Gussoni v Wilcox

NCAT Appeal Panel|2015-12-03|Before: Dr P

Solicitors: Mariella Gussoni (Appellant in person) File Number(s): AP 15/48066 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 04 June 2015 Before: Dr P Briggs, General Member File Number(s): HB12/34009

REASONS FOR DECISION

This is an appeal against a decision of the Tribunal dismissing the appellant's building claim against a carpenter who built her a deck which ultimately failed. The appellant has raised a number of grounds of appeal but the main issue in these proceedings are, in our view, the manner in which the Tribunal dealt, or failed to deal, with the evidence before it and the adequacy of the Tribunal's reasons. We have found that the Tribunal failed to give adequate reasons, particularly in relation to the cause of the failure of the deck. For the reasons that follow, we would allow the appeal and remit the matter to the Tribunal, differently constituted, for determination in accordance with the law.

Background

The appellant, Ms Gussoni, held an owner builder permit. In 2007, she entered into an oral contract with the respondent, Mr Wilcox, to construct a deck around her house and to do some other carpentry work for her. Although Ms Gussoni had obtained development approval for modifications to her house, the deck had not been approved in the form it took.
Mr Wilcox constructed the deck.
On 27 June 2012, Ms Gussoni applied to the former Consumer, Trader and Tenancy Tribunal ("CTTT"), seeking an order that Mr Wilcox pay to her $13,000. In the box on the form headed "What is your dispute about?" Ms Gussoni wrote: "Decking boards were laid incorrectly, without enough ventilation causing cupping of underside of boards and screws snapping on deck. I need to replace the decking boards."
Ms Gussoni's claim was a "building claim" within s 48A(1) of the Home Building Act 1989 (NSW) and the CTTT had jurisdiction to determine it under s 48K(1) of that Act.
The applicant filed points of claim and amended points of claim. These were not before the Appeal Panel. However, in submissions filed on 18 August 2014, it is clear that the applicant was relying upon an alleged breach, by the respondent, of the warranties in the following provisions of the Home Building Act: 1. s 18B(a) (which, at the relevant time, implied a warranty that the work will be performed in a proper and workmanlike manner); 2. s 18B(b) (a warranty that all materials supplied by the holder or person will be good and suitable for the purpose for which they are used); 3. s 18B(c) (a warranty that the work will be done in accordance with, and will comply with, the Home Building Act or any other law); 4. s 18B(e) (a warranty that the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling); and 5. s 18B(f) (a warranty that the work and any materials used in doing the work will be reasonably fit for the specified purpose or result).
The proceedings were heard with another building claim made by the appellant against a third party, Mr Smith. The only oral evidence in the proceedings involving Mr Wilcox was given on the first day of hearing on 20 November 2013, when the parties' experts gave evidence and were cross examined.
On 1 January 2014, the CTTT was abolished and this Tribunal took over its functions (Civil and Administrative Tribunal Act 2013 (NSW), ("NCAT Act"), Sch 1, cl 3). The proceedings, being by then "part heard proceedings," were to be determined by this Tribunal, and the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings in the CTTT, had the NCAT Act not been enacted, continued to apply (NCAT Act, Sch 1, cl 7(2) and (3)).
A further hearing was held in May 2014 in both these proceedings and the Smith proceedings but, apparently due to insufficient time, no oral evidence was given on that day in these proceedings. The parties relied instead upon a number of witness statements and affidavits. On 4 June 2015, more than a year after the May 2014 hearing and more than eighteen months after the November 2013 hearing, the Tribunal made a decision in the matter and provided written reasons dealing with both these proceedings and the proceedings against Mr Smith.

Tribunal' Decision

The Tribunal identified the issue for determination in the proceedings against Mr Wilcox as being "whether or not the applicant has suffered damage by reason of Mr Wilcox's breach of contract" (at [77]). It observed (at [88]): "Both experts [that is, the applicant's and respondent's experts] agree that the cause of the failure [of the deck] is moisture related and that the cupping of the deck is consistent with an excessive moisture build up below the decking which has caused the underside of the decking timber to take in moisture and expand at a rate greater than the top of the deck" (at [88]).
The Tribunal made the following findings: 1. There was a wholly oral contract between the parties (at [121]); 2. The contract required the respondent to construct an external timber deck to a significant portion of the perimeter of the house (at [122]); 3. The respondent took no part in planning the extent of the deck but advised on the structure in order to protect timber elements from the effects of dampness in the excavated area over which the deck was constructed (at [124]); 4. The respondent advised the applicant to have further excavation carried out but she declined to accept this advice (at [125]); 5. The respondent's conduct falls short of that required for him to rely upon the statutory defence under s 18F of the Home Building Act but, in the circumstances where nothing between the parties was in writing, the warnings he sounded were sufficient to satisfy the purpose of that provision (at [126]); 6. The source of the failure of the deck was the timber used, and the decision to use that timber was a determination made by the applicant against the advice of her then partner (at [128]); 7. The applicant was aware of the risk involved in purchasing decking timber from a source which did not provide any indication of the nature of the timber or of its moisture content when supplied (at [129]); 8. The claim against the respondent is without merit and should be dismissed.

Extension of Time to Lodge Appeal

The appellant stated in her Notice of Appeal that she received notice of the Tribunal's decision on 11 June 2015. She lodged her appeal on 17 August 2015.
Section 40 of the NCAT Act provides that an appeal is to be made in the time and manner prescribed by enabling legislation or the procedural rules. The "enabling legislation," being in this case the Home Building Act, does not prescribe the time or manner in which an appeal is to be made.
The Civil and Administrative Tribunal Rules 2014 (NSW) ("NCAT Rules") are "procedural rules" being rules made by the Rule Committee (see NCAT Act, s 4(1), definitions of "procedural rules" and "Tribunal rules"). Pursuant to r 25(4) of the NCAT Rules, unless the Tribunal grants an extension under s 41 of the NCAT Act, an appeal must be lodged, relevantly, within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later).
Ms Gussoni's appeal was therefore required to be lodged by 9 July 2015 and was lodged 39 days late. Accordingly, she needs leave, pursuant to s 41 of the NCAT Act, to bring her appeal.
In her Notice of Appeal, Ms Gussoni explained that she "was not able to lodge an appeal earlier as I sought legal advice and was told I would need to inspect the member's hearing notes of the 14th May 2014 and the 9th December 2013 as there were no recordings of these hearings. The member's notes of the 14th May 2014 hearing were not released until 7th August 2015, 9 days ago, after having first been denied to the Applicant soon after the decision was made."
The appellant claims in an annexure to submissions filed on 9 October 2015 that she first requested the member's notes on 24 June 2015 but could not obtain them from the Registry until 7 August 2015.
The appellant sought to rely upon the member's notes as evidence that her solicitor had raised the need to deal with the objection to the respondent's evidence in submissions, but that this had not been ruled upon.
The respondent submitted that an extension of time should not be granted. He claimed that the member's handwritten notes of 9 December 2013 had been provided to both parties on 23 July 2014. He also said that the appellant's solicitors forwarded a letter enclosing a notice of ceasing to represent a party on 13 August 2015. At no time, he submitted, did the appellant's solicitors advise that their client intended to file an appeal. The respondent also submitted that the appellant's solicitor requested the sound recordings and/or the member's notes on 8 July 2015, one day prior to the expiration of the appeal period, which was not a reasonable time prior to the expiration of that period.
The principles applicable to extensions of time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18] to [22]. The Appeal Panel observed (at [22]) that generally, in an application for an extension of time to appeal, the Appeal Panel will be required to consider the length of the delay, the reason for the delay, the appellant's prospects of success (usually being whether the applicant has a fairly arguable case) and the extent of any prejudice suffered by the respondent to the appeal. Further, in general, the discretion to extend time should only be exercised upon proof that strict compliance with the rules will work an injustice upon the appellant (Jackson at [22]).
The length of the delay in this case was not insignificant. A delay of 39 days means that the appellant took more than twice the period of 28 days, in which she was required to lodge any appeal, to do so.
The appellant's reasons for the delay are set out above. She claims that she was not represented on the appeal, submitting: "The appellant did not make her decision to appeal on the Wilcox matter with her former solicitor … The appellant has lodged her appeal on her own."
Notwithstanding that the respondent did not receive a notice of ceasing to act from the appellant's solicitors until 13 August 2015, the appeal proceedings are separate proceedings from the Tribunal proceedings at first instance. This is not conclusive of whether the appellant was, in fact, represented at the time of the lodging of the appeal. Her evidence, which we accept, is that, although she sought some advice, she was not.
The need for the member's notes for the purposes of deciding whether or not to appeal or formulating the grounds of appeal is not entirely apparent to the Appeal Panel. However, we assume that the appellant thought she needed them in order to formulate her grounds of appeal concerning the objections to the respondent's evidence. While this is as a matter of fact doubtful, we accept that this may not have been apparent to a self-represented party.
For reasons which follow, we have found that the appellant has a fairly arguable case. We give this factor significant weight.
Whilst we accept that a delay of the appeal process may itself amount to prejudice to the respondent, we do not think such delay to the resolution of the proceedings, which have already been prolonged, is of such prejudice to outweigh the other matters in favour of an extension of time.
We also need to be satisfied that strict compliance with the rules would, in the circumstances, work an injustice upon the appellant. The appellant was faced with the unusual circumstance that there was no recording of the hearing, due to technical issues on the day. Although the appellant had been legally represented during the proceedings, she was not represented on the appeal, including we interpolate, for the purposes of formulating the grounds of appeal. She has stated that she obtained legal advice to the effect she needed to inspect the member's hearing notes of 14 May 2014 and 9 December 2013, which were not released until 7 August 2015. Even if she already had the notes of 9 December 2013, as the respondent contends, she believed she required the later notes as well.
We do not have any information about the legal advice obtained by the appellant, other than her account of it. However, we accept that she believed she needed to inspect the member's hearing notes before lodging her appeal. Whether or not this was in fact necessary, the appellant was acting upon her understanding of legal advice and was disadvantaged by technical issues affecting the recording of the proceedings which were beyond her control.
We note that the appellant and respondent differ as to whether an application for the sound recording was made on 24 June 2015 or 8 July 2015. The appellant's account is that she sought it on 24 June 2015 "and onwards". The most likely explanation is that she sought it a number of times. The appellant was disadvantaged by the Registry taking a significant amount of time to provide the member's notes, in circumstances where it would have been aware that the appellant was contemplating an appeal.
In these circumstances, we are of the view that strict compliance with the rules would work an injustice upon the appellant.
For these reasons, we have determined to extend the period of time for the appellant to appeal to the date she lodged her appeal, being 17 August 2015.

Appeal

An appeal to the Appeal Panel from a final decision of the Tribunal at first instance may be made "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds" (NCAT Act, s 80(2)(b)).
It is not clear from the appellant's Notice of Appeal whether she considers she is appealing on a question of law or only on "other grounds." She has ticked the box in the Notice of Appeal form indicating that she is seeking leave to appeal "on any other grounds." In relation to appeals from the Consumer and Commercial Division, leave may only be granted to appeal on grounds which do not raise an error of law in the limited circumstances set out in cl 12 of Sch 4 to the NCAT Act, which provides: "(1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)."
The appellant set out reasons, in her Notice of Appeal, for her view that the decision under appeal was not "fair and equitable" within cl 12(1)(a) of Sch 4 to the NCAT Act.

Grounds of Appeal

Ms Gussoni's grounds of appeal are long and detailed. They lack the precision that would be expected if they were drafted by a legally trained person. That is not meant as a criticism, rather, it is a fact that the Appeal Panel confronts on a regular basis. They may be summarised as follows: 1. Objections to the respondent's evidence were made by the appellant's counsel but not ruled upon by the Tribunal; 2. The member noted that further submissions were required as to the admissibility of the respondent's evidence but failed to make directions for the filing of submissions, and relied upon the evidence to which an objection had been made by the appellant; 3. One of the respondent's witnesses, Luke McNamara, was not made available for cross examination meaning that the appellant's legal representative was not able to cross examine him; 4. The parties wrote to the Tribunal stating that the parties were to agree which documents from a bundle of documents would constitute the evidence, but the parties did not agree and this was never dealt with; 5. The Tribunal failed to refer to the affidavit of Peter Sykes of Forests NSW, a witness for the appellant who said that the timber she chose for the deck was suitable, and relied instead on the evidence of Luke McNamara (the admissibility of which evidence was never determined); 6. The Tribunal found that it was common ground that Percy Howarth performed the excavation for the deck, whereas Mr Howarth's evidence is to the contrary; 7. The Tribunal relied upon evidence of Mr McNamara without referring to the appellant's evidence to the contrary and/or evidence of the appellant which qualified the effect of Mr McNamara's evidence; 8. The Tribunal found that Mr McNamara was involved in fixing the decking (at [87]) without any evidence to that effect, and it accepted Mr McNamara's evidence (at [130]) that he and the appellant installed the "ag" lines but nowhere is it said that both he and the appellant did so (only that he did so); 9. The Tribunal referred to the evidence of experts for both parties that the cause of the failure of the deck is moisture-related, but found that the source of the failure of the deck is the timber used; 10. The Tribunal placed undue onus of "builder expertise" on the appellant who had an owner builder permit but not building expertise.
We will refer to these as "Grounds 1-10" for convenience even though this is not the numbering used in the Notice of Appeal.

Alleged Failure to Rule on Evidence (Grounds 1, 2 and 4)

It became clear, during the course of the hearing before the Appeal Panel, that the appellant did, in fact, have an opportunity at the hearing before the Tribunal to make submissions objecting to the respondent's evidence and that the appellant's solicitor had, in fact, made submissions on her behalf, but had not dealt with those objections.
In these circumstances, we do not consider that the grounds of appeal relating to a failure to consider the appellant's objections to the respondent's evidence, or to make rulings on evidence, have any substance. We reject these grounds.

Opportunity for Cross Examination of Mr McNamara (Ground 3)

At the hearing, the appellant abandoned her ground of appeal relating to the supposed inability to cross examine Mr McNamara. She conceded that a letter from her solicitor to the respondent's solicitor dated 7 March 2014 evidenced an agreement between the parties that there was no need for any further cross examination of witnesses. The concession was properly made. Ground 3 must be dismissed.

Unfair Evaluation of Evidence (Grounds 5-9)

The appellant has raised a number of objections to the way the Tribunal dealt with the evidence. One of her principal objections is that the Tribunal relied upon Mr McNamara's evidence in a number of respects without referring to contrary or inconsistent evidence she had led. Another significant criticism of the Tribunal's reasons is, as we understand it, that the Tribunal's finding that the deck failed as a result of the timber used is not consistent with the expert evidence (upon which the Tribunal appears to rely).
Failures or perceived failures in fact-finding do not, in general, constitute errors of law. As Brennan J put it in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 in the context of a judicial review application, the "merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." Glass JA commented in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156, that an error of law will not have been made only because it may be said of a factual finding: "that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it…"
The weight a Tribunal attributes to the facts before it is generally a matter for the Tribunal, and not susceptible to challenge on error of law grounds. Further, the Tribunal is not required to refer to every contention or every piece of evidence: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46].
Bearing in mind the Tribunal's "area of decisional freedom" (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, French CJ at 351 [28]), the Notice of Appeal raises some possible errors of law connected with its fact-finding. These include: 1. making findings with no evidence to support them or that were against the weight of the evidence; and 2. giving inadequate reasons for its decision.
As we have observed, the grounds of appeal as stated by the Appellant were long and not as precise as would be expected if they had been drafted by a lawyer. As we have also observed, this is a problem which the Appeal Panel often faces when it has before it litigants in person. The question then becomes, particularly when it is necessary for an appellant to identify errors of law (which is often not an easy task) whether and to what extent, it is appropriate for the Appeal Panel, of its own volition, to identify errors of law in the reasons the subject of the appeal when those errors are not identified with precision, or at all, in the Notice of Appeal.
Decisions of the Appeal Panel have held that it is appropriate for the Appeal Panel to identify errors of law which are raised but not clearly articulated by grounds of appeal formulated by a self-represented litigant, subject to the rules of procedural fairness. In Donoghoe v Compass Housing Services [2015] NSWCATAP 97, the Appeal Panel commented at [23]-[24]: "Mr Donoghoe is not legally qualified nor was he represented. The issue of whether complaints about a decision raise questions of law can be complicated and has been the subject of much judicial review and consideration. The Tribunal is mindful that it may be difficult for self-represented appellants, like Mr Donoghoe, to identify and properly articulate a question of law. The Tribunal must give effect to the guiding principle when exercising functions under the CAT Act, reinforced by s 38(4) which provides that the Tribunal is required to act with "as little formality as the circumstances of the case permit" and "without regard to technicalities." Accordingly, it is appropriate to examine Mr Donoghoe's stated grounds for appeal and identify, where possible, the relevant question of law that may arise, even where the grounds identified are inelegantly or imprecisely expressed (Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12] and Khan v Kang [2014] NSWCATAP 48 at [15])."
A similar approach was taken by the Appeal Panel in Kendray v New South Wales Land and Housing Corporation [2015] NSWCATAP 139 at [30], where it remarked: "The Appeal Panel is mindful that it may be difficult for self-represented appellants, particularly those with mental health issues, to clearly express their grounds of appeal or, even more challenging, identify a question of law. 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 reasons 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. We note that 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." [emphasis added]"
Accordingly, we will consider possible error of law grounds from those identified above, in turn.

No Evidence Ground (Ground 8)

The "no evidence" ground was clearly raised in the appellant's grounds of appeal, so that the respondent has had an opportunity to deal with it. To constitute an error of law, the finding in question must be a finding of fact which is a critical step in the ultimate conclusion reached and for which there is no evidential support: SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109; [2010] FCAFC 97, at [125]; Soliman v University of Technology Sydney (2012) 207 FCR 277, 284-285 at [23].
The alleged findings without evidential support are the Tribunal's findings that Mr McNamara was involved in fixing the decking (at [87]) and that that the appellant participated in installing the "ag" lines (at [130]).
Mr Wilcox's evidence is that the boards were laid by him and "Kurt McNamara" (presumably a different person from Luke McNamara). The reasons imply that the decking was laid or "fixed" by Luke McNamara. Whilst it appears to us that there was probably no evidence that Luke McNamara was involved in fixing the decking, contrary to the Tribunal's finding, the finding as to whether Mr McNamara fixed the deck was not a "critical step in the ultimate conclusion reached." Accordingly, this apparent factual error was not an error of law.
Mr McNamara states in his affidavit affirmed on 6 March 2013 at [19]: "Mariella [that is, the appellant] and I had placed gravel and an agriculture pipe in this cutting alongside the base of the wall." Accordingly, it is not correct that there is "no evidence" that the appellant participated in installing the "ag" lines. In any event, we are not satisfied that this finding was a "critical step in the ultimate conclusion reached."
No error of law has been demonstrated.

Findings Against the Weight of the Evidence (Grounds 5, 7 and 9)

We take the complaints we have set out above for these grounds as a complaint that the Tribunal's decision was against the weight of the evidence or that the Tribunal failed to take into account relevant evidence. If it can be established that relevant evidence which is "important or critical to the proper determination of the matter" was not referred to by the Tribunal Member in his reasons for decision, it can be inferred that he overlooked the evidence or failed to give consideration to it (Beale v Government Insurance Office NSW (1997) 48 NSWLR 430 at 443). If that is the case, the conclusion would be that the Tribunal Member fell into error.
The appellant's grounds of appeal refer to a failure on the part of the Tribunal to refer to her evidence. One instance is the assertion that the Tribunal failed to refer to the evidence of Mr Sykes about the suitability of the timber for its purpose. This was relevant to the applicant's submission that, when the respondent inspected the boards prior to fitting them, he "approved" the timber she had obtained and requested her to obtain more and that "he accepted that they were suitable for purpose" (applicant's submissions dated 6 December 2013 at [24] with references to relevant evidence, applicant's submissions of 18 August 2014 at [7] and applicant's submissions in reply dated 11 September 2014 at 12). The Tribunal clearly came to the conclusion (at [128] and [129]) that the timber was unsuitable, but did not address the arguments or evidence to the effect that the timber was suitable and that, even if it were not, the respondent "approved" it and assumed responsibility for it.
Another issue is whether the Tribunal's findings and reasoning concerning the source of the failure of the deck failed to deal with a number of the appellant's claims, including that one of the reasons for the failure of the deck was the use of steel joists and steel screws and that the respondent was responsible for the design and the whole of the construction of the deck (not just for various components of building of the deck), including ensuring adequate clearance between the steel frame and the subsoil, ensuring adequate draining under the deck and ensuring that the subsoil was excavated and graded (applicant's submissions of 6 December 2013 at [22]; applicant's submissions of 8 August 2014 at pp 3-4 and pp 7-8).
In her Notice of Appeal, the appellant refers to the treatment of the expert evidence under the heading "Grounds of Appeal" and goes on, under the heading "Decision not Fair and Equitable," to allege: "The member failed to give weight to the evidence of both experts, the Applicant's and the Respondent's, and the insurance assessor, and the Fair Trading assessor, where they all agree that the cause of the deck boards cupping and warping was the lack of ventilation in the subfloor of the deck causing them to absorb moisture. The member determined the extent of the contract was to build a 'deck', which supports what the Applicant has maintained. The Applicant has maintained this includes preparation of the sub floor, or responsibility to ensure the sub floor is properly prepared before the respondent went ahead and built on it in accordance with his compliance obligations to the Home Building Act. The Respondent has maintained that he was directed to do only parts of the work required, and did not include the underfloor of the deck."
The grounds of appeal, taken with the reasons why the appellant claims the decision is not fair and equitable, raise, in our view, the issue of the Tribunal's failure to adequately address the evidence as to the cause of the failure of the deck and its failure to address the appellant's argument that the respondent was responsible for the lack of ventilation in the subfloor of the deck (and thus for the failure of the deck). The Tribunal made some findings relevant to the appellant's submissions. It found that the respondent "took no part in planning the extent of the deck," that the respondent "advised the Applicant to have further excavation carried out ... but she declined to accept this advice" and that different fixings "would not have prevented the boards failing as they have". However, the Tribunal did not expressly deal with the appellant's submission that the respondent assumed responsibility for the whole deck, including building a deck which was fit for purpose which complied with the warranties in the Home Building Act (applicant's submissions of 6 December 2013 at [23]).
On balance, in our opinion, we find that the Tribunal overlooked or failed to properly take account of all of the relevant evidence or refer to that evidence in reaching its findings. In doing so, it fell into error.

Inadequacy of Reasons (Grounds 5, 6, 7 and 9)

As noted, grounds 5, 6 and 7 concern the Tribunal's alleged failure to refer to or to properly consider the appellant's evidence, whilst relying upon the respondent's evidence to make its findings. Ground 9 raises the concern that the Tribunal appeared to accept the evidence of both experts that the cause of the failure of the deck was moisture-related, but went on to find that the source of the failure of the deck was the timber used. In addition to the matters we have referred to above, all of these grounds, in our view, raise the issue of the adequacy of the Tribunal's reasons, even though they are not articulated in this way.
The respondent's counsel was given an opportunity to address the issue of adequacy of reasons at the hearing, submitting that the Tribunal's reasons merely have to be adequate, not detailed.
In Aavelaid v J.A. Hayek t/as Laing & Simmons [2015] NSWCATAP 130, the Appeal Panel said, in relation to adequacy of reasons, at [68]: "The importance of reasons was considered, in the context of judicial review, by the High Court of Australia of Minister for Immigration and Citizenship v SZMDS by Gummow ACJ and Kiefel J at [32]. In relation to the Administrative Decisions Tribunal, being the predecessor to this Tribunal, it has been held that adequate reasons for a decision must be provided: see Sydney Supermarkets Pty Ltd v Xu [2009] NSWADTAP 28 at [56]-[60]. The same principle applies to decisions made in this Tribunal: see Collins v Urban [2014] NSWCATAP 17 at [53]-[56]. It is fundamental that a decision-maker should provide reasons for a decision or to make "a note of everything necessary to enable the case to be laid properly and sufficiently before the Appellate Court if there should be an appeal": see Carlson v King (1947) 64 WN(NSW) 65 per Jordan CJ at p 66. However, as was stated in Collins v Urban at [57], the content and detail of the reasons for decision "will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision": Wainohu v New South Wales (2011) 243 CLR 181 at [56] per French CJ and Kiefel J.
The Appeal Panel made some additional comments about adequacy of reasons in McPherson v Mace [2015] NSWCATAP 203 at [30], observing: "In Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 McColl JA, with whom Ipp JA and Bryson AJA agreed, noted the following relevant principles. 1. The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice. 2. The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: 3. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties. 4. The reasons must do justice to the issues posed by the parties' cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted. 5. Because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. See paragraphs [57] to [59] and [66] and the various authorities there cited."
In the proceedings below, the parties were both legally represented, the applicant filed amended points of claim, there were a number of hearing dates, the respondent filed at least two sets of submissions and the applicant filed at least three. The Tribunal had before it witness statements and affidavits and two expert reports. In these circumstances, the content and detail required of the reasons was not insignificant.
The reasons of the Tribunal failed to expose its reasons for resolving points critical to the contest between the parties. Its reasons also failed to analyse the evidence of the applicant when it competed with evidence of the respondent which was apparently accepted by the Tribunal, without providing any explanation for rejecting the applicant's evidence.
The Tribunal apparently accepted the expert evidence that the cause of the failure of the deck was moisture related, but also found that the source of the failure of the deck was the timber used. The applicant's expert provided an opinion that "moisture in the timber has caused the cupping and expansion resulting in the decking boards buckling, rising up to the point of snapping the fixings…" (Expert report of Geoffrey Matley, section 2). The respondent's expert, Craig Nisbert, provided the opinion that the decking boards had deteriorated for a number of reasons including the durability grade of the decking boards not being of durability Class 1, a lack of protective maintenance, a lack of sub soil drainage installation, inadequate draining below the deck and the design of the deck not allowing for adequate ventilation (paragraph 8.8.11).
The Tribunal failed to explain how it reached the conclusion that the source of the failure of the deck was the timber used, and how this related to the evidence that the failure of the deck was moisture related. It did not explain the relevance of its references to evidence that the excavation for the deck was performed by Mr Howarth, that the applicant decided that an "ag" line should be constructed under the deck, that the deck was constructed with no cross ventilation, that the respondent advised on the structure in order to protect timber elements from the effects of dampness, or that the respondent had advised the applicant to have further excavation carried out but she had declined to do this. These matters may have been relevant to the failure of the deck but, if so, their relevance was not explained.
The Tribunal found that the applicant was responsible for the choice of timber (which it found caused the failure of the deck), contrary to the advice of her partner, but failed to refer to the evidence of Peter Sykes that the timber appeared suitable for decking (affidavit of Peter Gordon Sykes affirmed 12 September 2012), and to the applicant's evidence that her partner selected the timber and liked it (see applicant's response of 8 July 2013 to Daniel Wilcox statement of 9 April 2013 at 48, 50 and 87 and applicant's response of 8 July 2013 to affidavit of Luke McNamara dated 6 March 2013 at 20).
The critical issue was not whether the applicant or her partner selected the timber, but whether the timber was suitable for decking. In finding that the timber was the source of the failure of the deck, the Tribunal failed to explain why it did not accept Mr Sykes' evidence that the timber was suitable. The Tribunal also failed to address the applicant's submission, with references to the evidence, that Mr Wilcox had approved the timber she selected and requested she obtain more (applicant's outline of submissions of 6 December 2013 at [24]). This constituted a failure to provide adequate reasons.
The Tribunal also failed adequately to address the applicant's overarching submission that, even if the failure of the deck was caused or partly caused by inadequate ventilation or inadequate drainage, the responsibility for this rested with the respondent because, as a carpenter, he was required to ensure that the conditions for building the deck were suitable.
The appellant contends that the Tribunal also relied upon the respondent's evidence and failed to refer to her evidence in the following contexts: 1. The Tribunal said that it was common ground that Mr Howarth performed the excavation for the deck, whereas Mr Howarth's evidence was that he did not; 2. The Tribunal relied upon Mr McNamara's evidence about a conversation with respect to additional excavation for the deck, but failed to refer to the applicant's evidence that that conversation did not take place and to Mr McNamara's evidence that he was absent when the excavation took place; 3. The Tribunal relied upon Mr McNamara's evidence that the applicant spoke to a plumber about constructing an ag line under the deck and failed to refer to the applicant's response that it was Mr McNamara, and not her, who spoke to the plumber; and 4. The Tribunal relied upon Mr McNamara's evidence that he discussed timber clearances with the inspector, while failing to refer to the applicant's evidence that this inspection was a sewerage inspection not a deck inspection.
It does not appear from the Tribunal's reasons that this evidence relates to points "critical to the contest between the parties." In relation to the excavation beneath the deck, the reasons do not make clear the relevance of the question of who performed the excavation and conversations in relation to it. It is possible that this evidence, or some of this evidence, would be relevant had the Tribunal dealt more fully with the appellant's submission that the respondent was responsible for ensuring that drainage and excavation were satisfactory. However, at present, we are not persuaded that these matters are critical to the decision. Accordingly, we do not find that the reasons were legally inadequate in the contexts referred to in the paragraph above.
We also note that, while this issue was raised only indirectly by the appellant (see Notice of Appeal, point 9 under heading "Decision Not Fair and Equitable"), it appears that the Tribunal failed adequately to deal with her claims that the builder had breached various warranties in s 18B of the Home Building Act. Whilst it referred to the defence in s 18F, it acknowledged that the respondent was not entitled to rely upon it because he had not given the appellant any "advice in writing". Curiously, having correctly found that the defence in s 18F could not apply as no advice was given in writing, the Tribunal nevertheless stated that the warnings Mr Wilcox sounded were sufficient to "satisfy the purposes of that provision". Perhaps this was why the Tribunal did not then deal with the allegations that the various warranties in s 18B had been breached. If that is the case, the Tribunal erred. Having made the finding that s 18F did not apply, the Tribunal was then obliged to identify whether any of the warranties relied upon by the appellant had been breached. It did not refer to any of them or provide any reasons for rejecting the appellant's claims under each provision.

Building Expertise of Owner Builder (Ground 10)

Ms Gussoni's final ground of appeal was that the Tribunal placed "undue onus of 'builder expertise' on the home owner." She referred, in submissions, to a case which the Tribunal had cited in its discussion of the Smith proceedings. This was the decision of Khatter v Mourched t/as High Performance Bricklaying [2003] NSWCTTT 305, where the CTTT commented that an owner builder must "take on some of the responsibility of the builder" (at [49]), even though "this does not relieve the particular tradesman of their obligation to do their work in a proper and workmanlike manner" (at [50]).
The appellant's complaint, as articulated in her submissions, was that the respondent "did not build a deck fit for purpose on a suitable subfloor, and it failed. For the member to expect the owner builder … to be able to identify the poor quality of the qualified tradesman's work, and that the underfloor was unsuitably fit to build a deck on, is an unfair load."
The Tribunal's reasons do not make it clear that the Tribunal is relying upon the Khatter v Mourched case in respect of these proceedings. However, neither has the Tribunal dealt directly with the applicant's submissions, in the proceedings below, that the respondent was directing the applicant in the building of the deck, that the applicant relied upon his experience and skills in the building of the deck and that the circumstance that the applicant held an owner builder permit did not detract from the respondent's duties to comply with the warranties and required standards of building work (applicant's outline of submissions of 6 December 2013 at [16], [24] and [26]).
It appears that the appellant has inferred, from the Tribunal's reasons and conclusion, that it found that she had some responsibility for the failure of the deck, in addition to the selection of the timber. The Tribunal commented (at [130]) that the "significance of the evidence in relation to the ag lines is that the Applicant was aware that as an owner builder it was necessary to maintain the area under the deck as dry as possible." The Tribunal does not explain the connection between this finding and its ultimate conclusion that the appellant's claim was without merit.
We are not persuaded that the Tribunal made an error of law in placing "undue onus of 'builder expertise' on the home owner." However, the reasons have not dealt adequately with the appellant's submissions below to the effect that the respondent was responsible for ensuring that the conditions in which the deck was built was suitable and that there was adequate clearance, the height of the piers was appropriate and that there was adequate sub-soil drainage at the base of the retaining wall he had built.

Appeal on Grounds which do not raise an Error of Law

In light of our conclusion that the Tribunal made the errors of law described above, we do not need to decide whether leave ought be granted in respect to the grounds which do not raise an error of law.

Remittal to the Tribunal Differently Constituted

We have concluded that the Tribunal made errors of law. The appeal will be allowed.
The question then becomes what other orders ought be made. The attachment to the Notice of Appeal indicates, in the section 11C headed "Orders the NCAT Appeal Panel should make" that the order sought is: "The deck failed because the respondent failed to build the structure with enough ventilation underneath and laid the boards on a site which he knew was no fit for purpose, and would cause the boards to warp and split from underside moisture absorption and caused it to fail as a decking surface, which it did."
It is not possible for the Appeal Panel to make such a finding, let alone an order to that effect. In order to do so would effectively mean that the Appeal Panel would have had to have heard the matter de novo including hearing from witnesses and assessing all of the evidence. In the circumstances, the most appropriate order is to remit the matter for re-determination. We understand that the claim is not a large one and that there has already been a significant delay in the resolution of the proceedings. However, it seems to us that the interests of each of the parties are best served by the matter being re-determined.
In determining that the matter should be remitted to a Tribunal differently constituted, we have had regard to the considerations in Yong v Antworks Pty Ltd [2016] NSWCATAP 14 at [137]-[139] and the recent observations of the Appeal Panel in Chi Building Pty Ltd v Wedgewood [2016] NSWCATAP 64 at [59]-[62]. We have formed the view that, having regard to some of the findings made by the Tribunal with respect to the appellant, the delay in the provision of reasons and the failings by the Tribunal to properly deal with the evidence and expose its reasons, the interests of justice and the just, quick and cheap disposition of the proceedings would be best served by the matter being considered afresh by a differently constituted Tribunal.

Orders

For the above reasons the following orders are made: 1. The appeal should be allowed. 2. The decision under appeal should be set aside and the proceedings remitted to a differently constituted Tribunal for determination according to law.

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: 06 April 2016

(Civil and Administrative Tribunal Act 2013(NSW)

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