McCann v Nationwide Consultants Pty Ltd

The application to extend time for leave to appeal 7I first note that leave to file the appeal out of time is required: rr 50.3(1)(c), 50.3(2) and 50.12 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). The period of time is short, namely seven days; had the 28-day appeal period been counted from the date of receipt of the notice, if r 50.2(b) applied, the 28-day would have been the 27 March 2013, which would have meant that the plaintiffs were in time. This is a very short period of time, and furthermore, the explanation is that the plaintiffs' law stationers were instructed to file the Summons by 26 March 2013, but in fact failed to file it until two days later (28 March 2013). 8I am satisfied this is an appropriate case for extension of time to file the appeal: Vithoulkas v Owners Corporation SP62254 [2004] NSWSC 540 at [7].

The background to this dispute 9As the Tribunal's reasons record, the plaintiffs commenced these proceedings to recover damages for defective and incomplete work after the defendant failed to carry out rectification work which had been ordered, by consent, in its own proceedings in the Tribunal. Those defects and incomplete work were identified in the Tribunal by reference to a Scott Schedule and a Scott Schedule Addendum. These documents are as follows: (a)The Scott Schedule was contained in a report of Slattery Australia Pty Ltd dated 31 March 2012; AB 303-314 (vol 1). (b)The Scott Schedule Addendum was contained in further report of Slattery Australia Pty Ltd dated 13 June 2012; AB 331 (vol 1).

The nature of appeals from the CTTT 10In his helpful submissions, Mr To of Counsel draws my attention to the nature of an appeal under s 67 of the Act. The first issue is to identify the decision on a question with respect to a matter of law: Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [35] per Allsop P. The phrase 'with respect to' contains words of limitation, according to the NSW Court of Appeal: Edyp v Brazbuild Pty Ltd, supra, at [34]. 11The decision on a question with respect to a matter of law may be express or implied: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418 [91] per Hayne, Heydon, Crennan and Keifel JJ. In Kostas v HIA Insurance Services Pty Ltd, supra, the implied decision was whether there was any evidence capable of supporting a factual finding, that being a question of law. Whether a decision on a question is relevantly implicit depends on whether the decision is a necessary step in the tribunal reaching its conclusion: Kostas v HIA Insurance Services Pty Ltd, supra, at [78]. It may concern a question or matter not specifically addressed by the parties: Edyp v Brazbuild Pty Ltd, supra, at [29] per Allsop P and [103]-[105] per Giles JA. 12After deciding "the question the subject of the appeal", and if the Tribunal's decision is not affirmed, the District Court then may act in accordance with section 67(3)(a) (to make such order as should have been made) or 67(3)(b) (to remit its decision to the Tribunal and order a rehearing). 13In so doing, a court may accept additional evidence on appeal: The Craftsmen Restorations & Renovations Pty Ltd v Boland [2011] NSWCA 147. Some fact-finding is permissible, the boundaries of which are not yet settled (at [3] per Allsop P), but it is clear that additional evidence may be received on appeal: cf. UCPR r 50.16. In Kostas v HIA Insurance Services Pty Ltd, supra, the High Court, considering s 75A of the Supreme Court Act 1970 (NSW), which includes provisions (ss 75A(7)-(8)) in relevantly similar terms to UCPR r 50.16, observed that fact-finding by the appeal court is supportable as an exercise of those powers: at [27] (per French CJ), and the remedial scope of the power does not limit the appeal court to only those materials before the tribunal below: at [32] (per French CJ).

Appeal ground 1: Lack of procedural fairness 14The plaintiffs' submissions (paragraphs 24-27) first deal with whether there was procedural fairness. Failure to accord procedural fairness may not by itself amount to an error or appealable under s 67 of the Act: Obieta v CTTT [2009] NSWCA 220. In that decision, Basten JA held, at [6]: "...the subject matter of such an appeal is a decision of the Tribunal on a matter of law; it is not sufficient that there may have been some error of law, such as procedural unfairness, in the manner in which the Tribunal determined the case before it: see Scicluna v NSW Land and Housing Corporation [2008] NSWCA 277; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2009] NSWCA 55. A failure to accord procedural fairness may not, depending on the circumstances, constitute an erroneous "decision" on the part of the Tribunal, whether the decision is implicit in the course followed by the Tribunal or not: Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [75]. However, in some circumstances such a procedural error may involve a decision on the part of the Tribunal as, for example, where the Tribunal has been invited to grant an adjournment and has declined to do so, in circumstances said to amount to procedural unfairness." 15What Mr To submits is the error here is that the Tribunal both failed to give notice to the plaintiffs of perceived inadequacies in the proof and decided not to seek further relevant evidence on these issues so as to place itself in a position where it could determine "all the relevant facts in the proceedings" as required by s 28(5) of the Act. 16I consider that this absence of procedural fairness in fact arose by reason of a more fundamental error, that error being an error of law, namely the correct manner in which to approach a case where the opposing party is absent. 17UCPR r 29.7 contains provisions applicable to a hearing where a party is absent, and these are a helpful analogy. If a defendant fails to appear, the plaintiff may prove its case so far as the burden of proof lies upon it; if the plaintiff proves its claim, it is entitled to the relief claimed, and such other relief as is consistent with what is sought: Stone v Smith (1887) 35 Ch D 188; Kingdon v Kirk (1887) 37 Ch D 141. The plaintiff owes a duty to the court to present the material fairly in the absence of a defendant, but ultimately, neither the plaintiff nor the court owes a duty to stand in the shoes of the missing party, or to run the missing party's case in their absence. 18Barrett J explained in Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 at [64]: "[64] As I said in J Aron Corp v Newmont Yandal Operations Pty Ltd [2004] NSWSC 533 ; (2004) 183 FLR 90, I find it difficult to justify the imposition of such a broad duty on parties and their legal advisers in adversarial litigation where the parties are present and represented. Solicitors and counsel, as officers of the court, will always have, in the first place, a duty to the court. That duty includes a clear obligation to be frank and "not to keep back from the court any information that ought to be before it": Re Gruzman; Ex parte The Prothonotary (1968) 70 SR (NSW) 316 at 323. But where both parties are before the court and represented, I do not think that they have a duty to "supply the place of the absent party". As long as litigation remains adversarial, a party can be presumed - indeed expected - to put their best case forward. That is not to say that a wilful misleading of the court will pass without remedy, but a mere failure to present a neutral case or to seek to remedy some deficiency in an opponent's evidence (or, as it was here, entire absence of evidence) cannot lay the foundation for subsequent intervention. In the Marriage of Briese (1985) 10 Fam LR 642 was a case dealing with the specific need for full disclosure of financial affairs in financial proceedings between spouses. Smithers J said (at 662): This is quite different from common law litigation between strangers, in which such a general duty does not exist, and obligations would only exist in so far as statute or court rules required. In my view it is fundamental to the whole operation of the Family Law Act in financial cases is that there is an obligation of the nature to which I have referred." 19As is apparent from examination of the basis upon which the proceedings were conducted and heard before the Tribunal, the Tribunal Member considered his obligation not only to enquire into whether he had jurisdiction to hear a claim, but to make findings about the expertise of the plaintiffs' expert witness. Thus, matters not raised and ventilated with the plaintiffs' legal representatives (or, for that matter, with the defendant), were the subject of the Tribunal's findings. 20The obligation to provide full reasons which accurately reflect the basis upon which the parties have presented their case has been explained by the New South Wales Court of Appeal in a series of decisions commencing with Palmer v Clarke (1989) 19 NSWLR 158 at 166-173; see also Costa v Public Trustee (NSW) [2008] NSWCA 223. Many of the cases where such issues arise involve litigants in person, or arise in the course of criminal proceedings. However, the obligation of a court to hear proceedings and deliver judgments in accordance with the evidence, particularly where the evidence in question is not the subject of challenge or would be readily obtained upon enquiry, is a fundamental part of decision making. 21Whether proceedings are heard ex parte, or both parties are represented, the determination of the issues must be in accord with the evidence and submissions. 22Having noted this general problem, I now turn to a consideration of the Tribunal's reasons.

The CTTT judgment 23The Tribunal rejected a number of claims under the Scott Schedule. It did so by reference to numbered items of the Scott Schedule - items 2, 9, 13, 15, 18, 19, 20, as a group - 21, 22, 23, 27, 28, 30 and 31, and 26, 29, 31, 32, 36, 45, and 46-53. 24The Tribunal did so for the following reasons: (a)The Tribunal found that there was no evidence to support a finding of a defect; (b)The Tribunal found that the expertise of the deponent of the opinion evidence had not been established in relation to these items; and/or, (c)The evidence was incomplete or overlapping with other evidence about defects. 25Mr To has provided the following helpful summary of the evidence before the Tribunal as follows: (a)The first ACOR report (29 April 2011, Appeal Book p 127 (vol 1)) described, and assessed, 43 items of defects, numbered 2.1 to 2.43; (b)The second, supplementary, ACOR report (31 August 2011, Appeal Book p 179 (vol 1)), was prepared to assess the status of remedial construction work ordered by the Tribunal on 12 May 2011. It did so primarily by reference to the 43 numbered items of defects. In addition, it referred a list of defects that had been identified by the owners; (c)The third ACOR report (6 June 2013, Appeal Book p 353 (vol 1)) dealt with four additional defects, not previously dealt with by ACOR; (d)The first Slattery report (31 May 2012, Appeal Book p 300 (vol 1)) contained a Scott Schedule. The Scott Schedule assessed 41 numbered items; and, (e)The second Slattery report (13 June 2012, Appeal Book p 329 (vol 1)) dealt with three further matters. (i)First it included a Scott Schedule Addendum. This Addendum identified additional costs that had been omitted in error from items 4, 5, 22 and 40 of the original Scott Schedule; (ii)Second, the report also provided costing for the four specific defects identified in the third ACOR report. They were assigned Scott Schedule item numbers 42-45; and (iii)Third, the report provided costs for additional defects said to have been identified by Mr McCann in a defects list: Appeal Book p 125-126 (vol 1). They were assigned Scott Schedule item numbers 46-53. 26I shall deal with each of these items in accordance with appeal ground 1.

Appeal ground 1 27The plaintiffs submit that the Tribunal erred in relation to the following items: Scott Schedule item no. ACOR item no. Slattery repair cost (ex GST) 9 - weep holes 2.10 $8,880.00 13 - framing screws 2.14 $1,260.00 21-23, 27-28, 30-31 - internal painting, lower level 2.22-2.24, 2.28-2.29, 2.31-2.32 $30,640.00 Total (excl. GST) $40,780.00 Total (incl. GST) $44,858.00

28I shall briefly summarise the evidence in relation to these items as follows: (a)The weep holes - In fact the 12 weep holes were identified in the first Slattery report as requiring remedial work: Appeal Book p 320 (Vol 1), and the work required was described (see Appeal Book p 306 (Vol 1)). This identification of the number of weep holes and the description of the remedial work has been overlooked by the Tribunal Member.This is a good illustration of the kind of problem which occurs when a party is not present. The plaintiffs, secure in the knowledge that such evidence before the Tribunal, did not refer to it. Had the issue been raised by the defendant, any dispute could have been quickly resolved by taking the Tribunal Member to the relevant portions of the report. Confronted with a large bundle of documents, the Tribunal Member must have been unable to find this information and erroneously assumed that it was not there. Instead of raising the matter with the plaintiffs, the Tribunal Member simply assumed that this matter had not been proved. (b)Framing screws - Again, this item was rejected on the basis that no corrosion was identified, and this meant that the repair method costed by the Slattery report did not arise out of the identified defect. However, as Mr To's helpful submissions point out, the detailed description in the first report did in fact do so: Appeal Book p 129H-J. Once again, this was overlooked by the Tribunal Member, and the fact that it was not able to be found was not raised with the plaintiffs. (c)Internal paint work, lower level - This was rejected because the Tribunal considered that Slattery had expressed an option about incorrect preparation of substrates that was not supported by ACOR. In fact, the opinion expressed in the first ACOR report did support this: see item 2.22, Appeal Book p 129S-T (Vol 1). This was a significant item in terms of valuable ($30,640) where the evidence before the Tribunal was all one way. Once again, this claim was rejected without any consultation or enquiry by the Tribunal Member of the plaintiffs. 29I am satisfied, in relation to each of these findings, that the Tribunal Member erred in his approach to the conduct of the proceedings. That error was not merely a lack of procedural fairness, but a misapprehension of his role as the finder of fact in proceedings where the opponent was not present and had not raised these issues. These were adversarial, not inquisitorial, proceedings; even if they had been, these were matters that should have been raised with the plaintiffs before an adverse finding was made.

Appeal ground 2 30The manner in which the hearing was bifurcated so that the Tribunal Member could consider and make a ruling as to whether or not he had jurisdiction meant that the hearing was effectively completed, with the plaintiffs having adduced evidence and made oral submissions (Appeal Book, Vol 2, pp 28-49). Following resumption of the hearing on 18 February 2013, brief further oral submissions were made about the merits of the claim. It is clear from the transcript that none of the claims which were rejected in the judgment were raised for discussion. Although the decision to reserve its rulings was stated, the Tribunal Member actually made orders on the same day as the resumed hearing. This indicates the Tribunal Member was in a position to make these inquiries concerning evidentiary omissions on 18 February 2013. 31What the Tribunal Member should have done, consistently with the requirements of s 28(5)(b) of the Act, was to raise with the plaintiffs' representatives any preliminary view formed or request for information before making orders without hearing submissions. This was particularly the case given that the proceedings were undefended, and where the nature and extent of the opposition (if any) to this evidence was unknown by the Tribunal. 32Some of the matters raised by the Tribunal Member are matters about which the plaintiffs concede there are difficulties. Mr To has prepared a schedule setting out a series of Scott Schedule items the subject of the claim below, with lines through items 26, 29, 31, 32, 36 and 45. Had the plaintiffs been given the opportunity to ventilate these matters before the Tribunal Member, appropriate concessions for these items could have been made, and the relevant material in support of the other claims put before the Tribunal Member. 33I shall deal with each of these items in turn: (a)Water damage to eastern carport ceiling - The Tribunal Member rejected this item because he found that the second ACOR report did not attribute responsibility to the builder by linking the damage observed to something the builder had either done incorrectly or not done at all. This is clarified in the further supplementary report (Appeal Book p 5, Vol 2). (b)Roof tile / vertical façade wall interface - The Tribunal Member disallowed this item because he considered the rectification for the defect to have already been allowed in ACOR item 2.4 (the Tribunal's reference may be a typographical error intended to refer to item 2.3): Appeal Book p 368G-I (vol 1).In the second ACOR report, item 2.16 identifies the work required as "flashings to be repaired. Refer item 2.3 above": Appeal Book p 182K (vol 1). The rectification work for ACOR item 2.3 is, in part, "All flashing to be repaired, lapped and/or reconstructed": Appeal Book p 180O-Q (vol 1).In the Slattery report, the rectification work for ACOR item 2.3 was costed at $11,250: Appeal Book p 303 (vol 1). ACOR item 2.16 was then costed at $900: Appeal Book p 307 (vol 1). The calculation worksheet for ACOR item 2.3 (Appeal Book p 318S-319I (vol 1)) includes line items for removal of 'bottom row of tiles to inspect check flashings' and 'flashing repairs - allow for 50% of length'. The calculation worksheet for ACOR item 2.16 (Appeal Book p 322N (vol 1) is an allowance to "reflash at junction of walls and roof - allow 1 man day plus materials". The two descriptions did not in terms indicate any overlapping work between the two items, and the quantum suggests that the work was not the same - which is confirmed in the further supplementary ACOR report: Appeal Book p 5 (vol 2). (c)Efflorescence stains on northern façade and laundry - These claims were rejected on the basis that there was no evidence linking the defect with its cause. While this is now provided, I consider that the Tribunal should have been satisfied on the material with the evidence of causation. While the Tribunal could have called for further evidence, looking at the material before the Tribunal, in circumstances where there was no challenge from the defendant, the Tribunal Member's rejection of the claim is difficult to understand. (d)Cracking laundry wall - The Tribunal rejected this item because it interpreted the second ACOR report to mean that repair was not required. That arose because ACOR identified the crack to be one of "category 0-1 AS 2870 (negligible fine cracks that do not need repair)". Cracking to be filled, repainted and monitored: Appeal Book, p 182Q (vol 1).There appears to have been an assumption by the Tribunal that the categorisation necessarily meant that the observable symptoms of the cracking did not need rectification. No reasoning was given for that, and, as the further supplementary ACOR report demonstrates, the categorisation and reference to repair was to for structural integrity repair; the surface cracking was itself a building defect that warranted rectification: Appeal Book p 7 (vol 2). (e)Scott Schedule items 46-53 / items not in ACOR reports but included in second Slattery report - These appear to have been rejected because they were not included in the original report and only identified in the second Slattery report. While the plaintiffs have provided me with a further report specifically identifying how these items were defective, I consider that the Tribunal Member's rejection of these items on such a basis showed that the Tribunal Member misconceived his role as being part of an inquisitorial process, rather than encouraging these proceedings to be run with the degree of informality, as to proof, that is generally the case in the CTTT.

Disposition of the appeal 34I am satisfied that the Tribunal Member erred in law in relation to all of the matters set out in appeal grounds 1 and 2. This brings me to a consideration of the proper disposition of the appeal. 35There is some urgency in this application. The defendant was, and remains, subject to deregistration action by the ASIC (see Appeal Book, p 49, Vol 2). In those circumstances, I am satisfied that there is little utility in remitting the matter to the Tribunal for further determination. Accordingly, I have proceeded under s 67(3)(a) and made such orders as I consider ought to have been made in the Tribunal. 36I also confirm that the circumstances constitute special grounds for the purpose of UCPR rr 50.16(3) and (4) and that I should receive additional evidence, being evidence, on the plaintiffs' case, that was relevant material and ought to have been called for by the Tribunal Member, namely the additional report of the consultants which I have granted leave to the plaintiffs to rely upon. 37In coming to this conclusion I have had regard to the New South Wales Court of Appeal decisions in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230 at [103] where Spigelman CJ, in a judgment with which Mason P, Beazley and Ipp JJA agreed, said: "[103] This Court must be concerned that the course of administration of justice in this State does not impose unnecessary cost burdens on parties by adopting a narrow interpretation of statutory powers conferred upon the Court to ensure the just and efficient administration of justice. Where no new findings of primary fact are required to be made, this Court should exercise a power conferred upon it in wide terms so as to ensure that the costs of legal disputation is minimised and thereby apply the guiding principle in s 56 of the Civil Procedure Act 2005 to the exercise of powers conferred by an Act other than that Act or by Rules of Court, so as to facilitate the just, quick and cheap resolution of the issues in dispute in civil proceedings." 38I have also had regard to the provisions of ss 56-62 Civil Procedure Act 2005 (NSW), a course which has been adopted in the Supreme Court, including where additional fact finding is required by the appellate court: Pacific Asia Express Pty Ltd v Renegade Gas Pty Ltd [2010] NSWSC 1188. In Pacific Asia Express Pty Ltd v Renegade Gas Pty Ltd, supra, Rein J noted the provisions of s 75A(7) Supreme Court Act 1970 (NSW) and r 50.16 UCPR. The ambit of additional fact finding is very limited, and I am satisfied that a number of the matters the subject of the additional report are matters about which there really was sufficient evidence before the Tribunal Member in any event. 39I am therefore satisfied that it is appropriate that I should vary the Tribunal's order to replace the figure of $87,201 with $163,046, that being the award that the Tribunal should have made, and which the court is able to make pursuant to s 67(3) of the Act. 40In addition, there should be an order for the defendant to pay the plaintiffs' costs of the appeal.

Orders (1)Defendant called outside the court three times at 10.10 am and 11.45 am - no appearance. (2)Extend time to bring the appeal to 28 March 2013. (3)Grant leave to the plaintiffs to rely upon additional evidence (the further statement and report of Mr Appleyard) and affidavits of service in relation to notification of the defendant. (4)Appeal allowed. (5)Order 1 of the CTTT varied as to quantum by omitting "$87,021.00" and inserting "163,046.00". (6)Defendant pay plaintiffs' costs of the application.

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 2013