John Maiolo t/as M & N Peninsular Kitchens & Joinery v Chiarelli

Supreme Court of NSW|2017-07-13|Before: Davies J

Solicitors: L. C. Muriniti & Associates (Plaintiff) G P Legal (Defendants) File Number(s): 2016/353874

Judgment

The Plaintiff by a Second Further Amended Summons dated 12 May 2017 seeks leave pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) to appeal to this Court from two judgments of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales. The first such judgment was given on 11 April 2016: John Peter Maiolo v Frank Chiarelli and Anor [2016] NSWCATAP 81 (the April Judgment) and the second was given on 26 September 2016: Maiolo v Chiarelli (No 2) [2016] NSWCATAP 219 (the Costs Judgment).

Grounds of appeal

The relief sought in the Second Further Amended Summons is as follows: 1. That pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 No. 2 NSW ("CATA") the Plaintiff be granted leave to appeal to this court. 2. That pursuant to s 84(2)(b) of the Civil and Administrative Tribunal Act, if an extension of time is required to permit the Plaintiff to appeal, that time be extended. 3. That the Defendants pay to the Plaintiff the sum of $14,190.00 for the kitchen supplied by the Plaintiff to the Defendants and the further amount of $1,760.00 for the installation of the kitchen by way of restitution together with interest thereon at the specified contracted rate of 18 per centum per annum commencing on 15 December 2015 to date and continuing. 4. That the Defendants pay the costs of the entirety of the proceedings in the Civil and Administrative Tribunal of New South Wales ("NCAT"), both at first instance and before the Appeal Panel. 5. That the Plaintiff be granted leave to amend his Summons Commencing an Appeal. 6. Leave to adduce further evidence in support of this application and in support of the application for leave to appeal and extension of time. 7. That the Defendants pay the costs of these proceedings. 8. Such further orders as this Honourable court deems fit.
The grounds of appeal are as follows: 1. On 11 April 2016, the Appeal Panel of NCAT (hereinafter "the Appeal Panel") ordered: (i) The appeal from the Tribunal's orders dated 12 October 2015 in HB 15/47133 is allowed and the orders are set aside. (ii) Pursuant to section 81(1)(d) of the Civil and Administrative Tribunal Act 2013 the appellant must install the kitchen which was previously stored in the respondents' garage at 1 Vale Avenue Dee Why in a proper and workman like manner, including returning and installing the respondents' hot plate and under bench sinks on or before 9 May 2016. (iii) Pursuant to clause 8 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 the respondents have leave to renew the original proceedings HB15/17048 if the appellant fails to comply with order 2 within the time specified. (iv) The parties have liberty to apply to the Appeal Panel for an order to vary the time for the performance of the work specified in order 2. (v) Any costs application pursuant to section 60 of the Civil and Administrative Tribunal Act must be lodged with the Appeal Panel and served on the costs respondent within 14 days of the date of these orders either attaching or referring to the documents relied upon in support of the application. (vi) The costs respondent will have 14 days after the date of receipt of the costs application referred to above, to lodge with the Appeal Panel and serve on the costs applicant the submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon. (vii) The cost applicant will have 14 days after the date of receipt of the cost respondent's submissions to lodge with the Appeal Panel and serve on the costs respondent the submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon. (viii) The Appeal Panel Tribunal will determine any costs application on the basis of the papers lodged with them. Hereinafter orders (i) to (viii) above will be collectively referred to as "the April Orders". 2. The Appeal Panel did not order that concomitantly the Respondents repay the price of the kitchen and the installation costs which were payable under the terms of the agreement dated 14 November 2014 ("the agreement") the subject of the appeal before the Appeal Panel which resulted in the April Orders. 3. The Appeal Panel erred in making the April Orders in that NCAT was not empowered under sections 480 and 48MA of the Home Building Act 1989 ("the HBA") to make an order that the Appellant install the kitchen in a proper and workmanlike manner without receiving or being the beneficiary of an order that the Respondents pay such compensation as was fair and equitable in the circumstances for the kitchen and the installation of the kitchen by reason of and having due and proper regard to the terms of the agreement, the subject of such claim in that: (a) On its proper construction, the HBA did not empower the Tribunal to make an order which is inconsistent with fundamental established conceptions of remedial justice informing the general law of contract. (b) The April Order was in the nature of an order for specific performance at general law. The general law recognises that an order for specific performance will not be made against a party except on the basis that that party performs or is ready willing and able to perform its own obligations under the subject contract; (c) Further, at general law a Court will not make an order providing for equitable relief in favour of a party to a contract except upon terms that the party seeking such equitable relief does equity; (d) Further, or in the alternative, Section 48O(1)(c) HBA empowers the Tribunal to make one or more orders including (relevantly) "... that a party to the proceedings do any specified work or perform any specified service or any obligation arising under the terms of any agreement" (e) On its proper construction an obligation, (including an obligation to perform specified work or perform a specified service) under the terms of the agreement, necessarily presupposes that co-dependent obligations arising under that said agreement are performed. (f) Further, or in the alternative, it is well settled at general law that a party to legal proceedings has a right to recover money or other benefits transferred in obedience to a Court order that is later set aside. In the case of money paid over pursuant to a judgment later set aside an order will, if necessary, be made for repayment. (The Commonwealth v McCormack (1984) 155 CLR 273). (g) Section 48MA HBA does not warrant a departure from the limitation on the power of NCAT to make orders that are fair and equitable in accordance with the settled principles set out above. Costs of Tribunal proceedings at first instance (pre-internal appeal) 4. The Appeal Panel did not consider the claim for costs of the proceedings at first instance ("the First Instance Costs Claim") as contended for in the Appellant's submissions on the basis that the First Instance Costs Claim had not been notified in the Appellant's Notice of Appeal. 5. Section 81(2) CATA provides that the Appeal Panel may, for the purposes of an internal appeal, exercise all of the functions of NCAT at first instance in varying a decision under appeal. 6. In the premises the Appeal Panel erred in that it failed to or omitted to exercise the discretion given to it pursuant to the sections 60 and 81(2) CATA in relation to the costs of the appeal and/or the Appeal Panel's discretion miscarried in that the Appeal Panel failed to have regard to the facts that: (a) The matters relied upon for the Appellant's claim for the costs of the proceedings at first instance ("the First Instance Costs Claim") were revealed in the course of the conduct of the appeal - those matters being the conduct of the Respondents which showed that they had brought the claim before NCAT against the Appellant for the purpose of overturning the agreement with the Appellant and were not able to establish any complaint of substance concerning the performance of the contract. (b) The parties had voluntarily joined issue concerning the matters the subject of the First Instance Costs Claim in the course of their submissions which were filed following the hearing of the appeal and accordingly the parties conducted the costs argument on the basis that the First Instance Costs Claim was before the Appeal Panel. 7. In the alternative for the reasons set out above the Appeal Panel did not give proper reasons for its decision on costs and in particular for its decision not to exercise its discretion in relation to the First Instance Costs Claim. 8. In the premises the Appeal Panel was empowered to order costs and the fact that the claim for the first instance costs had not been noted in the Notice of Appeal was an irrelevant consideration. 9. The failure to consider making costs orders amounted in substance to a failure by the Appeal Panel to exercise the discretion given to it pursuant to sections 60 and 81(2). 10. The Appellant relies upon the provision of section 83(3) CATA pursuant to which the Supreme Court may substitute its own decision for the decision on appeal. Costs of the Appeal before the Appeal Panel 11. The Appeal Panel erred in that it misapprehended the Appellant's case in relation to the Costs of the Appeal. The Appellant did not claim costs on the bare basis that he had won on appeal before the Appeal Panel. The Appellant claimed costs on the basis that the real and effective cause of the entirety of the proceedings (but for which there would not have been any appeal) was conduct amounting to special circumstances within the descriptions in section 60 of the Act. 12. Further, in relation to the question of causation the Notice to Renew Proceedings dated 9 August 2015 "the Renewal of Proceedings" by the Respondents leading to the need for an appeal on 31 August 2015 was unreasonable and unnecessary in that: (a) The Respondents knew that Appellant was ready willing and able to perform the work the subject of the claim made by the Respondents against the Appellant in the NCAT proceedings which were heard and dealt with initially by Senior Member Boyce ("the NCAT First Instance Proceedings"). (b) The Appellant offered to do the work but was rebuffed by the Respondents on the basis that the Respondents need to remove a kitchen before the kitchen could be inserted. (c) The agreement the subject of the claim made by the Respondents against the Appellant in the NCAT First Instance Proceedings provided that the Respondents had to be ready to allow for installation by the Appellant when he was ready to install. (d) The Appellant was only unable to complete the work outside of the time offered for a short time that he was overseas. (e) The Respondents filed the Notice of Renew Proceedings in circumstances that they knew or ought reasonably to have known that the Appellant would install the kitchen as soon as he returned from overseas. At the time of filing the Notice to Renew Proceedings the Respondents had failed to establish any defect in the work the subject of the claim made by the Respondents against the Appellant in the NCAT First Instance Proceedings. 13. Further, the Respondents unreasonably resisted the Appellant's appeal in circumstances that that resistance reflected the same intention which informed the initiation of the NCAT First Instance Proceedings and the Renewal of Proceedings. 14. The Appellant relies upon the provision of section 83(3) CATA pursuant to which the Supreme Court may substitute its own decision for the decision on appeal. 15. The matter should be the subject of an order for leave to appeal under section 80 CATA in that: (a) The issues raised by the proposed appeal involve a matter of general importance as to the construction of powers of the Tribunal under its enabling legislation. (b) The issues raised by the proposed appeal involve a substantial miscarriage of justice.
It may be observed that grounds 1, 5, 10, 14 and 15 are not in fact grounds of appeal.
The need for an extension of time arose because the solicitors for the Plaintiff wrongly commenced the appeal proceedings in the District Court. The Summons was not filed in this Court until 25 November 2016. No point was taken about the late commencement and no prejudice is shown. Time should be extended to 25 November 2016.
It should be noted that, despite prayer 5, no application was made to amend the Summons (again). It should also be noted that no attempt was made to adduce further evidence. Since an appeal is only available on a question of law, and with leave, it is not clear what further evidence could have been led without trespassing into areas of fact and the merits of the decision.

Legislation

The appeal to this Court derives from ss 82 and 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Those sections relevantly provide: 82 Interpretation (1) Each of the following kinds of decisions of the Tribunal is an appealable decision of the Tribunal for the purposes of this Division: (a) any decision made by an Appeal Panel in an internal appeal, … 83 Appeals against appealable (sic) decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.
The powers of the Tribunal with regard to costs of proceedings before the Tribunal are found in s 60 of the NCAT Act. That section relevantly provides: 60 Costs (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 the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) 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.
However, rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) provides: Costs in Consumer and Commercial Division of the Tribunal (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) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if: (a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10 (2) of Schedule 4 to the Act in relation to the proceedings, or (b) the amount claimed or in dispute in the proceedings is more than $30,000. No order was made under clause 10(2) of Schedule 4 to the Act in relation to these proceedings.
Section 36 of the NCAT Act relevantly provides: (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

Submissions

Despite the verbiage in the grounds of appeal the claims made by the Plaintiff on the appeal were relatively straightforward. In relation to the April Judgment the Plaintiff submitted that it was not open to the Tribunal to have made an order that the Plaintiff carry out the work without concomitantly making an order that the Defendants pay the Plaintiff for that work. The matter was put on the basis of the power or jurisdiction of the Tribunal including that s 48O of the Home Building Act did not allow such an order, and also on the basis that it offended fundamental principles of remedial justice in contract law, in particular fundamental principles of restitution.
The Plaintiff relied also in submissions, although the matter was not articulated in the grounds of appeal, on the fact that he had made an application to the Tribunal on two occasions subsequent to the April Judgment for a variation of the orders to facilitate payment by the Defendants to him when the kitchen was installed, but the Tribunal ignored those applications. In that way it was submitted he had been denied procedural fairness.
The Defendants submitted that the Appeal Panel could not have made an order for payment by the Defendants to the Plaintiff because the kitchen was not then installed. The Plaintiff would need to seek an equitable remedy of specific performance with compensation. The Defendants submitted that before payment could be made issues associated with the Plaintiff's insurance would need to be sorted out because this kitchen formed part of work which exceeded $20,000. That was because of other work at the house for which the Plaintiff was contracted, and because of s 92(4) of the Home Building Act 1989 (NSW).
The Defendants submitted that once the kitchen was installed, and there was a dispute that such installation was complete, it would be open to the Plaintiff to seek payment either in proceedings in the Tribunal or in the Local Court.
In relation to the Costs Judgment the Plaintiff submitted that the principal error of law was that the Appeal Panel did not give any or adequate reasons for its decision. Ground 7 complained to that effect in relation to the costs of the Tribunal proceedings at first instance but there was no ground of inadequate reasons in relation to the costs of the appeal before the Appeal Panel.
The Plaintiff submitted that the evidence disclosed that the basis for the Defendants' claim in NCAT was a collateral purpose. That purpose was to put an end to the contract on the basis that they did not have development consent to install the kitchen and decided that they did not want it anymore. This was a matter the Appeal Panel ought to have considered in terms of s 60(3)(f) of the NCAT Act because of the submissions made about the failure of the Defendants to co-operate to enable the kitchen to be installed. The Plaintiff further submitted that he did not seek the costs of the appeal on any other basis except that the entirety of the proceedings was infected by a collateral purpose.
The Defendants submitted that the starting point for costs was s 60 of the NCAT Act which provided for each party to bear their own costs unless special circumstances were shown. The Defendants submitted that the Tribunal had a broad-based discretion with regard to costs and that the Plaintiff had not demonstrated special circumstances. The Defendants specifically denied any collateral purpose in bringing the proceedings.

(1) The need for leave

Under s 83 of the NCAT Act there are two matters which a Plaintiff must establish for this Court to have jurisdiction and intervene in the proceedings. The first is that there must be a question of law. The second is that leave needs to be given. A party seeking leave to appeal must point to something more than error.
In Zelden v Sewell Henamast Pty Limited v Sewell [2011] NSWCA 56 Campbell JA (Young JA agreeing) said at [22]: It is of some importance to reiterate the principles that were stated in Carolan v AMF Bowling Pty Limited [1995] NSWCA 69, where Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Cole JA relied on a principle that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute. Those principles are ones that, in my view, apply in the present case.
In Jaycar Pty Limited v Lombardo [2011] NSWCA 284 Campbell JA (Young and Meagher JJA agreeing), having repeated his remarks in Zelden above, went on to say at [46]: Kirby P recognised that ordinarily it was appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what being merely arguable.
It may be accepted that these cases concerned leave to appeal to the Court of Appeal from the District Court where there was a pecuniary threshold to be crossed before a right to appeal replaced the need for leave. However, the principles are applicable here where it is intended that matters involving small sums and small disputes be finalised within NCAT, particularly where an internal appeal is provided for as here.
I shall deal with the leave matter when discussing each of the judgments against which the appeal is brought.

(2) The April Judgment

On 21 April 2016, after receiving the April Judgment, solicitors for the Plaintiff wrote to the two members of the Appeal Panel a letter marked "Extremely urgent". The letter raised a number of matters arising from the judgment and the Defendants' actions immediately thereafter but, significantly, the letter said this: We note that the Appeal Panel has made an order enabling the respondents to apply for a renewal of the proceedings but no similar leave or right has been granted to our client. One of the anomalies that arise (sic) as a consequence is that there is no mechanism available to our client (on the orders made presently by the Appeal Panel) to even recover the costs of the kitchen once he has installed it; given that that money has now been repaid to the respondents. Nor is there any means by which he can recover any of the other losses and damages he has suffered. If the matter were to be left undisturbed our client might be locked out of taking any action to recover his monies and damages on the basis that after the kitchen is installed and in the absence of an express order for payment and damages, it could be argued that our client is locked out of any remedy on the basis of res judicata or issue estoppel. To avoid this kind of perverse outcome or at least avoid having the argument about it, we would respectfully request that a further order be made to the following effect:- The appellant is granted leave to renew the original proceedings to seek such remedy as he considers appropriate following the installation of the kitchen such application to renew to be filed within 14 days after the kitchen has been installed. … We should be most grateful for your urgent consideration to this matter.
On the same day that letter was emailed the solicitors received an email from the Principal Registrar of the Tribunal saying this: I refer to your email of 21 April 2016 in relation to a variation of the orders. The correspondence has been forwarded to the Appeal Panel for their consideration. You will be notified in due course of their decision.
Thereafter, the solicitors received no subsequent correspondence from the Tribunal.
On 21 September 2016 the solicitors for the Plaintiff wrote to the Proper Officer of NCAT. The letter relevantly said this: … Since the Appeal Panel handed down its decision, the respondents in those proceedings and their legal representatives have engaged in an egregious course of conduct which has been designed to frustrate compliance with the Appeal Panel's orders, amongst other things. Despite the fact that a huge effort was exerted and our client was prevented from complying with all of the orders made by the appeal panel because the respondents failed to provide the necessary information and/or item, i.e. a hotplate, to enable the installation of the hotplate and complete the kitchen in the manner ordered by the Appeal Panel. The respondents have refused to pay for the kitchen even though it has now been installed properly and in full compliance with the Appeal Panel's orders. … We have perused the provisions of the Civil and Administrative Tribunal Act and the regulations and cannot find any prescribed procedure for relisting this matter back to the Appeal Panel. Given that the matters that now require to be addressed are matters that, on our construction of the situation, only the Appeal Panel can deal with, it does not appear that the normal procedure of applying for a rehearing is available to our client. For your further information we enclose herewith the following documents by way of a brief snapshot of recent events and background information. So far as we can determine, it appears that the only way to solve this matter is for the matter to be relisted before the Appeal Panel to deal with the matters that have arisen since the Appeal Panel delivered its judgement and made orders. We now seek your urgent assistance in advising us as to whether: (a) a procedure is available to bring this matter back before the Tribunal so that the matter of payment to our client for the kitchen that he has built and installed can be addressed; and (b) to deal with the outstanding question of costs; or (c) alternatively is there some other apposite procedure and if so, what other procedure is available to our client so that he can obtain a remedy for his situation. If the matter can be relisted before the Appeal Panel to deal with these residual issues, we should be grateful if you could advise us as to what the procedure would be to relist the matter. If our client is to follow some other procedure, we should be obliged if you could tell us what that procedure might be since we are simply not able to identify that such a procedure is now available to our client under the normal prescribed provisions of the Act or the regulations. The matter is quite urgent as our client has been put to enormous expense, has now installed a kitchen in accordance with the Tribunal's orders for which he has not been paid and for which the respondents refuse to make payment and he is substantially out of pocket because of the legal costs that he has had to incur.
The letter also attached a large amount of correspondence supporting all that was said in the letter. No response was received from the Tribunal to that letter. Instead, the Appeal Panel simply published its Costs Judgment on 26 September 2016. That judgment did not deal in any way with the application to re-list to deal with the issue of payment to the Plaintiff.
Section 63 of the NCAT Act relevantly provides: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. … (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where: (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons.
It may have been helpful if the solicitors for the Plaintiff had identified this section of the Act perhaps with a reference to Commonwealth of Australia v McCormack (1984) 155 CLR 273 (discussed below) but it was inappropriate of the Appeal Panel or the Registrar not to respond to that letter.
Although I do not accept the Plaintiff's submission the Appeal Panel had no power to make the order it did for the carrying out of the work by the Plaintiff without a concomitant order for restitution or payment, whether the power was derived from s 48O(1)(c) of the Home Building Act or under the general law, the Appeal Panel ought to have given reasons for not doing so. There may be circumstances where such an order might be appropriate. Indeed, the Appeal Panel may have taken the approach, although it did not say so in its reasons, that it was simply ordering the Plaintiff to perform his side of the bargain which had not been carried out, leaving the Plaintiff to remedies at a later time to claim or sue for payment if the Defendants did not pay after the work was completed.
It may have been appropriate for the Appeal Panel to have made an order for payment at least conditional upon the work being properly completed. Some support for that comes from Commonwealth of Australia v McCormack and the cases discussed at 276 of that judgment. I doubt, however, that the failure of the Tribunal in its April Judgment to make such an order could be regarded as an error of law, but the failure to give reasons for not doing so could be so regarded. That may depend on whether the matter was raised at the appeal. Whether it was so raised was not made clear at the hearing of this appeal.
What is of much greater significance is the failure of the Appeal Panel to respond to the letters written on behalf of the Plaintiff of 21 April 2016 and 21 September 2016 and the failure of the Appeal Panel to deal with the matter in its Costs Judgment or otherwise. McCormack's case makes perfectly clear that the failure to include an order for payment by the Defendants to the Plaintiff could be regarded as a slip that could be rectified under s 63(1) of the NCAT Act. Of course, the Tribunal could, when faced with those two applications, have reached a view that there was no slip and that it did not intend to make such an order and did not consider it appropriate. However, its failure to respond in any way to the applications leads to the conclusion that the Appeal Panel has denied procedural fairness to the Plaintiff in that regard.
The matter may be characterised a number of ways. It could be said that there was a failure by the Appeal Panel to respond to a substantial, clearly articulated argument in reliance upon the matters raised: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]. It could alternatively be said that the Appeal Panel failed to address the substance of the Plaintiff's application and in that way there was a clear case of constructive failure to exercise jurisdiction: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [81]; AAMI Ltd v Ali [2012] NSWSC 969 at [48].
In either case, an error of law is demonstrated. Moreover, because the error amounts to a denial of procedural fairness the Plaintiff demonstrates something more than that the Appeal Panel was arguably wrong in its approach to the matter. That is enough to justify leave to challenge the error of law.
I accept that the grounds of appeal concerned with the April Judgment (grounds 1-3) do not identify the error of law in this way. The articulation of it in this form emerged during the course of submissions. No objection was taken to considering the matter in that way by the solicitor for the Defendants.
Accordingly, leave should be granted in respect of the April Judgment. The Plaintiff demonstrates an error of law in that regard.

(3) The Costs Judgment

The Appeal Tribunal first dealt with whether costs should be awarded in the Consumer and Commercial Division. The Appeal Panel said this: [6] Our Reasons for Decision given on 11 April 2016, as amended, indicate that the original proceedings were heard in the Consumer and Commercial Division of the Tribunal on 3 July 2015, when final orders were made. At that time no costs orders were made. We are not aware that any application for costs was made as a consequence of the orders made on 3 July 2015. [7] An application to renew proceedings was made by reason of the appellant's alleged failure to comply with the 3 July 2015 orders. Those renewed proceedings were heard on 12 October 2015 when final orders were made. Order 3 stated that 'There is no order as to costs'. [8] The Notice of Appeal item 5A which relates to 'Orders Challenged on Appeal' does not challenge Order 3 as quoted in the preceding paragraph. [9] Because the appellant did not in its Notice of Appeal challenge Order 3 made on 12 October 2015, and also because the orders made by us under section 81(1)(d) of the NCAT Act did not deal with the issue of costs in the Consumer and Commercial Division, we are not inclined now to make an order for the costs of the proceedings below. [10] In addition, in our Reasons for Decision given on 11 April 2016, as amended, we made it clear that so far as costs were concerned, we would entertain an application for the costs of the Appeal. At paragraphs [58 - 59] we stated: 'So far as the costs of the Appeal are concerned we note that in Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120, an Appeal Panel of the Tribunal held that section 60 (Costs) of the Civil and Administrative Tribunal Act applies to the determination of costs in an internal appeal even if different costs provisions applied in the proceedings in the Tribunal at first instance. If a party wishes to make an application of the costs of the Appeal proceedings on the basis of section 60 of the Civil and Administrative Tribunal Act, we will make appropriate directions.' [11] For these reasons we reject the appellant's application for the costs of the proceedings in the Consumer and Commercial Division of the Tribunal.
The Appeal Panel then considered the costs of the appeal. They set out s 60(1)-(3) of the NCAT Act. They noted that the Plaintiff had filed submissions dated 27 April 2016, those submissions enclosing various items of correspondence, and further submissions dated 20 May 2016. They noted that the correspondence attached to the submissions of 27 April 2016 did not specifically address the issue of costs. They noted that the submissions of 20 May 2016 related to events occurring after the Appeal Panel's decision was handed down and that the submissions did not address ss 60(1)-(3) of the NCAT Act.
The Appeal Panel then considered the Defendants' submissions dated 9 May 2016 which dealt specifically with a number of the paragraphs in s 60(3) to justify a submission that the Defendants showed special circumstances to obtain a costs order. The Appeal Panel rejected all of those submissions.
The Panel went on to say: [28] The parties' submissions regarding the question of costs refer to their respective conduct after the Appeal Panel's decision was given. They blame each other for creating an extremely difficult environment for the appellant to perform the work the subject of the Appeal Panels' orders. From the material provided by the parties it appears that there has been little co-operation between them to ensure that work orders made by the Tribunal were implemented in an orderly way. [29] Section 60(3)(f) of the NCAT Act states that in determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to whether a party has refused or failed to comply with the duty imposed by section 36(3) of the NCAT Act, which requires the parties to co-operate with the Tribunal and to comply with the directions and orders of the Tribunal. [30] At this point we are of the view that section 60(3)(f) of the NCAT Act relates to time before the making of the orders in the proceedings including in this case the order entitling a party to make an application for the costs of the Appeal. Further it is our view that it will be undesirable to make a costs order based on section 60(3)(f) of the NCAT Act when the facts are disputed and there is substantial material, as there is in this case, regarding the parties conduct and whether one or both of them has failed to co-operate with the Tribunal and to comply with the directions and orders of the Tribunal.
Finally, in a section of judgment headed "General principles regarding section 60 of the NCAT Act" the Appeal Panel said this: [31] In CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 Principal Member Titterton stated after considering the relevant authorities: 'The authorities are consistent in stating that "special circumstances" are circumstances that are out of the ordinary; they do not have to be extraordinary or exceptional circumstances' [32] In MSP Consulting and Building Constructions Pty Ltd v Karkoulas (No 2) [2016] NSWCATAP 183, the appeal panel at [31] - [32] stated: 'In ACT Builders v Haridemos (No 2) [2016] NSWCATAP 118 at [41], the Appeal Panel noted that the mere fact a party was unsuccessful in their appeal does not of itself give rise to special circumstances warranting an order for costs in favour of the other party. The same principle is applicable when the appealing party is successful. The onus is on the party seeking an order for costs to satisfy the Appeal Panel that there are special circumstances warranting an award of costs in their favour.' [33] Having regard to the circumstances of the Appeal and the parties' submissions we have reached the conclusion that the appellant being the successful party in the Appeal has not established special circumstances to entitle him to a costs order under section 60 of the NCAT Act. The mere fact that he was successful does not, in accordance with what was stated in ACT Builders v Haridemos (No 2) [2016] NSWCATAP 118 give rise to special circumstances warranting an order for costs in his favour. [34] So far as the respondents' claim for their costs of the Appeal in the sum of $12,000.00 is concerned, none of the grounds relied [on] by them as establishing special circumstances have been made out. For that reason, we find that the respondents are not entitled to a costs order in their favour under section 60 of the NCAT Act.
The Plaintiff submitted that the Appeal Panel was in error in the view it took that s 60(3)(f) of the NCAT Act related to the time before the making of the orders in the proceedings. That submission appeared to be based on the view that the obligation in s 36(3) was an ongoing obligation and the Appeal Panel had made an order for the installation of the kitchen which required the cooperation of both parties. The Plaintiff submitted also that it did not seek costs on the basis that it had been successful but on the basis that the proceedings had been instituted and maintained for a collateral purpose.
A few things should first be noted with relation to the present appeal regarding costs. First, as the Appeal Panel noted at [7]-[8], when the Plaintiff appealed from the judgment of the Tribunal of 12 October 2015, although the Tribunal had made an order that there was to be no order as to costs, no appeal was taken to the Appeal Panel against that order.
Secondly, as the Appeal Panel made clear at [10] and [26], so far as costs were concerned, it would entertain an application for costs of the Appeal (see the April Judgment at [58]-[59]).
Thirdly, the submissions lodged by the Plaintiff with the Appeal Panel dated 27 April 2016 recited over 93 paragraphs what the Plaintiff saw as the relevant history of the matter between the parties. Thereafter, and for the first time in those submissions, reference was made to costs as follows: 94. It is respectfully submitted that the course of conduct in which the respondents have engaged themselves warrants the making of costs pursuant to section 60 of the Home Building Act (sic). 95. In particular the appellant relies on the facts recited above and says that the conduct of the respondents had the following consequences: (a) Conducted the proceedings in a way that unnecessarily disadvantaged the appellant. (b) The conduct of the respondents have been responsible for unnecessarily prolonging the time taken to complete the proceedings. (c) The appellant has always been ready, willing and able to comply with this contractual obligations (sic) and has been prevent (sic) from installing the kitchen because of one pretext or anther (sic) given by the respondents. The facts relating to the various versions and the inconsistencies arising and their various versions of reasons given by the respondent sand (sic) the inconsistences in those versions as given at diffident (sic) times are of course recited above. (d) The hearing before the appeal panel involved complicated questions of fact and law and required the appellant to retain legal representation and leave of course was given by the Tribunal in recognition of the fact that proceedings before the Tribunal warranted legal representation. (e) The areas (scil. various?) inconsistent positions adopted by the respondents demonstrated that the position of the respondents was feverous (scil. frivolous) and vexatious or in any event misconceived and lacking substance. (f) The respondents have consistently frustrated the appellant's attempts to comply with the Tribunal's orders and in particular with the appellant's attempts over the course of the last two weeks to comply with Appeal Panel's orders to install the kitchen. The herculean efforts made by the appellant in this regards are fully evident in the correspondence which is exhibited in the accompanying exhibit book. The manner in which his efforts have been frustrated by the non-responsive correspondence received from the respondent's solicitors (when correspondence was provided at all) the ducking and weaving by the respondents and their solicitor is self-evident form (sic) that correspondence.
Finally, in paragraph 96 the Plaintiff sought indemnity costs on the basis that the conduct of the Defendants had been "so egregious".
No doubt the Appeal Panel ascertained that the reference to s 60 of the Home Building Act 1989 (NSW) in paragraph 94 of the submissions should have been a reference to s 60 of the NCAT Act.
What is apparent from those submissions is that there was no focus on the costs of the appeal but rather a general complaint about the way the Defendants had behaved from the time of the making of the contract. In that regard the Plaintiff seems to have understood "the proceedings" in s 60 as being a reference to the whole of the proceedings in the Tribunal. However, the Appeal Panel was only dealing with the costs of the appeal.
The second lot of submissions lodged by the Plaintiff on 20 May 2016 took a somewhat different approach. They first continued the narrative from the date of the earlier submissions in relation to ongoing difficulties between the parties. The submissions then made the point that the whole of the proceedings had been instituted for a collateral purpose which was said at paragraph [23] to be the use of the proceedings as a vehicle to procure a release from the Defendants' contractual obligations with the Plaintiff.
Although the Plaintiff submitted that he had lodged three sets of submissions on costs with the Appeal Panel, what were described as the third set, forwarded on 21 September 2016, were not in fact submissions about costs but, as I have earlier described, a request to the Tribunal to re-list the matter so that an order could be made in relation to the Defendants paying the Plaintiff for the work carried out. Although there was a passing reference on page 3 of that letter to the assertion that the proceedings were brought for "a dishonest and collateral purpose" that statement was not related to any application for costs.
Although I consider that the Appeal Panel's reasons could have been more comprehensively expressed, I do not consider that the Plaintiff demonstrates anything to warrant the granting of leave to set aside the Appeal Panel's judgment on costs. My reasons are these.
First, the costs judgment was never concerned with, and was never intended to be concerned with, the whole of the proceedings. It was concerned with the costs of the appeal. The fact that there was no appeal against the costs order before the Senior Member of the Tribunal makes that clear.
Secondly, I am not persuaded that the Appeal Panel was in error in considering that s 60(3)(f) of the NCAT Act was not concerned with events after the judgment in respect of which costs were to be ordered. The enumerated matters in s 60(3) are generally directed towards the way proceedings (here, the appeal) were conducted although it is accepted that paragraphs (d) and (e) look at the underlying nature of the proceedings. However, it is difficult to see how post-hearing and post-judgment events are relevant when the issue is who, if anyone, should pay the costs of that hearing. If, as in many cases, costs are determined at the time of the substantive judgment, it would scarcely be open to a party to seek to set aside or vary the costs order based on what a party subsequently did or failed to do.
Thirdly, a submission that the proceedings generally were brought for a collateral purpose says little about how the costs of an appeal should be awarded. It was not argued at the appeal itself that the appeal should be upheld because the proceedings had been brought for a collateral purpose. That was a submission made only in relation to costs and in circumstances where the appeal was upheld for completely different reasons. Although in an ideal world the Appeal Panel might have said something to that effect, I do not consider that their omission to do so justifies the grant of leave and the demonstration of an error of law.
Fourthly, it is clear that the Appeal Panel had regard to the extensive submissions put in by the Plaintiff and also the submissions lodged by the Defendants because the Appeal Panel refers to what those submissions had to say about the respective conduct of the parties before and after the April judgment - see at [28] and [30]. The Tribunal explained why (at [30]) it considered that it was undesirable to make a costs order based on disputed facts and the substantial material concerning the parties' conduct and whether or not they had failed to cooperate.
Fifthly, the Tribunal expressly had regard to the duty in s 36(3) of the NCAT Act (at [29]). They did so in the context of considering at [30] the dispute disclosed in the submissions about each side's alleged failures.
Sixthly, it was not unreasonable for the Appeal Panel not to have acceded to the Plaintiff's argument about collateral purpose. Although the Plaintiff submitted that there could be no other explanation for the behaviour of the Defendants other than that they brought the proceedings for a collateral purpose, that is not the only inference that can be drawn from the dispute between the parties. Neither side seems to have covered themselves with glory in the matter. Both sides appear to have been less than cooperative at various times. If the Defendants were trying to set aside the contract it is at least an open inference that that was because they wanted to bring an end to the ongoing proceedings which had taken on a life of their own.
Seventhly, costs involve an inherently discretionary decision. Although the Plaintiff suggested a House v The King error had been made in that the Appeal Panel did not consider the material provided to it the judgment expressly refers to the submissions and to the substance of them detailing the dispute between the parties as to lack of co-operation. Further, the ultimate determination on costs accorded with what s 60(1) provides as the norm. The Plaintiff has an onus to show why that norm should have been departed from in circumstances where he addressed the relevant considerations in s 60(3) in only a cursory way whilst probably overwhelming the Appeal Panel with irrelevant detail about the history of the matter.
Finally, the Appeal Panel's reasons were justifiably not more comprehensive when the value of the subject matter of these proceedings is borne in mind. The amount in dispute is an amount less than $16,000.

Conclusion

Given the small amount involved in these proceedings I had hoped to make final orders disposing of these proceedings rather than remitting the matter to the Appeal Panel. However, there remains a dispute about the extent to which the kitchen has been installed that may impact on the amount that should be ordered to be paid to the Plaintiff. Although I suggested to the parties that they could agree on a figure so that, if I was minded to uphold the appeal, I could make final orders, they could not or would not agree. Both solicitors thought it appropriate to remit the matter to the Appeal Panel if I granted leave and found error. Although I consider that the parties and/or their lawyers have lost perspective in the way these proceedings have been conducted both in this Court and in the Tribunal, I do not see that I have any proper basis for doing other than remitting the matter to the Appeal Panel for the matter to be resolved there on any further evidence that will need to be given.
Strictly speaking, in the light of the error I have found the matter should be remitted to the Appeal Panel for it to consider whether it should make any order for payment in the light of the submissions previously made to it that I have found were ignored or overlooked. However, as the Defendants accept that they should make a payment when the kitchen is installed, I consider that the matter should be remitted for the Appeal Panel to make an order for payment in favour of the Plaintiff subject to the evidence that is adduced before the Panel in relation to that payment. This matter must be brought to a conclusion and expeditiously.
The Plaintiff has only been partly successful on the appeal. Bearing that in mind and also issues of proportionality (s 60 Civil Procedure Act 2005 (NSW)) I consider that there be no order for costs of the appeal to the intent that each side should pay his and their own.
The orders I make are these: 1. Extend time for the filing of the Summons to 25 November 2016. 2. Leave to appeal in respect of the judgment of the Appeal Panel of the NSW Civil and Administrative Tribunal given on 11 April, 2016. 3. Appeal upheld. 4. Remit the proceedings to the Appeal Panel to vary its judgment to provide for payment by the Defendants to the Plaintiff for carrying out the order of the Appeal Panel to install the kitchen. 5. Otherwise dismiss the appeal. 6. There be no order as to costs of the proceedings in this Court to the intent that each party should pay his and their own costs.

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: 26 July 2017

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