Hadidi v Owners Corporation Strata Plan 84787

NCAT Appeal Panel|2015-04-15

Introduction

Mr Hadidi, a builder, has appealed out of time from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) that he pays to the Owners Corporation Strata Plan 84787 (the Owners Corporation) $500,000 for damages and costs. The claim was for a breach of statutory warranties arising from defective building work undertaken by Mr Hadidi at a property in Silverwater, New South Wales. Mr Hadidi did not give the Tribunal or the Owners Corporation any documents before the hearing and was not in a position to cross examine the Owners Corporation's expert witnesses. The Tribunal refused an adjournment and accepted the evidence of the expert witnesses.
Because the appeal is without merit we have refused to extend the time for Mr Hadidi to lodge an appeal. We have also ordered that Mr Hadidi pay the costs of the appeal. We give our reasons below.

Background

Unless the Tribunal grants an extension under s 41 of the Civil and Administrative Tribunal Act 2013 (NCAT Act), an appeal must be lodged within 28 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later): Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(c).
The Tribunal gave its decision orally on 6 August 2014 and Mr Hadidi says that he received the written transcript of the reasons on 10 August 2014. As the 10 August 2014 was a Sunday, we have counted the 28 days from Monday 11 August 2014. On that basis Mr Hadidi should have lodged an appeal by 8 September 2014.

Principles

In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel considered the principles which govern the granting of an extension of time. The Appeal Panel stated at [22]: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (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 - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (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), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; 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 - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].

Length of the delay and reasons for the delay

We accept that Mr Hadidi had a reasonable explanation for the delay in filing the appeal between 18 September 2014 (when he attempted to file the appeal but did not pay the correct fee) and 24 September.
In relation to the 10 day delay prior to 18 September 2014, Mr Hadidi said he has been "in an emotionally bad state" and that his finances have been a big problem over the last 4 years. He said his wife has not been very supportive and that they have an autistic child who requires a great deal of attention. We accept Mr Hadidi's assertion that he is having personal difficulties, but he did not provide any detail of how those difficulties meant that he was unable to file an appeal by 8 September 2014. In our view, there is no satisfactory explanation for the 10 day delay.

Prospects of success

Mr Hadidi may appeal as of right on any question of law but requires leave before he can appeal on any other grounds: NCAT Act, s 80(2)(b). In relation to appeals from the Consumer and Commercial Division leave can only be granted in the limited circumstances set out in Schedule 4, cl 12: (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).
Mr Hadidi appeals both against the decision to refuse an adjournment and against the final decision.
At the hearing on 6 August 2014, Mr Hadidi applied for an adjournment in order to further prepare for the hearing. The Tribunal refused that application for the following reasons which the Tribunal gave orally at the time: [Mr Hadidi] has been provided with ample time to prepare his case and has never advised the Tribunal or the [Owners Corporation] of any difficulties in that regard. [Mr Hadidi] has never advised the Tribunal or [Owners Corporation] of any personal circumstances making it difficult or impossible to prepare his case. The [Owners Corporation] has provided voluminous expert evidence . . . and attends today ready to argue its case and with two experts in attendance and others available on call. In such circumstances I consider the interests of justice and fairness between the parties and also in accordance with the Tribunal's duty to facilitate the just, quick and cheap resolution of the real issues in the proceedings pursuant to s 60 of the Civil and Administrative Tribunal Act 2013, require that the application to vacate the hearing and adjourn the case should be refused. . . . [Mr Hadidi] has been in possession of the entire evidence relied on by the [Owners Corporation] since 1 April 2014 at the latest.
The refusal to grant an adjournment is an interlocutory decision which requires the leave of the Appeal Panel: NCAT Act, s 80(2)(a).
The Tribunal should offer an adjournment where appropriate, even if one is not sought. In Italiano v Carbone (1994) [2005] NSWCA 177 Mr Carbone, the defendant, had filed a cross-claim against Mr Italiano's company seeking to join Mr Italiano personally as a co-cross defendant. On the day of the hearing, the advocate for Mr Italiano requested an adjournment because he did not realise that the case was being re-heard on the merits. The Consumer Trader and Tenancy Tribunal (which was the predecessor to the Consumer and Commercial Division of NCAT) refused that application. The advocate did not apply for an adjournment to allow Mr Italiano more time to present the defence to the cross claim in his personal capacity. Ultimately the Tribunal made an award of $74,000 against Mr Italiano without ever having joined him to the proceedings. Basten J said at [105] that ensuring that each party is given "a reasonable opportunity" to present its case includes offering a party an adjournment.
In Titan v Babic (1994) 126 ALR 455 at 464 Full Federal Court held that: Where it is apparent that a party who does not have legal representation has misunderstood procedural requirements so that he or she is not in a position to complete the presentation of evidence, an adjournment might be considered in the interests of justice provided that no irreparable substantive or procedural injustice is done to the other party involved.
Mr Hadidi did not have legal representation but he gave no reason other than that he had not filed any evidence and that he was having personal difficulties, for requesting an adjournment. It is highly unlikely that the Appeal Panel would give leave for him to appeal on that ground because the Tribunal below gave Mr Hadidi a reasonable opportunity to provide documents in support of his case. Mr Hadidi did not foreshadow that he would have any difficulty doing so or would need more time. In addition, the Owners Corporation was ready to proceed.
There are two grounds of appeal in relation to the final decision, one on a question of law and the other requiring leave.
The ground of appeal on a question of law is that Mr Hadidi was denied procedural fairness because he was not given a chance to present his evidence at the hearing and was denied the opportunity to cross-examine the expert witnesses.
The Tribunal is required to comply with the rules of procedural fairness which are sometimes called the rules of natural justice: NCAT Act, s 38(2). Those rules are an aspect of a fair hearing but they focus on the process, not the outcome. One aspect of complying with those rules is to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: NCAT Act, s 38(5)(c).
Mr Hadidi attended the Tribunal hearing but had not provided any evidence in advance despite being directed to do so. He did not tell either the Tribunal or the Owners Corporation that he was having problems in providing his evidence in advance.
A self-represented party may not appreciate that he or she is generally not permitted to give evidence at the hearing unless a statement containing that evidence has been provided to the Tribunal and the other party before the hearing. But in this case Mr Hadidi was told to file any evidence on which he wished to rely and had received the Owners Corporation's evidence months before the hearing.
Mr Hadidi only needs to be given a "reasonable opportunity" to present his case. The undisputed facts demonstrate that he was given such an opportunity. If we allowed the appeal to be accepted even though it was filed out of time the Appeal Panel would be highly unlikely to find that the Tribunal denied Mr Hadidi procedural fairness.
The Tribunal decided not to allow Mr Hadidi to cross examine the Owners Corporation's expert witnesses even though they were available for cross examination. The reason for that decision was that Mr Hadidi could not demonstrate that he had read the expert evidence or noted particular issues on which he wished to cross-examine. He said he had scanned those documents but agreed that he would not be able to cross examine the witness because he did not have the expertise to do so. The Tribunal took that comment to refer to professional expertise rather than forensic expertise.
The Appeal Panel summarised the legal principles in relation to a party's right to cross-examination witnesses in Gallo v Duflou [2014] NSWCATAP 115 at [21] - [35] and in Ahmad El Ahmad v Reyes.[2015] NSWCATAP 50. Whether a failure to allow a party an opportunity to cross examine a witness constitutes a breach of procedural fairness depends on circumstances including "the legislation, the general practice as understood by the parties and any acceptance by them as to the way in which the proceedings are to be conducted": Wakim v Mathiew Pty Ltd [2002] NSWSC 405 at [30].
While the NCAT Act gives the Tribunal power to cross examine witnesses there is no express right for a party to do so. Nevertheless, there is a common law duty, where a party is self-represented, to ensure that he or she understands that cross-examination of the other party and their witnesses is generally permitted: Lee v Cha [2008] NSWCA 13, Basten JA at [48] - [49]. That does not mean that the Tribunal must allow every party to cross-examine every witness. The Tribunal can 'manage' examination and cross examination as long as it ensures a fair process: GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 at 22.
In this case the Tribunal placed reasonable conditions on the opportunity it gave Mr Hadidi to cross examine the Owners Corporation's expert witnesses. Mr Hadidi had scanned their reports but he could not identify particular points on which he wished to cross examine. By his own admission, he did not have the expertise to do so. In those circumstances, if the time for filing the appeal was extended, an Appeal Panel would be unlikely to find the he was denied procedural fairness.
The ground of appeal on which Mr Hadidi sought leave to appeal is that he will suffer a substantial miscarriage of justice if the Appeal Panel does not consider significant new evidence that was not reasonably available at the time the Tribunal hearing: NCAT Act, Sch 4, cl 12. Mr Hadidi said that he was not the builder who originally commenced the works and that he could get the evidence to prove that the builder prior to him was responsible for most of the defects.
Mr Hadidi listed the following documents as documents he would provide to support his case: 1. Quantity Survey report showing the building structure was completed before he began work. 2. Various sub-contract agreements with contractors and suppliers including the air conditioner which was installed by the developer. 3. Documents from Auburn City Council showing the s 96 changes and the approved ventilation systems and hydraulics and landscaping. 4. Evidence of developer of the project liquidating his company and non-payment to many suppliers and contractors.
Mr Hadidi said he had some evidence in storage and that he made further inquiries after the Tribunal hearing. He added that he was still waiting for some of the documents.
The difficulty with those submissions is that although Mr Hadidi has identified the 'new' evidence, he has not provided it to the Appeal Panel nor has he said why it was not available for the Tribunal hearing. If leave to hear the appeal out of time were granted, the Appeal Panel would be unlikely to give leave for this ground of appeal to proceed.

Prejudice to Owners Corporation

The Owners Corporation submitted that if leave were granted to extend the time for the filing of the appeal, it would suffer significant prejudice. The order that Mr Hadidi pay the Owners Corporation $500,000 has been stayed. The Owners Corporation has been unable to recover that amount so that the defective building work can be rectified. Further delay will result in further financial prejudice.

Consideration

The appeal was lodged 16 days late and there is no adequate explanation for 10 of those days. That is a relatively short period of time but in circumstances where the appeal is without merit and the Owners Corporation will continue to be prejudiced financially by further delays, the proper course is to refuse the application for an extension of time.

Principles

The Owners Corporation has applied for its costs of the appeal. The general rule is that each party pays their own costs unless there are special circumstances warranting an award of costs; NCAT Act, s 60. Section 60 provides that: (1) Each party to proceedings in the Tribunal is to pay the party's own costs . (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs , the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
The Owners Corporation relies on the lack of merit of Mr Hadidi's appeal, the fact that he failed to comply with directions, has conducted the proceedings in a way that has unnecessarily disadvantaged the Owners Corporation and has prolonged unreasonably the time taken to complete the proceedings: s 60(3)(a), (b), (c) and (f).

Lack of merit of the appeal

We have considered the merits of the appeal and found that it is without merit. That is a relevant factor under s 60(3)(c).

Failure to comply with directions

On 13 November 2014 the Appeal Panel directed that the parties file submissions on two questions: whether the appeal should be accepted out of time and whether leave should be granted for Mr Hadidi to appeal on the ground that additional evidence had become available which was not reasonably available at the time of the original hearing. Directions were made for Mr Hadidi to file and serve his submissions and other material by 18 December 2014 and for the Owners Corporation to file and serve submissions and other material in reply by 8 January 2015. Mr Hadidi did not file or serve submissions in accordance with that direction. Nevertheless, the Owners Corporation filed submissions on 8 January 2015.
On 9 January 2015 Mr Hadidi requested an extension of time to file and serve his evidence and submissions. He provided some medical evidence in support of that application and an extension was granted. The Appeal Panel directed that Mr Hadidi file and serve any further evidence or written submissions by 31 March 2015 and that the Owners Corporation respond by 15 April 2015. Mr Hadidi did not file any material. The Owners Corporation complied with the Appeal Panel's direction to file and serve any further submissions by 15 April 2015. The appeal was determined 'on the paper' under s 50(2) of the NCAT Act.
The appellant has failed to comply with the duty imposed in s 36(3) to comply with directions of the Appeal Panel: s 60(3)(f) and s 36(3).

Delaying the proceedings and disadvantaging the respondent

By applying for an extension of time in which to file and serve further submissions and evidence and then by not complying with that direction, Mr Hadidi has been responsible for prolonging unreasonably the time taken to complete the proceedings: s 60(3)(b). He has also disadvantaged the Owners Corporation because they have been put to the expense of filing submissions in accordance with the Appeal Panel's directions.
These considerations in combination amount to special circumstances justifying an award of costs.

Orders 1. The appellant's application to extend time for the filing of the Notice of Appeal is refused. 2. The appeal is dismissed. 3. The appellant is ordered to pay the respondent's costs as agreed or, if not agreed, assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004. 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: 05 May 2015

is the later): Civil and Administrative Tribunal Rules 2014(NSW)

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (15)

Cited By (4)