Ilhan v Easy Automatic Gate Pty Ltd

Conclusion

1. We are satisfied that the owner has raised questions of law and accordingly she has an appeal as of right under s 80(2)(b) of the NCAT Act in respect of the following questions: 1. whether the Tribunal failed to afford procedural fairness to the owner by reason of permitting the builder to rely on the evidence which it lodged on 20 October 2023, 28 November 2023 and 18 March 2024; 2. whether the Tribunal constructively failed to exercise its jurisdiction by not addressing the question of whether the builder by being unlicensed and the building contract failed to comply with the HB Act; 3. whether the Tribunal constructively failed to exercise its jurisdiction by not addressing the question of whether the builder breached the building contract by reason of the top rail of the gate not being aligned with the top rail of the front fence.
2. Otherwise, the issues raised require leave or relate to the question of costs.

The issues for determination in the appeal

1. We will deal with issues for determination in the appeal under five headings: 1. issue 1: whether the Tribunal failed to afford procedural fairness to the owner by reason of permitting the builder to rely on the evidence which it lodged on 20 October 2023, 28 November 2023 and 18 March 2024; 2. issue 2: whether the Tribunal constructively failed to exercise its jurisdiction by not addressing the questions of whether the builder by being unlicensed and whether the building contract complied with the HB Act; 3. issue 3: whether the Tribunal constructively failed to exercise its jurisdiction by not addressing the question of whether the builder breached the building contract by reason of the top rail of the gate not being aligned with the top rail of the front fence; 4. issue 4: whether the owner should be granted leave to appeal against the dismissal order; 5. issue 5: the costs of the appeal.
2. Before turning to these issues, we have set out the evidence of the parties which is relevant to one or more of them.

The evidence of the parties

1. The documentary evidence before the Tribunal comprised the following documents: 1. for the owner: the 15 September 2023 Ilhan affidavit and the O'Donnell report; 2. for the builder: the 18 October 2023 Alca statement, the 24 November 2023 Alca statement, the 15 March 2024 Alca statement, the 15 March 2024 Tieu statement and the 15 March 2024 Erciyas statement.
2. In the 15 September 2023 Ilhan affidavit, the owner relevantly gave the following evidence: "3. On Friday 29 July 2022 the gate and fence were installed. I advised supplier I was not happy with the gate as it was not graded to fit to the slope of the driveway. The supplier told me that I had wanted it that way, which meant there was a large gap at the bottom of the gate and the top rail was not in line with the existing front fence. In addition, the track the gate ran along was sitting on top of uneven cobblestone causing a very dangerous trip hazard. I attach photos as Annexures C.1, C.2 and C.3 to show the installed gate and track. 4. The fence had been measured and quoted to be installed in a continuous piece (one section between the pillars of existing gazebo). Instead, it had been stepped down the slope in sections, the steps were all uneven and the fixing to the pillars was irregular and caused major damage to the brickwork on most of the pillars. I attach photos as Annexures D.1 and D.2."
3. In the O'Donnell report, Mr O'Donnell, who was provided with photographs of the works carried out by the building identified with the letters "OP" expressed the following opinions: 1. as to the side fence: "OP P01. This photo depicts the first two sections of the East side fence supplied and installed by the Contractor and are typical of the remainder of the fence. The vertical members in the fence panels are not vertical and the bottom and top rails are not in a single line being almost parallel to the ground. In my opinion the Contractor has not complied with the HBA because the work has not been completed in a workmanlike manner. In my opinion the top and bottom rails, if they are going to be stepped should be level or if they are running parallel with the ground, they should be in one line." "OP P03. The photo shows the fence panel beyond the brick column not fixed to the column. In my opinion the Contractor has not complied with the HBA because they work has not been completed in a workmanlike manner as the fence panel should be fitted to the brick column." 1. as to the side gate: "OP P05 This photo depicts how the gate was finished by the Contractor. The gate has not been pre-fabricated to suit the location. The top rail of the gate is not in line with the top rail of the existing front fence and the end of the gate is not vertical or plumb and in line with the letter box pillar. In my opinion the work and the materials used in doing the work are not reasonably fit for the specified purpose or result and the work has not been completed in a workmanlike manner as required by the HBA." "OP P06 This photo depicts the Contractors attempt to line up the top rail of the gate with the existing front fence through fixing a solid triangular piece of metal to the bottom rail of the gate. In my opinion the materials used in doing the work are not reasonably fit for the specified purpose or result and the Contractor has not complied with the HBA because their work has not been completed in a workmanlike manner." "OP P09 I am instructed the Contractor fitted the sliding gate track directly to the surface of the Owners rough cobblestone driveway. In my opinion the track as fitted is defective as it presents as a safety and trip hazard and the Contractor has not complied with the HBA because the work has not been completed in a workmanlike manner."
4. In the 18 October 2023 Alca statement, Mr Alca relevantly gave the following evidence: "6. On or about June 2022, I attended the Site and completed measurements. The Applicant was present at the Site during such preliminary works. We used a laser pointer gun to assist with measurements. 7. The Applicant confirmed and was satisfied with the proposed gates and fencing systems."
5. In the 24 November 2023 Alca statement, Mr Alca relevantly gave the following evidence: "4. The Works were completed as per the Quote on or about 29 July 2022. 5. The Applicant indicated dissatisfaction in relation to the gap between the gate and the ground floor. 6. The Applicant changed her mind to extend the gate to the fence height. On the earlier site visit when measurements were made and discussed with the Applicant such concerns were not made. During such measurement discussions, a laser measurement instrument was used to note the markings."
6. In the 15 March 2024 Tieu statement, Mr Tieu relevantly gave the following evidence: "4. On or about June 2022, Erkan and I attended the Site and completed measurements regarding a gate and fence with the assistance of a laser pointer measurement gun (Laser pointer). 5. Whilst pointing the Laser pointer, the Applicant, Ms ILHAN was also present. 6. The laser point was shown to the applicant on both walls; showing the slope of the gate between the brick pillars, and the clearance bet een the gate and the cobalt stone ground (Measurements). 7. During the Measurements taking place, a conversation between the Applicant and I took place, words to the effects of: I: "Because of the slope of the land, the fence will be installed like steps, going down the hill" Ms Ilhan: "Yes, that is fine" 8. The Applicant agreed to the measurements proposed.
7. In the 15 March 2024 Erciyas statement, Mr Erciyas relevantly gave the following evidence: "4. On or about June 2022, Will and I attended the Site and completed measurements with the assistance of a laser pointer measurement gun (Laser pointer). 5. Will and I took measurements together at the Site regarding the fencing and the gate. 6. Whilst pointing the Laser pointer, the Applicant, Ms Ilhan was present. 7. The laser dot point was indicated to the Applicant on both walls, showing the height of the gate, where it will reach across and the gap and clearance between the bottom half and the cobblestone ground (Measurements). 8. Upon discussing the Measurements with the Applicant, Ms ILHAN agreed to the installation, and stated words to the effect: "this is fine, / want it like this." 9. Will and I also drew a sketch of the measurements and showed the Applicant in which she accepted. This made it easier to understand as it was a visual of the proposed Gate. 10. In accordance with the Measurements, in late July 2022, our team attended the Site for the installation of the gate and fence. 11. In relation to the fence between the Site and the neighbouring property, east side, the neighbour also came by and observed the location and the approximate 8 metre long fence line. 12. It was indicated to the Applicant with sloping land, it is common to install the fence posts in a step and step manner. The Applicant indicated that she was satisfied with the design of the fence line, as proposed above. 13. Accordingly, the fence was installed in the appropriate place that Jerene surveyed."
8. At the hearing on 20 March 2024, the owner explained her evidence, and answered questions asked and addressed comments made by the Tribunal. Mr Alca then explained the evidence of the builder, and answered questions asked and addressed comments made by the Tribunal.

Issue 1: whether the Tribunal failed to afford procedural fairness to the owner by reason of permitting the builder to rely on the evidence which it lodged on 20 October 2023, 28 November 2023 and 18 March 2024

1. The builder did not comply with: 1. the 6 September 2023 orders by reason of its: 1. lodgment and service of the 18 October 2023 Alca statement on 20 October 2023 and 25 October 2023 respectively; 2. lodgment and service of the 24 November 2023 Alca statement on 28 November and 24 November 2023 respectively; 1. the 29 January 2024 orders by reason of its lodgment and service of the 15 March 2024 Alca statement, the 15 March 2024 Tieu statement and the 15 March 2024 Erciyas statement on 18 March 2024.
2. We do not accept the owner's submissions that this delay constituted unfairness to her, and she thereby suffered disadvantage. She had the 18 October 2023 Alca statement five months before the hearing. She had the 24 November 2023 Alca statement four months before the hearing. She had the 15 March 2024 Alca statement, the 15 March 2024 Tieu statement and the 15 March 2024 Erciyas statement two days before the hearing. Finally, she had an opportunity to respond to this material at the hearing on 20 March 2024.
3. In order to establish an entitlement to have the orders that aside on this ground, there must be a practical injustice and an error that is material: see, for example, Sinha v NSW Land and Housing Corporation [2024] NSWCATAP 130 (Sinha) at [64]-[67], and the cases referred to therein.
4. This necessity of the materiality of a denial of procedural fairness referred to in Sinha at [67] applies equally to other errors of law: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [40]-[41] (Beech-Jones J).
5. We are not satisfied that the owner has established that she suffered any practical injustice or that the Tribunal failed to afford procedural fairness to her by reason of permitting the builder to rely on the evidence which it lodged on 20 October 2023, 28 November 2023 and 18 March 2024. Even if the owner had established that the Tribunal made an error of law in permitting the builder to rely on the evidence which it lodged on 20 October 2023, 28 November 2023 and 18 March 2024, then we would not have been satisfied that she had demonstrated that there exists a realistic possibility that the outcome of the proceedings could have been different had this error not been made.
6. For these reasons, we reject the owner's ground of appeal that the Tribunal made an error of law by permitting the builder to rely on the evidence which it lodged on 20 October 2023, 28 November 2023 and 18 March 2024.

Issue 2: whether the Tribunal constructively failed to exercise its jurisdiction by not addressing the questions of whether the builder by being unlicensed and whether the building contract complied with the HB Act

1. Neither the owner nor the builder made any oral submissions on this issue.
2. We accept that the owner through the opinions of Mr O'Donnell expressed in the O'Donnell report raised the questions of whether the builder and the building contract failed to comply with the HB Act and that the Tribunal did not address these issues.
3. The HB Act relevantly includes the following provisions: 1. a person must not contract to do any residential building work except as or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work: s 4(1)(a); 2. where the contract price is between $5,000 and $20,000, the contract must be in writing and be dated and signed by or on behalf of each of the parties to it, and must contain specified details including the names of the parties, including the name of the holder of the contractor licence shown on the contractor licence, and the number of the contractor licence: s 7AAA(2), (3)(a) and (b); 3. a person who contracts to do any residential building work and who so contracts in contravention of s 4 or in contravention of any other provision of the HB Act is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, and the contract is unenforceable by the person who contracted to do the work. However, the person is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person: s 10(1)(a) and (c); 4. warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract to do residential building work: s 18B(1).
4. We are satisfied that the builder failed to comply with ss 4 of the HB Act by reason of being an unlicensed contractor. We are also satisfied that the builder failed to comply with s 7AAA(2), (3)(a) and (b) of the HB Act in relation to the absence of the names of the parties, including the name of the holder of the contractor licence shown on the contractor licence, and the number of the contractor licence on the building contract.
5. However, these matters were not relevant to the real issues in dispute, namely whether the works had been properly carried out in accordance with the building contract and relevant statutory warranties and whether the owner was entitled to a remedy because the works did not meet these requirements.
6. For these reasons, we reject the owner's ground of appeal that the Tribunal made an error of law by constructively failing to exercise its jurisdiction by not addressing the questions of whether the builder by being unlicensed and the building contract failed to comply with the HB Act.

Issue 3: whether the Tribunal constructively failed to exercise its jurisdiction by not addressing the question of whether the builder breached the building contract by reason of the top rail of the gate not being aligned with the top rail of the front fence

1. Neither the owner nor the builder made any oral submissions on this issue.
2. We accept that the owner through her own evidence and the opinions of Mr O'Donnell expressed in the O'Donnell report raised the question of whether the builder breached the building contract by reason of the top rail of the gate not being aligned with the top rail of the front fence and the Tribunal constructively failed to exercise its jurisdiction by not addressing this question.
3. The Tribunal found the "materials were as ordered". It did not expressly deal with whether it was a term of the contract that the top of the gate be installed at the same level and parallel to the adjacent front fence.
4. We are not satisfied any failure to deal with this issue was material to the decision made as the owner has failed to demonstrate that that there exists a realistic possibility that the outcome of the proceedings could have been different had this error not been made for the following reasons: 1. the words "matching similar" in the building contract immediately follow the words "in tubular design with knuckle" and so on their proper interpretation indicate the gate was to have a similar design and shape as the front fence, and do not convey the meaning that the top rail of the gate was to align with the top rail of the front fence. As noted above, the Tribunal found it did; 2. the unchallenged evidence of Mr Erciyas in the 15 March 2024 Erciyas statement is that the owner agreed with the measurements for the gate including its height.
5. For these reasons, we reject the owner's ground of appeal that the Tribunal made an error of law by constructively failing to exercise its jurisdiction by not addressing the question of whether the builder breached the building contract by reason of the top rail of the gate not being aligned with the top rail of the front fence.

Issue 4: whether the owner should be granted leave to appeal against the dismissal order

Introduction

1. Having regard to the principles in Cominos at [13], we have given consideration to the reasons, the notice of appeal and the owner's appeal documents as to whether it is possible to discern grounds that raise a basis for leave to appeal.
2. The substantive complaint of the owner is that the Tribunal failed to properly evaluate her evidence in making its central findings that: 1. there was no defect in the side fence by reason of its stepped installation; 2. there was no defect in the gate by reason the gate track being affixed to the cobblestone driveway.
3. We have discerned that the first basis for leave to appeal raised by the owner is that this failure to properly evaluate the evidence resulted in the dismissal order being not fair and equitable and these central findings being against the weight of evidence.
4. We have discerned that the second basis for leave to appeal raised by the owner is that there is significant new evidence.
5. In considering whether the owner has established a basis for leave to appeal we have had regard to the following legal principles: 1. photographs can be deceptive, particularly in relation to perspective and distance. Great care must be taken in interpreting photographic evidence. This is particularly the case where there is no evidence as to the precise position of the camera when the photographs were taken: Goode v Angland (2017) 96 NSWLR 503 [2017] NSWCA 311 at [93]-[96] (Beazley P with Meagher JA at [179] and Leeming JA at [212] agreeing). These principles are applied in the Tribunal: X-Build Construction Services Pty Ltd v O'Rourke [2020] NSWCATAP 181 at [64]. 2. a court is not obliged to take the opinion of an expert as conclusive even though no other expert is called to contradict it: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [87] (Heydon JA). We are satisfied that this principle applies equally to proceedings in the Tribunal.

Whether the decision of the Tribunal was not fair and equitable was not fair and equitable

Whether the findings of the Tribunal were against the weight of evidence

1. Contrary to the evidence of the owner, the building contract does not specify that the side fence was to be installed in a continuous piece. The evidence of Mr Tieu and Mr Erciyas is that the owner approved the side fence to be stepped. Mr O'Donnell in his commentary on photograph OP P01 accepts that the side fence could be stepped or in one line. His criticism of the side fence as depicted in photograph OP P01 is that the vertical members in the fence panels are not vertical, apparently that the top and bottom rails are not level and the end of the fence is not fixed to the pergola column.
2. We have inspected photograph OP P01 and are not satisfied that it depicts that the vertical members in the fence panels are not vertical and that the top and bottom rails are not level. We have inspected photograph OP P03 and are satisfied that it depicts that the end of the fence is not fixed to the pergola column.
3. As to the finding of the Tribunal that there was no defect in the side fence by reason of its stepped installation, we are not satisfied that 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 for the following reasons: 1. the building contract did not specify the method of installation; 2. there is no evidence other than the equivocal photograph OP P01 that it was installed with the vertical members in the fence panels not being vertical and that the top and bottom rails not being level.
4. The only evidence as to the alleged defect of the gate track being affixed to the cobblestone driveway was the evidence of the owner and Mr O'Donnell. We have inspected photograph OP P09 and are satisfied that it depicts that the gate track has been affixed to the surface of the cobblestone driveway.
5. As to the finding of the Tribunal that there was no defect in the gate by reason the track being affixed to the cobblestone driveway, we are not satisfied that 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 for the following reasons: 1. the building contract did not specify the method of installation of the gate track; 2. there was no evidence of any applicable building standard or industry practice as to the method of installation of the gate track.
6. Even if this finding is against the weight of evidence and the Tribunal should have found that the installation of the gate track was defective by reason of being a trip hazard, then the Tribunal made the further finding that the rectification works by Bayside had not eliminated the trip hazard. It follows that the owner could not have established that she had suffered any loss by reason of defective installation of the gate track.
7. It follows that we are not satisfied that the owner may have suffered a substantial miscarriage of justice because the decision of the Tribunal was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act and against the weight of evidence within cl 12(1)(b) of Sch 4 of the NCAT Act. Therefore, we refuse leave to appeal on these grounds.

Whether there is significant new evidence

1. The owner is seeking to rely on the following documents as constituting significant new evidence: 1. her email to the builder sent on 23 February 2024 (the 23 February 2024 Ilhan email); 2. a line tracing of the gate installed by the builder; 3. photographs of the existing front fence in relation to slope of land for the gate and the side fence; 4. photographs of significant gate hardware and its installation to the existing retaining wall; 5. a photograph of the inoperable gate; 6. photographs of the existing side fence site showing the slope in relation to the pergola pillar levels; 7. a line tracing of the side fence installed by the builder; 8. photographs of the gate and fence work by the builder including digital time/date details; 9. the activity report.
2. The owner submitted that she should be permitted to rely on these documents as they clarified the existing evidence.
3. The builder opposed the owner being permitted to rely on these documents.
4. We are not satisfied that these documents were not reasonably available at the time of the hearing on 20 March 2024 for the following reasons: 1. the 23 February 2024 Ilhan email was already in existence prior to the hearing; 2. as to the other documents, there is no evidence that they could not have been obtained prior to the hearing.
5. It follows that we are not satisfied that the owner may have suffered a substantial miscarriage of justice because there is significant new evidence which was not reasonably available at the time of the hearing within cl 12(1)(c) of Sch 4 of the NCAT Act. Therefore, we refuse leave to appeal on this ground.

Issue 5: the costs of the appeal

1. The owner applied for the costs of the appeal.
2. Rule 38A deals with costs in internal appeals, and relevantly provides: 38A Costs in internal appeals … (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.
3. For the purpose of r 38A of the NCAT Rules the amount claimed or in dispute is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57].
4. Consequently, it appears that r 38A(2) of the NCAT Rules is not applicable to this appeal because the amount in dispute in the appeal is not more than $30,000. If so, the position of each party paying their own costs specified in s 60(1) of the NCAT Act is applicable to the appeal unless there are special circumstances warranting an award of costs in favour of the owner within s 60(2) of the NCAT Act.
5. Prima facie, there should be no order as to costs. We will make this order.
6. However, as the parties may wish to consider their position having regard to our decision in this appeal, we have decided to make procedural orders in respect of the costs of the appeal.

Orders

1. We make the following orders: 1. Leave to appeal is refused and the appeal is dismissed. 2. Subject to order (3), there is no order as to the costs of the appeal. 3. If any party wishes to make an application to vary order (2) above, the applicant (the costs applicant) is to file and serve a costs application, including submissions limited to three pages and any evidence in support, within 14 days from the date of this decision, whereupon order (2) will cease to have effect. 4. The respondent to the costs application is to file and serve any submissions limited to three pages and any evidence in opposition within 28 days from the date of this decision. 5. The costs applicant is to file any submissions in reply limited to two pages within 35 days from the date of this decision.

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: 02 August 2024