Leisure Brothers Pty Ltd v Smith

Appellant's Submissions and Consideration

The first submission for the appellant is that the Tribunal erred in its application of S 36 of the Civil and Administrative Tribunal Act, 2013 (the Act).
That provision reads: 36 Guiding principles to be applied to practice and procedure (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,
The appellant concedes that its actions caused delay in the proceedings but says that, in circumstances where the appellant was ignorant of the procedures and was inexperienced, it should be entitled to present evidence which it considered crucial to the determination of proceedings in order to enable a just outcome. We do not accept that there was any error on the part of the Tribunal in relying on and applying the guiding principle in this case. Section 38(5)(c) of the Act requires the Tribunal "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings". Principles of case management are also relevant in the determination of whether adjournments or extensions of time should be granted to a party in default or tribunal orders. See eg Mesiha v Murrell [2017] NSWCATAP 1. The appellant has had a full opportunity to provide all necessary evidence and has been granted indulgences from time to time in order to do so. In these circumstances it could not be said that there was any failure to comply with the basic principles of procedural fairness in this case. The letter of 2 June 2016 from Techton clearly indicates that the appellant was aware that there was a need for some expert evidence to counter the evidence of the respondent yet it failed to provide it as directed. It is important to note that the preliminary request in relation to fees for obtaining an expert report was written less than three weeks before the date fixed for hearing and well after the times for compliance with the varied direction. To have granted an adjournment in this case would have been counter to the quick and cheap resolution of the issues and would have been unjust to the respondent in causing yet further delay expense and inconvenience as a result of the respondent's failure to comply.
The second submission is that the Tribunal erred in relying on the quotation furnished by Byron Design & Construction as a basis for reaching its decision as to the amount of damages which should be awarded. The submission refers to the duty of scrutinising and weighing evidence in its role as a tribunal of fact in the proceedings. In this case it is said that the weight of the evidence was not sufficient to justify the finding.
In the case of Khan v Kang [2014] NSWCATAP 48 at [50] the Tribunal said: A quotation from a supplier willing to rectify defects or complete incomplete work can, depending on the circumstances and the nature and content of the quotation, constitute evidence of the defects or incomplete work and of the amount required to remedy the defective work or complete any incomplete work. For example, if the person providing the quotation was suitably qualified or experienced, inspected the work, identified defects or incomplete work on that inspection, recorded his or her observations in the quotation and gave a price to rectify or complete the work, it is difficult to understand why that quotation would not provide evidence in support of a claim for defective or incomplete work. The weight to be given to the evidence would, of course, depend upon many factors. Nonetheless, it would be wrong to conclude that simply because an applicant relied only upon a quotation or quotations for the rectification or completion of work that there was no evidence to support the claim that the work was defective or incomplete.
We understand the Tribunal to be stating that what amounts to sufficient proof depends on the specific circumstances in each case and there is no universal guideline so that in some circumstances a quotation may provide sufficient proof. In this case the Tribunal had detailed evidence from East Coast Building Consultants referring to numerous building defects which are referred to in the decision below and which were accepted. As the Tribunal noted this evidence was not contradicted by counter evidence.
In addition, the Tribunal also accepted a detailed report from Mr Englert dated 17 June 2015 who is a member of Master Painters Australia Queensland, as to the standard of paint finish.
Further, there is a quotation from Byron Design & Construction which notes that the author had visited the property and inspected the residence and noted the contents of reports by East Coast Building Consultants and Master Painters Australia and on the basis of these quoted a lump sum figure of $102,800 to perform the necessary work.
The contents of the reports referred to above were not subject to any contradictory evidence on the hearing below.
In these circumstances we consider that there was sufficient evidence to justify the findings made as to defects and the amount which should be awarded as damages.
The third submission is that the Tribunal erred in relying on the report of East Coast Building Consultants because it did not comply with the NCAT procedural and excused compliance.
In all the circumstances of this case we do not consider that failure to comply with this direction and the decision of the Tribunal to excuse compliance indicates any error or injustice of any kind. Specifically, we do consider that there is any substance in the complaint that the author of the East Coast Building Consultant's report did not attach his CV or state the basis of his expertise in assessing the weight of the evidence.
The fourth submission is that there was an error of law in failing to apply the law to the quotation because there is no reference to any process of reasoning in regard to weighing of the quotation as evidence in proceedings and that acceptance of the quotation was not reasonable, fair or appropriate in the circumstances.
For reasons given above we consider that the combination of the reports and the quotation and the fact that they were not the subject of contrary evidence, despite a full opportunity to furnish such evidence in a timely manner, amounted to sufficient evidence to support the conclusion reached by the Tribunal.
The fifth submission is that the Tribunal did not apply the correct burden of proof to the respondent's claim.
We do not accept the submission because on a fair reading of the reasons given by the Tribunal it is clear that the evidence was carefully weighed and considered with respect to its cogency and sufficiency. We consider that the Tribunal gave ample reasons for accepting the respondent's evidence and properly considered the evidence.
The sixth submission is that the Tribunal erred in failing to make an order for the rectification of defective building work and did not properly take into account that the appellant had failed to permit the respondent to rectify the work. The submission is closely related to the seventh submission which is that the Tribunal failed to have regard to the provisions of s. 48MA of the Home Building Act 1989 which requires the Tribunal to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome. This is a discretionary principle and it does not mandate rectification.
In the reasons the Tribunal specifically deals with the issue of rectification and notes that the appellant did not attend the premises to carry out any rectification work during the defects liability period and he also refers to the fact that the premises had been occupied since October 2014 without any actual rectification work having been carried out. On the basis of these considerations he concluded that in the circumstances of the case the preferred outcome was not preferable because it would most probably be productive of further disputation between the parties rather than a final determination of the applicant's claim and for that reason he did not implement the preferred outcome.
On the evidence before the Tribunal we consider that the question of rectification was properly considered and that there is no error omission or injustice is to be found in ordering damages in the present case.
Finally, the appellant submits that the order to pay $102,800 "immediately" was unreasonable and unjust in that it did not have regard to the capacity of the appellant to pay such a large amount and on the basis that there was no evidence that the subject property was at imminent risk of damage from failure to immediately rectify the defects.
We note that the respondent had taken possession of the property in October 2014 and that these proceedings commenced in August 2015 with a hearing in June 2016. Having regard to all the circumstances and to these time periods over which there has been no rectification work we do not consider that the requirement for immediate payment is in any way unreasonable or unjust.
The last matter to deal with is the application to adduce fresh evidence.
Clause 12(1)(c) of Schedule 4 of the Act, 2013 provides that leave to appeal may be granted where the appellant may have suffered a substantial miscarriage of justice because the Appeal Panel is satisfied "significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)".
The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: 23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).
As stated above, there is no evidence that the report could not reasonably have been obtained prior to the original hearing and there are no features of this case that would otherwise justify the grant of leave to appeal on this ground. Rather, this is a case where the appellant has failed to comply with the directions of the Tribunal on repeated occasions through no fault but his own.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (6 paragraphs)

Parties

Cases Cited (5)

Cited By (44)