Harrison Inston t/a Ridgeline Roofing Solutions v Deborah Deitel & Russell Brennan

NCAT Appeal Panel|2024-04-08

Background

The appellant appeals against a decision of the Consumer and Commercial Division (CCD) of the Tribunal on 4 April 2023 which required him to pay $7330.40 to the respondent before 25 April 2023.
The parties entered into a contract for roofing work at the respondents' premises in Tamarama on 18 February 2020. The respondents commenced proceedings on 9 December 2022 seeking damages in the amount of $7810.40 for damages caused by the appellant's failure to repair a recurring leak in the roof.
The appellant did not appear at the Conciliation and Group List Hearing on 11 January 2023 and did not appear at the final hearing on 4 April 2023, because the appellant did not receive the notice of hearing. The notice of hearing was sent to 300A Burns Bay Road Lane Cove 2066 NSW Australia. That was the address provided on the application form which was the address that appeared on the appellant's invoices.
At the Conciliation and Group List Hearing on 11 January 2023 the respondents to this appeal (who were the applicants in the primary hearing) provided a business search and the Tribunal amended the appellant's address in accordance with the rules of the Australian Security and Investment Commission to correctly name the registered address of the appellant's business which was, at all relevant times, 714/2 Waterview Drive, Lane Cove, NSW 2026. Accordingly the notice of hearing advising the parties of the contested hearing date on 4 April 2023 was sent to the registered address of the appellant's business. He had however moved his business to 808/2 Waterview Drive Lane Cove 2066 and had not changed his business address with ASIC and therefore did not receive the notice of hearing and did not appear at the final hearing.
The hearing proceeded in the absence of the appellant. By notice of order dated 4 April 2023, the Tribunal provided written reasons for decision. The first notification the appellant received of the order made against him was when the Office of the Sheriff of New South Wales contacted him to effect a garnishee order on 13 November 2023.

The reasons for decision

As already stated, the hearing on 4 April 2023 proceeded on an ex parte basis. At the conclusion of the hearing the Member published the following orders and reasons for decision. On 04-Apr-2023 the following orders were made: 1. HARRISON INSTON T/A RIDGE LINE ROOFING SOLUTIONS 714/2 WATERVIEW Drive LANE COVE NSW 2066 AUSTRALIA is to pay DEBORA DEITEL [xxxx xxxx xxxx] Tamarama NSW 2026 Australia and RUSSELL [xxxx xxxx xxxx] Tamarama NSW 2026 Australia the sum of $7330.40 on or before 25-Apr-2023. Reasons: • $3296.00 (a) Cost of roof repairs in accordance with paid invoice of High Top Roofing Pty Ltd. • $4034.40 (b) Plastering, Insulation, Painting and electrical works as well as Builders margin and GST but reduced by the sum of $480 for building administration and supervision which the Tribunal finds is a duplication of the builders margin which has also been charged.. 2. Reasons for decision: The Tribunal notes that the respondent was not represented at the hearing and that he failed to provide any documents as required by directions made on 11 January 2023. The applicants have established that the respondent failed to complete the works at [xxxx xxxx xxxx] Tamarama in a proper and workmanlike manner and that the cost paid to High Top Roofing Pty Ltd was reasonable and not challenged by the respondent The internal damage to the guest room requires rectification and the cost of that work in a quote from Kase Building and Restoration Group was also unchallenged and reasonable except for what appeared to be a duplication of building administration and supervision throughout repairs and the builders margin which was also charged.
As already stated the appellant did not receive the reasons for decision until he was notified by the Office of the Sheriff of New South Wales on 13 November 2023.
He filed a notice of appeal dated 8 December 2023.

The Notice of Appeal

The notice of appeal was provided by the appellant who is not a lawyer and not legally trained.
The appellant's grounds of appeal can be discerned from his notice of appeal and the supporting written and oral submissions, although they are not articulated in a way that conforms to the principles outlined below. However, the Panel adopts the views expressed by an earlier Appeal Panel in Cominos v Di Rico [2016] NSWCATAP 5 which observed at [13] that, in the case of appeals by self-represented appellants, a pragmatic approach should be taken in identifying the basis of appeal: [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 the Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.'
This informs the present Appeal Panel's approach in this appeal.
The Appeal Panel considers that the appellant identified the following grounds of appeal against the primary decision:
Did the Tribunal conduct the hearing in a way that was procedurally unfair to the appellant, particularly by: 1. Allowing the hearing to proceed in the respondent's absence because the hearing notice was sent to the appellant's business address in circumstances when the business no longer had any connection with that address; 2. The respondent failed to contact the appellant through email and/or mobile informing the appellant of the hearing date; 3. Did the Tribunal correctly find that the appellant's work was incomplete and defective, in circumstances where the appellant completed the roofing work to the strict instruction of the respondent as per her email of 24 March 2024 and contrary to the appellant's professional advice. 4. Should the Tribunal have taken into account an amount owed under the contract to the appellant and offset that amount against the order for payment. 5. Should time be extended in circumstances where the first notice the appellant had of the proceedings and the order was when he was contacted by the Office of the Sheriff of New South Wales on 13 November 2023.

Submissions and evidence

In deciding the appeal, we have had regard to the following: 1. The Notice of Appeal lodged on 8 December 2023; 2. The Respondent's Reply to Appeal lodged on 15 January 2024; 3. The Appellant's and the Respondent's written submissions dated 7 March and 25 March 2024 respectively; and 4. The oral submissions made by and on behalf of the parties at the appeal hearing .

Nature of appeal

Under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, as this is, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis that: …..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).
Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion concerning the grant of leave which it will ordinarily only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84 (2)], as follows.
Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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.
A decision under appeal can be said to be against the weight of evidence where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal Member could reach: Collins v Urban at [77].
It is necessary to show that there was a significant possibility that a different, more favourable, result would have been achieved. For reasons set out below, the Appeal Panel is not satisfied that a more favourable result would have been achieved and leave to extend time for the filing of the notice of appeal is refused and leave to appeal is dismissed.

Late appeal

The appellant was six months late in lodging the appeal. In accordance with rule 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules), the appeal was required to be lodged within 28 days of the 4 April 2023 decision, but was not lodged until 8 December 2023. The appellant, in the notice of appeal, sought an extension of time in which to bring the appeal.
As explained below, whilst the appellant provided an explanation for the delay, we consider that the explanation was relatively weak and that the prospects of success on appeal were insufficient to warrant the grant of the required extension. We expand on prospects below.
In Jackson v Land and Housing Corporation (NSW) [2014] NSWCATAP 22 at [22] the relevant principles were outlined by the Appeal Panel. In Kelly v Szatow [2020] NSWSC 407 at [28]-[32], the Court summarised the principles that apply to an extension of time to appeal. Relevant considerations include the length of the delay, the reason for such delay, the strength of the appellant's case and whether the respondent would be prejudiced by granting the extension.
The appellant bears the onus of demonstrating that strict compliance with the time frame would work an injustice: see Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30.
Here, there are no reasonable prospects of success, there is no reasonable explanation for the delay, the delay itself is extensive and there is a suggestion of prejudice in the relevant sense. For those reasons we decline to grant an extension of time.

Was the appellant denied procedural fairness because the hearing proceeded in his absence?

In considering the merits of the appeal we have had regard to the first ground of appeal, a denial of procedural fairness, on the basis that the hearing proceeded in the absence of the appellant. It was confirmed during the appeal hearing that the ASIC search for the relevant time period recorded the appellant's business address as 714/2 Waterview Drive, Lane Cove, NSW 2026. The appellant acknowledged that he was unaware that it was incumbent upon him to update the ASIC search from time to time if the registered business address changed and that he had not updated his address.
The Tribunal sent a hearing notice to the appellant's registered business address on or about 11 January 2023. The matter came before the Tribunal at the first return date on the 23 February 2023 and the address which was named on the application form as 300A Burns Road, Lane Cove 2026 was amended to reflect the registered business address as per the ASIC search provided by the respondent. The appellant confirmed that his business had moved from the registered address sometime in early 2023.
The Tribunal's approach to amend the address at the first return date to ensure service of the documents on the business' registered address was the correct and orthodox approach to ensure that service of future hearing notices would reach the respondent at his registered address. It was equally orthodox to proceed to hearing in the absence of the respondent.
Rule 35 sets out the circumstances in which the CCD may go ahead to hear a case in the absence of a party who fails to attend a hearing. Relevantly, it provides: 35 Ex parte proceedings in Consumer and Commercial Division (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Where a hearing is held for proceedings to which this rule applies, the Tribunal may proceed to hear the proceedings in the absence of a party who has failed to attend the hearing if: (a) the Tribunal is satisfied that notice of the hearing was duly served on the party, or (b) the Tribunal, being satisfied that service of notice of the hearing on the party has been duly attempted or having given directions under rule 15 to bring it to the notice of the party, considers that justice requires that the matter be dealt with in the absence of the party. …
The decision whether a party has been duly served relies on Rule 13 of the Rules 13 Service, giving and lodgment of notices or documents (1) Application of rule This rule applies for the purposes of each of the following- (a) the Act and the statutory rules under the Act, (b) the Administrative Decisions Review Act 1997 and the regulations under that Act. (2) Means for service or giving of notices and documents A notice or document may be served on or given to a person or body-- (a) by means of personal service, or (b) by posting a copy of the notice or document, addressed to the person or body-- (i) to the person's or body's address for service, or (ii) if the person or body does not have an address for service, to the person's or body's business or residential address (or the business or residential address last known to the person or body serving the notice or document), or (c) by leaving a copy of the notice or document, addressed to the person or body-- (i) at the person's or body's address for service, or (ii) if the person does not have an address for service, at the person's or body's business or residential address (or the business or residential address last known to the person or body serving the notice or document), or (d) in the case of a Government Department--by leaving a copy of the notice or document at, or by posting the notice or document to, any office of that Department addressed to the head of the Government Department, or (e) in the case of a person or body whose address for service includes a DX address in New South Wales--by leaving a copy of the notice or document, addressed to the person or body, in the DX box at that address or in another DX box for transmission to that DX box, or (f) in the case of a person or body that has consented to service by means of a fax sent to a fax number specified by the person or body--by faxing a copy of the notice or document, addressed to the person or body, to that fax number, or (g) in the case of a person or body that has consented to electronic service by means of an email address or mobile phone number specified by the person or body--by transmitting the notice or document in an electronic format, addressed to the person or body, to that address or number, or (h) in the case of service on a corporation--by serving a copy of the notice or document on the corporation in any manner in which service of such a notice or document may, by law, be served on the corporation, or (i) in such other manner as the Tribunal or a registrar may direct in a particular case. (3) Service, giving and lodgment of documents with Tribunal A notice or document may be served on, given to or lodged with the Tribunal-- (a) by leaving it at the Registry, or (b) by sending it by post to the Registry, or (c) by any other means, including electronic means, as the Tribunal has made available for use for the service, giving or lodgment of notices or documents with the Tribunal. …
It is important to note that neither the NCAT Act nor the Rules contains a provision which entitles the Tribunal to determine an application "in default of an appearance by the respondent." Rule 35 provides for the Tribunal, in defined circumstances, to "hear the proceedings" in the absence of a party who has not attended. This still requires a hearing in which the applicant must prove its case.
During submissions, the appellant conceded that he had not updated the ASIC records regarding the principal place of business address. It is not disputed that it is the business owner's obligation to notify any changes to its principal place of business address with ASIC. It is further not in dispute that the relevant address in the ASIC records was no longer correct at the time the application form was filed by the respondent.
In the circumstances that we have referred above it is clear that the appellant was served with notice of the commencement of these proceedings, and with the application itself, in accordance with r 13(2)(b)(i) and 13(3)(b). These documents were served to the last known business address of the appellant being his then registered office. Accordingly, we see no merit in the ground of appeal based upon procedural unfairness.
For the same reasons, we see no merit in the ground of appeal, for which leave is required, that the decision against the appellant was not fair and equitable because the appellant was not aware of the proceedings. Even if that was the fact, about which we have made no finding, procedural fairness with respect to the appellant results from adequate notice to the appellant's business through permitted means of service and not from the state of knowledge of the business owner. In this case, the claimed lack of knowledge of the proceedings resulted from Mr Inston's failure to correct the ASIC records. In such circumstances we are not satisfied that the process that was followed was not fair and equitable.
The appellant was also served with notice of the Tribunal's decision, in accordance with this same rule and section.
For these reasons we are not of the view that the appellant has established an error on a question of law, nor has the appellant established a leave ground.
This ground of appeal is dismissed.

The appellant installed the roof valley in accordance with the respondent's specifications

We consider that this ground of appeal concerns a question of fact, that is, whether the appellant incorrectly installed a faulty valley. The appellant submits that the findings and orders are against the weight of evidence (see submissions page 7 of 58). The appellant does not deny that the valley was installed defectively; rather, the gravamen of the appellant's complaint is that the respondents instructed him to install the valleys and gutters of the roof in a faulty fashion.
In the original application form the respondents state: In early 2020 around February we hired Harrison Winston to fix a major leak in our roof where water was coming through the ceiling in the front bedroom. He diagnosed the problem as being a faulty valley. At the same time we hired Harrison to fix the leak, we also had him completely replace the front roof and gutters off the house, because it was old and likely to leak elsewhere. We paid a total of $12,586.45, we assume about 1/3 of the cost was to fix the leaking valiant gutters. A paid invoice attached. In February 2022, the exact same spot on the ceiling began leaking again. Our insurer, Allianz, informed us through their assessors that the roof Harrison had installed over the valley was faulty.
It was a significant part of the respondents' claim that the defective valley required replacement.
At page two of the appellant's bundle the appellant states: "Later that day after getting back to site at the Residence, the Respondent stopped me and despite my advice I was following best practice insisted me to carry out works to her specification. This required me to undo works done at my own cost".
The appellant submits that he was instructed, in writing, to install the valley with a significant overlap, contrary to good building practice. The instruction was contained in an email dated 24 March 2024 where the respondents stated: The lead flashing in the valley is not how we want it. We want that to be hidden. See #3 below (and also #3 in the attached document) we sent for the original quote. One of our main objections to the original roof was the noticeable lead. Please can you hide it under the tiles (emphasis added).
In a tax invoice from Carl the Roofer, a subsequent rectifying builder, the respondents obtained a quote to "remove the roof tiles on either side of the valley over the front bedroom, then extend the Sarcon so it sits in the valley and not underneath".
The appellant has not contradicted the Carl the Roofer quote, nor does he dispute that he installed the waterproofing under the tiles, contrary to good work practices (see page 5 of 58 of the appellant's submissions). There is no evidence that the respondents' email was contrary to advice given to them by the appellant. The respondents were not builders and it was up to the appellant to point out good work practices.
In light of the admission that he did not follow accepted building practice, we consider that the Tribunal correctly found that "the respondent failed to complete the works at [xxxx xxxx xxxx] Tamarama in a proper and workmanlike fashion" based on the admission by the appellant that he acquiesced to install the flashing in a manner that was not consistent with the Australian Consumer Guarantees, in a proper and workmanlike manner. It is not a defence to state that the respondent instructed the appellant, a licensed roofer, to do so.
The Tribunal correctly considered the claim as a consumer claim under s 79E of the Fair Trading Act 1987 (NSW) (the FT Act). The Tribunal concluded that the respondent had breached the relevant consumer guarantee and accordingly was liable to pay for the loss and damage.
In light of the Kase Building and Restoration Group quote (the Kase quote) the Tribunal assessed damages in accordance with the only evidence before it, untraversed and unopposed. The Tribunal considered that the margins applied in the Kase quote were excessive and that some duplication of work should be deducted but overall correctly, in our view, made an assessment of damages in accordance with the only quote/report before it.
It is further the appellant's submission that the work identified in the Kase quote was "substantially unrelated to the damages" and "not done by the appellant": see p7 of 58. As best as we understand his submission, the appellant asserts that the work quoted for relates to guttering that the appellant claims he never performed (p2/2 attached to notice of appeal). However, as is apparent from the transcript and the application form, the respondent gave uncontroverted evidence about the scope of work by tendering the appellant's invoices. The quotes detailed the work as "roof replacement, gutter replacement dismantle old gutters from front of property, downpipe replacement, eave and timber". The respondents submit, and the Tribunal was entitled to find, that the paid invoices indicate payment for the entire roof and gutter replacement "without exclusions". Further, the Member correctly enquired whether there was a clear correlation between the scope of work agreed between the parties and the Kase quote to ensure that there would not be an award for damages for work not performed by the appellant (see transcript page 39 of 58). The appellant has failed to establish, on the available evidence, that the Kase quote was unreasonable because it included repairs for work not performed by the appellant.
As the appellant has failed to provide any expert report or quote to the contrary, we are unable to arrive at a finding that the Member came to a wrong conclusion or that the decision to award $7330 was so manifestly unjust that it may constitute an error under House v The King principles sufficient to grant leave to appeal (House v The King (1936) 55 CLR 499). The majority (Dixon, Evatt & McTiernan JJ) identified five errors that would lead the appellate court to exercise its own discretion in substitution for that of the judge: 1. The Tribunal acted on a wrong principle, 2. The Tribunal allowed extraneous or irrelevant matters to guide him or her; 3. The Tribunal mistook the facts, 4. The Tribunal did not take into account some material consideration, or 5. The outcome was unreasonable or plainly unjust.
We are not satisfied that any of these errors are likely established if an extension of time was granted.
Whilst the appellant asserts that the Kase quote is not impartial (see p1 of 58) the appellant has not provided any explanation why the Tribunal should have disregarded the Kase quote, nor has evidence to the contrary of the quote been provided either below or on appeal. We do not believe that the appellant would have any prospects of success on the limited material he has lodged in the appeal. We consider that the appellant has failed to establish reasonable prospects of success in respect of this ground of appeal and accordingly we would not extend time for the filing of the notice of appeal.

Ground 3

The appellant is not a lawyer and was not legally represented. We refer to the appellant's reference in the notice of appeal that the appellant is a 'creditor' and that there remains outstanding a sum under the contract that should have been accounted for.
The appellant provided invoice No 405. It is dated 15 March 2021, which is ten months after the appellant left the site, having completed the contract work subject of this appeal. The description of the work is "Call out fee, Downpipe purchase". The appellant contends that his invoice No 405 in the amount of $253 has not been paid. Whether this is work that was performed under the original scope of work and therefore formed part of the contract or whether the parties formed a new contract would have been a live question for the Tribunal to determine. Even if the Appeal Panel accepted that the sum of $253 is due and owing under the contract, which we do not, it was incumbent upon the appellant to appear at the hearing and to raise any amount owing by way of defence, or alternatively under the Fair Trading Act. If that had been done, the Tribunal may have considered making an order under section 79O of the FT Act, wholly or partly in favour of the appellant (respondent below).
The appellant did not appear at the hearing for reasons set out above and the Tribunal proceeded in his absence. We found that the Tribunal did not fall into error in doing so, as the appellant was deemed to have been served. The Tribunal was not required to take into account any debt, if owing, to the appellant and no error on a question of law has been established. We consider that the appellant has failed to establish reasonable prospects of success in respect of this ground of appeal and accordingly we would not extend time for the filing of the notice of appeal.
Accordingly we make the following orders:

Orders 1. Leave to extend time for filing of the notice of appeal is refused. 2. The appeal is dismissed.

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: 31 July 2024

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Judgment (11 paragraphs)

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