Kora v Ian's Roofing Pty Ltd - [2023] NSWCATAP 42 - NSWCATAP 2023 case summary — Zoe

NSWNSWCATAP

Kora v Ian's Roofing Pty Ltd

[2023] NSWCATAP 42

NCAT Appeal Panel|2023-02-06

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2023-02-06

Catchwords

Rapisarda v NSW Police Force

Source

Original judgment source is linked above.

Catchwords

Rapisarda v NSW Police Force

Judgment (29 paragraphs)

[1]

fore: M Tyson, Senior Member File Number(s): HB 22/34909 and HB 22/36753

[2]

Introduction

In these reasons we will refer to the appellants as the Homeowners, and to the respondent Ian's Roofing Pty Ltd as trustee for the Silva Family Trust as the Roofer, as that is how these parties were referred to by the Consumer and Commercial Division of the Tribunal (Tribunal) in its reasons for decision of 16 November 2022 in matters HB 22/34909 and HB 22/36753 (Decision). Otherwise, we will refer to the respondent Mr Ian Greenslade, a director of the Roofer, as Mr Greenslade and the two respondents collectively as the Respondents.
In matter HB 22/34909, filed 3 August 2022 (the Roofer's application), the Roofer sought an order that the Homeowners pay it $4,400.00 in respect of unpaid work. The Tribunal dismissed that application.
In matter HB 22/36753, filed 15 August 2022, (the Homeowners' application), the Homeowners sought orders described by the Tribunal at [2] of the Decision as: orders to be relieved of any obligation to pay the $4,400.00 to the Roofer, an order that the Roofer pay them $21,323.50 and orders for "compensation". The compensation sought by the Cross-Claimants includes $67,943.20 as a "genuine estimate of time spent" by the Cross-Claimants, $3,056.542 for "annual leave taken", quotations to have the roof replaced at the Paddington property, repair and painting costs for some of the brickwork at the Paddington property and its garage, as well as reimbursement for travel costs, courier costs and other ancillaries.

[6]

The Homeowners' first preliminary issue

The first preliminary issue was whether, as submitted by the Homeowners, this internal appeal should be dealt with under s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) with the effect that we deal with this internal appeal by way of a new hearing, with evidence not before the Tribunal being relied on by the Homeowners.
The Homeowners submit that establishing a question of law is not a pre-condition to the exercise of the discretion conferred by s 80(3) of the NCAT Act to deal with the appeal by way of a new hearing: Sheehy v NSW Police Force; Rapisarda v NSW Police Force; Housego v NSW Police Force [2018] NSWCATAP 307; DHQ v DHR [2018] NSWCATAP 128.
In Sheehy the Appeal Panel stated: 18. The Appeal Panel can only exercise the powers given to it by statute. The nature and scope of the Appeal Panel's powers depend on the words in s 80(3) and s 81 of the NCAT Act read in the context of the Act as a whole. The test set out in s 80(3) is that the Appeal Panel may decide to deal with an internal appeal by way of a new hearing "if it considers that the grounds of appeal warrant a new hearing". The ordinary meaning of these words is that the Appeal Panel must examine the nature and strength of the grounds of appeal and decide whether it considers that those grounds warrant a new hearing. Nothing in the text of the provision, or in the context of the NCAT Act as a whole, supports the proposition that the Appeal Panel must find that the Tribunal has made an error of law before it can exercise the discretion to deal with an appeal by way of a new hearing. 19. Even if that is not the correct interpretation, the Appeal Panel has power to give leave to appeal on grounds other than a question of law. If leave were given, the Panel would have power to deal with the appeal by way of a new hearing. 20.The Appeal Panel impliedly took the same view in DHQ v DHR [2018] NSWCATAP 128 at [60]. The Panel concluded that none of the grounds of appeal on questions of law had been established but expressed the view that it would be open for the Panel to deal with the appeal by way of a new hearing.
While the Respondents accept that the Appeal Panel is not required to find an error of law before ordering a new hearing pursuant to s 80(3), they note that in neither in Sheehy nor DHQ was a new hearing ordered. The Respondents submit that a new hearing is not to be had in circumstances where the original hearing did not miscarry for some reason or fresh evidence did not justify it. They further submit that an internal appeal is not a re-hearing of the original proceedings or an opportunity for a party dissatisfied with the outcome to re-argue its case: Boman-Peters and Hart v Southern Tablelands Rural Services Pty Ltd [2022] NSWCATAP 235; Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39; Molloy v Stewards' Foundation of Christian Brethren [2022] NSWCATAP 394.
The Respondents submit that: In broad terms, the reality is that the [Homeowners] are treating the hearing before Senior Member Tyson as a dress rehearsal for this appeal. They are now seeking to have a second go at a hearing.

[7]

Consideration

It is important to place s 80(3) in the context of Div 2 (Internal Appeals) of Part 6 (Appeals) of the NCAT Act as a whole. Division 2 provides: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. … (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
The essence of an appeal is the identification of a Tribunal error (be it an error raising a question of law or some other error) by an appellant. If the Appeal Panel accepts there is an error, there are various courses available to the Appeal Panel including:

deciding to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing;
varying the decision under appeal; or
remitting the appeal to the Tribunal for redetermination.

An example of the circumstances in which the Appeal Panel might conduct an appeal by way of rehearing the matter is Andy and Patrick Floor Covering Pty Ltd t/as Silver Trading Timber Floor v Li [2018] NSWCATAP 172. The Appeal Panel relevantly stated: 17. We discussed the appropriate approach to the appeal with the parties. They agreed that the critical issue was whether or not the Expert Report provided was sufficient evidence for the Tribunal to make the order it did. We indicated that one approach could be to conduct a rehearing pursuant to s 80(3) of the NCAT Act, but the Appeal Panel indicated it would only do so with the agreement of the parties on the basis that the only question to be determined was whether the Expert Report was sufficient to prove Ms Li's claim and with no new evidence on the point. 18. In this regard, it was noted this approach would preclude either party providing new evidence or cross-examining the expert, the hearing being limited to submissions in relation to the Expert Report. 19. After discussion, both parties agreed as follows: (1) the Appeal Panel was to determine whether the report of Future Home Builders Pty Ltd dated 22 February 2018 is sufficient to prove the flooring supplied and installed by the appellant is defective; (2) if yes, the appellant is to pay the respondent the sum of $6200.00 by way of refund; (3) if no, the appeal was to be allowed, the original order set aside and the original application dismissed.
In other words, both parties consented to the appeal being conducted by way of rehearing, which was effectively confined to a single issue.
We do not think that the grounds of appeal warrant a new hearing by the Appeal Panel. As we explained at the hearing, in circumstances where the Respondents' expert Mr Drexler was cross-examined before the Tribunal, but had not been required for cross-examination at the appeal hearing, in the event we decided to conduct a re-hearing, it was rather obvious that a s 80(3) rehearing could not be conducted, let alone with new evidence that was not before the Tribunal.
As we further explained at the appeal hearing, if we formed the view that the appeal should be allowed because there was a question of law raised, or leave to appeal granted because the Homeowners may have suffered a substantial misjustice, the appropriate course was to remit the appeal to the Tribunal for redetermination.
For these reasons, we decided not to conduct the appeal as a rehearing.
Given that the appeal and the application for leave to appeal are unsuccessful, there is no basis for a rehearing in any event.

[9]

The first category of new evidence

The reasons the Homeowners advanced that the first category of video evidence should be considered on appeal include the following: 1. the evidence of Mr Drexler before the Tribunal contradicted what he said and saw during the roof inspection and the report prepared by him omits "certain material information" related to what he said and saw during the roof inspection; 2. the admission of the video footage of the roof inspection is required to prove that (among other things): 1. Mr Drexler gave contradictory evidence and omitted material evidence cannot be relied upon, and that all opinions of the expert witness and his report "should be set aside" or, in the alternative, no weight should be given to them for the purposes of determining the appeal; and 2. the Roofer's witnesses remained silent during the Tribunal hearing notwithstanding that they were aware of the contradictory evidence provided; 1. an expert witness' paramount duty is to the Tribunal and not to any party to the proceedings; as the video footage of the roof inspection should be completely impartial it should not be controversial for that video to be admitted as evidence; 2. Mr Greenslade submitted that the damage caused to the north facing wall of the Homeowners' house may have been caused by a member of the public walking past their home, whereas the video footage shows Mr Greenslade admitting to damaging the wall; 3. the Homeowners were not aware following the first directions hearing on 30 August 2022 that in the event they elected to not submit video footage and to instead submit stills of that footage with accompanying quotations in writing, that the evidence would not be admissible at the Tribunal hearing or that little or no weight would be given to the descriptions by the Homeowners of the video footage; 4. it would have been helpful if they had been made aware at the first directions hearing of the implications of not submitting video footage, particularly as they asked a question specifically related to the submission of video footage at that first directions hearing; 5. they offered to provide the video footage at the Tribunal hearing via a personal tablet device. The Senior Member refused to admit that evidence and therefore did not take that video footage into consideration when making orders; and 6. they mistakenly believed that the evidence provided by the Roofer's witnesses at the initial hearing would be truthful, correct, complete and not misleading. Therefore, the provision of the video footage at the initial hearing would not be as important as it clearly now is.
Some of these issues were amplified by Ms Kora in oral submissions at the appeal hearing. We explored with her some of her submissions, in particular the submission that the Homeowners offered to provide the video footage at the Tribunal hearing via a personal tablet device, which the Senior Member refused to admit.
We have read the portion of the transcript which Ms Kora relied on to support that submission. We do not agree that the statement "but we have audio and we know exactly that that quote was taken from the audio. I've got it on my phone and we've got it on a tablet as well" constituted an application to tender the video evidence at the Tribunal hearing.
The issue arose in the context of Ms Kora's cross-examination of the Roofer's expert Mr Drexler. The following exchange took place: Ms Kora: … Why, and I quote, did you say that the amount of silicon used was excessive? Mr Drexler: That's not what I wrote in my report. Ms Kora: That's not the question. Mr Drexler: I don't recall saying that. … Ms Kora: We have it on video. Mr Drexler: When I wrote the report, I changed my mind. Ms Kora: About what? Mr Drexler: About the amount of silicon Ms Kora: Using that amount of silicon Mr Drexler: It was not relevant. I didn't include it in my report.
After an exchange about whether the video was taken with Mr Drexler's permission, a matter which the Tribunal decided it was not necessary to determine, the Tribunal commented: Tribunal: … The video is not in evidence, is that right? Ms Kora: No, but the stills taken from that video included in the pack, and that's why I can say tit's 6:13 into the video. The question that Carl [d'Entremont] posed to Dan [Drexler] is that amount of silicon meant to be used in the construction of a roof. Dan [Drexler] then said "It's an excessive amount of silicon. I then said What was that, didn't hear it, wanted to check. What as that excessive amount? Dan [Drexler] said "Yes an excessive amount".
The exchange between the Tribunal and Ms Kora continued: Tribunal: Well, the witness has said that he doesn't remember what he said on that occasion. I don't have any audio before me of what was said, and I don't think I can rely upon what's said on page 48 to be some substitute or actual evidence of what was said. Ms Kora: Okay. Obviously we can't, but we have the audio and we know exactly that that is a quote taken from the audio. I've got it on my phone and we've got it on a tablet as well. Tribunal: Well, at the moment I've got it based on the evidence before me and the witness has been asked that question and he says that he doesn't remember what he said so that's the evidence at the moment. Ms Kora: Yeah. Tribunal: I've got to make my decisions on the evidence. …
We note that neither of the Homeowners, despite directions to do so, had filed a witness statement, statutory declaration or affidavit with the Tribunal setting out their version of events, including this conversation with Mr Drexler. True it is that on p 48 referred to by Ms Kora she had set out what she purported to be part of a conversation between her and Mr Drexler, but we agree with the Tribunal that this was not an appropriate way for that evidence to be given.
The applicable rule for presenting new evidence on appeal is that the materials sought to be relied on were not reasonably available at the time of the Tribunal hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. As the Appeal Panel stated in Chapman v McLaughin [2016] NSWCATAP 212 at [37]: … The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.
The video evidence was available at the time of the hearing. The Homeowners, for whatever reason, did not attempt to rely on it at the Tribunal hearing. In the absence of any transcript of the directions hearing, we are not persuaded that the Homeowners were misled in any way.
We see no error by the Tribunal and we do not grant leave for this material to be tendered on appeal.

[13]

Leave to appeal

Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

[18]

Grounds 2 to 7

Grounds 2 to 7 may be considered together, as they all relate to failures by the Respondents to ensure that the works undertaken by the Respondents were not defective and complied with relevant legislation and standards.
These works in summary were, or related to:

the slope of the roof (Ground 2);
the slope of the box gutter (Ground 3);
the fastener frequency for flashings and cappings (Ground 4);
the Respondents not complying with the structural stability and resistance performance requirements set out in the National Construction Code (NCC) (Ground 5);
the Respondents not complying with rainwater management performance requirements set out in the NCC (Ground 6);
the Respondents not complying with the weatherproofing performance requirements set out in the NCC (Ground 7).

Despite the more than 12 pages of single-spaced submissions dealing with these grounds, the only criticisms of the Tribunal were the following:

"The Senior Member was aware that the slope of the roof did not comply with the manufacturer's guidelines, but no order was made against the Respondents or in favour of the Appellants" (Ground 2);
"The Senior Member was aware based on photographic evidence that water pools in the box gutter and does not drain away, but no order was made against the Respondents or in favour of the Appellants" (Ground 3); and
"The Senior Member was aware that the roof does not have sufficient fasteners, but no order was made against the Respondents of in favour of the Applicants" (Ground 4).

Ms Kora told us that each of Grounds 2 to 7 each raised a question of law. We disagree. Ms Kora was not able to articulate in any persuasive way why any of these grounds amounted to, or raised, a question of law. As noted, save for what appears in [61], no errors of the Tribunal are even asserted.
As to whether or not leave to appeal should be granted, we shall deal with that issue after we have considered whether any other ground of appeal raises a question of law.

[19]

Grounds 8, 13 and 14

These grounds may be considered together, as they each raise matters which in our view were not raised in the Homeowners' Amended Points of Claim or at the Tribunal hearing.
Ground 8 is that the contract between the parties was not enforceable by "the Respondent". This is presumably reference to Ian's Roofing Pty Ltd ATF the Silvan Family Trust, as the contract was prepared on its letterhead and Mr Greenslade is not expressed to be a party to the contract. In support of this submission the Homeowners rely on s 10 of the HBA.
Ground 13 is that the Respondents did not comply with the requirement to provide a signed copy of the contract related to the work not later than five business days after entering into the contract even though they were required to do so. As noted above the Homeowners' assert that the Senior Member was aware of that non-compliance but no order was made against the Respondents. The Homeowners submit that the Respondents breached s 7B of the HBA and that a penalty of 80 penalty units be imposed on the Roofer and 40 penalty units on Mr Greenslade.
We pause to note that we explained in the hearing that the Consumer and Commercial Division of the Tribunal does not impose penalties on builders.
Ground 14 is that: The contract for the work to be completed by the Respondents is not-enforceable by the Respondents as the Respondents are in breach of the [HBA] and/or the Home Building Regulation related to that contract. The Senior Member was aware (in whole or in part) of that non-compliance but no order was made in respect of the unenforceablilty of the contract.
In the Amended Points of Claim, the Homeowners state they seek the following orders against Mr Greenslade: (i) that lan Greenslade has his roof plumber licence cancelled with immediate effect and in the alternative, that lan Greenslade shall not have his roof plumber licence renewed when it is next due for renewal, which is on 7 January 2026, on the basis of breaches of The Australian Consumer Law and directors' duties (including the duty to act with care and diligence) by lan Greenslade; (ii) that lan Greenslade be sanctioned under the Corporations Act 2001 (Cth) for breaches of directors' duties; and (iii) that lan Greenslade be disqualified from being appointed as a director (and for any such current appointments to be terminated as soon as practicable) for breaches of directors'
In the Amended Points of Claim, the Homeowners state they seek the following orders against the Roofer: (i) relief from payment by us to [the Roofer] of $4,400.00 (incl GST) on the basis of breach of the common law (and in particular, breach of contract) and breach of The Australian Consumer Law by [the Roofer]; (ii) refund be paid to us by [the Roofer] of $21,323.50 (incl GST) on the basis of breach of the common law (and in particular, breach of contract) and breach of The Australian Consumer Law by [the Roofer]; (iii) compensation to be paid to us as set out below: (A) for the removal of the non-compliant roof installed by IR, the installation of a new roof that complies with all relevant laws and any ancillary costs related to that removal and installation (including but not limited to, any council permits or cranes that are required); (B) for time spent by both Carl and I to prepare for this process (including the preparation of our document bundle) and annual leave taken in order to attend in person at NCAT; (C) for damage caused by [the Roofer] to the brickwork of our house, the paint on the north facing wall and the garage door; and (D) ancillary costs including the CAT claim fee, travel costs, printing and courier costs, in each case, on the basis of breach of common law (and in particular, breach of contract) and breach of The Australian Consumer Law by [the Roofer], See Section H, page 102 of this document bundle for a breakdown of compensation amounts; (iv) that [the Roofer] has its roof plumber licence cancelled with immediate effect and in the alternative, that it shall not have its roof plumber licence renewed when it is next due for renewal, [the Roofer]; which is on 19 May 2023, on the basis of breaches of The Australian Consumer Law by [the Roofer]; (v) that any new or other entity associated or related (directly or indirectly) with any of [the Roofer], lan Greenslade and Maria Silva be forbidden from holding a roof plumber licence or, where such entity currently a roof plumber licence, that such licence be cancelled with immediate effect and in the alternative, that it shall not have its roof plumber licence renewed when it is next due for renewal, on the basis of breaches of The Australian Consumer Law by [the Roofer] and lan Greenslade and breaches of directors' duties by lan Greenslade and Maria Silva; and (vi) that [the Roofer] be sanctioned under the relevant legislation for breaches by it of the Home Building Act 1989 and The Australian Consumer Law.
It is to observed that nowhere in the Amended Points of Claim are any of the issues the subject of Grounds 8, 13 and 14 raised. Nor do we see anything in the transcript which suggests that these matters were agitated before the Tribunal.
In the circumstances we consider that the issues the subject of Grounds 8, 13 and 14 were not raised before the Tribunal it is inappropriate for us to entertain that ground of appeal.

[22]

Grounds 18, 19 and 20

These grounds may be considered together as they all invoke the Australian Consumer Law (ACL), an issue which we accept was raised in the Amended Points of Claim.
Ground 18 is that: The Respondents are in breach of the guarantees provided under the ACL as to residential building work. The Senior Member was aware of those breaches and the relevant legislation (or links to it) was included in the Appellants' submissions, but no order was made against the Respondents or in favour of the Appellants.
Ground 19 is that: 197. … Australian law prohibits conduct, in trade or commerce, that is misleading or deceptive or is likely to mislead or deceive. The Respondents breached that prohibition when: (a) they claimed that the materials acting as the roof were removed when they were not; (b) they claimed that the roof was comprised of materials that did not exist; (c) they confirmed to the Appellants that the slope of the roof complied with the minimum slope requirement of not less than one degree when it did not; (d) they claimed that there were no photos that showed dents on the roof prior to the Respondents completing the work and that based on that, anyone could have caused the dents (when there was a photo showing such dents and the Respondents themselves took that photo and provided it to the Appellants); (e) they remained silent during the initial hearing when: (i) their expert witness advised that the roof slope of less than one degree was not in breach of law, when it is in breach of law (and presumably the Respondents are aware of the legal requirements of installing a roof); (ii) their expert witness was being questioned in relation to the box gutter and advised that he did not see water pooling in the box gutter during his roof inspection, as the Respondents were included in the conversation during the roof inspection pursuant to which the expert witness pointed out to the Appellants that water was in fact pooling in the box gutter instead of draining off the roof; and (iii) their expert witness claimed that the roof does not leak, when the Respondents knew that the roof leaks based on correspondence and photographic evidence provided to the Respondents and they have acknowledged leaks and tried to fix them; (f) they claimed that a member of the public could have caused the damage to the paint on the north facing wall of the Appellants' house, to the brickwork on the north eastern corner of the Appellants' house and the damage to the Appellants' garage, when the Respondent individual admitted to causing at least some of that damage and, in respect of the damage to the brickwork, attempted to fix that damage (per the evidence provided at the initial hearing and the video footage provided on the USB drive provided with this appeal document); and (g) they stated in their contract that they will not be responsible for additional (consequential) loss suffered by the Appellants. 198. The Senior Member was aware of the above mentioned breaches but no order was made against the Respondents or in favour of the Appellants.
Ground 20 is that: 217. … Australian law prohibits certain types of false or misleading representations about goods and services. Those prohibited representations include false representations in relation to quality. As set out above at paragraph 197 (c), the Respondents breached that prohibition when: (a) they confirmed to the Appellants that the slope of the roof complied with the minimum slope requirement of not less than one degree, as it did not; (b) they claimed that the materials acting as the roof were removed when they were not; (c) they claimed that there were no photos that showed dents on the roof prior to the Respondents completing the work and that based on that, anyone could have caused the dents (when there was a photo showing such dents and the Respondents themselves took that photo and provided it to the Appellants); and (d) they stated in their contract that they will not be responsible for additional (consequential) loss suffered by the Appellants.
Ms Kora did not claim that Ground 19 raised a question of law. We agree. Therefore, we shall consider this ground in the Leave to Appeal section of these reasons.
As to Grounds 18 and 20, we repeat our remarks above. No coherent or persuasive reason was advanced as to why these grounds of appeal raise a question of law. These too will be considered in the Leave to Appeal section of these reasons.

[25]

Leave to Appeal

For the above reasons, the only grounds of appeal in respect of which we will consider whether leave to appeal should be granted are Grounds 2 to 7, 15, 16 (only in so far as it relates to breaches of statutory warranty) and 18 to 20.
We commence our consideration by noting that Ms Kora submitted in the Notice of Appeal section "Application for leave to appeal from a Consumer and Commercial Division Decision" that: 1. the Decision was not fair and equitable; 2. the Decision was against the weight of the evidence; and 3. significant new evidence was now available.
We understand that the Homeowners are relying on those matters to support a grant of leave to appeal.
It is unnecessary to say anything further about any new evidence. We have dealt with that matter above.
As to the Decision being not fair and equitable, the basis for that submission was that: 1. the Respondents installed a roof on the Homeowners' house at a cost of $21,323.50; the roof currently leaks in not less than five locations; roof does not comply "with law"; the money order made in favour of the Homeowners is insufficient to pay for the roof to be replaced. 2. the Tribunal did not provide any compensation for other costs incurred by the Appellant in connection with this claim. This means that the Homeowners are left with a leaking, illegal roof and substantially out of pocket; 3. the expert witness' "submission" that the slope of the roof (which the Homeowners claim is less than 1 degree in numerous locations) does not breach any relevant law and only breaches the manufacturer's guidelines, which submission was accepted by the Senior Member, is not correct at law; 4. the Senior Member was aware of various breaches of law by the Respondents. For example, breaches of the HBA in relation to the requirement to have insurance "incepted", the requirement to not accept payment under a contract unless that insurance was "incepted", and the requirement to provide to the Appellant a signed copy of the contract for work. No orders were made against the Respondent in respect of the breaches of law.
As to the Decision being against the weight of the evidence, the basis for that submission was that: 1. the Tribunal placed too much weight on the Respondents' expert Mr Drexler in that: 1. some of his evidence given orally at the hearing was wrong at law; 2. other parts of his oral evidence contradicted his expert report and/or contradicted what the expert witness said and saw while inspecting the Homeowners' roof (as included in the video footage included with this appeal document); 3. the Senior Member did not identify the errors in the expert witness statements at the hearing and instead those expert witness' submissions were accepted; 4. the evidence provided by Mr Drexler was not impartial, not complete, and was not supported by fact or evidence. 1. not enough weight was given to the Homeowners' evidence. Here the Homeowners refer to correspondence between the parties about the roof leaks, photographic evidence "showing that the dents on the roof could only have been caused by "the Respondent" (presumably Mr Greenslade); an email from the manufacturer of the roof sheets which states that it is not recommended that the roof sheets be re-used as it is difficult to uninstall the roof sheets without damaging them; photographic evidence that "the Respondent" (presumably Mr Greenslade) installed the new roof over the top of the old wet roof; three quotations that the Homeowners obtained from independent roofers; and video evidence of Mr Drexler's inspection of the roof.
In addition to the written submissions, Ms Kora made oral submissions at the appeal hearing as to why leave to appeal should be granted, addressing the criteria in Collins v Urban. In summary she submitted that the quality of building works to person's home was a matter of significant public importance; that the public needed to appropriately protected from builders who failed to comply with the requirements of the HBA and relevant Australian Standards; that she and her family had suffered harm and loss and the Respondents' actions had had a "huge detrimental effect" on them; and that she and Mr d'Entremont needed to be protected given the value of their family home. She also submitted that there had been a clear injustice, in that she and Mr d'Entremont had paid $21,323.50 for roofing work that was not fit for purpose in circumstances where the roof still leaks and rain had caused major damage to the interior of their home.
The Respondents oppose any grant of leave.
We pause to note that there is considerable substance in the Respondents' submissions that: Generally speaking, the Appellants' submissions are overly long and repetitive. "Issues" often contain a wish list. There is very little critical analysis of the evidence before the Tribunal, the decision appealed from or of matters relevant to the appeal. A legal provision is often stated in a vacuum with no attempt to relate the provision to the decision under appeal or to a matter relevant on the appeal. There is little attempt to define errors of law or matters that require leave to appeal.
In our view, a relevant factor in assessing whether or not to grant leave is the evidence that was before the Tribunal which was filed by the Homeowners. This evidence consisted of photographs and correspondence. As noted, despite directions, it did not include any witness statement (or affidavit or statutory declaration) of either Homeowner nor an admissible expert report.
We pause here to interpolate that the Tribunal stated at [12] that the Homeowners had relied on a roof inspection report dated 3 August 2022 from Mr Harris of National Roof Reports. The Tribunal then noted at [13] that: The report by Mr. Harris is not a report which complies with the CAT Procedural Direction governing expert evidence in the Tribunal. The Tribunal is not aware of Mr. Harris's qualifications or experience. The Tribunal is not satisfied that it can rely upon Mr. Harris to provide expert opinion evidence about the roof that is the subject of these proceedings.
The Tribunal then concluded at [52] to [54]: 52 The [Homeowners] do not bring before the Tribunal any expert opinion evidence, which complies with the Tribunal's Procedural Directions relating to expert evidence, suggesting that the roof installed by the Roofer should be replaced. The [Homeowners] do not adduce any evidence demonstrating that there are major defects in the work done by the Roofer for them. 53 The [Homeowners] do not adduce any compelling expert opinion evidence that water penetration inside their property is caused by the Roofer's failure to comply with its contractual obligations to the Cross-Claimants when performing building work for them.

[26]

54 To the extent that Mr. Harris's report suggested there was a problem with the 70 mm by 70 mm outlet for the Paddington property's roof's box gutter, causing water to overflow under the installed roof sheets and into the cavity below, I accept Ms. Silva's submission that the Homeowner has not demonstrated any reason why the Roofer should be held responsible for that, in light of the scope of works in the "residential small job contract"

Thus, the Tribunal concluded at 56: The only expert opinion evidence that the Tribunal has before it, which does comply with the Tribunal's Procedural Directions relating to expert evidence, is Mr. Drexler's report.
The Tribunal or its predecessors have remarked on a number of occasions (see Pate v Chan [2010] NSWCTTT 221; Buckland v Goodwin [2009] NSWCTTT 685; McGinn v Barilla [2018] NSWCATAP 85) that: 1. a court or tribunal is informed and persuaded only by the presentation of evidence; 2. evidence is material which tends to persuade the court or tribunal of the truth or probability of the facts being alleged. 3. evidence may be photographic, documentary or testimonial. But it will only succeed in persuading the tribunal if it appears as being truthful, reliable and cogent; 4. the uncorroborated say so of a party that work has been undertaken poorly or that a loss has been suffered in a particular amount is rarely, if ever, sufficient proof of the poor work or the loss being suffered.
As we understand matters, the only relevant evidence presented by the Homeowners to support their claims of defective work undertaken by the Roofer was correspondence between the parties and a series of photographs taken by one or other of the Homeowners to which were added annotations of the Homeowners' opinions as what those photographs depicted. To take two examples:

the annotation to the photograph at p 92 behind Tab C of the Homeowners' appeal bundle is said to depict "Trade waste illegally dumped by [the Roofer] onto the pedestrian footpath and pocket park adjacent to [the Homeowners house];
the annotation to the photographs at p 96 behind Tab C of the Homeowners' appeal bundle is said to depict "Damage to [the Homeowners house] as a result of trade waste being thrown off the top of the roof … by [the Roofer]".

Apart from being irrelevant to the matters agitated in the Amended Points of Claim and before at the Tribunal hearing, this opinion evidence is of the Homeowners is of no probative value.
True it is that the Tribunal is not bound by the rules of evidence, but as a predecessor Tribunal stated in Smith v the Nursing and Midwifery Board of Australia [2013] NSWNMT 10: 18. Having made that observation [that the Tribunal may conduct proceedings as it thinks fit] , it is timely to recall the caution suggested by Evatt J in R v The War Pensions Entitlement Appeals Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228. His Honour stated at 256: But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice." 19. As is observed by Aronson and Groves in Judicial Review of Administrative Action (5th Ed) at 581: Provisions which free a tribunal or other body from the rules of evidence are best regarded as facultative. They are intended to provide procedural flexibility but not to displace logic or reasons. A decision-maker freed from the rules of evidence must therefore still consider the whether the material it can consider should in fact be considered. The litmus test is usually whether the material is rationally probative. It follows that provisions which free tribunals from the rules of evidence do not allow decision-makers to "draw inferences or jump to conclusions, which the available material did not adequately support".
In short, there is a difference between having "a good case" and having the evidence to prove that one has "a good case".
In our view, the evidence before the Tribunal relied on by the Homeowners was entirely lacking. We see no error by the Tribunal on the basis of the materials before it. In our view, to the extent that the appeal raises errors other than questions of law, we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
We make two final observations. The first is that the Homeowners submit that they suffered an injustice and leave to appeal should be granted because the Tribunal declined to award them any of their claimed compensation of: $67,943.20 as a "genuine estimate of time spent" by the Cross-Claimants, $3,056.542 for "annual leave taken", quotations to have the roof replaced at the Paddington property, repair and painting costs for some of the brickwork at the Paddington property and its garage, as well as reimbursement for travel costs, courier costs and other ancillaries.
The Tribunal found that: 73. The largest item of the monetary orders claimed by the Cross-Claimants against the Roofer are for costs of both the Cross-Claimants "to prepare for this process (including the preparation of our document bundle) and annual leave taken in order to attend at CAT." There are also "ancillary costs" claimed by the Cross-Claimants for the CAT application fee, travel costs, printing costs and courier costs. 74. There was very limited evidence about the Cross-Claimants' costs of their preparation time, other than a high-level, general assertion that this was a "genuine estimate". The Tribunal was given almost no evidence about Mr. d'Entremont's employment circumstances or his annual leave. The Tribunal was given limited evidence about the Homeowner's circumstances, other than that she is a corporate lawyer, but there was no evidence about her hourly rate and whether that rate is all payable to her as income or some of it would have to go to her costs or costs of the firm for which she works, and there was no evidence about her annual leave and whether the Homeowner in fact had to forego work so that she could prepare for the NCAT proceedings. Even if I assume the Cross-Claimants lost earnings as a result of the CAT proceedings, they made no submission why loss of earnings should be allowed as a cost to them, despite Cachia v Hanes (1994) 179 CLR 403. The Cross-Claimants made no submission why the Homeowner should be in a privileged position as regards to her time in dealing with the CAT litigation, despite Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29. 75. I would dismiss this part of the claim on the ground that there is no evidence to substantiate the claim or alternatively, that the evidence is not persuasive that these amounts claimed are caused by the Roofer's breach of warranty and reasonably arise because of the breaches. Further or in the alternative, this part of the claim appears to be contrary to the authorities cited in the preceding paragraph of these reasons. 76. The Tribunal also dismisses the Cross-Claimants' claim for ancillary costs. In circumstances first, where the Tribunal does not have jurisdiction in respect of the Cross-Claimants' claim against Mr. Greenslade, and the Homeowner made no attempt during submissions to support those claims; and secondly, the Cross-Claimants have only recovered a relatively small proportion of the monetary claim they make against the Roofer, the Tribunal is not convinced that it should make any order in favour of the Cross-Claimants for their claimed ancillary costs.
We see no error in the Tribunal's reasoning or in its conclusions.
The second observation we make is that all the submissions of the Homeowners relating to the impositions of "sanctions" and "penalties" on either or both of the Respondents were misconceived.
By way of example, the Tribunal does not have jurisdiction to cancel Mr Greenslade's plumber's licence, less still to order that it may not be renewed because of breaches of the ACL or breaches of "directors' duties".
Nor does the Tribunal have any jurisdiction to "sanction" Mr Greenslade under the Corporations Act 2001 (Cth) (Corporations Act), including that he be disqualified as a director, including that "any such current appointments be terminated as soon as possible".
Overall, we are not satisfied that the Homeowners have established that they may have suffered a substantial miscarriage of justice on the basis of one or more of the grounds set out in cl 12 of Sch 4 of the NCAT Act. Even if we were so satisfied, we would grant leave to appeal as we are not satisfied that the criteria for doing so operate in this case. In our view, the outcome of the proceedings before the Tribunal are consistent with the evidence provided and submissions made to the Tribunal at first instance.

Kora v Ian's Roofing Pty Ltd

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