Lockard v Reeves

Tribunal findings

1. The Tribunal Member found: 1. That he had the power to hear and determine the matter as a building claim under the Home Building Act 1989 (the 'HBA Act'); 2. that the appellant assumed or agreed to the obligation of lodging the necessary application with the local council; 3. that the appellant started, but did not complete the process of obtaining council approval; 4. that the appellant warranted that the work would be carried out with due care and skill; 5. by holding out that he was applying for council approval and commencing construction before the approval was applied for let alone received, the appellant failed to carry out the work with due care and skill; 6. On 26 July 2022 the respondent/owner was informed that no approval had been granted for the work carried out by the appellant and due to other matters, no approval would have been granted had an application had been received. The other matters were that that the respondent/owner was required to vacate the site by 1 May 2023; 7. It was unlikely that the respondent/owner would be able to avoid leaving the site eventually; 8. When the time came for the respondent/owner to leave the site it would be impractical to take the new awning and tropical roof with him, and it was not reasonable to compute a benefit to him of doing so in light of that impracticability; 9. That doing the best that he could, the Tribunal Member assessed the benefit to the respondent /owner of the new awning and tropical roof which he would have the benefit of until he was required to leave the site at $1,500.00 which was deducted against the amount of $10,832.05 paid to the appellant leading to an amount of $9,332.05 ordered in favour of the respondent/owner as damages.

The Appeal

1. The appellant appeals against that decision. His Grounds of Appeal state that: 1. The decision was not fair and just as the respondent (in the appeal) was awarded $9,332.05 and keeps the awning and tropical roof and has the use of those items until at least May 2024; and 2. The Tribunal relied on the HBA Act instead of the Caravan Parks Camping Ground Act 2021.
2. The appellant also sought leave to appeal on the basis that the decision was not fair and equitable and was against the weight of evidence.

Self-represented parties

1. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ('Prendergast') at [12] an Appeal panel stated: 'In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.'
2. Such an approach was confirmed in Cominos v Di Rico [2016] NSWCATAP 5 where an Appeal Panel stated at [13]: 'It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. However, this must be balanced against the obligation to act fairly and impartially'
3. It will be necessary for us to approach the appellant's Notice of Appeal in the way described above.

Nature and scope of appeal

1. The decision of the Tribunal at first instance is an internally appealable decision and an appeal can be made from that decision as of right upon a question of law, and otherwise with leave of the Appeal Panel: see, s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 ('NCAT Act').
2. As the decision the subject of the appeal is a decision of the Tribunal in the Consumer and Commercial Division, the Appeal Panel may only grant leave to appeal where it 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). (see NCAT Act, Sch 4, cl 12)
3. Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of cl 12(1) of Sch. 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
4. The following questions of law were identified in Prendergast at [13] citations and quotes omitted: 'Whether there has been a failure to provide proper reasons; Whether the Tribunal identified the wrong issue or asked the wrong question; Whether a wrong principle of law had been applied; Whether there was a failure to afford procedural fairness; Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; Whether the Tribunal took into account an irrelevant consideration; Whether there was no evidence to support a finding of fact; Whether the decision is so unreasonable that no reasonable decision-maker would make it.'

Question of law

1. We accept that if a Tribunal Member purports to exercise jurisdiction under legislation which does not in the circumstances of the case actually confer jurisdiction, that will be an error of law.
2. We will deal with the second Ground of Appeal first as it raises a question of law for which leave is not required. The second ground of appeal was: 'The Tribunal relied on the HBA Act instead of the Caravan Parks Camping Ground Act 2021'
3. At [1] of his decision the Tribunal Member found that he had the power to hear and determine the matter as a building claim under the HBA Act.
4. A finding that was central to his decision and which was based on the unarticulated premise that that s18B(1)(a) of the HBA Act applied, was the finding by the Tribunal Member at [17] that: 'the builder warranted that the work would be carried out with due care and skill, and conduct which amounts to the builder holding out that he is applying for approval and to commencing of construction before that approval is applied for let alone received is work with a want of due care and skill.'
5. The appellant asserts that jurisdiction is conferred by the Caravan Parks Camping Ground Act 2021. There is no legislation under that title in New South Wales. It may be that the appellant was intending to refer to the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021 (the 'Regulation'). which he has referred to in his submissions. Section 3 sets out the objects of the Regulation as follows: 'The object of this Regulation is to provide opportunities for affordable alternatives in short-term and long-term accommodation by setting standards - (a) for the design of manufactured home estates, caravan parks and camping grounds, and (b) for the design and construction of manufactured homes and other moveable dwellings, and (c) for the siting of manufactured homes and other moveable dwellings, and (d) to promote the health, safety and amenity of the occupiers of manufactured homes and other moveable dwellings.'
6. While the Regulation sets standards for design and construction of caravans which are defined as a moveable dwelling, it does not deal with the contractual relations of parties in contracting for work to be carried out to a caravan. We find that the Regulation is not relevant to the dispute between the parties.
7. The appellant nonetheless challenges the Tribunal Member's finding that the HBA Act conferred jurisdiction on him to hear and determine the respondent's application. Jurisdiction under the HBA Act is ascertained by consideration of the multi-layered definitions in the Act which make, in the circumstances of these proceedings, the existence of residential building work and a dwelling a necessary ingredient to a building claim.
8. Section 48K (1) of the HBA Act provides that: '(1) The Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000 (or any other higher or lower figure prescribed by the regulations).'(Emphasis added)
9. A 'building claim' is defined in section 48A of the Act as follows: 'building claim means a claim for: (a) the payment of a specified sum of money, or (b) the supply of specified services, or (c) relief from payment of a specified sum of money, or (d) the delivery, return or replacement of specified goods or goods of a specified description, or (e) a combination of two or more of the remedies referred to in paragraphs (a)-(d), that arises from a supply of building goods or services whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of building goods or services, but does not include a claim that the regulations declare not to be a building claim.'(Emphasis added)
10. Building goods or services are defined in section 48A of the Act to mean: 'goods or services supplied for or in connection with the carrying out of residential building work or specialist work, being goods or services: (a) supplied by the person who contracts to do, or otherwise does, that work, or (b) supplied in any circumstances prescribed by the regulations to the person who contracts to do that work.'(Emphasis added)
11. Residential building work is defined in s2 of Schedule 1 of the HBA Act. Importantly, the definition requires work of three different categories to be carried out to a 'dwelling'. A dwelling is defined in s3(1) of Schedule 1 of the Act to mean: 'a building or portion of a building that is designed, constructed or adapted for use as a residence (such as a detached or semi-detached house, transportable house, terrace or town house, duplex, villa-home, strata or company title home unit or residential flat).'
12. We find that the respondent's caravan is not a building or a portion thereof and as such cannot be a dwelling for the purposes of the HBA Act.
13. Importantly, s3(3)(h) of Schedule 1 to the HBA excludes from the definition of a dwelling: 'a moveable dwelling (with or without a flexible annexe) within the meaning of the Local Government Act 1993 that is, or is a vehicle of a kind capable of being, registered within the meaning of the Road Transport Act 2013 (such as a caravan or a motor home)'
14. The Dictionary to the Local Government Act 1993 defines a moveable dwelling among other things as: 'moveable dwelling means - (a) any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation,'
15. Approaching the Notice of Appeal in the manner referred to in Prendergast, the ground of appeal extracted above was that the Tribunal incorrectly relied on the HBA Act. We find that the Tribunal Member erred on a question of law when he found at [1] of the decision that the Tribunal had 'power to hear and determine the matter as a building claim under the Home Building Act'. We have found that the definition of a building claim under the HBA did not include the respondent's claim arising from the work done on his caravan or the appellant's failure to obtain council consent in relation to that work because the caravan was not a dwelling. That conclusion is reinforced by the fact that a caravan is excluded from the definition of a dwelling.
16. This ground of appeal is upheld.
17. While the Tribunal Member erred in finding that he had 'power to hear and determine the matter as a building claim under the Home Building Act' we have formed the view that the Tribunal had the jurisdiction to hear and determine the present respondent's claim under the Australian Consumer Law ('ACL') as a 'consumer claim' under the Fair Trading Act 1987. Under s60 of the ACL: 'If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.'
18. At [17] of the decision the Tribunal Member found that the work carried out by the appellant was work with a want of due care and skill. In other words, a failure to exercise due care and skill. By reference to [14] of the decision it was the appellant's failure to obtain council approval for the work that constituted its failure to carry out the work with due care and skill. The elements of undertaking work or providing services with 'due care and skill' are central elements of both s18B(1)(a) of the HBA Act and s60 of the ACL. The Tribunal Member's finding of a breach of that requirement has not been challenged.
19. While the second ground of appeal is successful, we have decided not to set aside the decision and remit it to the Tribunal Member for reconsideration under the Australian Consumer Law because, given the finding of a failure to carry out the work with due care and skill, we are satisfied that the decision would not be any different if the application was re-decided under s60 of the ACL.

Leave to appeal - not fair and equitable

1. The remaining Ground of Appeal is: 'The decision was not fair and just as the respondent (in the appeal) was awarded $9,332.05 and keeps the awning and tropical roof and has the use of those items until at least May 2024'
2. Pursuant to Schedule 4, clause 12(1)(a) of the NCAT Act the appellant may seek leave to appeal if he contends that he: 'may have suffered a substantial miscarriage of justice because: the decision of the Tribunal under appeal was not fair and equitable'
3. We understand this Ground of Appeal to be an application for leave to appeal under the above provision of the NCAT Act. Under s 80(2)(b) of the NCAT Act the appellant requires leave to proceed with an appeal on this Ground.
4. In his Notice of Appeal under 6A which relates to an Application for Leave to Appeal the appellant wrote in hand: 'Mr Reeves has not had a loss as yet given time before removal May 2024 Mr Reeves has been given to May 2024 before vacating the caravan park Homeowners Act used not Caravan and Camping Ground Act. Not fair and just as above. Mr Reeves received refund less $1500 . The materials supplied and probably no chance of me getting my money returned if decision to make Mr Reeves and extend it again as this'
5. The last sentence of this section of the Ground of Appeal is not clear to us.
6. Under 6Bi which relates to an Application for Leave because the decision was not fair and equitable the appellant wrote in hand: 'Decision not fair as Mr Reeves was awarded the full amount less $1500 for time already had the use of the repairs are now has a further 12 months till May 2024 The waste invoice is excessive. Please conflicting letter from council regarding my customer check Mitchell, regarding no approval required for repairs to already approved structures as with Mr Reeves repairs'
7. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel considered among other things, an application for leave to appeal under clause 12(a) of Schedule 4 of the NCAT Act. In connection with the requirement that the appellant may have suffered a 'substantial miscarriage of justice' the Appeal Panel stated at [71]: 'From this passage, it can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred.'
8. At [76] the Appeal Panel stated: 'Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.'
9. In connection with the basis on which the appellant seeks leave to appeal, namely the decision of the Tribunal was not fair and equitable, the Appeal Panel in Collins v Urban at [77(1)] explained this ground as being: 'If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable"'
10. This explanation of the fair and equitable ground for leave to appeal has been widely accepted in the Tribunal. In Dhorajiwala PCT Pty Ltd v Peacock [2022] NSWCATAP 313 at [39] an appeal panel stated: 'We are unable to identify any basis for the assertion that the decision is not fair and equitable, noting that whether a decision was not fair and equitable will involve a consideration of whether there has been an unfairness in the way the proceedings have been conducted or some other denial of procedural fairness. The landlord has not identified anything about the conduct of the proceedings which would lead us to the conclusion that the decision was not fair or equitable.'
11. In the context of the appellant's application for leave it is important to note that an appeal to the Appeal Panel does not simply provide a losing party in the Tribunal at first instance with the opportunity to run their case again or have a "second chance". Ryan v BKB Motor Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
12. Likewise, the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states: "an appeal is not an opportunity to have a second go at a hearing". Further, it is not sufficient for the appellant to disagree with the outcome and to contend that there should have been a different outcome: the appellant must demonstrate either that an error was made on a question of law, or that there is a basis upon which leave to appeal should be granted.
13. We are not satisfied that the appellant has established that there was a denial of procedural fairness at the hearing such that he has suffered a substantial miscarriage of justice. Having regard to the appellant's Notice of Appeal and the sections which we have extracted above, the substance of the appellant's arguments indicate to us a disagreement with the outcome and a desire to reargue his case and have a second go at a hearing. It is on this basis that we refuse leave to appeal because the decision of the Tribunal under appeal was not fair and equitable.

Against the weight of evidence

1. The Notice of Appeal at 6Biii indicates that the appellant seeks leave to appeal because the decision of the Tribunal Member was against the weight of evidence.
2. The Appeal Panel in Collins v Urban at [77(2)] explained this ground for leave to appeal in the following way: 'The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach'
3. In his Notice of Appeal under the Heading 'What evidence should the Tribunal have given more weight to? Why?' the appellant wrote: 'There has not been a loss to date and at the earliest May 2024 This information was not available to me until after the 12 May 2023'
4. The appellant seeks to rely documents that came into existence before the hearing on 11 May 2023, but were not before the Tribunal Member and on an email from Werri Beach Holiday Park dated 1 June 2023 that came into existence after the hearing.
5. The appellant has not formally applied for leave to appeal on the basis that significant new evidence has arisen that was not reasonably available at the time of the hearing.
6. Having regard to the passage extracted from Cominos v Di Rico above, to the extract from the appellant's Notice of Appeal set out above and the documents that he filed which were not before the Tribunal Member at first instance, it seems likely that the appellant is seeking leave to appeal under clause12(1)(c) of Schedule 4 of the NCAT Act that he may have suffered a substantial miscarriage of justice because: significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
7. The fact that the appellant sought out new evidence the day after the decision was given, suggests that he appreciated the need for additional evidence after the hearing had been concluded.
8. Appeal Panel cases concerning leave to appeal on this ground were considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. That decision and the authorities referred to, establish at [40] that in order to obtain leave to appeal because the appellant may have suffered a substantial miscarriage of justice because significant new evidence is now available that was not reasonably available at the time of the hearing, the test is whether the material the appellant now seeks to rely upon was unavailable because "no person could have reasonably obtained the evidence", Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23].
9. This ground for leave to appeal does not allow the introduction of new evidence because the appellant was unaware of the need to rely on the evidence, or because the desirability of the new evidence becomes apparent after the first instance proceedings are concluded and the Tribunal decision handed down.
10. The appellant has not provided a basis for establishing that the new evidence that he now seeks to rely on was unavailable at the hearing because no person could have reasonably obtained the evidence. To the contrary the only indication that we have is that the appellant obtained the new evidence after the hearing had concluded. We infer that his efforts to obtain the evidence arose because of what transpired at the hearing.
11. We interpret clause12(1)(c) of Schedule 4 of the NCAT Act to mean that the new evidence must have been in existence at the time of the hearing and that leave to appeal may be granted if the appellant suffered a substantial miscarriage of justice because the new evidence was unavailable at the hearing because no person could have reasonably obtained the evidence.
12. Support for this construction is to be found in Chapman v McLaughin [2016] NSWCATAP 212 at [37] where an appeal Panel stated: '… 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.'(Emphasis added)
13. The interpretation we stated at [57] and the effect of the authority referred to at [58] results in us finding that the appellant is not entitled to rely on new evidence that came into existence after the hearing on 11 May 2023 had concluded, namely the email of 1 June from Werri Beach Holiday Park. If that were not the case, the principle of finality of litigation would seriously be eroded as parties would be free to consider the decision handed down and then to seek out new evidence which would overcome any evidential deficiencies disclosed by the reasons given in support of the decision.
14. The appellant's application for leave to appeal based on clause12(1)(c) of Schedule 4 of the NCAT Act is refused.

Disposition of the appeal

1. The appellants submissions state that the respondent suffered no loss and that the respondent will have until 2024 to remain in the holiday park. It is implicit in these submissions that the appellant is stating that the respondent will have the use of the awning and tropical roof for a longer period than referred to by the Tribunal Member and therefore will sustain no loss, or has sustained no loss as at the date of the appeal.
2. In relation to the first issue raised by the appellant, namely the respondent has suffered no loss, at paragraph [12] of the Tribunal Member's decision findings are made that had the appellant applied for council approval of the work, as he found at [5] and [14] that the appellant was contractually obliged to do, the council would not have granted approval because of a non-complying quality of the site.
3. This led the Tribunal Member to consider the compensation to be awarded to the respondent/owner for breach of the warranty or term that the work would be done with due care and skill, in the context of commencing work before applying for and obtaining council approval. In considering the compensation the Tribunal Member took into account at [13] that it was unlikely that the respondent/owner would be able to avoid leaving the site.
4. At [19] the Tribunal Member found that the appellant commenced work after 17 May 2022 at which time it was likely that no approval would have been given by council for the work, and as a result the respondent owner suffered a loss of $10,832.05 which was the amount he had paid for the work. Refer [7] of the reasons. The Tribunal Member plainly grasped that the respondent/owner did have the benefit of a detachable structure, but only for a short unknown period. At [20] of the reasons the Tribunal Member grappled with the loss that the respondent would suffer, which he described as the loss of money which he paid against the benefit that he had received, noting that there was no good evidence as to benefit received.
5. At [20] of the reasons the likely benefit to the respondent was assessed at $1,500.00. We find that there is ample authority for the Tribunal Member to have assessed the value of the benefit received by the respondent in order to arrive at an assessment of the respondent's loss. In Sayadi v Karimbla Properties (No 35) Pty Ltd [2023] NSWCATAP 298 an appeal panel at [22] provided instances of the applicable principles citing the following authorities, namely: 'Where the precise quantum of damage is not known, mere difficulty in estimating damages does not relieve a court (or the Tribunal) from the responsibility of estimating them as best it can: Fink v Fink; (1946) 74 CLR 127; [1946] HCA 54 per Dixon and McTiernan JJ; Assessing damages in this manner may involve more guesswork than actual estimation: Jones v Schiffmann (1971) 124 CLR 303 at 308; [1971] HCA 52, per Menzies J; "[I]n many cases" damages are "no more than an approximation lacking in mathematical or economic accuracy or sufficiency": Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625; [1981] HCA 3 (at 636) per Sir Garfield Barwick J.'
6. There is no explicit appeal against the Tribunal Member's findings that we have referred to. However if the matters raised repeatedly by the applicant in his submissions that no loss has been suffered is to be treated as an appeal against those findings, we find that no error of law has been made out. Nor can we discern that those findings were not fair or equitable in the sense which we have described that ground for leave to appeal above, nor do discern that the findings of the Tribunal Member were against the weight of evidence.
7. In connection with the submission that the respondent will have until 2024 to remain in the holiday park, we have dealt with that submission by referring to the reasons why it is impermissible for us to admit evidence that the appellant obtained after the hearing was concluded. The Tribunal member referred to that at [13] of his reasons. We also find that the Tribunal Member's rejection of material that the appellant sought to introduce after the hearing concluded was an orthodox decision which was not made in error. As Mason J noted in Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 at [29]: 'The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.'
8. Although we found that the Tribunal Member erred on a question of law when he held that the dispute between the parties was a building dispute under the HBA Act, we are of the view, given the findings of the Tribunal that the appellant's services were not provided with due care and skill, which are not challenged, that there would be no utility in remitting the proceedings to the Tribunal Member for reconsideration under the ACL. On that basis we affirm the first instance decision.
9. Otherwise leave to appeal is refused. 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: 01 December 2023