dubow agreed that no contract was formed prior to this attendance. That concession was properly made because it accords with the evidence, namely there not having been any offer or acceptance prior to the workmen's attendance at Ms Dubow's property.
On or about 31 May 2022 the workmen arrived at Ms Dubow's property.
In terms of the formation of the contract and the scope of works required to be undertaken pursuant to that contract, Ms Dubow said that her evidence was contained in paragraphs 8-12 and 17-18 of her affidavit affirmed on 29 July 2022, together with the annexures referred to in those paragraphs.
Those paragraphs said:
"8 Two males arrived at about 6 pm. One introduced himself as Tim, he referred to the other as Clint. When asked about whether they were licensed, the talker said 'You'd pay a lot more for someone with a license, than I'd charge you.'
9 After the two rooms to be used as bedrooms at the front were discussed and the walk-through wardrobe was perused, l pointed out the plethora of doors and windows and said I need these used and moved.
10 The back of the Scout Hall had sarking over poor asbestos but was mostly completely renovated and the ease of cladding that was discussed. The arctic winds were driving through the hall and there was no insulation or flooring, so I was keen to have the area I lived in insulated somewhat.
11 'TIM' had Clint forward his number to me and we discussed costs. My contemporaneous notes on the discussion and prices were made that night. I attach as 'Annexure 3' that note. The willingness of the builders to start tomorrow determined my keenness to give them money.
12 As at 2nd June 2022 I believed Tim and Clint were going to do the entry wardrobe, both sides for ($2,500); 2 windows, one in each bedroom ($1,000) each and the back cladding for $1,000. This was what was negotiated.
13-16 …
17 On 8 June 2022, one window had been cut into one wall and Tim asked for more money. I had $2,000 left from the electricians who had not attended. I gave it to Tim, who later said to me, 'There's only $1,900 here we will need another $4,000 to 'buy materials'. That evening I was in Mudgee and took out $1,100 from my bank account (see annexure 6). I had $4,000 cash left from my superannuation withdrawal for the original purchase of the hall. I stupidly gave that and the $1,100 to Tim to get the job finished.
18 Tim made a big fuss about asking Clint if they would accept $11,000 for the job."
Annexure 3 was in the following form:
The other annexure referred to in those paragraphs, being annexure 6, was a bank withdrawal receipt. It is not relevant to the formation of the contract or the scope of works and will not be included in these reasons for privacy reasons.
Some work was done by Mr Clint Liddell and Mr Ticknell, and some payments were made to them. It seems that Mr Clint Liddell and Mr Ticknell attended to different and separate aspects of the work Ms Dubow wanted done.
[3]
The Tribunal's Decision
The Tribunal said that Ms Dubow had failed to prove the contract, the scope of works or payment.
The Tribunal's reasons were given orally, and no written reasons were requested. The transcript of the relevant part of the oral reasons is as follows (some minor grammatical corrections have been made to assist comprehension):
"The $10,000 relate to the scope of works formula indicates in relation to the property in respect to wardrobes and also to in relation to window installations that was taken. The tribunal has given consideration to the evidence filed by both parties today and notes that there are a number of difficulties with the claim that is brought by the applicant including providing sufficient proof of the payments made to the respondents. And in addition, the defining a scope of works in a contract between the parties, noting that the tribunal has only got access to to-do list (sic), which is notations that were made by the applicant during and after the initial inspection made by the respondents. Noting also that payments were hand notated on that to do these documents by the applicant at the times that she says she provided cash payments to the respondent and updated along the way.
Having considered the submissions made by both parties and the evidence today, the tribunal has determined that it is appropriate to dismiss the claim made by the applicant noting that there is concerns that the tribunal has or the tribunal is not satisfied to the required standard of proof that the applicant has established her claim noting that the tribunal cannot be satisfied on the documents before it of the amount paid to the respondents, the contract and scope of works relied upon by the respondents. And having regard to the photographs, I accept the photographs show the state of the property as at the 12th of June, 2022. The tribunal has not had regard to the before and after photographs to show the work that was completed by the parties.
And the proof of the payment is also a major component. I have given consideration to the invoice which is dated the 22nd of June 2022, which is included in the documents and that indicates installing 12 cladding and that even invoice that has issued by Terry's. That document as I understand that payment on that invoice has not been received and it seems to postdate any other agreement that the applicant is relying upon in respect to portraying to the tribunal today. Quite correctly, the applicant has identified that the respondent is not entitled to the claim that invoice today. No determination is made by the tribunal in that respect and would be a matter for Terry's Gardening service to follow up on any if they wish to seek payment for that amount. So, the decision of the tribunal today is that the application lodged by the applicant is dismissed."
We understand those reasons to convey that the Tribunal was not satisfied on the balance of probabilities that a contract had been entered into between Ms Dubow and Mr Terry Liddell (as distinct from Mr Clint Liddell who has never been a party to the proceedings). There was no evidence that Mr Clint Liddell was a servant or agent of his father, and no evidence that Mr Terry Liddell clothed his son with ostensible authority to enter into contracts on his behalf.
It is less clear what the Tribunal was intending to convey in relation to Mr Ticknell and whether a contract had been entered into between Ms Dubow and Mr Ticknell.
However, the Tribunal's oral reasons do convey that the Tribunal was not satisfied on the balance of probabilities what work (with some degree of precision) was requested by Ms Dubow, how much was paid by Ms Dubow and to whom it was paid.
[4]
The Appeal
At the commencement of the appeal Mr Luke Clarke, solicitor, sought and was granted leave to appear on behalf of the first respondent. Ms Dubow was formerly a solicitor and barrister, and we were informed by Mr Clarke that his client was not well educated, relatively unsophisticated and would struggle to properly represent himself. In those circumstances it was appropriate to grant the leave sought.
The appellant raised many grounds of appeal many of which were misconceived because they did not grapple with the Tribunal's central findings which we have summarised above. During the hearing of the appeal we encouraged Ms Dubow to concentrate on those central findings in order to hear her submissions on the real issues in dispute that arose from the Tribunal's reasons.
In the course of Ms Dubow's subsequent oral submissions she identified the evidence we have quoted. Having read the balance of the material tendered in the hearing at first instance, there does not appear to be any other evidence bearing on the questions of contract and the scope of works.
It appears from the evidence that Mr Clint Liddell and Mr Ticknell were undertaking different work, and thus entered into separate contracts with Ms Dubow. There was no evidence of a single, tripartite contract, or that Mr Clint Liddell and Mr Ticknell were operating as a partnership, or any other legal relationship whereby Mr Clint Liddell and Mr Ticknell were jointly and severally liable for the work requested by Ms Dubow. The best the evidence allows is to infer separate contracts from the fact they indisputably did some work and received some payment, but the difficulty (as we read the Tribunal's reasons) was that the evidence did not allow for any factual finding to be made as to the scope of work each was to perform or even, speaking more generally, what work Ms Dubow asked them to do.
That is, although cladding, a wardrobe and windows are mentioned in the evidence, there was no evidence to any degree of precision as to what work was requested by Ms Dubow in relation to any of those items. For example, there is no evidence as to the size of the wardrobe to be constructed, the materials it was to be constructed of, its design, where it was to be installed and what work was required for its installation (there are suggestions in the evidence that it was a double-sided wardrobe that opened into both of two adjoining rooms).
In relation to the cladding, the paragraphs of her affidavit identified by Ms Dubow and quoted above, including annexure 3, do not include any conversations or record of conversations as to how much cladding was to be installed, where in the premises it was to be installed, what material the cladding was to be made of, whether or not the cladding needed to be finished in any particular way (painted etc) or any other details of the work requested.
Even less is known about the windows. The evidence quoted is limited to the facts that Ms Dubow pointed out the "plethora of doors and windows" she said she needed "used and moved". Used in what way, the work involved and moved from where, was not set out in the evidence.
Nor was there any evidence as to who (Mr Clint Liddell or Mr Ticknell) was to do what work. This factual issue was important because Mr Clint Liddell was not a contracting party. If Mr Ticknell was to be held liable there needed to be evidence of what work he (Mr Ticknell) had contracted to do so that he would not be held liable for any work Mr Clint Liddell had contracted to do.
However, there was no evidence of any contract with Mr Terry Liddell. At most there was an invoice dated 22 June 2022 sent via text message by Mr Clint Liddell to Ms Dubow but with a stamp "Terrys Water Systems & Garden Care". As the Tribunal said in its reasons, this invoice related to different work to that the subject of the proceedings and has not been paid.
In relation to the subject matter of the proceedings, it was necessary for Ms Dubow to lead evidence as to the scope of the work and who was to do it if Ms Dubow was to successfully pursue her allegation that the cladding was "incomplete and left half finished", the wardrobe "needs repair …. (and) remains incomplete" and the windows were unfinished as alleged in her Application Form.
It is not even clear whether the contract(s) were fixed price contracts (we are assuming there was one contract with Mr Clint Liddell and one with Mr Ticknell) or were entered into on a do-and-charge basis. Although the amounts noted in annexure 3, and paragraph 12 of Ms Dubow's affidavit would suggest a fixed-price basis, paragraph 17 strongly suggests the price was not fixed. How else, we ask rhetorically, could the workmen justify seeking more money (without any apparent objection from Ms Dubow) unless the contracts were not fixed price contracts?
If the price was not fixed, then it is unclear how Ms Dubow could obtain the relief she sought (a money order to pay for the completion of the cladding, completion of the wardrobe and finishing of the windows).
Ms Dubow submitted that her evidence was in large degree not contested by the respondents. Whilst uncontested evidence may be easier for a Tribunal to accept, the fact is that in this case Ms Dubow's uncontested evidence was insufficient to prove the contract(s) and the scope of works. In the absence of proving those matters her proceedings could not succeed.
In relation to procedural fairness Ms Dubow made a number of allegations some of which were broad and non-specific. She alleged that the Member "impacted herself" in the proceedings, failed to read the evidence onto the record, failed to allow her to cross-examine the respondents' witnesses (there were two, being Terry and Clint Liddell) and failed to identify the cause of action and matters in contention until oral reasons were given. We shall deal with those four allegations in that order.
First, in terms of the Member "impacting herself", Ms Dubow complained that the Member asked the parties many questions about their case and their evidence. We take this to be an allegation of excessive intervention which resulted in procedural unfairness.
Occasionally tribunal members and judges excessively intervene in proceedings and do so to such a degree that procedural unfairness may arise or an application may be made to the member or judge to disqualify themselves on the ground of apprehended bias. In this case only the former has been alleged.
The most recent examination of this issue in civil cases was in Manly Fast Ferry Pty Ltd v Wehbe [2021] NSWCA 67. Simpson AJA summarised the central matters involved at [168] wherein her Honour said:
"[168] Complaints of procedural unfairness caused by excessive judicial intervention are by no means a recent phenomenon. Frequently, but not always, the issue arises in relation to conviction after a criminal trial by jury. The principles stated in those cases are adaptable to civil, non-jury, trials. Analysis of the authorities suggests to me that the ground depends on establishing, as a matter of objective reality rather than subjective perception, that the judicial intervention had an actual impact on the trial. The means by which such an impact might be evidenced have been variously stated, but seem to me to be compendiously expressed as:
● the impediment or inhibition of the presentation of a party's case;
● interference with the ability of a witness or witnesses to give an account of the relevant events;
● (in relation to non-jury trials) deflection of the judge from making an objective assessment of the evidence, the issues, and/or the arguments presented by counsel."
Not all of those matters were put by Ms Dubow, but we do not agree with her submission that there was excessive intervention by the Member.
We have read the transcript of the hearing and the Member did not intervene in any way which impeded or inhibited the presentation of Ms Dubow's case, did not interfere with her ability to give an account of the relevant events and the Member's interventions did not deflect her from making an objective assessment of the evidence, the issues, and/or the arguments presented.
It must not be overlooked that:
1. Mr Terry Liddell was not legally represented;
2. the Tribunal is obliged to conduct itself in such a way as to facilitate the just, quick and cheap resolution of the real issues in the proceedings - s 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act");
3. the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings- s 36(4) of the NCAT Act;
4. the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice - s 38(2) of the NCAT Act; and
5. the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms - s 38(4) of the NCAT Act;
6. is not expected to conduct its proceedings with the formality of a court of law - Moloney v Taylor [2016] NSWCA 199 per the Court at [30]; and
7. is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings - s 38(6) of the NCAT Act.
At no point was Ms Dubow prevented from putting her case as she wished to put it, at no point was her evidence cut-off or interrupted. Rather, the Member, in an exemplary fashion in our opinion, asked questions of Ms Dubow and the Liddells in pursuit of the statutory imperatives we have outlined above.
For example, after Ms Dubow gave an opening statement or evidence in her case, the Member asked (at T 4.9):
"Okay. So perhaps if we can go back to the beginning, can you tell me and take me to your evidence about what is the contract that you have and with whom and where I find that in your evidence."
And (at T 5.1):
"I've got, I've got the chronology there, but can you show me in your documents what the quote is that you're referring to and who provided you with that quote? The evidence of what the scope of works agreed upon with these parties were?"
The Member's interventions were all of that ilk. They sought to identify information relevant to the issues in dispute in order to justly, quickly and cheaply resolve those issues. They sought to ensure all relevant material was brought forth and by those questions the Member sought to inform herself of relevant facts.
Second, there is no requirement to read evidence onto the record.
Third, the Member did not prevent Ms Dubow from cross-examining either Terry or Clint Liddell. Indeed, on the appeal Ms Dubow took us to a portion of the transcript wherein she had cross-examined Clint Liddell (T 14.9).
Further, at T 15.8, the Member asked Ms Dubow if she had any "further questions for the parties or submissions" she wanted to make. Ms Dubow then proceeded to ask a further question of Mr Clint Liddell.
Therefore, as the transcript reveals, Ms Dubow was not prevented from cross-examining either of the opposing witnesses.
Fourth, it was not for the Member to identify the cause of action relied on by Ms Dubow and the matters in contention before oral reasons were given. Ms Dubow had explained her case in her Application Form and her written evidence. Written statements were prepared by Clint and Terry Liddell. The parties exchanged their written evidence before the hearing. The matters in contention were reasonably ascertainable from an examination of those documents. The Member made certain inquiries during the hearing, but it was not for the Member to assist one party or the other in the presentation of their case. Indeed, it would have been wrong to do so.
In any event, the cause of action was relatively clear. It was a claim in contract. The problem for Ms Dubow was not in the identification of that cause of action, but the proof of some of its elements.
There was no procedural unfairness.
Lastly, we should mention that the Tribunal held that Ms Dubow had failed to prove how much she had paid to the workmen. On a breach of contract claim, such as that pursued by Ms Dubow, payment is irrelevant and is not a defence unless there was an allegation of the total failure of consideration. We need not say more about that issue because it was non-dispositive of the appeal.
[5]
Orders
We make the following orders:
1. Leave granted for the first respondent to be represented by Luke Clarke, Solicitor
2. Appeal dismissed.
[6]
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
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Decision last updated: 31 March 2023