Kumar v Sabharwal

Extension of Time for Appeal

1. As noted above, the Notice of Appeal was filed on 16 May 2017, 54 days after receipt of the Decision by the builder by email.
2. Rule 25(4) of the Civil and Administrative Rules 2014 (NSW) (the Rules) provides that an appellant must lodge an appeal within 28 days from the day on which they are notified of the decision to be appealed or given reasons for the decision, whichever is the later.
3. The owner opposed the builder's request for an extension of time, submitting that the builder was aware of the decision in mid-March 2017 and that no proper reason has been advanced for the delay in bringing the appeal.
4. The Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] set out the relevant principles in relation to an extension of time in which to bring an appeal. We summarise those principles as follows: 1. Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, time limits should generally be strictly enforced; 2. Under s 41 of Civil and Administrative Tribunal Act 2013 (the Act), the Appeal Panel has power to grant an extension of time in which to appeal. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to s 36 of the Act which states that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings"; 3. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time; 4. The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant; 5. The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision; 6. Where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success; 7. Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: 1. the length of the delay; 2. the reason for the delay; 3. the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and 4. the extent of any prejudice suffered by the respondent (to the appeal); 1. It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable.
5. In our view, it is important to encourage parties to comply with time periods specified in the NCAT Act and the Rules, and this should be done by not extending time except when the interests of justice require otherwise.

The length of the delay

1. The Decision was published on 15 March 2017. The builder states that he received the Decision by email from the Tribunal on 23 March 2017. In our experience, that would be unusual, as where the Tribunal has an email address for a party, the reasons for decision are sent by email the day the decision is published. We note that the email relied on by the builder (which is in fact dated 22 March 2017) actually refers to the amended orders issued by the Tribunal that day. We shall give the builder the benefit of the doubt about this issue.
2. In any event, the Notice of Appeal was filed on 16 May 2017, some 54 days after the date the builder says he received the Decision. This is a substantial period longer than the 28 days required by the Rules. In our view, this factor militates against extending the time for the filing of the Notice of Appeal.

The reason for the delay

1. The builder's explanation for the delay is set out in his affidavit affirmed 15 May 2017 and attached to the Notice of Appeal. As we have noted above, the explanation relates to his daughter's wedding, the celebration of which took place in the period 13 to 17 April 2017, and the wedding itself in Melbourne on 22 April 2017. The builder states that as head of his family, he was intimately involved in both the preparations and the formalities of the wedding. At par [12] he states that '[a]midst the busyness [sic] of wedding preparations, the required family visits and with my focus squarely on my family and only daughter, I was aware I would not have the capacity to lodge an appeal in time". Consequently, the builder did contact the Registry on 30 March 2017 seeking extra time in which to lodge his appeal. He was informed by the Registry that his request should form part of his Notice of Appeal.
2. The evidence by the builder as to why such a substantial period was required to file the Notice of Appeal was based solely upon the fact that his daughter was to be married and cultural traditions required a commitment to an extensive social program. The wedding actually occurred over four days from 13 to 17 April 2017.
3. The evidence suggests that the intense social program did not commence in earnest until the end of March 2017. There is no explanation at all of why the Notice of Appeal could not have been addressed immediately upon receipt or why lawyers could not have been engaged to provide legal advice and assist in drafting the Notice of Appeal. The builder states at par [17] of his affidavit that he did not start looking for a solicitor until the first week of May.
4. While we accept that his daughter's wedding may have preoccupied the builder to some extent, we are not persuaded that this factor favours an extension of time. The respondent, who comes from the same cultural background, submits that, in effect, the builder has exaggerated the requirements and expectations of the host family at the wedding.
5. In our view, this factor militates against extending the time for the filing of the Notice of Appeal.

The builder's prospects of success

1. One of the matters referred to in Jackson is the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case. As the Appeal Panel noted, it may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory. We consider that this is such a situation, and we propose to consider the appellant's prospects of success.
2. In his Notice of Appeal the builder raises eleven grounds of appeal. In our view, only the first ground raises an error of law, for which no leave to appeal is required.

Error of law

1. The first ground of appeal is that the Tribunal erred by failing to properly consider making work orders in accordance with s 48MA of the Home Building Act 1989 (the HB Act). Section 48MA provides that a court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the "responsible party") is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome.
2. Section 48MA has been considered in two recent decisions of the Appeal Panel, M & M Building Pty Ltd v Keith [2017] NSWCATAP 88 and Galdona v Peacock [2017] NSWCATAP 64. In M & M Building Pty Ltd, one of the (builder's) grounds of appeal was that the Tribunal Member erred in law in failing to give reasons in respect of the non-application of s 48MA of the HB Act. The Appeal Panel concluded: 112. The Appeal Panel is of the view that as the builder was not the holder of a contractor licence which authorises it to contract to do the work the subject of the orders which will be made by the Appeal Panel for the payment of money to the home owners, it was not appropriate for the Tribunal Member to apply the principle mentioned in s 48MA of the Act. 113. The Appeal Panel is also of the view that as the builder was not licensed to carry out this completion and rectification work, any alleged duty to mitigate by giving the builder a reasonable opportunity to rectify defects, is not applicable.
3. In Galdona the Appeal Panel found that the Tribunal erred at law in not having regard to s 48MA of the HB Act and the preferred outcome referred to in that section when it determined the respondent's building claim. The Appeal Panel decided, having regard to the findings of fact made by the Tribunal and the other material available, to exercise its power under s 81(1)(b) of the Act and to confirmed the Tribunal's decision. The Appeal Panel concluded: 64. The basis upon which we have decided to confirm the Tribunal decision is that even if the Tribunal Member had considered section 48MA of the Home Building Act and had commenced his consideration of a work order under section 48(1)(c)(i) of the Home Building Act with due regard to the principle that rectification of the defective work by the appellants was the preferred outcome, we have come to the conclusion that his decision would have been no different. We reach this conclusion by having regard to the fact that the Tribunal Member made the following findings. First, the relationship between the parties had broken down. Secondly, the appellants did not acknowledge the poor standard of the work they had carried out. Thirdly, the Tribunal Member had severe reservations as to the appellant's ability to rectify the work with due care and skill. These findings were in our view sufficient to justify a decision that the preferred outcome of rectification by the appellants should not be ordered. 65. Finally, we observe that section 48MA of the Home Building Act only required the Tribunal Member to have regard to the principle that that rectification of the defective work by the appellants was the preferred outcome. Section 48MA did not make the preferred outcome the mandatory outcome.
4. We consider that similar considerations apply for this appeal. First, in his post-hearing submissions, the builder states that his license is suspended. He states that "I would rather fix these defects and then apply for the renewal of my licence". Secondly, the owner stated in his submissions filed 7 July 2017 he had no confidence in the builder to carry out any rectification work, and did not want the builder to undertake any further work on his home.
5. While the Tribunal did not refer to s 48MA in its written reasons for decision, the fact that the builder is no longer licensed and the further fact that the relationship between builder and owner has clearly broken down, are sufficient to justify a decision that the preferred outcome of rectification by the builder should not be ordered. Therefore, while there appears to be substance in the submission that the Tribunal did not refer to s 48MA of the HB Act, we would not disturb the Tribunal's decision for that reason. Accordingly, we do not consider this to be a factor warranting an extension of time.
6. We reject as misconceived the builder's submission that as the works requiring rectification were completed under his "valid licence" therefore those defects should be rectified by him.

Other errors

1. We shall now briefly summarise the second to eleventh grounds of appeal, and the owner's response as stated in his Reply to Appeal.
2. The second ground of appeal is that the Tribunal erred by failing to properly hear and consider the builder's "position" in relation to the agreed defective items. The owner submits that the Tribunal carefully considered the evidence before it and furthermore ordered reports to be provided by on-site conclave after the first day of the hearing.
3. The third ground of appeal is that the Tribunal erred by making orders for payment in the absence of express evidence from the builder consenting to make payment for defective items. The owner submits that the Tribunal provided the builder with an opportunity to present evidence after the on-site conclave but the builder failed or refused to do so.
4. The fourth ground of appeal is that the Tribunal was "in grave error", by its "(mis)understanding that the builder had agreed to orders for the payment of defective items. The owner submits that the Tribunal gave serious consideration to the parties "conflicting and at times very confusing accounts of what transpired" between the parties.
5. The fifth ground of appeal is that the Tribunal erred by failing to properly hear and consider the evidence in relation to the works already completed by the builder. The owner submits that the Tribunal gave serious consideration to the works completed and set out what works should have or not have been completed in various stages of the work up to lock-up.
6. The sixth ground of appeal is that the Tribunal failed to properly consider the owner's views in defence of the builder's cross application, or at all. The owner submits that the Tribunal made no error in finding the appellant's cross-application "unsubstantiated" and carefully consider the evidence of both parties.
7. The seventh ground of appeal is that the Tribunal erred in finding that the builder had been paid for the work completed. The owner submits that it is not incumbent on the Tribunal to make findings for work for which the builder had been paid, and that the Tribunal carefully considered the evidence tendered by the Appellant.
8. The eighth ground of appeal is that the Tribunal erred by failing to recognise that the "cross-application was for work completed beyond the 'lock-up' stage as set out by the owner's "bank". The owner submits that this was addressed specifically in pars [102] to [106], and that no error was made by the Tribunal, which carefully considered the evidence tendered by the builder.
9. The ninth ground of appeal is that the Tribunal erred in its understanding of work completed to "lock-up stage". The owner submits that the Tribunal made a proper analysis of the works completed and in particular what works were to be completed by stages 3 and 4.
10. The tenth ground of appeal is that the Tribunal failed to properly consider the respective experts' evidence, and thus erred in its finding of what work was completed by the builder. The owner submits that the Tribunal gave a thorough and proper analysis of the reports provided by the experts and provided further opportunity to the builder to tender further evidence which the builder failed or refused to do.
11. The eleventh ground of appeal is that the Tribunal erred by failing to give weight and priority to the progress payment stages "actually set by the respondent's bank". The owner submits that the Tribunal gave a detailed analysis of the progress payment schedule set by the Respondent's bank and appropriately found the Appellant's claim unsubstantiated.
12. On 23 June 2017, the builder filed a bundle of 23 pages which include a summary page listing 'Expenses incurred in Stage 4' along with copies of invoices and correspondence. There were no written submissions filed by the builder. It is impossible to identify how any of the 23 pages of documents relate to these grounds of appeal. The total of the figures on the summary page is an amount of $53,994.00 which sum is referred to in the orders sought by the builder. There is no explanation of the factual or legal basis for entitlement to this amount.
13. The submissions filed by the builder on 2 August 2017 of three pages do not assist and largely repeat the contentions made in the Notice of Appeal. In summary, the builder submits that: 1. The Tribunal erred in making orders for payment of the defective works, in circumstances where he never consented to do so. He submits that a money order cannot be issues as a "first step" without taking the consent of the builder or it the builder indicates an unwillingness to do so. 2. His expert did not provide "any costings" because "he insisted that I should not be liable to fix these knowing that I was never provided with an opportunity to fix them".
14. The builder also makes reference to his "Cross Claim" and expenses incurred after the last progress payment.
15. The builder included a disc of the sound recording of the hearing of the Tribunal. However, no passages were extracted and provided in a transcript identifying any relevant aspects in the appeal, or errors by the Tribunal.
16. In our view, each of the second to eleventh grounds of appeal raise evidentiary matters. Given the paucity of evidence filed by the builder and the lack of submissions (save for the short submissions received post-hearing), it appears to the Appeal Panel that the builder has little, if any, prospect of success in his appeal based on any of those grounds.
17. Given the other considerations which weigh against an extension of time being granted, it may be that the builder has to satisfy us that that his case has more substantial merit than merely being fairly arguable (see Jackson at [35]; Tomko v Palasty (No 2) (2007) NSWLR 61; [2007] NSWCA 369). In our view, his case does not meet that test. Even if it were accepted that all the builder had to do was meet the "fairly arguable" test, we are not satisfied that these grounds of appeal raise an appeal which could be characterised as such.
18. In summary, the builder's lack of prospects of success mitigate against granting an extension of time.

The extent of any prejudice suffered by the respondent (to the appeal)

1. The owner submits that he continues to be prejudiced by the builder's refusal to pay the compensation order, and the builder's bringing of an unmeritorious appeal in circumstances where the appeal was filed late and the builder has refused to comply with the condition required by the Appeal Panel for the stay (namely that the builder pay to the Tribunal the sum of $44,806.80 on or before 5 July 2017). Again, this factor militates against the grant of an extension of time.

Consideration

1. We have come to the conclusion that leave to extend the time for filing the Notice of Appeal should be refused. We have come to that conclusion based on the following considerations: 1. Even if the Decision was first received by the builder only on 23 March 2017, there was a delay of over three and a half weeks after the expiration of the period for lodging a Notice of Appeal; 2. There was no real explanation for the delay in lodging the Notice of Appeal. The evidence as to activities involved in the preparation for the wedding of the builder's daughter does not explain why the builder failed to immediately investigate the possibility of an appeal; 3. There is no explanation as to why the builder did not appeal within the period specified by the Rules, especially as the situation was explained in NCAT Guideline 1 and attention was drawn to that Guideline in the section of the form completed by the builder; 4. The way in which the grounds of appeal are framed indicates that most of the grounds require leave to appeal. Apart from the first ground of appeal (which relates to s 48MA of the Home Building Act 1989), the other ten grounds raise errors of fact; 5. Since 15 May 2017, the builder's licence has been suspended and the Department of Fair Trading has commenced prosecution proceedings against the builder; 6. The builder confirmed at the hearing that he has not paid the amount of $44,806.80 to the Tribunal which was a condition of the stay ordered on 21 May 2017, and the stay has been lifted; 7. In his submissions in response filed 2 August 2017 the builder confirmed that he is not able to make the payment to the owner; 8. In our view, save for the s 48MA point, it is impossible to identify any basis upon which the Appeal Panel could conclude that the Tribunal fell into an error in dealing with the issues to be determined in the two applications.
2. We conclude that the appeal has no prospects of success: see Day v Bari [2015] NSWCATAP 15 where the Appeal Panel noted that there was no evidence or submissions about the nature of the appellant's appeal. The Appeal Panel there decided that, in circumstances where no evidence has been provided of any of the matters sought to be relied, it was not persuaded that there was any merit or substance in those matters.
3. For the above reasons, the Appeal Panel is not prepared to grant the appellant an extension of time in which to appeal.

Conclusion

1. As the Appeal Panel stated in Jackson at [21]: Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced.
2. We note that the guiding principle for the Tribunal is to facilitate the just, quick, and cheap resolution of the real issues in the proceedings: see s 36(1) of the Act.
3. The Appeal Panel considers that each factor considered above supports a conclusion that the time for filing the Notice of Appeal should not be extended. Accordingly, the application of the builder to extend the time for the filing of the appeal is refused.
4. The appeal is therefore otherwise dismissed.

Orders

1. The Appeal Panel makes the following orders: 1. The application for an extension of time for the filing of the Notice of Appeal is dismissed. 2. The appeal is otherwise dismissed.

Other

1. As noted, the stay of the Tribunal's orders granted on 21 June 2017 was lifted on 19 July 2017.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 October 2017