Garside v Carroll

Notice of Appeal

1. By Notice of Appeal filed 8 August 2018, Mr Garside and Ms Pham (the appellants) sought to appeal the order dismissing the application and the order for costs. As will be apparent from the above, the Notice of Appeal in respect of the order dismissing the application was filed substantially out of time, the time to appeal being 28 days from 7 November 2011: see r 25(4)(c) of the Civil and Administrative Tribunal Rules, 2014 (NSW) (Rules).
2. The appellants subsequently filed an amended Notice of Appeal on 6 September 2018. By consent, leave was given to rely on the amended Notice of Appeal by the Appeal Panel at the hearing of the appeal on 19 November 2018. The appellants raised the following grounds of appeal in the amended Notice of Appeal: 1. The Tribunal erred in finding that the first [appellant] had conceded that he had not established a case. 2. The Tribunal erred in finding that the first [appellant] held himself out as an owner builder to the respondent. 3. The Tribunal erred in finding that the first [appellant] had repudiated the contract by obtaining an order preventing [the respondent] from going back onto the property. 4. The Tribunal erred in finding that the [appellants] had not met the civil standard to establish their case.
3. The appellants seek an orders that the original decision be set aside and that the respondent pay the appellants $101,812.85. Alternatively, they ask for an order that the proceedings be remitted for rehearing.
4. To the extent necessary, the appellants seek leave to appeal because the decision was against the weight of evidence.
5. The appellants also seek an extension of time to appeal the Dismissal Order. They say the Notice of Appeal was filed within 28 days of the Costs Order. The reason given as to why an extension of time should be granted was set out in Annexure C of the amended Notice of Appeal, which said: The appellants seek an extension of time to appeal from Order 2 made 7 November 2017 … in the substantive proceedings. The reason for the delay in filing a notice of appeal from the [Dismissal Order] is that the proceedings were not finally disposed of by making the [Dismissal Order]. The appellants conceded that they had been denied procedural fairness in the hearing of the substantive proceedings and sought to address the issue in their submissions on costs filed on 9 February 2018 to the Tribunal Member who had made the [Dismissal Order].
6. Lastly, the appellants seek leave to adduce fresh evidence. This evidence consisted of: 1. an affidavit of Mr Garside sworn 11 September 2018; and 2. the affidavit of Ms Pham sworn 13 September 2018.
7. In relation to this fresh evidence, and why leave should be granted, the amended Notice of Appeal stated: What evidence do you now seek to produce to the Tribunal? 1. The appellants seek to produce to the Tribunal: a. A statement of Peter Ajarka, an accredited Building Surveyor who attended the property, relevant to the question of repudiation and causation, amongst other things; b. A statement of Hang Thang Thi Pham relevant to the issue of loss, detailing loss of rent from the property and payments made to contract doors to complete the work; and c. A statement of Christopher Garside relevant to the issue of causation and loss, detailing the engagement and payment of the contract doors who completed the work the subject of the agreement with the Respondent. 2. The statements, including Annexures, will be lodged with the Tribunal and provided to the respondent by 20 September 2018 in accordance with the directions of the Tribunal made 24 August 2018. Why was this evidence (including documents) not available at the time of the hearing? 1. The statement of Peter Ajarka was not available at the time of the hearing because he suffered from a serious illness for a period of 2 years, was hospitalised, and was unable to provide a statement or give oral evidence. Further details will be set out in Mr Ajarka's statement. 2. The statement of Hang Thang Thi Pham was not available at the time of the hearing because she was overseas and conducting these proceedings through a power of attorney. Ms Pham was unable to prepare a written statement dealing with her loss because the documentary evidence was not available to her. Further details will be set out in Ms Pham's statement. 3. The statement of Christopher Garside regarding tradespersons hired to complete the work on the property was not able to be prepared at the time of the hearing because those tradespersons had been engaged on an ad hoc basis and paid in cash. Bank statements and other supporting material were available at the hearing but were not tended. Further details will be set out in Mr Garside's statement
8. On these topics, the appellant made the following submissions in the document entitled "Appellants' Outline of Submissions" dated 20 September 2018 (AS) at AS 32-34: 32. Mr Garside identifies the tradespeople who completed the works on the property. He says that the tradespeople were engaged on a "ad hoc" basis and that there were no invoices issued because Ms Pham was desperate to have the works finished as quickly as possible so that she could rent out the Property. Mr Garside says he paid for the contractor with cash drawn from Ms Pham's account and from his own account and an exit's bank statements recording those cash withdrawals. 33. Ms Pham gives evidence relating to her claim for loss of rent while the works on the Property were being completed. She puts in evidence bank statements recording the cash withdrawals which she says were used by Mr Garside to pay the contractors who completed the works, as well as credit card statements recording payments for supplies and equipment. 34. Leave is sought to rely on the fresh evidence of Mr Garside on the basis that he was denied the opportunity to call this evidence at hearing. Ms Pham was not joined as a party to the proceedings until the final hearing and says that she misunderstood the requirements of this case and mistakenly believed she would have an opportunity to provide supporting evidence of her loss after the determination of liability.
9. Statements were subsequently provided by both appellants and their solicitor, Ms Zeglis.
10. We note in passing that the appellants were represented by a solicitor at the proceedings at first instance, including at the hearing on 7 June 2017. Those solicitors are the same solicitors acting in this appeal. Also, it was not suggested in this appeal that the Tribunal had not, prior to the hearing on 7 June 2017, made directions for the filing and service of relevant evidence by each of the parties.

Consideration

1. It is appropriate to first deal with the questions of leave to adduce fresh evidence and leave to appeal the Dismissal Order out of time.
2. The appellants have a right of appeal on a question of law, otherwise leave to appeal is required: se s 80(2)(b) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act).
3. Pursuant to Sch 4 cl 12, leave to appeal the present decision, which is a decision of the Consumer and Commercial Division, may only be granted where the appellants may have suffered a substantial miscarriage of justice because: 1. the decision was not fair and equitable; 2. the decision was against the weight of evidence; or 3. "significant new evidence that has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)".
4. Collins v Urban [2014] NSWCATAP 17 sets out the principles applicable to the grant of leave. The meaning of the expression significant new evidence that was not reasonably available at the time the proceedings under appeal were being dealt with, was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 11, particularly at [17]-[26].
5. In relation to the application to extend time to appeal the Dismissal Order, the Appeal Panel has power to do so under s 41 of the NCAT Act. The decision of Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 sets out the relevant principles in the exercise of that discretion.
6. The parties made written and oral submissions concerning the various issues raised in the appeal. As necessary, we will deal with those submissions below.
7. As to the application to adduce fresh evidence, it is clear from the submissions made that the evidence sought to be relied on by the appellants could have been produced for the purpose of the hearing which occurred in June 2017. There is no suggestion that the parties were not afforded an opportunity to file and serve relevant evidence and, having commenced proceedings, the appellants were required to do so in order for such evidence to be considered as part of a determination of their claims.
8. There were no submissions made concerning any proposed evidence from Mr Ajarka. In any event, this evidence appears to be evidence concerning technical questions to be dealt with by this witness as either an expert or somebody who attended the work when it was carried out by the respondent or shortly thereafter. There is no appropriate evidence concerning this person's circumstances and exactly why a statement could not have been obtained and serve as required by any directions of the Tribunal. It does not appear this application was pressed.
9. As to the proposed evidence from the appellants, as recorded in their affidavits, the material on which they seek to rely was clearly available prior to the final hearing day of the original application and could have been provided prior to that time. Consequently, we are not satisfied the evidence now sought to be relied upon was not reasonably available at the time of the original hearing and leave should be refused.
10. In relation to the extension of time to appeal the Dismissal Order, having set out factors relevant to the exercise of the discretion to extend time, and having referred to Jackson the appellants made the following submissions (at AS 3-9): 1. The final position of the parties was not settled until the Costs Decision. The appellants relied on the decision of McColl JA in Samimi v Sayedabadi; Seyedabadi v Samimi [2013] NSWCA 279 at [33]. 2. The first appellant had been informed by Registry staff of the Tribunal that "an appeal could not be lodged until costs was determined and so the appellants sought to address the issue of procedural fairness on their written submissions in costs" 3. While the length of delay is not insignificant, and without seeking to criticise the Tribunal, the appellants say that the passage of time between the Dismissal Order and Costs Order is relevant. In this regard the appellants contend they acted expeditiously after the Costs Decision was made; 4. The appeal is at least fairly arguable. On this aspect the appellants rely on the substantive submissions and say that the respondent "would suffer no particular prejudice as a result of the extension of time being granted".
11. There is no issue concerning the principles to be applied. and the decision in Samimi does not support the position of the present appellants for the following reasons: 1. In Samimi, the Court of Appeal determined that 61 days was a considerable delay. Here, the delay in lodging the appeal is 274 days, a significantly longer period of time. The appellant's Counsel conceded such a delay was getting to the worst category. 2. In Samimi, the Court noted that the applicant for leave had been given advice concerning the time to appeal. There had been a hearing of 38 days. There was an unresolved question of costs, it was a case in which both parties had been unsuccessful and the Court accepted that the applicant for leave had "tried to put the matter behind him". Further, it was a case in which the appeal was in the nature of a "cross-appeal". As the issues in the cross-appeal were "intertwined" with the substantive appeal, the Court determined a refusal of an extension of time would work an injustice if the builder was able to litigate his side of the dispute and the applicant for leave/owner was not. 3. In the present case, there is no evidence concerning what the appellants were told by their legal advisors concerning their rights of appeal. While the appellants seek to rely on "advice" given to them by Registry staff, this assertion is not an adequate excuse, particularly where, at all times, the appellants had legal advice and there is no evidence concerning the advice they were in fact given that might otherwise justify a decision not to file a Notice of Appeal in the required time. 4. Otherwise, there is no cross-appeal and the respondent was entitled to believe that the substantial dispute had concluded. He has the benefit of an order for costs which he has been denied a reason of a stay. In short, the effect of the substantial delay in this case constitutes a substantial prejudice and is contrary to the guiding principle found in s 36(1) of the NCAT Act and the duty of the parties and their legal advisors arising under s 36(3). 5. Another reason why the appellants say they took no action to file an appeal in time is that they were going to make submissions concerning "the issue of procedural fairness in their written submissions on costs" (AS para 8). However, while a ground raising procedural fairness issue was included in the original Notice of Appeal, the amended Notice of Appeal did not assert such a claim. While submissions were made in respect of ground 1 (error in finding a concession was made by the first appellant that he had not established a case) raised an issue of procedural fairness, this ground is properly to be seen as a challenge to a finding of fact, matter to which we will return below. Consequently, it is difficult to see how an intention to make submissions on costs application about a matter which was not ultimately the subject of appeal could be said to excuse a substantial delay in filing an appeal in respect of the Dismissal Order within the 28 day period. 6. Lastly, in oral submissions, the appellants said that they might not pursue any appeal in the event an order for costs had not made against them. We will return to the issue of the Costs Order and the reasoning of the Tribunal below. However, having regard to the provisions of r 38 of the Rules, which grants a general discretion to award costs for claims greater than $30,000 and the likelihood such an order would be made against them as the unsuccessful party, it is difficult to see how this matter offers a reasonable excuse for the delay in lodging the appeal.
12. As to the issue of whether or not the appellants have a fairly arguable case, it is appropriate to consider each of the grounds of appeal.

Ground 1 - The Tribunal erred in finding that the first [appellant] had conceded that he had not established a case

Ground 4 - The Tribunal erred in finding that the [appellants] had not met the civil standard to establish their case

1. It is convenient to deal with these two grounds together. The appellants submit that no concession was made of the type recorded in the Principal Reasons at [1] and that the Tribunal was in error in concluding the appellants had not met the civil standard to establish their claim.
2. On the first ground, the appellants refer to the transcript of the hearing on 7 June 2018 in which there was a discussion of the adequacy of the appellants' evidence. Of this exchange, the appellants say (at AS para 39) "it was not put squarely to Mr Garside in argument that he was being asked to concede that he did not have a case. His concession, if any, did not relate to the case which he sought to bring.
3. It seems clear to us that the adequacy of the appellants' evidence was being considered by the Tribunal. We do not accept that there was a failure to afford the appellants an opportunity to respond to the view then being expressed by the Tribunal that the evidence was inadequate to prove a breach and/or damage. Expressly, the Tribunal identified the need for appropriate evidence, including in this case from an expert, and that the Tribunal did not consider the evidence provided by way of quotations was adequate to prove the appellants' case.
4. In response to the Tribunal's statement that the evidence was "well short of a situation where I can really make a decision", the first appellant said "I understand, sir": see Transcript of 7 June 2018 (Tspt) at p 23.
5. This statement was made by the Tribunal in circumstances where there had been an exchange concerning whether any quotations provided were from people based on their qualifications and experience and/or based on the inspection of the site at the time the respondent was excluded from the site. The first appellant said that Mr Ajarka was identified as a potential witness, but that he had been unable to provide any evidence because he was in hospital. It was at this point that the following exchange took place (Tspt p 21): Mr Garside: Sir, as the evidence stands, sir-unfortunately all we have is the, is the bank statements to come through to show we paid these people this money to complete the work afterwards… Holles: Well… Mr Hallahan: I haven't seen any bank statements. I haven't seen any… Mr Garside: Sorry, sorry we have the, we have the… We only have the spreadsheet to show what we paid other peoples of finish his work. Mr Hallahan: And it's very surprising given that Ms Pham's apparently a forensic accountant, that there is no better record of financial expenditure in relation to those matters. Mr Garside: Well I'm not having a go at Ms Pham for her accounting ability. Sir unfortunately… Tribunal: No, I'm not questioning that. But the reality is, I candidly don't care about why things are done or not done. I do care very much about whether the evidence is before me or not. Mr Garside: Sir, I understand. Tribunal: and that's the problem I have. I have a lot of information - to use a neutral term about conversations, about disagreements, about reports etc. None of which actually goes to the key issues. 1. Was Mr Carroll entitled to leave the site? And if he did leave the site in breach of the contract - rather than because of a stop work order, and rather because of you evicting him from the site? If he did leave the site under those circumstances, where is the evidence of loss? And please don't tell me, "The spreadsheet.". Mr Garside: Sir I agree. Sir I agree. … Tribunal: This matter was adjourned in February, I think it was? Mr Garside: Yes. Tribunal: For the purpose of this all being sorted out. Mr Garside: Yes sir. Tribunal: And it hasn't been. And I'm not being critical of anybody. Because I appreciate there are cases where there is just no way the evidence can be put together. But even accepting the disadvantage to Mr Carroll of not being able to send his own inspectors in, because the work has been done. Even putting that to one side, and just simply looking at your case. How do I get to prove beyond reasonable… Withdraw that… to proof in the balance of probabilities as to any loss? Mr Garside: Sir, unfortunately the evidence I presented you is the evidence we have today.
6. In our view, it is clear from this exchange that the Tribunal was not satisfied that the evidence presented to it by the appellants was adequate to prove any relevant loss or damage. The Tribunal identified, in our view correctly, some of the issues to be determined.
7. The statements made by Mr Garside do not suggest he was challenging the inadequacy of the appellants' evidence as proof of the claim. To the contrary, he appeared to understand the issues which were raised, made submissions about those matters and directed the Tribunal's attention back to the spreadsheets. The Tribunal then informed the appellants that the spreadsheets were not sufficient proof. Mr Garside did not challenge this matter nor did his legal representative Ms Zeglis.
8. No subsequent submissions were made by the appellants or their legal representative, Ms Zeglis, that the appellant had in fact prove their case.
9. The appellants did not challenge the Dismissal Order on the basis of inadequate reasons, the challenge being to the conclusions reached by the Tribunal. The appellants did not refer to the Appeal Panel to any appropriate evidence to establish the Tribunal's conclusion was unfounded. Indeed, the reference made in oral submissions to para 22 of the first appellant's statement dated 13 December 2016, which was in evidence before the Tribunal (found at Appeal Bundle at AB 6) demonstrates the limited extent of the evidence presented to the Tribunal. There, the first appellant, Mr Garside, says: As a direct result of Mr Carroll not completing the works and because [Ms Pham] and I could not allow him to return to the property to carry out works because of his behaviour (explained above in my statement) and our concern that he could be violent and cause damage or injury, I had to arrange for other contractors to complete the works. The total cost to complete the works was another $35,000 which included pulling out most of Mr Carroll's work as it did not comply with the code putting it plainly the was not one straight wall in the top two rooms that he had framed which would have made it impossible for tiling the three bathrooms that were going in. Below is a spreadsheet of the costs incurred after Mr Carroll was told to not come back due to his poor workmanship as well as his violent behaviour.
10. The spreadsheet is then found at AB 7.
11. In the absence of appropriate proof of breach and loss or damage, the appellants could not succeed in their claim.
12. It follows, having regard to the evidence to which we have referred, we are not satisfied any relevant error has been established.

Ground 2- The Tribunal erred in finding that the first [appellant] held himself out as an owner builder to the respondent.

1. We do not understand the relevance of this ground of appeal or its significance to a resolution of the real issues in dispute.
2. No issue was raised in the appeal concerning licensing or insurance aspects which might apply to the respondent in carrying out residential building work. It was accepted that the first appellant held a power of attorney on behalf of the second appellant and had been representing her interests in connection with the building work carried out by the respondent.
3. The real issues in dispute were whether the appellants (or the first appellant if acting as agent or otherwise for the second appellant) had repudiated the agreement with the respondent and whether the appellants had proved loss and damage if the respondent had breached that agreement.
4. In their written submissions at AS [59], the appellant said: The finding that Mr Garside held himself out as an owner-builder is a central part of the reasons for Judgement as it supports the General Member's conclusion that he is satisfied that Mr Carroll has not done anything which would make a finding against him fair and reasonable. Although the General Member's reasoning is not clear, it must follow that the appellants were deprived of a significant possibility or a chance which was fairly open that a different and more favourable result would have been achieved.
5. Even if this submission is correct, a matter of about which there was competing evidence, in the context of the real issues in dispute a successful challenge on this ground could have no effect on the outcome of this appeal.
6. Further, having regard to the evidence to which the appellants refer, we are not satisfied the finding by the Tribunal was not one available on the evidence, namely that in the contract which the first appellant had in fact signed where he described himself as a "principal contractor" and there was at least one invoice had been sent to him as the owner of the property: see AB 45 and 49.
7. Accordingly, we are not satisfied this ground of appeal is made out.

Ground 3 - The Tribunal erred in finding that the first [appellant] had repudiated the contract by obtaining an order preventing [the respondent] from going back onto the property.

1. On the issue of repudiation, there is no dispute concerning the principles which are applicable. Rather, the challenge made concerns the reasons given and the evidence which the tribunal had before it.
2. On the issue of repudiation, the Tribunal said at [6] and following of the Reasons: 6. The first [appellant] took our proceedings in the Tribunal; claiming damages for work left undone and the quality of work performed. He had previously repudiated the contract by obtaining an order preventing Mr Carroll from going back onto the property. 7. He prevented Mr Carroll completing the contract and refused to pay him for part of the work done. …
3. The evidence before the Tribunal included a statement from the first appellant, Mr Garside dated 13 December 2016. In that statement, the first appellant said: 4. At all times in my dealings with Mr Carroll, I was acting as [the second appellant's) agent. I entered into the agreement with Mr Carroll with [the second appellant's] knowledge and authorisation …: (AB 4). 19. On 18 May 2016, I met with Mr Carroll at the property at his request after advising the owner I would try one more effort to resolve this matter. This meeting digressed into Mr Carroll becoming abusive and destroying property on site. I called the owner and was instructed to contact the police. The police came out on site and removed Mr Carroll, who continued to act threateningly towards me, from the property. CST KAKAR and MITCHELL attended the property that morning from Marrickville police station and took a statement from myself and Miss Nemeth who was there on site with me that morning. (AB 6). 22. As a direct result of Mr Carroll not completing the works and because [the first appellant] and I could not allow him to return to the property to carry out works because of his behaviour (explained above in my statement) and our concern that he could be violent and cause damage or injury, I had to arrange for other contractors to complete the works. … (AB 6).
4. This evidence supports the conclusion by the Tribunal that the first appellant, as agent for the second appellant, was preventing the respondent from entering the site in carrying out works, conduct which can constitute repudiation.
5. The appellants rely on correspondence between Ms Pham, the second appellant and the respondent dated 18 May 2016. A chain of communications at this time is Annexure F to the statement of Mr Garside dated 13 December 2016 found at AB 80 and following. In particular, the appellants say that the correspondence of 16 May and 17 May 2016 (wrongly stated in the submissions to be 2018) constituted a direction by the second appellant to the respondent to return to work. The appellants submit this is inconsistent with the finding of repudiation.
6. We do not accept this submission. In the email dated 17 May 2016, at AB 91-92, the second appellant says (at the bottom of AB 91 and following): It is clear to me from your correspondence below that you have put us in a position where we are both going to come away from this project unhappy. As noted above, I will be willing for you to complete the gyprock, cornice, setting and door jams (basically all the work you can do without engaging contractors) including issuing certificates for any work you have done and then walk away. Should you choose this option, I will not pursue you for completion of the contract. This will leave me with having to find a way to organise and fund other contractors to complete the project. Alternatively, should you wish to continue to hold me hostage to your demand that no further work will be completed by you until "all accounts are up-to-date" (I note that my account, i.e.: my payments to you, ARE up to date), I will, as invited by you during our conversation on Monday morning (London time), pursue my legal options.
7. Quite clearly, the second appellant was only prepared to allow the respondent to return to site to complete a limited part of the contract, alternative contractors to be arranged to complete the balance of the work.
8. As to the submission that the second appellant had informed the respondent in her email dated 17 May 2016 that "Chris is no longer my project manager in relation to this contract so please do not go to him with any advice regarding these works or seek any instructions on my behalf" (AB 91), it is clear that the first appellant continued to represent the interests of the second appellant, and subsequently took action on her behalf on 18 May 2018 as recorded in the statement of Mr Garside to which we have referred above. He did so, apparently, with a power of attorney which had not been revoked.
9. In our view, the findings of the Tribunal in the Principal Reasons at [6]-[7] sufficiently identify the evidence on which the Tribunal relied in reaching a finding that the contract had been repudiated by the appellants. A review of this evidence indicates the findings made by the Tribunal were open to it.
10. Accordingly, this ground of appeal is not made out.
11. It follows from the above analysis that the application to extend the time in which to appeal be Dismissal Order should be dismissed.
12. In relation to the decision on costs, in our view the Tribunal applied the wrong provisions of the legislation.
13. The proceedings at first instance involved a claim for money more than $30,000. Rule 38 applies to such claim, not s 60 of the NCAT Act. That is, there is no need to find special circumstances. Rather, there is a general discretion to award costs, the principles applicable being set out by the Appeal Panel in a number of decisions including Thompson v Chapman [2016] NSWCATAP 6.
14. The Tribunal made an award for costs in favour of the respondent under s 60(2) of the NCAT Act. If it had applied the correct provisions of the NCAT Act and Rules, it would have come to the same conclusion, a successful party usually being entitled to an award for costs in a case in which r 38 applies.
15. Consequently, the appeal in relation to the Cost Decision should be dismissed.
16. In relation to costs of the appeal, r 38A requires us to apply r 38 in determining who should pay the costs of the appeal.
17. The appellants sought an order that the respondent pay to them the sum of $101,812.85. The amount claimed is greater than $30,000. Consequently, there is a general discretion to award costs in the appeal, notwithstanding the provisions of s 60 of the NCAT Act.
18. The respondent has been successful and an order for costs should be made in his favour.

Orders

1. The Appeal Panel makes the following orders: 1. By consent, leave is given to the appellants to amend the Notice of Appeal in accordance with the document filed 6 September 2018. 2. The application to adduce fresh evidence is refused. 3. The application for leave to appeal is refused and the appeal is dismissed. 4. The appellants are to pay the respondents costs as agreed or assessed on an ordinary basis.

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

Amendments 12 February 2019 - Amendment to correct typographical error on coversheet 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: 12 February 2019