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This is an appeal from a decision made in the Consumer and Commercial Division of the Tribunal published 22 January 2019 (which we will refer to as the Decision). The appellant is the homeowner and the respondent to the appeal is the builder. We will refer to each as the homeowner and the builder.
The Decision contained an order that the builder pay to the homeowner the sum of $33,068.05. The homeowner's appeal states that an additional amount of $18,693.00 should have been included in the order. In brief terms, this amount is made up of alleged payments totalling $7,000.00 which the homeowner says were paid to the builder but were not taken into account in the calculations recorded in the Decision. The second component of the amount claimed is an amount to compensate the homeowner for a fence and gates which the homeowner says were included in the contract scope of works to be undertaken by the builder, but which were not in fact undertaken. The claim, totalling $11,693.00, is compensation being the cost of having a third party install the gates and fence.
[2]
The Decision
A summary of the significant findings recorded in the Decision is useful in understanding this appeal and is set out below:
1. Paragraph 10 of the Decision records difficulties in the assessment of the evidence on both sides. The Decision states that the parties gave evidence that was "self-serving", that the builder gave evidence which was "often inconsistent" and that the homeowner was "overly cautious in giving her evidence" and that the Tribunal was "required to consider the applicant's evidence with some caution";
2. The parties agreed to the builder conducting the works described in a quotation dated 21 June 2014 for a price of $26,000.00 [18];
3. The scope of works included the installation of a new aluminium powder coated fence around the perimeter of the property, but those works did not eventually proceed [24];
4. Part of the scope of works included the installation of a driveway and the parties agreed as a variation that the concrete work would extend beyond the driveway to the footpath [41];
5. The fencing work did not proceed and the builder's evidence was accepted that instead, the amount attributable to the fencing work was applied towards the concreting, and in particular, the concrete variation and paths [42];
6. The builder abandoned the contract after 8 January 2015 and after receiving payment, did not return [45];
7. The homeowner accepted the builder's repudiation of the contract and formally terminated the contract in 2017. The Tribunal was satisfied that the homeowner was entitled to both defective and incomplete works under the scope of the contract [46]; and
8. After making findings as to the amounts to be paid by the builder for compensation, the Tribunal then deducted the balance of the contract price payable by the homeowner which it found to be $22,043.00 [81] to produce a net figure payable by the builder to the homeowner, namely $33,068.05.
[3]
Ground 1
The homeowner submitted that the Decision failed to acknowledge that the homeowner had paid to the builder the sum of $7,000.00 on 7 and 8 January 2015. If the Decision had taken those payments into account then the amount awarded in favour of the homeowner would have been increased by $7,000.00.
[4]
Ground 2
The homeowner alleges that the Decision was in error in concluding that items 15 and 16 in the document recording the scope of works (those items being a front and side fence) had been taken out of the scope of works by agreement between the parties. The homeowner contends that that finding was made in error and that the Tribunal should have found that the front and side fencing remained within the scope of works. Had such a finding been made, the homeowner contends that the homeowner would have been entitled to compensation in the sum of $11,693.00, being the cost of having a third party install front and side fencing.
[5]
Homeowner's Submissions
The homeowner contends that the contract price was varied to approximately $32,000.00 and that the total amount paid by the homeowner was in fact $16,957.00. This left a balance to be paid of $15,042.71. That is the amount that should have been deduced from the amount referred to in the Decision of $55,111.05. In support of that contention, the homeowner relies upon a copy of the quotation dated 21 June 2014 on which records of payment were allegedly written. That document is referred to as Exhibit 2, pages 21 - 22. The homeowner contends that the following payments had been made which were not taken into account in the Decision:
1. On 7 January 2015 two payments by cheque totalling $4,500.00; and
2. On 8 January 2015 one payment in cash of $2,500.00.
The homeowner contends that the Tribunal was in error in concluding that the fence was taken out of the scope of works and states that there is no evidence for that finding. The homeowner contends that there was evidence as late as 5 January 2015 that the fence remained within the scope of works. The homeowner points to a text message from the builder (Exhibit 2, page 36) dated 5 January 2015 in which the builder stated that he will order the front fence. The homeowner contends that that is evidence that the scope of works continued to include the fence. That evidence was not considered by the Tribunal. In addition, the homeowner contends that the Tribunal was in error in stating that the parties were unable to agree on how the fence was to be constructed [42]. The homeowner contends that the builder's evidence established that the builder acknowledged that he could build a "slope style" fence.
The homeowner contends that the fence was part of the scope of works (and not taken out), that she is entitled to the cost of supply and installation of a fence. The homeowner relies upon the builder's expert's estimate (see Exhibit 3, page 157) to the effect that the cost would be $11,693.00. The homeowner contends that the builder should be ordered to pay that sum to her.
[6]
The Builder's Response
The builder has made submissions both in writing and orally disputing the Grounds of Appeal. The following paragraphs summarise the builder's contentions.
[7]
Generally
The builder submitted that the appeal does not raise any questions of law and is based upon the leave grounds contained in cl 12 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). The principles applicable to whether an Appeal Panel should grant leave have been set out in the Appeal Panel decision in Collins v Urban [2014] NSWCATAP 17. We will set out those principles in detail later in these reasons.
[8]
Ground 1
In respect of this ground, the builder says that it is significant that:
1. Whilst the cheque for $2,000.00 drawn to Frank Aloe (being one of the payments allegedly made on 7 January 2015) is deposed to at paragraph 45 of the homeowner's affidavit of 1 November 2016, the homeowner did not depose to the alleged cash payments;
2. Mr Aloe, whose affidavit was obtained by the homeowner, did not depose to having received such cheque. Mr Aloe, in his statutory declaration of 18 November 2016 did not depose to having received payment. That evidence and the evidence of his son given at the hearing puts the homeowner's evidence in her affidavit of 24 November 2016 into some doubt;
3. Subsequent to the publication of the Decision, the Tribunal was asked to consider the question of recognising that the additional payments had been made by the homeowner under the slip rule. The Tribunal responded in February 2019 by stating that the Member had reviewed the evidence and declined to make a finding that a further payment of $7,000.00 has been paid towards the contract price. The builder submitted that this amounts to an express finding that the homeowner did not make the additional payments as alleged;
4. The Tribunal found (see [10] of the Decision) that both parties gave evidence which was "self-serving" and that the evidence of the homeowner was to be treated with some caution;
5. In respect of the alleged cheque of $2,000.00 drawn to Frank Aloe on 7 January 2015, Mr Frank Aloe's statements make no reference to such cheque. He was not called or examined. His son gave oral evidence and nothing was put to him concerning that payment. The homeowner refers to this cheque at paragraph 45 of the affidavit of 1 November 2016 but there was no evidence of the cheque being presented and paid. This is a significant omission in her evidence given that she had the ability and foresight to provide evidence of the $4,000.00 cheque paid to the builder for the deposit (Exhibit 2, page 23) being presented and paid. Accordingly, it was open to the Tribunal to not accept that that amount had been paid;
6. In respect of the cheque for $2,500.00 allegedly paid to Adrian Ottoviano on 7 January 2015, the builder stated that there was evidence that the homeowner has asked Adrian to do work "outside the quote". The homeowner denied that the payment addressed that work. Adrian's affidavit of 21 November 2016 stated that he was paid $2,500.00 for separate work. It was open to the Tribunal to find that that payment did not count against the contract price;
7. In respect of the cash payment of $2,500.00 allegedly paid to Frank Aloe on 8 January 2015, the builder stated that this payment related to the concreting. There is no verification or corroboration of payment of this amount. Mr Aloe's son (who gave evidence) was not questioned about that payment. It was never put to the witnesses what the alleged $2,500.00 cash payment on 8 January 2015 was for in the sense of what obligation it discharged;
8. Given the disconnected state of the evidence and the poor view of the parties' evidence taken by the Tribunal and given that the homeowner bore the onus of proving that these amounts had been paid in satisfaction of the contract price, it was open to the Tribunal to find that the evidence did not discharge that onus and that the finding could not be sustained;
9. The homeowner did not establish on the basis of the evidence that there was a significant possibility or a chance that was fairly open (to use the language in Collins v Urban) for the Tribunal to find for the result that the homeowner now seeks. There is no basis to say that there was a substantial miscarriage of justice. Further, it could not be said that, in the circumstances, the Decision was not fair and equitable. The basis for the homeowner's claims do not emerge from evidence that in its totality preponderates so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal could reach (again to use the language in Collins v Urban);
10. Further, the homeowner has not shown something more than that the Decision was arguably wrong. There is no issue of principle, question of public importance, clear injustice, clear mistake or unorthodox fact finding; and
11. Leave for Ground 1 should be refused and the appeal dismissed.
[9]
Ground 2
The builder's submissions with respect to Ground 2 may be summarised as follows:
1. An examination of the evidence, including the evidence given at the hearing, demonstrates that the parties had not agreed on the type of fence that the homeowner wanted. There was evidence that the builder thought that the question of what fence to provide was "in limbo" and that the agreement concerning the fence had fallen away; and
2. The evidence relied upon by the homeowner in support of the notion that the fence had not fallen away and that the builder had recognised the obligation to supply the fence is not of the character needed to establish that the evidence in its totality preponderates so strongly against the conclusion reached by the Tribunal that it can be said that that conclusion was not one that a reasonable Tribunal Member could reach (see Collins v Urban). To the contrary, the Tribunal's conclusion was open to it on the evidence. Leave on this ground should be refused.
[10]
Additional Points
In addition, the builder made the following submissions:
1. Although the homeowner is unrepresented in this appeal, her case at first instance was run by experienced counsel and solicitors. The choices taken as to evidence and examination were made by experienced minds and were presumably the product of forensic choice;
2. The findings in the Decision at paragraphs [42] and [81] were open to the Tribunal on the evidence; and
3. The requirement for leave pursuant to s 80(2)(b) of the NCAT Act on questions other than questions of law is clearly based upon important policy objectives - largely going to the achievement of justice with finality of hearings at first instance and to the proportionality of costs and other issues arising with respect to issues taken on appeal. These policy objectives are obvious and important and they should be observed in the disposition of applications for leave under s 80(2)(b) of the NCAT Act. The homeowner must demonstrate that the case for leave satisfies the requirements as discussed in Collins v Urban and this has not occurred in this case.
[11]
Homeowner's Submissions in Reply
At the appeal hearing, the homeowner referred to her written submissions in reply and in addition made oral submissions. In these submissions, the homeowner reasserted her reasons for the appeal to be upheld and leave to appeal to be granted. In particular, the homeowner disputed that the specifications for the fence were unknown. She claimed that the height and length and other necessary features had all been agreed. The homeowner pointed to the email of 5 January 2015 from the builder in which the builder indicates that he will order the fence as confirmatory evidence that the necessary specifications must have been known.
[12]
Consideration
This is an internal appeal from a decision made in the Consumer and Commercial Division of the Tribunal. Appeals of this kind are regulated by the provisions of s 80(2) of the NCAT Act and by cl 12 of Sch 4 of the NCAT Act. Essentially, this means that an appeal may be made as of right on any question of law and otherwise with leave pursuant to cl 12. Clause 12 provides as follows:
12 Limitations on internal appeals against Division decisions
(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).
Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds.
(2) Despite section 80 (2) (b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if:
(a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or
(b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order.
Although the Notice of Appeal in this appeal completed that part of the form relevant to raising questions of law, in our view, no questions of law arise. What constitutes questions of law have been the subject of prior Appeal Panel decisions and have been set out in some detail in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. The Notice of Appeal also sought leave to appeal under cl 12 of Sch 4 of the NCAT Act.
Because, in our view, there are no Grounds of Appeal raising questions of law, we now give consideration as to whether leave should be granted by cl 12 of Sch 4 of the NCAT Act. That clause was the subject of consideration in the Appeal Panel decision in Collins v Urban. The relevant parts of that decision may be summarised as follows:
1. The concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred [71];
2. It should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a significant possibility or a chance which was fairly open that a different and more favourable result would have been achieved for the appellant had the relevant circumstances in paragraph (a) or (b) not occurred or if the fresh evidence under (c) had been before the Tribunal at first instance;
3. 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 reason Tribunal Member could reach [77(2)];
4. If the Tribunal is satisfied that the appellant may have been deprived of a significant possibility or a chance which was fairly open that a different and more favourable result would have been achieved, then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or the decision was against the weight of evidence [78];
5. If the Appeal Panel is satisfied that the appellant for leave to appeal may have suffered a substantial miscarriage of justice on one of the grounds identified in cl 12(1)(a), (b) or (c) then the Appeal Panel "may" grant leave under s 80(2)(b) of the NCAT Act [80];
6. In order to be granted leave to appeal, the appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at, or that there was a bona fide challenge to an issue of fact. 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;
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 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; and
5. The Tribunal having gone about the fact finding process in such an unorthodox matter 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 [84].
For the reasons which follow, we are of the opinion that leave to appeal should not be granted. Essentially, this is because it is our view that the homeowner has not demonstrated that there is a significant possibility that she has been deprived of a chance that was fairly open of achieving a better outcome than occurred. We are not satisfied that, even if there has been a miscarriage of justice on one of the grounds identified in cl 12(1) (in this case only (a) and (b) are relevant) that we should grant leave. This is because we are of the opinion that there are no issues of principle, no questions of public importance or matters of administration or policy which concern this appeal. Nor are we satisfied that the homeowner has suffered an injustice which is reasonably clear.
To elaborate upon the above conclusions, we record the following:
1. In respect of Ground 1, the Tribunal made no finding in the Decision that the additional alleged payments totalling $7,000.00 were paid. In the slip rule decision, the Tribunal considered the question of whether a finding should be made that the additional $7,000.00 had been paid and declined to do so. It is relevant that the evidence of the homeowner was considered by the Tribunal to be evidence which should be treated with caution. We take this to mean that the Tribunal was of the opinion that the homeowner's assertions in order to be persuasive required support in the form of some surrounding corroborative evidence or an admission by the builder;
2. For the reasons contained in the builder's submissions (summarised earlier in these reasons) we are of the opinion that the homeowner's submissions do not establish that the evidence considered in its totality so preponderates in favour of the homeowner's contentions that it is reasonably clear that an injustice has occurred. In our view, there was insufficient evidence to establish that the cheque drawn to Frank Aloe for $2,000.00 was in fact a further payment in discharge of the homeowner's obligations to the builder. Similarly, the evidence is not clear that the other payments occurring on 7 and 8 January 2015 were to discharge the homeowner's obligations under the contract;
3. In respect of Ground 2, it is our view that there is competing evidence, some of which supports the findings made by the Tribunal in the Decision and other evidence which suggests that the fence remained within the scope of works (for example, the builder's text of 5 January 2015). We do not regard the builder's text message as conclusively establishing that the fence remained within the scope of works. Given the competing nature of the evidence, and the Tribunal's conclusion that the evidence of the homeowner should be treated with caution, we are of the opinion that the homeowner has not established that the evidence in its totality so preponderates against the finding made by the Tribunal that a different conclusion ought to have been reached. Nor are we satisfied that there has been a substantial miscarriage of justice requiring leave to appeal being granted. In particular, we are not satisfied that an injustice which is reasonably clear has occurred;
4. In respect of both grounds, we are of the opinion that the homeowner's contentions, although supported by some parts of the evidence, are, as the builder's submissions state, insufficient to lead to a conclusion that a substantial miscarriage of justice has occurred when one has regard to the whole of the evidence; and
5. We agree with the submission put on behalf of the builder that the limitations on a successful appeal relying upon cl 12 of Sch 4 of the NCAT Act reflect a policy that cases once heard and decided should be finalised, and that unless the provisions of cl 12 have been satisfied, leave to appeal should not be given, even in circumstances where the appellant can point to some evidence which supports their contentions.
[13]
Orders
In light of the above, the appropriate orders are to refuse leave and dismiss the appeal.
[14]
Costs
The submissions of the builder make application for costs of the appeal to be paid by the homeowner.
Section 60 of the NCAT Act contains the general provision that each party should pay its own costs. However, an award of costs can be made in special circumstances. In addition, the Civil and Administrative Tribunal Rules 2014 (the Rules) include a provision with respect to costs on an internal appeal. See cl 38A which provides:
38A Costs in internal appeals
(1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of:
(a) enabling legislation, or
(b) the Division Schedule for the Division of the Tribunal concerned, or
(c) the procedural rules.
(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.
The proceedings at first instance involved an amount in excess of $30,000.00 and therefore the provisions of cl 38 of the Rules apply to those proceedings. Accordingly, cl 38A applies to this appeal and requires the Appeal Panel to apply the first instance costs provisions when deciding whether to award costs in relation to this internal appeal (see cl 38A(2)). However, the amount claimed in the appeal is less than $30,000.00 and therefore the first instance cost provisions involving the application of cl 38 do not apply. Nevertheless, the builder may be entitled to claim costs if the builder can satisfy the Appeal Panel that special circumstances exist.
Accordingly, we propose to make the directions set out below.
[15]
Orders
In conclusion, the Appeal Panel makes the following orders:
1. Leave to appeal refused;
2. Appeal dismissed;
3. If the builder seeks an order that its costs of the appeal be paid by the homeowner, the builder must file and serve submissions in support of such application within 14 days of the date of publication of this decision;
4. The homeowner has 14 days thereafter to file and serve her submissions in response to the builder's submissions concerning costs; and
5. Any submissions on costs must include a submission as to whether the Appeal Panel may decide the question of costs on the papers and dispense with a hearing (see s 50 of the NCAT Act).
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
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Decision last updated: 06 May 2019