Goel v Limitless Plumbing and Drainage Pty Ltd - [2025] NSWCATAP 43 - NSWCATAP 2025 case summary — Zoe

NSWNSWCATAP

Goel v Limitless Plumbing and Drainage Pty Ltd

[2025] NSWCATAP 43

NCAT Appeal Panel|2025-02-12|Before: Blake AM

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Source facts

Court

NCAT Appeal Panel

Decision date

2025-02-12

Before

Blake AM

Source

Original judgment source is linked above.

Judgment (8 paragraphs)

[1]

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 against a decision made in the Consumer and Commercial Division of the Tribunal on 15 August 2024.
For the reasons set out below, we have decided to refuse the application for leave to appeal and have dismissed the appeal.

[2]

Background

The appellant, Sanjay Goel, constructed a duplex development in South Littleton, NSW pursuant to an owner builder permit issued under the Home Building Act 1989 (NSW). He was sued by the owners to whom he had sold the two duplexes. He brought cross actions against a number of contractors responsible for elements of the building work, including Limitless Plumbing and Drainage Pty Ltd ("Limitless").
The proceedings in respect of the two duplexes proceeded separately. This appeal is concerned only with the outcome of the proceedings involving one of the duplexes, owned by Ms Judith Davies. The claim by Ms Davies against Mr Goel was identified as HB 22/46624. The cross action by Mr Goel against his contractors in respect of Ms Davies' claim was identified as HB 22/53608.
On 13 October 2023 the Tribunal held Mr Goel liable to Ms Davies in the sum of $95,991.93 and made money orders in favour of Mr Goel against five contractors, including Limitless. Limitless had not been present at the hearing and nor had other contractors, including, relevantly CPF Constructions Pty Ltd (CPF). CPF was the second respondent to Mr Goel's cross action and Limitless was the fifth respondent. The money order against Limitless was for $21,020.17.

[3]

The decision

On 15 August 2024 Senior Member Blake made orders: "(1) Order 1(b) made on 30 November 2023 is varied by adding the words 'so far as it applies to the second respondent' after the word 'aside'. (2) Time for the fifth respondent to lodge its application to set aside order 3 made on 13 October 2023 as against it is extended until 18 July 2024. (3) Order 3 made on 13 October 2023 as against the fifth respondent is set aside."
The Tribunal also made a number of directions in relation to the hearing of the claim made by Mr Goel against Limitless, including the service of evidence, and the matter has been listed for hearing on 7 March 2025.
In his reasons for decision, the Senior Member set out relevant passages from authorities concerning the extension of time for taking a step in proceedings and authorities concerning cl 9 of the Regulation. It is convenient to repeat those passages.
In Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281 at [23] - [24], the Appeal Panel held that three factors identified in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] were applicable to the extension of time for the commencement of proceedings in the Tribunal: "(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant …; … (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), … and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable …." [Citations omitted]
In Itex Graphix Pty Limited v Elliott (2002) 54 NSWLR 61; [2002] NSWCA 104, at [3] - [4], Sheller JA stated: "3 The cases have shown that particular circumstances may compel a refusal by the Court to extend time. An example is actual significant prejudice to the defendant brought about by the plaintiff's delay. But it is not correct to conclude that the absence of such prejudice compels an exercise of discretion in favour of the plaintiff. Ordinarily the potential plaintiff is required to demonstrate that circumstances warrant the Court's exercising its discretion to extend the time for commencing proceedings. The applicant bears that positive burden. In Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530 Gleeson CJ said that the proper question for a judge to ask in dealing with an application for leave to proceed is whether it would be fair and just to grant leave. … 4 Ipp AJA has concluded that the appellant suffered no prejudice in consequence of the resultant delay but that the decision initially taken not to proceed at common law and allow the three year period under s151D(2) of the Workers Compensation Act to expire were taken quite deliberately on a fully informed basis. The respondent further delayed for a significant period before changing her mind. I entirely agree that this in itself is a potent circumstance which must be taken into account and will ordinarily weigh heavily against an applicant. If the discretion was to be exercised favourably to the respondent, she was bound to give some explanation both satisfactory and pertinent to a conclusion that justice would be best served by granting her application. I agree with Ipp AJA that this she failed to do. …"
In that case, Ipp AJA stated, at [88] - [91]: "88 I have pointed out that the justice of the case is to be determined by its own individual circumstances. Often, a failure satisfactorily to explain the delay will not be decisive. Ordinarily, the issue of prejudice will be of paramount importance: … Nevertheless, the justice of the case may be such that the failure to explain the delay and to prosecute the case with the requisite diligence will result in an extension of time being refused. 89 The rule that an applicant, who applies for leave to bring proceedings after a limitation period has expired, must provide a reasonable explanation for the delay (and show that there has not been an absence of diligence on his or her part) forms part of limitation legislation throughout the country and, independently, has long been recognised by the courts. It is hardly necessary to provide authority for this proposition, …. 90 The reason for this requirement is not hard to understand. A limitation provision is an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exist entitling them to obtain leave. A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament. Just as the rules of court must prima facie be obeyed … so must the laws of Parliament. 91 A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave." [Citations omitted].
In respect of the principles applicable in an application to set aside a decision made in the absence of a party, the Senior Member cited Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [64] - [65] and [80] - [81]: "64 Accordingly, before the Tribunal's power to set aside a decision that determines proceedings arises, the Tribunal must be satisfied that: (1) The decision was made in the absence of a party; and (2) That absence resulted in the party's case not being adequately put to the Tribunal. 65 If those two requirements are satisfied, the Tribunal then has a discretion to set aside or vary the decision. …" "80 In summary, when exercising the discretion conferred by cl 9(1)(b), the Tribunal should direct its attention to whether there would be a real likelihood of injustice if the decision was allowed to stand. Relevant considerations will generally include: (1) Why the party was absent and whether the absent party had a reasonable opportunity to be heard or otherwise have its submissions considered in the proceedings; and (2) Whether the absent party has an arguable defence or an arguable case that a different decision could have been reached. 81 Setting aside a decision will naturally involve a degree of prejudice to the party which was initially successful. As part of the exercise of the discretion, the Tribunal should also consider how that prejudice can be cured or reduced, for example by the framing of any set aside order or by the imposition of suitable conditions on that order. Conditional orders can be made in the Tribunal under s 58 of the Act."
At [64] of his reasons for decision, the Senior Member determined that he should exercise the discretion to extend time for the filing of the application to set aside the decision of 13 October 2023, insofar as it affected Limitless, for the following reasons: "(1) it is out of time by 269 days. I am satisfied that this is a very substantial period having regard to the time of 7 days specified in cl 9(3) of the NCAT Regulation; (2) it has provided a satisfactory explanation of its delay. Order 1(b) of the 30 November 2023 orders was ambiguous as to whether it applied to CPF or all five subcontractors including Limitless. The Registry apparently considered that it applied to all five subcontractors including Limitless as it sent the 14 February 2024 orders and the 1 May 2024 orders [relating to the claim by Mr Goel against CPF] to the five subcontractors including to Limitless, and the 30 April 2024 notice [of a directions hearing] to Limitless; (3) it demonstrated in the 18 July 2024 Logue declaration when read with the document which is as exhibit R2 that its defence to the claim of Mr Goel is fairly arguable; (4) I am not satisfied Mr Goel will suffer any particular prejudice by reason of any extension of time.
At [65] the Senior Member determined that Limitless should have leave to make a second set aside application "for the same reasons" as he had decided to extend time.
At [66] the Senior Member determined that he should set aside order 3 made on 13 October 2023 so far as it applied to Limitless for the following reasons: "(1) I am satisfied that the 13 October 2023 decision was made in the absence of Limitless; (2) I am satisfied that that absence resulted in the Limitless' case not being adequately put to the Tribunal; (3) I am satisfied that I should exercise the discretion conferred by this clause because Limitless did not have a reasonable opportunity to be heard and has an arguable defence to the claim of Mr Goel. As to the former reason, I do not accept the submission of Mr Goel that he served his evidence on Limitless prior to the hearing on 25 and 26 May 2023. The Goel response did not include any evidence that this evidence had been served on Limitless."
Mr Goel filed his Notice of Appeal on 9 September 2024 challenging both the decision to extend time and the decision to set aside the order of 13 October 2023 so far as it affects Limitless. The Notice of Appeal was filed within the time laid down by rule 25 of the Civil and Administrative Tribunal Rules 2014 (NSW).

[4]

Scope and nature of internal appeals

An appeal to the Appeal Panel from a decision of the Tribunal is an internal appeal. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) relevantly provides: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
Section 4 of the NCAT Act defines an interlocutory decision of the Tribunal as: "a decision made by the Tribunal under legislation concerning any of the following - (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal."
Section 4 also defines an ancillary decision of the Tribunal as: "a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including - (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings."
The decision to extend time for the filing of the set aside application was an interlocutory decision. Accordingly, the appellant would require leave to appeal to the Appeal Panel against the Tribunal's decision to extend time for the filing of the application, even on a question of law.
The decision to set aside the decision of 13 October 2023 to the extent it applied to Limitless was not an interlocutory decision. It is not necessary for present purposes to consider whether the decision would constitute an ancillary decision, in either event the appellant may appeal against that decision as of right on a question of law and with leave on other grounds.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25] - [40] provided further guidance in relation to what is a question of law and the categories of questions of law. At [26] - [28] the Appeal Panel stated: "26 … great care must be taken in drafting a notice of appeal to ensure that it is apparent, on its face, that the ground of appeal raises a question of law. If not, leave to appeal is necessary. 27 Where, however, there is a question of law in substance, a court (and, it follows, an Appeal Panel) has discretion (to be exercised judicially and in the interests of justice) to direct its formal notification in an amended notice of appeal: Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [60]. In appropriate circumstances, the Appeal Panel may elect to waive the requirement to formally lodge an amended notice of appeal, given its mandate to act "with as little formality as the circumstances of the case permit … without regard to technicalities or legal forms": NCAT Act, s 38(4); Wollondilly at [19]. Where the party is not legally represented, a more generous approach is warranted: Kudrynski at [50]-[51]. This is an aspect of ensuring procedural fairness. 28 When dealing with self‑represented parties, the Appeal Panel has in many instances considered for itself whether a question of law is raised, applying John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [12]: Eastman v Nepean Blue Mountains Local Health District [2024] NSWCATAP 94 at [11], FSO v Secretary, Department of Education [2024] NSWCATAP 154 at [34], El‑Mohamad v Lin [2024] NSWCATAP 139 at [31], Johnson v Nachar [2024] NSWCATAP 135 at [14], Batshon v Suttons Motors Homebush Pty Limited [2024] NSWCATAP 114 at [19], Craig v Shallita [2024] NSWCATAP 112 at [16]."
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division (other than interlocutory decisions) are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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).
In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: "… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel, at [84], summarised the general principles derived from cases dealing with the grant of leave to appeal in other contexts as follows: "(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."
To the extent that the decision challenged on the appeal was an interlocutory decision, an appeal lies only by leave, even where the appeal is brought in respect of a question of law. The principles which apply to leave to appeal an interlocutory decision were considered by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54. The Appeal Panel stated at [34] to [35]: "34 [T]here is no specification in the NCAT Act as to the circumstances in which leave should be granted in respect of interlocutory decisions. Rather, there is a discretion to be exercised and general principles apply to the grant of leave to appeal such decisions. 35 As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following: (1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; (2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; (3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; (4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; (5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; (6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; (7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); (8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; (9) Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave."
Paragraph [84] of the Appeal Panel decision in Collins v Urban is set out above, at [41].
In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: "13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."

[5]

Notice of Appeal

As noted, Mr Goel filed a Notice of Appeal on 9 September 2024. The orders challenged are identified as: "(2) Time for the fifth respondent to lodge its application to set aside order 3 made on 13 October 2023 as against it is extended until 18 July 2024. (3) Order 3 made on 13 October 2023 as against the fifth respondent is set aside. (4) The applicant is to provide in hard copy to the fifth respondent and the Tribunal, all documents (see note below 3), on which the applicant seeks to rely at the hearing by 18 September 2024"
The grounds of appeal, as identified in an attachment to the Notice of Appeal, are as follows: "1) The Tribunal made Error In reaching the original decision resulting in clear injustice to the appellant. 2) Tribunal neglected the factual evidence provided by the appellant and on record with the registry regarding the matter as per Clause 9(4)b of the NCAT regulation. 3) Tribunal erred and neglected the orders made in matter HB 22/46624 and reasons for the same. 4) Evidence and statutory declaration made by the respondent in set aside application is untrue and false. 5) Tribunal erred in using its discretion under Section 41 of the NCAT Act in regards to delay in filing of set aside application as per clause 9(3) of NCAT regulation, reasons for delay, defence to the claim being arguable and prejudice to the applicant due to extension of time. 6) Tribunal erred in using its discretion under Clause 9 (6) of NCAT regulation. 7) Tribunal erred in using its discretion under Clause 9 (1) (b) of NCAT regulation failing to take any submissions into account by the appellant. 8) Decision was made contrary to S 36(2) & (3) of CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2013 contrary to facilitating the just, quick and cheap resolution of the real issues in the proceedings."
Mr Goel also seeks leave to appeal on the bases that he has suffered a substantial miscarriage of justice because the decision of the Tribunal 13 October was not fair and equitable and that it was against the weight of the evidence.
Mr Goel further asserts that he has evidence "supplementary" to the evidence presented to the Tribunal on 13 October but that he "would not characterize the new evidence as not available at the time of the hearing".
We note that none of the grounds of appeal identified by Mr Goel raises a question of law. Nor, adopting the approach suggested by the Appeal Panel in Cominos v Di Rico, are we able to discern any question of law arising from the matters which Mr Goel has canvassed in his Notice of Appeal and his submissions.
Mr Goel's grounds of appeal, and his submissions in support of his appeal, seek to re-argue the substance of the decisions to extend time and to set aside the order of 13 October 2023.
An internal appeal to the Appeal Panel does not provide a losing party in the Tribunal at first instance with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
Each of the decisions, to extend time and to set aside the order, was a discretionary decision. The exercise of a discretion is subject to review on appeal only on the bases set out in House v The King (1936) 55 CLR 499 at 504-505, that is: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
Mr Goel does not make any submission that either decision was erroneous in the sense identified by the High Court in House v The King.
The core of Mr Goel's submissions on the appeal was that he had served a copy of his documents on Limitless on 21 February 2023 and that the Tribunal erred in finding otherwise.
The evidence before the Tribunal concerning this issue was Mr Logue's denial that he had received the evidence and Mr Goel's insistence that he had sent it. The only documentary evidence was the Australia Post tax invoice dated 21 February 2023 referred to at [19] above.
As the Senior Member recorded, that document "does not include any information as to the addressee or address" to which any material was sent.
Mr Goel maintained that the document did in fact record the payment of postage in respect of three "large letters" weighing between 251 and 500 grams for delivery to addresses in areas with the Post Codes 2760, 2747 and 2745. Mr Goel pointed out that the Post Code for Limitless' registered office was 2747.
However, even if the document were accepted as evidence that documents were sent to an address in Post Code 2747, it is not evidence that documents were sent to Limitless' registered office.
Mr Goel also relied upon the fact that, as recorded in the reasons for decision published on 13 October 2023 (at [32]), the Tribunal sent notice of the hearing on 25 and 26 May 2023 to Limitless at its registered office. While, in the absence of evidence that the notice had not been received, that fact might warrant the inference that the notice had been received, Mr Logue gave evidence that he did not receive notice of the hearing. Senior Member Blake accepted that evidence, we find no reason to query that finding.
The additional documents which had not been before the Tribunal, upon which Mr Goel sought to rely on the appeal, were photographs of envelopes, one of which might be addressed to Limitless.
To the extent that Mr Goel relies upon the photographs as evidence warranting the grant of leave to appeal in respect of the decision to set aside the order of 13 October 2023, they are clearly not evidence that was not reasonably available at the time of the original hearing. Mr Goel does not suggest otherwise.
In relation to the interlocutory decision to extend time, while the requirements of cl 12(1)(c) of Sch 4 to the NCAT Act are not directly applicable, similar principles are applicable in relation to the admission of fresh evidence: See, for example, Efremov v Health Administration Corporation [2025] NSWCATAP 8, at [46] - [52].
We will not receive the further evidence upon which Mr Goel seeks to rely. We do not consider, in any event, that the proposed further evidence would be capable of casting any doubt upon the Tribunal's finding that Limitless was not served with Mr Goel's evidence before the hearing on 25 and 26 May 2023.
Mr Goel also submitted that the Tribunal had erred by finding that Limitless had an arguable defence and that Mr Goel would not suffer any particular prejudice by reason of the extension of time.
Mr Goel's submissions concerning Limitless' defence fail to comprehend that the Tribunal was not concerned to determine whether that defence would succeed, but only whether it was arguable. We find no error in the Tribunal's conclusion that Limitless had an arguable defence to Mr Goel's claim.
Mr Goel's submissions in support of his appeal suggested that he would be prejudiced by the extension of time because: "Given the parent claim [ie the claim by Ms Davies] was settled long ago and NCAT decision complied with by the Appellant the defective works may have been rectified by Mrs Davis and original defects on site may not exist. The opportunity to collect required evidence may have been missed. Evidence which may have been available or witnesses who may have been available, are now lost because of the passage of time."
Mr Goel adduced no evidence to support this submission, which was, in any event, not put to the Senior Member at the original hearing. Mr Goel's submissions at the original hearing made no mention of prejudice.
The Senior Member determined that there was no particular prejudice to Mr Goel. That conclusion was unimpeachable on the evidence and submissions before the Tribunal at the original hearing. There is no error in a Tribunal failing to take into account a submission which is not put to it.
We also note that the proposition that evidence may have been lost by reason of the passage of time is not self-evident. Evidence of the defects of which Ms Davies complained must have been led at the hearing in May 2023. Mr Goel should have had the opportunity to obtain his own evidence of those matters. If any party is likely to be prejudiced by the passage of time it is Limitless, who did not have the opportunity to inspect the premises for the purposes of obtaining evidence.
Finally, we note for the purposes of completeness that, to the extent that Mr Goel challenges the decision to grant leave to file a second application to set aside the order of 13 October 2023, that was also a discretionary decision, and no error within any of the categories identified in House v The King has been identified in respect of that decision.