Impala Kitchens Pty Ltd v O’Donoghue

1. We note that the builder did not join ISL as a party to the appeal despite the fact that ISL was a party in the proceedings at first instance and orders were made for payment in its favour. This was not raised during procedural directions or during the appeal.
2. After the hearing, the Appeal Panel sought submissions from the parties and from ISL about whether ISL should be joined and is a necessary and proper party. We also sought submissions on whether we could dispense with a hearing pursuant to s 50 of the NCAT Act in relation to the joinder issue.
3. We received submissions from the owner and the builder on 4 March 2025 and 5 March 2025 respectively.
4. Each submitted ISL is not a necessary party to the appeal. The builder submitted that ISL is not a necessary party because the "original contract was signed in the name of [the owner]" and that ISL "were never a party to the contract". The owner submitted that ISL is not a proper or necessary party and should not be joined as "the Appellant erroneously included ISL as a respondent in the initial proceedings" and that "ISL played no independent or separate role in the original matter before the Tribunal".
5. The builder did not expressly make submissions in relation s 50 of the NCAT Act. The owner consented to the issue being determined on the papers.
6. Even though ISL did not put on their own submissions, the owner, through whom ISL's claim was prosecuted at first instance, has provided submissions. We therefore conclude that ISL has had an opportunity to make submissions in this regard.
7. As noted above at [3], there were two applications before the Tribunal at first instance. The first was the application brought by Impala Kitchens Pty Ltd against Anne O'Donoghue. The second named both Anne O'Donoghue and ISL as applicants and Impala Kitchens Pty Ltd as the respondent.
8. The orders the subject of the appeal were made in favour of both applicants to the second application, requiring Impala Kitchens Pty Ltd to pay Anne O'Donoghue and Immigration Solutions Lawyers Pty Ltd an amount of $20,375.76.
9. Rule 29 of the NCAT Rules states that the parties to an internal appeal are the appellant and "any person or body (other than the appellant) who was a party to the proceedings before the Tribunal at first instance". Section 44(1) of the NCAT Act gives the Tribunal power to make an order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party. A person should be joined if they are a "proper or necessary party" (Commissioner for Police, NSW Police Force v Fine (2014) 87 NSWLR 1; [2014] NSWCA 327 at [38]).
10. In John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 at [131], the High Court identified that:

"... where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined".

1. ISL, a non-party to the appeal, has a right to enjoy the benefit of the order made in its favour by the Tribunal at first instance. It also has a right to benefit from the orders of the Appeal Panel disposing of the appeal and not to be at risk of needing to respond to a further appeal if the unsuccessful appellant here were to attempt to relitigate the matter against ISL as respondent. Conversely, even had we decided in favour of the appellant, ISL would have been a necessary party since the appeal would have disturbed an order in its favour.
2. For these reasons, ISL will be joined as a party to give finality to the appeal.

1. We are not satisfied the builder has established that there has been error on a question of law or that there has been a substantial miscarriage of justice for one of the reasons identified in cl 12. Accordingly, we refuse leave to appeal and the appeal is dismissed.

1. In her written submissions dated 31 October 2024, the owner seeks an order that the builder pay her legal costs of and incidental to the appeal pursuant to r 38(2)(b) of the NCAT Rules or s 60(2) of the NCAT Act on the following grounds:

(1) The owner has made an application for costs in the proceedings at first instance that is yet to be determined. The owner contends that r 38 applies because the amount in dispute exceeds the threshold of $30,000.

(2) In the alternative, the owner submits that special circumstances warrant an award of costs under s 60(2) of the NCAT Act.

(3) The owner's legal costs for the appeal are $7,469 inclusive of legal fees and disbursements.

1. The builder submits that the costs of the appeal should be borne by each party and that there is no reason why the builder should bear any of the owner's costs for appealing against the Decision.
2. At the hearing of the appeal, the Appeal Panel indicated it would seek submissions on costs after disposition of the appeal. Directions will be made accordingly.

(1) The time for the appellant to lodge a Notice of Appeal from the orders of the Tribunal made on 22 July 2024 is extended to 11 September 2024.

(2) The tender of the affidavit of Jackie Sciberras sworn 12 November 2024 is rejected.

(3) The tender of the additional documents attached to the appellant's submissions, referred to at [41] of these reasons, is rejected.

(4) To the extent leave to appeal is required, leave is refused.

(5) The appeal is dismissed.

(6) A hearing in relation to the joinder issue is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(7) Immigration Solutions Lawyers Pty Limited is joined as a respondent to the appeal.

(8) If a party to the appeal wishes to make an application for costs, the following directions apply:

(a) the party applying for costs (the costs applicant) must, within 14 days after the publication of this decision, give the other party (the costs respondent) and the Registry any submissions and documents the costs applicant intends to rely on in relation to the application, including on the question as to whether costs should be fixed or assessed;

(b) the costs respondent must, within 14 days after receiving the submissions and documents of the costs applicant, give the costs applicant and the Registry any submissions and documents the costs respondent intends to rely on in response to the application for costs;

(c) the costs applicant must, within 7 days after receiving the submissions and documents of the costs respondent, give the costs respondent and the Registry any additional submissions and documents the costs applicant intends to rely on in response to the costs respondent's submissions and documents;

(d) the parties are to include, in their written submissions concerning the application for costs, their submissions about whether they consider that a hearing in relation to the application can be dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

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.