Farah v Consumer, Trader and Tenancy Tribunal [2008] NSWSC 355 | Case summary

JUDGMENT 1 HIS HONOUR: The plaintiff is a builder. He is the sole director of Effective Building & Construction Pty Ltd ("the company"). The company is also the holder of a builder's licence. 2 The second defendant is a medical practitioner and the owner of premises known as 482 Windsor Road, Baulkham Hills ("the premises"). 3 An agreement was reached with the second defendant for the performance of building work on the premises. Building work was done. A dispute arose concerning the performance of the work done. 4 On 19 July 2006, the defendant brought an application in the Consumer, Trader and Tenancy Tribunal ("the Tribunal"). Initially, it was brought against the plaintiff only. Later, the company was added as a second respondent. A claim in the sum of $152,060.00 was brought founded on a breach of statutory warranties. 5 Leave was granted to the parties to be legally represented. The plaintiff arranged legal representation (Mr Singh). 6 The plaintiff raised a jurisdictional issue (it was alleged that the claim did not involve the performance of residential building work). Directions were made as to submissions on that matter. The plaintiff did not make submissions on it. 7 Mr Singh ceased to act for the plaintiff. At some stage, the plaintiff ceased his participation in the proceedings. He attributes this to becoming depressed and lack of finance. 8 On 13 October 2006, the application was transferred to the General Division of the Tribunal. This had the effect of limiting what could be recovered to the sum of $25,000.00. 9 On 30 January 2007, a hearing took place. Save for the result, what happened during the hearing is an unknown. What material was placed before the Tribunal is a matter for surmise. The plaintiff neither attended the hearing, nor did he arrange for anyone else to attend on his behalf. He made no contact with the Tribunal. He did not seek an adjournment. As a consequence, the hearing proceeded ex-parte. The Tribunal made an order that both the plaintiff and the company pay the sum of $25,000.00 to the second defendant. He received notice of an order to that effect. By Notice of Order dated 18 April 2007, the Tribunal notified both the plaintiff and the company of an amendment to that Order. The effect of the order was to take away the liability of the company to pay the sum of $25,000.00. 10 On 19 June 2007, an application was made to the chairperson for a rehearing. The application for a rehearing was not granted. 11 On 30 May 2007, the plaintiff filed a Summons in this Court. An Amended Summons was filed on 19 July 2007. The purport of the process is to bring a challenge to the order made by the Tribunal. The company has not been made a party to the proceedings. 12 The Consumer, Trader and Tenancy Tribunal Act 2001 ("the Act") provides two avenues of challenge. The relevant statutory provisions are ss 65 and 67. Under s 65 a challenge may be brought either where the Tribunal has no jurisdiction to make the order or there has been a denial of procedural fairness. Section 67 enables the bringing of an appeal where the Tribunal decides a question with respect to a matter of law. An appeal does not lie simply because there has been an error in a point of law. The Tribunal must decide a question with respect to a matter of law. 13 The onus rests with the appellant. There has to be materiality between the complaint and what is sought to be disturbed. 14 The matter was heard on Friday 18 April 2008. The plaintiff was represented by a solicitor (Mr Capouski). There was no other appearance. The Court was informed that the other parties took a submitting stand. 15 Before proceeding further, I should mention one matter. Prior to the commencement of the hearing, the plaintiff made application for an adjournment. It was said that time was needed to conduct further investigations. The application was refused. 16 The proceedings had been on foot since May 2007. The allocated hearing date was the eighth occasion on which the matter had been before the Court. It had been specially fixed for hearing on 18 February 2008 by the Registrar. This was done on the application of the plaintiff and his assurance that the matter was ready to proceed. Matters which are given a special fixture are expected to proceed on the fixed hearing date. Adjournments are rarely granted. The plaintiff had been given more than a reasonable opportunity to prepare his case and an adjournment would cause the loss of valuable court time. 17 The Court had but limited relevant material before it. Whilst the plaintiff has sworn an affidavit, much of its content is inadmissible. Mr Capouski was informed that the inadmissible material would be disregarded. There was also an affidavit sworn by Lisa Paraska (the solicitor for the plaintiff). It contains little material that was relevant to the hearing. Such admissible evidence as there was did not either identify or disclose the content of what was in evidence before the Tribunal. There is no transcript of the proceedings before the Tribunal. There are no written reasons for the order made (a request made out of time for written reasons was declined). 18 The process makes many claims for relief. What appears therein reveals that the draftsman had little understanding of the limited avenues of challenge made available by the Act (grounds such as "not fair and equitable" and "against the weight of evidence" were relied on). 19 In support of the Summons, the plaintiff relied on written submissions. I shall return to these submissions in due course. 20 The proceedings have been brought well out of time and are presently incompetent. They cannot be maintained unless an extension of time for the bringing of them is granted. The affidavit of the plaintiff is lacking in satisfactory evidence to explain away the delay. Little else has been put forward to explain that delay. What is put forward in the written submissions does little to take the matter any further. As a result, the Court was left with a less than satisfactory explanation. For this reason alone, an extension of time would not be granted. 21 In examining such a question, the Court looks also to the merits of what is brought by the plaintiff. In this case, because of the lack of material, the challenge is doomed to failure. 22 There can be no complaint about jurisdiction, the Tribunal would appear to have acceded to the plaintiff's objection on that matter. 23 Procedural fairness is a flexible concept. Each case can be expected to turn on its own particular facts. In this case, the plaintiff bears the onus of satisfying the Court that he was denied procedural fairness. 24 Because of the lack of material (including the lack of transcript), it is not possible for the plaintiff to demonstrate any denial of procedural fairness. However, leaving aside this matter the plaintiff's own evidence reveals that the proceedings were dealt with ex-parte because of default on his part (he chose not to further participate in the proceedings). In my view, it is absurd to submit (as is done in the written submissions) that the plaintiff was denied procedural fairness because the final hearing and the decision was made in his absence. 25 Also because of lack of material (including the lack of expression of reasoning process) it is impossible to determine that the Tribunal has erred in deciding a question with respect to a matter of law. 26 The written submissions contend that there was error in the finding that liability rested with the plaintiff. The basis for this contention seems to be that such a finding was against the weight of evidence. Such a submission was doomed to failure. This follows from what has been earlier said in the judgment. The question of what evidence was before the Tribunal is an unknown. In any event, a complaint that a finding was against the weight of evidence does not fall within the narrow ambit of challenge by way of appeal provided by the Act. 27 The written submissions also raise the matter of amendment. The question of how the amendment came to be made is yet another unknown. The amendment was purportedly made pursuant to s 50 of the Act. Under that provision, the Tribunal is empowered to correct obvious error and it may do so on its own motion. There is nothing to suggest that the amendment was made other than to correct an obvious error (the amendment could fall within a number of examples given in s 50(3)). Accordingly, no basis is disclosed for disturbing that amendment. 28 The written submissions also raise a challenge to the decision made in not granting the rehearing. This submission is also doomed to failure for a number of reasons. I shall mention two of them. Firstly, it is not a matter raised in the Amended Summons. Secondly, it ignores the provisions of s 68(8) of the Act. By reason of these provisions, a decision to refuse an application for a rehearing is final and not subject to review of any kind. 29 The remaining complaint made in the written submissions raises a matter of failure to give reasons. This is also hopeless and another absurdity. Whether or not the Tribunal gave reasons on the day of hearing is yet another unknown. If it did, he would have heard them had he attended the hearing. The failure of the plaintiff to obtain written reasons was his own fault. He did not make an application within the prescribed time. 30 In the circumstances, the Court can only conclude that the challenge is devoid of merit. In my view, the plaintiff has failed to satisfy the Court that he is entitled to any relief as sought. 31 The application for extension of time is refused. The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. **********

Farah v Consumer, Trader and Tenancy Tribunal

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