Ferraro v Lambert

Notice of appeal

1. On 9 August 2016 the homeowner filed a notice of appeal against the above order dismissing her application.
2. The notice of appeal has an appendix which sets out six grounds of appeal and submissions in relation to those grounds. The appendix comprises more than four pages. For present purposes it is sufficient to refer only to the six grounds which are as follows: A. The Tribunal failed to provide procedural fairness. B. The Tribunal identified the wrong issue. C. The Tribunal failed to take into account several relevant considerations. D. The Tribunal took into account an irrelevant consideration. E. The Tribunal did not consider the weight of evidence. F. It is claimed that the decision is so unreasonable that no reasonable decision-maker would make it.
3. The notice of appeal also sought leave to appeal. It alleged that the decision was not fair and equitable.
4. The notice of appeal included a statement that the homeowner was not given the opportunity to provide the documents requested in the directions of 2 May 2016.
5. The notice of appeal stated that significant new evidence was now available that was not reasonably available at the time of the hearing. A brief description of that evidence was given. It includes the emails referred to below.
6. In answer to the question included in the notice of appeal: "Why was this evidence (including documents) not available at the time of the hearing?" the homeowner answered: "There was no indication that the validity of the renewal order would have been called into question and that I would be accused of delaying or obstructing the work being done. I had prepared instead the documentation that was called for by the Tribunal directions of 2/5/2016."

Civil and Administrative Tribunal Act

1. Section 80(2)(b) of the Act provides that an internal appeal (of which this is one) may be made as of right on any question of law or with the leave of the Appeal Panel on any other grounds. A question whether there has been a denial of procedural fairness raises a question of law (John Prendergast and Vanessa Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [17].
2. An Appeal Panel may grant leave under s 80(2)(b) of the Act for an internal appeal against a Consumer and Commercial Division decision 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) (see clause 12 of Schedule 4 of the Act).

Some background evidence

1. In order to carry out the original proposed building work at the rear of the homeowner's property, it was necessary for the homeowner to obtain a development approval from the Ashfield City Council. It appears that that approval was given on 21 March 2016 and it included a condition that a $500 damage deposit had to be paid to the Council before the work commenced.
2. The homeowner required the builder to pay the deposit but he refused. The homeowner then decided that she would pay it and she did so on Tuesday 29 March.
3. The builder informed Senior Member Meadows that he was prepared to be at the property on 27 March and he had all the people coming to help him (Transcript page 5.2.3). The builder said that late in the afternoon or the evening before he was to commence work, he received an email (from the homeowner) to say he could not start. He said that that was when he rang the people and "we put it back to the 4th" (Transcript page 5.3).
4. The homeowner did not agree that she reached an agreement with the builder that he would appear on Monday 4 April to commence the work (Transcript page 19.2.3).
5. For the purposes of the appeal, Mr Tim Lambert provided a statutory declaration made on 26 October 2016. In that declaration he stated that he was asked by his father if it was OK for the work to start on 28 March. He told his father that he would have to make a few telephone calls. His contractors agreed to start on that date and he let his father know. Late on Sunday 27 March he received a telephone call saying that the work had been postponed. He rang his contractors to let them know. A few days later his father asked if the job could be rescheduled and he said that he would have to once again check with the contractors. He confirmed with his father that some of the contractors were busy during the week Monday 28 March to 1st April as they had found other work as the job had been postponed. The earliest possible start date was 4 April. His father confirmed that Ruth Ferraro had agreed to the new start date of 4 April. He received a telephone call from his father around midmorning of 4 April that the job was off again.

Some findings made by Senior Member Meadows

1. In the following 5 paragraphs we set out some findings made by Senior Member Meadows.
2. The homeowner initially considered that the $500 damage deposit should be paid by the builder on the basis that she did not think that she should place any more of her money "at risk" in relation to these works. The builder refused to make such a payment as he was not required to do so in terms of the consent work order.
3. The parties by then had agreed that the works should commence on Monday 28 March 2016 however, the day before that date, the homeowner contacted the builder to delay the commencement because she had decided to pay the Council the damage deposit but that could not occur until the following day (that is the Monday) and the Council required two days' notice. The builder, who had organised the required tradespersons and other workers to commence attending on 28 March, advised the homeowner that he had had to cancel those workers and the earliest date he could re-organise his people to start would be Monday 4 April. The homeowner agreed (although she initially denied agreeing on the basis that that date was after the date ordered by the Tribunal, but it is clear and the homeowner eventually agreed that 4 April was the agreed amended start date. The builder attended on 4 April.
4. The homeowner could not organise the return of the builder and the rectification works to commence before 28 March. Part of the delay was caused by the homeowner's requesting the builder to pay the damage deposit. There was no reason nor order that the builder should make any such payment however, order 2 made on 12 February provided that it was subject to the requirements of the Council. This applied equally to the start date and to the completion date. If the Council consent delayed the start date then the parties could agree to change the start date, and still be in compliance with the orders.
5. That is not what occurred. The builder could not commence before 4 April and this delay was not due to any default of the builder, but entirely to the actions of the homeowner. Instead of agreeing to change the start date, although in fact it appears the homeowner did agree to change the start date to 4 April, the homeowner commenced the renewal proceedings the day after the originally due start date although no one knew better than she did why the start was delayed.
6. The homeowner prevented the builder from commencing with the works by the due start date and by commencing the renewal proceedings prevented the builder from continuing with and completing the agreed scope of works and finally prevented the builder from completing the works by having another contractor do so. It was the homeowner who prevented the builder from complying with the consent work order. At all times the builder was ready willing and able to complete the consent work order.

Email correspondence

1. We refer below to email correspondence which the parties attached to documents filed in the appeal. The emails produced by the homeowner were attached to her notice of appeal or to her reply filed on 7 November 2016, in answer to the builder's submissions filed on 27 October 2016. The emails produced by the builder were attached to his submissions filed on 27 October 2016. The builder only produced copies of parts of the emails and wrote on most of those copies indicating whether the email was sent or received and the time when it was sent or received. The homeowner did not dispute that the dates, times and other notations written on the emails produced by the builder, were accurate. We note here that 28 March 2016 was Easter Monday.
2. On 24 March 2016 at 16:45 the homeowner emailed the builder. The subject of the email was "Urgent - Licence tradesperson's details." The message on the email has not been reproduced in the documents produced by the parties.
3. On 24 March 2016 at 5.28pm the builder emailed this message to the homeowner: You know it (sic) going to be Tim Lambert, we agreed on the day of the Tribunal.
4. On 24 March 2016 at 18.59pm the homeowner emailed this message to the builder: Re: Urgent - Licensed tradesperson's details No Colin I did not know and neither did you that day as you couldn't get through The other reason that I did not know for sure is that Tim has not responded to any communication from me so until he confirms in writing that he is the licensed tradesperson then I can't move forward So I will wait for his contact in writing and then I will pay the deposit. So looks like if he can send me an email I will pay Tues 29 and you'll be able to start Wed 30. There is still the matter of tiles matching so I'd appreciate you dropping the sample white tile so I can see if it matches.
5. On 26 March 2016 at 5.56pm the builder emailed this message to the homeowner: If you do not want me there on the 29th, I can not start until the 4th of April.
6. On 26 March 2016 at 21:07 the homeowner emailed this message to the builder: Re: Urgent - Licensed tradesperson's details As you know that is not the arrangement Colin. The work is to start on or before the 31 March dependent on Ashfield Council - and This approval has been granted. The delay is because I do not have confirmation in writing from Tim that he is the licensed tradesperson. When that happens I can pay the deposit. If you can't manage to organise this then we will have to go back to the Tribunal and I will ask for a different arrangement.
7. On 26 March 2016 at 9:23pm the builder emailed this message to the homeowner: If you are asking for Tim's licence number, then that is what you should ask for. His Licence Number 253657C I will be there on
8. The Appeal Panel notes that the final sentence of this email was not completed.
9. On 26 March 2016 at 21:30 the homeowner emailed this message to the builder: Re: Urgent - Licensed tradesperson's details I am asking for TIM to email me and confirm he is doing the work and indemnifying me AND the work. The work is to start on Wednesday 30 March 2016 so that I have time to lodge the deposit with Council which I will do on Tuesday but only AFTER I get written confirmation from Tim.
10. On 26 March 2016 at 9.35pm the builder emailed this message to the homeowner: This was not part of the agreement at the Tribunal
11. On 26 March 2016 at 22:08 the homeowner emailed this message to the builder: You were to do the demo and have a licensed tradesperson do the construction. I need to have the tradeperson's agreement to do the work and to be responsible for the demo. It is normal business practice. I can't accept any work to start without this in place as I would be putting my property at risk - as this deposit has brought to light. We probably need to go back to the Tribunal for another mediation as I don't think the order is understood. Let me know what you wish to do. I will pay the deposit anyway as whether it is this order through you or another person Ashfield Council specifically set out that the work mustn't begin until it is lodged and I wouldn't like that to be used as the reason the work doesn't start. I'll seek clarification from the tribunal - further to what I have already asked - on Tuesday. However work is not to start until this licensed tradesperson communication is provided.
12. On 26 March 2016 at 22:22 the builder emailed this message to the homeowner: Please let me know what the Tribunal say on Tuesday, you have Tim's licence number. The work that was to be carried out, is clearly set out in the document, provided to both of use (sic). Tim has agreed to do everything other than the demo, which you agreed I would do. At the Tribunal, you agreed to arrange the DA with the council, but to (sic) have tried to shift some of that onto me, as per your earlier email. I was and am willing to be there @ 7 am on 29th March as arranged.
13. It appears that on Monday 28 March 2016 the homeowner attempted to send an email to the Tribunal with a copy to the builder at 8:17am. The homeowner misspelt the address of the Tribunal and it appears that at 11:35am the attempted email was forwarded to the Tribunal. The email provided some history concerning this matter. It appears that the email concluded with the following 3 paragraphs: I believe I have the right to speak directly to the licensed tradesperson performing the work, that I have rights in the protection of my property and that normal indemnification would apply to the new work and this third party deposit of $500. Colin Lambert has recently confirmed that his son Tim Lambert will perform the rectification work. Despite many attempts to contact Tim by phone and email I have no confirmation that he has accepted the work and therefore that the Home Building Compensation Insurance would apply to the rectification work. Please confirm what my next steps are. The matter is urgent as work is to begin in the next 2 days.
14. A copy of this documentation was produced by the builder and there is a handwritten notation on the documentation as follows - Received 28/3/16 8:17.
15. It appears from another extract from an email produced by the builder that on 29 March he received from the homeowner at 16:53 an email informing him that when the homeowner rang the Tribunal they advised her to write to the Tribunal to request a change of order. With that email the homeowner sent to the builder a copy of an email from the Tribunal to the homeowner dated 29 March 2016 which stated that it was an automated response and that the homeowner's enquiry would be answered within 3 business days. In the homeowner's email to the builder she stated that until her reply was responded to work will not be able to commence. In that email it stated: "I've also copied you on the Ashfield Council conditions for which I will need to confirm with the licensed tradesperson directly. As soon as I have a reply from NCAT I will ask them to communicate with you."
16. It appears from a handwritten notation on an extract from an email produced by the builder that on 30 March 2016 at 14:36, he received an email from the homeowner which commenced by asking the builder to note that work was to commence the following day. The email concluded with a request that the builder inform the homeowner of his arrival time.
17. It appears from another extract from an email produced by the builder that on 1 April 2016, possibly at 17:05 pm, he received an email from the homeowner which included the following: When you arrive please furnish a statement that you understand you are to have your own public liability if undertaking the work as a sole trader or provide a certificate of currency if you are attending the work as an employee of a company/licensed tradesperson. This is a requirement of Ashfield Council.
18. It appears from another extract from an email produced by the builder that the builder received from the homeowner on 4 April 2016 at 16:17pm an email in the following terms: Please provide a copy of your public liability tomorrow morning. Can you please provide me with your mobile number if you have changed it. As discussed - I note this morning that you disconnected the underfloor heating (that is not just at the wall switch but the wiring). This is licensed trade work and you cannot perform this work. If you are having tradespersons attend the rectification work please ask them to send a certificate of currency of their public liability and their licence number.

Denial of procedural fairness

1. For a number of different reasons the homeowner claims that the "Tribunal failed to provide procedural fairness." Illustrations given in one of the attachments to the notice of appeal include the following: 1 The Tribunal Registry gave no notice that the renewal order 16/16161 was in question and therefore misled the appellant in preparing for the appeal. 3 The directions on 2/5/2016 established that "it was clear that the consent order has not been met." This was not allowed in the hearing of 15/7/2016. 4 Had the renewal order 16/16161 been in question at the directions on 2/5/2016, evidence would have been presented to the Tribunal on 15/7/2016 which would have corrected the Tribunal's assumptions contained within the final decision of 15/7/2016.
2. At page 16 of the homeowner's submissions filed on 26 September 2016 order 3 of the orders made on 2 May 2016 was quoted and then the following submission was made: "Member Dr Briggs misled the appellant by this statement by allowing that if work was to proceed the only evidence required would be photographic evidence and to do work only as set out in the order of HB 16/03297." The document given the number HB 16/03297 was the initial application lodged by the homeowner on 21 January 2016. In his reasons for decision Tribunal Member Meadows referred to the fact that after the renewal proceedings were requested the homeowner had the works completed by an alternative contractor. He said that the homeowner appeared to consider that she was permitted to do so by the Member at the directions hearing on 2 May 2016. Senior Member Meadows stated: That is not how the directions read. They merely stated that if the applicant proceeds with the work she should ensure she obtains proper evidence of the cost and the nature of the work.
3. That may be a possible reading of what is recorded as order 5 in the orders made on 2 May 2016. However a significant matter to take into account in determining what the homeowner understood the orders of 2 May 2016 to mean is that on that day six orders were made by the Tribunal. They were not merely notations of something that had occurred, or was to occur, or may occur.
4. When those orders are considered in the light of the fact that the homeowner was making an application to renew the proceedings, one can see how the homeowner could have concluded from the orders that: (a) whether the homeowner was entitled to renew the proceedings was not an issue; (b) the only issue was the reasonable cost of carrying out the rectification work; and (c) she was entitled to proceed and have the rectification work carried out herself.
5. We are of the view that the evidence set out below shows that the homeowner was inadvertently misled by the Tribunal and that she held the belief when she appeared before the Tribunal on 15 July 2016 that: 1. She had been given permission by the Tribunal to carry out the rectification work; and 2. The only issue to be determined in the renewal proceedings was what was the reasonable cost of carrying out that work.
6. If the homeowner was inadvertently misled by the Tribunal then that would amount to a denial of procedural fairness (Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [4] and [5]; [2000] HCA 57, Gleeson CJ).

The relevant evidence

1. On 15 July 2016 the homeowner brought to the Tribunal her evidence as to the reasonable cost of the rectification work. She intended to produce that evidence to the Tribunal and to the builder. However she did not bring to the Tribunal any documents which were directed to the question whether the builder failed to comply with order number 2 made on 12 February 2016 which required the work to commence not later than 31 March 2016.
2. At page 3.5 of the transcript of what was said at the hearing held on 15 July 2016, the homeowner is recorded as saying: I pointed out that the original order hadn't been complied with and I was left without a functioning shower and the Member said I could proceed with the works provided I only did work that was to rectify and that I would take photos … This statement clearly relates to the orders made on 2 May 2016.
3. At page 3.8 of that transcript the homeowner is recorded as saying: So the total that I am out of pocket on this work is $7,916. I've got all the documentation here if you wish and I've got a copy for Mr Lambert. All of that was given when the hearing couldn't go ahead the Member asked for Mr Lambert return or provide the tiles that he'd said to me he'd purchased to match the wall tiles so that I didn't have to have a mismatched tile, …
4. At page 5.6 of the transcript the homeowner is recorded as saying: Mr Lambert received a copy of the Member's letter to me to say that I could commence the work, that was copied in to him and to keep all photos and that I was not to do any more than was necessary. It is clear that the reference to the Member's letter is a reference to the orders made on 2 May 2016.
5. At page 15.8 of the transcript the homeowner is recorded as saying: The development had been approved by I think it was the 21st of March and I don't have those dates here because I didn't realise the discussion would turn on this.
6. It appears from the transcript page 17.5 that the homeowner understood that order 3 made on 2 May 2016 meant that the consent order had not been complied with by the builder. The transcript records that: "he wrote to me and said I could start the work; that the order hadn't been complied with." Senior Member Meadows clarified that the homeowner was referring to the order made on 2 May 2016 and not to a letter. It is clear from this passage in the transcript that the "he" was a reference to Member Dr Briggs.
7. At page 21.3 of the transcript, after Senior Member Meadows had dismissed the application, the homeowner and Senior Member Meadows are recorded as saying: Homeowner - what can I do about the permission I had on the … it was given by Mr Briggs on the date in June? Member - that is part of part of this application being dismissed.
8. At page 3.2 of the Tribunal's reasons for decision, it was recorded: The applicant appeared today with a bundle of evidence apparently in accordance with the orders of 02 May 2016.

What flows from the denial of procedural fairness

1. We will now consider whether the evidence before us shows that the denial of procedural fairness deprived the homeowner of the possibility of a successful outcome. That consideration will lead to an analysis of the email correspondence, referred to above, none of which was tendered to the Tribunal Member.
2. As we understand it, the case that the homeowner seeks to make from these emails is that: 1. As the consent orders dated 12 February 2016 required the builder to engage suitably licensed contractors to carry out part of the rectification work, the homeowner was entitled to know who these contractors were and be provided with proof that they were licensed and insured; and 2. The builder failed to provide this information to the homeowner and this resulted in the builder failing to comply with order 2 made on 12 February 2016 to commence the work not later than 31 March 2016 (see page 2, par 5 of the appellant's reply, filed 7 November 2016, to the respondent's response and page 11.6.7, page15.10 and page 16.7 of the transcript).
3. Simply because there has been a denial of procedural fairness does not necessarily mean that the homeowner succeeds on this appeal. If it should be concluded that the denial of procedural fairness made no difference to the outcome of the proceedings, the appeal on that ground will be dismissed (See Aala at [4] Gleeson CJ. See also at [131] where Kirby J said that once the applicable breach of procedural fairness was proved, the victim of the breach was ordinarily entitled to relief and it is only where an affirmative conclusion is reached, that compliance with the requirements of procedural fairness could have made no difference to the result, that relief will be withheld. His Honour also said that the High Court had emphasised that such an outcome will be a rarity; it will be no easy task to convince a court to adopt it; and this will especially be so where the issue concerns the acceptance or rejection of the testimony of a witness at the trial).
4. All that the homeowner needs to show in order to succeed on the appeal is that the denial of procedural fairness deprived her of the possibility of a successful outcome. In order to negate that possibility it would be necessary for the Appeal Panel to find that a properly conducted application could not possibly have produced a different result (see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 and 147; [1986] HCA 54).
5. Order 1 made on 12 February 2016 required the builder to engage suitably licensed contractors to carry out the following work - installation of the acrylic membrane, grade the bed to the floor wastes and retile using agreed floor tiles. As the builder was apparently not licensed, the homeowner was insistent that the builder provide her with the tradesperson's licence details. That is made plain by the emails referred to above in pars 29 (24 March), 31 (24 March) and 33 (26 March). This email of 26 March made it plain that the homeowner was of the view that the delay in commencing the work was because she did not have confirmation in writing that the builder's son (Tim) was a licensed tradesperson. She also made clear that when she had the confirmation in writing from Tim, she would pay the deposit to Ashfield Council.
6. In the email referred to in par 33 above (24 March), the homeowner stated that until Tim confirmed in writing that he was a licensed tradesperson, she could not move forward and that if Tim sent her an email she would pay the deposit on Tuesday 29 March and the builder would be able to start on 30 March.
7. In the email referred to in par 38 above (26 March), the homeowner stated that she was asking for Tim to email her and confirm that he was doing the work and indemnifying her and the work. She again confirmed that the work was to start on Wednesday 30 March but only after she had received written confirmation from Tim.
8. In the email referred to in par 40 above (26 March), the homeowner made it clear that work was not to start until "this licensed tradesperson communication is provided."
9. In the email referred to in par 41 above (26 March), the builder informed the homeowner that Tim had agreed to do everything other than the "demo which you agreed I would do". The builder stated that he "was and am willing to be there @ 7am on 29 March as arranged."
10. In the email referred to in par 44 above (29 March), the homeowner referred to an email from the Tribunal stating that the homeowner's enquiry would be answered within 3 business days. The homeowner informed the builder that until her reply was responded to, work would not be able to commence.
11. In the email referred to in par 45 above (30 March), the homeowner asked the builder to note the work was to commence the following day and requested the builder to inform the homeowner of his arrival time.
12. We are of the view that the evidence does not permit us to find that a properly conducted application could not possibly have produced a different result. In coming to that view we have taken into consideration the comments of Gleeson CJ in Aala at [47] on questions of credibility. The credibility of the homeowner, the builder and Tim Lambert could arise in the reconsideration of the case by the Tribunal. We do not express a view as to what may be the ultimate finding on any reconsideration of the case and simply give the following as one illustration of why we hold the above view. If by 24 March 2016: (a) the homeowner had made attempts to communicate with Mr Tim Lambert to obtain from him confirmation in writing that he was a licensed tradesperson and confirmation that he was going to do the work and indemnify the homeowner in respect of the quality of that work; and (b) if he had not responded with the result that the homeowner was unable to move forward and pay the deposit, then it might be found that the builder had not engaged suitably licensed contractors in breach of order number 1 made on 12 February 2016. If it were found that this was the reason why the builder did not commence the work not later than 31 March, then if might be found that the builder had not complied with order number 2 made on 12 February 2016.
13. We are therefore of the view that the appeal should be allowed. It will be necessary for the case to be reconsidered by the Tribunal with further evidence. The case is to be listed before the Tribunal for further directions as to the hearing of the case including the times for filing further evidence and setting a date for the reconsideration by the Tribunal.

Balance of the matters raised in the notice of appeal

1. Before we conclude these reasons we will address the remaining grounds of appeal and submissions referred to in pars 12 - 16 above.

Paragraph 12

1. We have read all of the submissions set out in the notice of appeal and the homeowner's submissions filed on 26 September 2016. Apart from the denial of procedural fairness, in our view there is nothing in these submissions which would ground a successful appeal.

Paragraph 13

1. Whether the decision was not fair and equitable is only relevant if leave to appeal is sought (see clause 12 of schedule 4 and s 80 (2) (b) of the Act). Leave to appeal is unnecessary because the question whether there has been a denial of procedural fairness is a question of law and no other ground of appeal has been made out.

Paragraph 14

1. As we understand it, the point sought to be made by the homeowner is that during the hearing before Senior Member Meadows, although she had with her the documents which provided evidence of the cost of meeting the consent order, she was not given the opportunity to tender those documents. This is part of the evidence relied upon by the homeowner in support of her claim that she was denied procedural fairness. As we have found that the homeowner was denied procedural fairness, it is unnecessary for us to say anything about the submission in par 14.

Paragraph 15

1. The documents which we consider are relevant have been dealt with by us as part of our consideration of the denial of procedural fairness issue. It is therefore unnecessary for us to say anything further about the "new evidence" referred to in par 15.

Paragraph 16

1. The matters referred to in par 16 are part of the claim of denial of procedural fairness. As the appeal will be allowed on that claim, it is unnecessary for us to say anything about these matters.

Orders

1. The Appeal Panel makes the following orders: 1. The appeal is allowed. 2. The case is to be reconsidered by the Tribunal with further evidence. 3. The case is to be listed before the Tribunal for directions as to the hearing of the case including the times for filing further evidence and setting a date for the reconsideration by the Tribunal.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar 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 July 2017