Laurence and Tanya Matty v Scott and Julie Boyd t/as Vast Constructions [2015] NSWCATAP 100 | Case summary

NCAT Appeal Panel|2015-03-24

Introduction

Some years ago, the respondent undertook building work for the applicants in their home. They were dissatisfied with aspects of that work and began proceedings in the Consumer Trading and Tenancy Tribunal, the predecessor to the Tribunal, ('the former Tribunal'). On 2 October 2013, the former Tribunal made completion and rectification orders which are noted below and required those works to be done within 90 days. On completion of those works the applicants were to pay the respondent the sum of $26,450.36.
In 2014 this Tribunal began operation. By operation of the Civil and Administrative Tribunal Act 2013 ('the Act') Schedule 4 Clause 8 an application for renewal of orders made by the former Tribunal could be made to the Tribunal. The applicants made such an application. It was heard by the Tribunal member who had made the original orders in 2013 in the former Tribunal. The Tribunal has a discretion in considering whether or not to grant a renewal application. On 28 October 2014 the Tribunal refused the application to renew, the ultimate finding being that the earlier Orders 1 and 2 (that is to say, the rectification and certification orders) had been complied with, "to the extent that the respondent was permitted by the applicants to do so". The applicants were then ordered to pay the previously ordered sum "forthwith".
There being no question of law identified by the applicants, leave to appeal is sought on the grounds that the decision was unfair and inequitable and against the weight of evidence. For the following reasons, we have decided to grant leave and allow the appeal in relation to the cost of the applicants procuring the engineering certificates which the respondent had previously been ordered to obtain. We otherwise refuse leave and dismiss the appeal.

Legislation

Schedule 4 to the Act provides: Renewal of proceedings in respect of certain Division decisions (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. (4) When proceedings have been renewed in accordance with this clause, the Tribunal: (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order. (5) This clause does not apply if: (a) the operation of an order has been suspended, or (b) the order is or has been the subject of an internal appeal.
For the reasons given by the Member below, the Tribunal had jurisdiction, in the circumstances of this case, to grant a renewal application in relation to the orders made by the previous Tribunal.
The decision to grant a renewal application is discretionary, as the word 'may' suggests.
The Act provides for appeals as of right on a 'question of law': s 80(2)(b) and also permits appeals with leave of the Appeal Panel. The applicants do not suggest there is an appeal on a question of law. They seek leave to appeal from the decision.
The decision below was made in the Consumer and Commercial Division of the Tribunal. It was a "Division decision" within the meaning of cl 12(1), Schedule 4 of the Act: see the definitions of "the Division" and "Division function" in cl 1 and the provisions of cl 3(1) of Schedule 4. We must be satisfied of the matters set out in cl 12 of Schedule 4 to the Act before the discretion to grant leave can be exercised. That clause provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
These provisions were examined in Collins v Urban [2014] NSWCATAP 17 at [65]-[79], which also decided that even if the Appeal Panel is so satisfied, there is a discretion to grant leave, and at that second stage further principles are to be considered, namely (at [84]): (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact…; (2) 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,… (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: [citations omitted].

Consideration

As already noted, no question of law was identified or asserted by the applicants. Leave to appeal is therefore required.
In that regard, it is not sufficient, although it is necessary to establish that a finding is "against the weight of evidence" or that it is "not fair and equitable" in the circumstances. A further finding fitting one of the categories in Collins v Urban is generally required.
We have considered the evidence upon which the Tribunal based its findings as to the refusal to allow the Respondents to meet onsite and to have an opportunity to rectify any defective work.
After the hearing concluded a later email was received from the applicants to which we have had regard.
With one exception, we do not consider those findings by the Tribunal below to be against the weight of evidence. To the contrary, the evidence supports those findings. Nor has it been demonstrated that the Tribunal's findings were not fair and equitable. Even if we are wrong in this regard, we would not exercise our discretion in relation to any of the categories in Collins v Urban.
The exception relates to the requirement in the original order that "on completion of all the above items, [the Respondent is to] provide all certifications to the owners including an engineering certificate for the garage concrete slab and the block retaining walls under the garage slab."
It was common ground in the appeal that such certificates had not been provided. It is patently unsatisfactory for those certifications not to be provided as that will prevent the applicants from obtaining a final occupation certificate, which is necessary in order to comply with the requirements of the local council and would no doubt be an impediment to any sale of their property should they wish to sell at any time in the future. We consider this result to be unfair or inequitable, given that the certificates were not provided within the 90 day period in relation to construction which had already taken place. We also exercise our discretion to grant leave on the basis that it would cause a significant injustice to the applicants, amounting to a substantial miscarriage of justice, if left this situation was left unremedied. The question then is what remedy to grant, noting we possess all of the powers of the Tribunal below: see s 81 of the Act
The applicant provided a quote from Construction X-Ray for $6,319.50. During the hearing, we enquired of Mr Boyd, who appeared for both respondents, whether, were we to grant leave in relation to the construction certificate issue, he would be satisfied with the amount of that quote being deducted from the money otherwise required to be paid by the applicants to the respondent. In essence, Mr Boyd indicated that he would only be so satisfied if the applicants agreed that the respondents had no further obligation to obtain the certifications in those circumstances. During the hearing Mrs Matty indicated her concurrence with that circumstance.
Accordingly, in the circumstances, we are prepared to grant leave to appeal only in relation to the issue of non-compliance with the previous order of the Tribunal concerning the provision of the engineering certificates. In the circumstances, the appropriate order which we make, being an order which could have been made below, is that that cost of obtaining engineering certificates should be deducted from the amount payable to the respondents, leaving the sum of $20,130.86 to be paid. It follows from this order that the respondents have no further obligation to provide the engineering certificates. In the circumstances, the Tribunal's orders are as follows: 1. The appeal is allowed in part. 2. Order 2 made on 28 October 2014 is set aside. 3. The appellants are to pay the respondents the sum of $20,130.86 forthwith. 1. The appeal is otherwise dismissed. 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: 25 May 2015

Laurence and Tanya Matty v Scott and Julie Boyd t/as Vast Constructions

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