MJH Built Pty Ltd v Robinson

Documents on Appeal

1. The Appeal Panel received the following submissions and documents relating to the appeal from the parties. 1. Notice of Appeal received from the appellant on 26 September 2019. 2. Application for stay of the original decision received from the appellant on 27 September 2019. 3. Affidavit of Joseph Antoun dated 8 October 2019. 4. Affidavit of Deborah Valerie Robinson dated 8 October 2019. 5. Affidavit of Catherine Higgins Dated 10 October 2019. 6. Five joint tender bundles from the parties received on 1 November 2019. 7. Submissions and documents received from the appellant on 5 November 2019 8. Submissions and documents received from the respondent on 15 November 2019 9. Appellant's submissions in reply received 22 November 2019. 10. A series of decisions which were provided by the appellant on 29 November 2020.
2. The Appeal Panel also had before it a copy of the directions that had been made by the Appeal Panel, a copy of the Tribunal decision and a copy of the original application that was made by the homeowner.

Internally Appealable Decisions

1. The decisions of the Tribunal are internally appealable decisions and an appeal can be made from them as of right where there is an error of law and with the leave of the Appeal Panel on specified grounds: see, s 80(1) and (2)(b) of NCAT Act.
2. The Notice of Appeal was lodged on 26 September 2019, which is within the 28-day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules).
3. The appellant had raised 10 grounds in the Notice of Appeal. By the time the appeal came for final hearing, the appellant was no longer pressing grounds 2 or 3. The appellant appeals on the basis of errors of law and seeks leave to appeal the decision pursuant to section 80 (2) (b) of the NCAT Act.

Appeal Ground 1 - Error as to the Onus on the Homeowner

1. The appellant appeals on this ground as an error of law. The appellant submits the Tribunal has erred throughout the decision by misapplying the onus on the homeowner to prove each breach and the method of rectification and that instead; 1. abrogating, or erroneously dismissing the inadequate testing by the homeowner's expert, Mr Brincat, and/or 2. reversing the legal onus onto the builder.
2. We accept that if such error was made it would amount to an error of law, however we do not find that such error was made.
3. The appellant raises a number of examples to demonstrate the alleged error in relation to the onus. We have considered each one in turn and we find that none of the examples raised by the appellant amount to a misapplication of the onus of proof by the Tribunal.

Mr Gunton's Evidence

1. The appellant refers to the oral evidence given by Mr Michael Gunton who is the director of the manufacturer of the underfloor heating mat which was installed in the bathroom . He was a witness for the homeowner. The appellant refers to para [37] of the reasons for decision where the Tribunal summarised the homeowner's submissions as follows: Mr Gunton was then cross-examined as to whether other factors could affect the underfloor heating system such as the size of the room or the depth of the tiles. MJH led no evidence as to whether any of the other factors were present all the relevant and they were "merely put up as speculation". The Tribunal should place no weight on an assertive theoretical possibility. Furthermore, even if it was assumed that some of those factors were existed, MJH was obliged to take account of them in installing a working product.
2. The appellant submits that the Tribunal accepted the homeowner's submission at para [76] of the decision despite Mr Gunton explaining in cross-examination that the effect of the mat in heating up the bathroom or tiles was subject to variables such as the type of tile, its thickness, its size, its finish and its composition, the size of the room, the height of the room, the size of the mat, whether there was a draft, the distance and height of the control pad (which contains a thermometer) from the mat, the composition of the tile glue, the composition of the screed beneath the floor tiles and the thickness of that screed. Mr Gunton had not been to the homeowner's house and the appellant submits that he could not have had any information about these variables. The appellant highlights that Mr Gunton agreed in cross-examination that the variables could have affected the heating in the the way the homeowner complained of, even if the the mat was installed in accordance with the manufacturer's instructions.
3. The appellant submits that no evidence was adduced by the homeowner as to the variables which Mr Gunton said can affect the operation of the under-floor heating mat and no information was provided to Mr Gunton by the homeowners about those matters. Mr Gunton was only asked by the homeowners to assume that the screed was laid 6 to 7 cm thick and his written statement was prepared on that assumption.
4. Having considered this ground, we are not satisfied that the way in which the Tribunal dealt with the evidence of Mr Gunton amounted to a misapplication of the onus. When read overall, the reasons reveal that the Tribunal preferred the evidence of the homeowners' expert over the appellant's and not that the Tribunal shifted or abrogated the onus. At para's [70-71] of the reasons for decisions the Tribunal identified: In general Mr Brincat appeared to me to be more familiar with the codes and standards and more objective in his reporting of his findings. He certainly did not present as an advocate for his client but rather as one concerned to explain and justify his findings. The only other witness I need to comment on his Mr Gunton, the manufacturer of the UFH system. I found Mr Gunton to be a reasonable and steadfast witness. Although he was prepared to consider and concede certain possible explanations or complicating factors in relation to the explanation for the failure of the UFH to properly heat the tiles, he did not resile from his central opinion that the UFH was working (because it turned on and provided some heat to the tiles) but it was not working effectively and the most likely and in his opinion the actual reason for this is that it was laid too deep. I am particularly persuaded by the fact that he so advised Mr Higgins in a contemporaneous email.
5. At para [76] under the heading relating to underfloor heating in the Scott Schedule, the Tribunal stated: I find that the UFH is working in the sense that power can be switched on and some heat provided in the relevant area of the tiling but that this is ineffective because the UFH mat was laid too deep, based on the opinions of Mr Gunton and Mr Brincat. Although other factors may contribute - such as the size of the room for example - no evidence was provided and in any case in my view the fact that the tiles simply did not heat up demonstrated the soundness of Mr Brincat's and Mr Gunton's evidence. I agree with the applicant that it is not reasonable to conduct invasive testing because this would then require re- waterproofing, re-screed in and relaying tiles in any case. I also find that there is no persuasive evidence from the builder that the re-tiling could be limited to the floor tiles and one or two rows of wall tiles. I am not satisfied sufficiently similar tiles can be procured
6. This does not amount to a shifting of the onus. The Tribunal satisfied itself from the evidence of the homeowner's expert, including Mr Brincat and Mr Gunton, that the tiles did not heat up and were defective. The Tribunal was satisfied that the evidence established the defect was in the works done by the builder. The defect was established, the fact that an investigation was not required was dealt with and the onus was not shifted. We find no error of law on this basis.

No Core Sample in the Bathroom

1. The appellant also submits that the Tribunal misapplied the onus because Mr Brincat had not taken a core sample in the bathroom and core testing could have given a definitive answer as to the thickness of the screed. The appellant submits that the Tribunal accepted irrational logic that the core sample might damage the tiles, screed and waterproofing, whilst at the same time the homeowners were contending that the floor was so defective it needed to all be removed and replaced in any event. On that basis the appellant alleges that the Tribunal abrogated the onus on the homeowner by adopting a reasoning that the cost of patching and discomfort to the homeowner of taking a sample excused the homeowner conducting testing and discharging the homeowner's legal and evidentiary onus.
2. The onus was on the homeowner as applicant to prove the defective work. The appellant refers to the a case of the former Consumer, Trader and Tenancy Tribunal, Arthur Vasilaras & Olga Lagos v Con & Michael Korakis t/as Mihcon Building Services [2014] NSWCATCC as an example of a decision of the Tribunal where the onus on a homeowner asserting defective work was applied correctly and the claims were rejected for insufficient testing by an expert. It is correct that if evidence is challenged and the applicant does not establish a defect, then the applicant's case fails. It is also correct that if invasive testing is required then the onus does not shift onto the respondent to carry out the testing.
3. We are not satisfied that an error of law has been established on this grounds. As discussed above, the Tribunal accepted on the expert evident that the underfloor heating was defective. While the Tribunal did comment that removing tiles and testing the depth of the screed would have been impractical and unreasonable because it would have required the re-waterproofing of the floor and the lower walls, the Tribunal had satisfied itself of the defect and so the invasive testing was not necessary in this circumstances.

Lack of Testing of the Dimmer

1. The appellant submits that the Tribunal misapplied the onus on the homeowner to dismiss the claim and/or effectively reversed the onus onto the builder in relation to the dimmer.
2. The Tribunal found an intermittent flicker in the kitchen lights when the dimmer was turned down low. The appellant submits that there was a lack of testing and that the Tribunal simply accepted the homeowner's submission at para [43(21)] of the Tribunal's reasons for decision.
3. The homeowner submits that this item, relating to a flickering dimmer control, had been agreed between the experts. Mr Brincat was cross- examined on the basis that he could not exclude the possibility that the issue may be with the existing wiring and not the dimmer.
4. The Tribunal found at [76(21)] I find that the experts have agreed on this item (dimmer switches) and that although Mr Brincat was cross-examined in relation to the existing wiring there was no evidence provided to take that cross examination anywhere.
5. This ground fails because the Tribunal's reasoning was based on the fact that the experts had agreed to the item. The issues raised in cross examination were about theoretical possibilities other than a defect in the appellant's work, which could have caused the lights to flicker. However, that possibility was not relevant in light of the fact that the builder's expert had agreed on the defect.

The capping on the roof above the laundry/bathroom

1. The appellant also raises this issue to demonstrate a lack of testing by the homeowner and that Mr Brincat did not examine whether the "z" capping for the parapet wall entered into the parapet wall or whether and how far under flashing was installed at mitred edges of roof capping.
2. The Tribunal accepted the opinion of Mr Brincat, and gave preference to the evidence of Mr Brincat overall as described in para 17 above, the Senior Member explained he preferred the evidence of Mr Brincat over Mr Sim's evidence.

That all the Bathroom and Laundry Walls were out of Plumb

1. The appellant submits that the Tribunal did not state what tolerance or standards were to be applied and by how much the walls exceed any tolerance or standard. The appellant alleges that the Senior Member was mistaken in the way he assessed the measurement taken by the experts. However, Mr Sim applied the wrong standard for measuring plumbness and the Tribunal preferred Mr Brincat's conclusion that all of the walls were out of plumb. That decision of the Tribunal does not, as is submitted by the appellant, misapply the evidentiary onus on the homeowner. On the evidence from Mr Brincat, that was a finding open to the Tribunal to make and in that regard, there is no error of law.

The Method of Rectifying the Rear Laundry Wall

1. Both Mr Brincat and Mr Sim accepted that the rear laundry wall was defective as it was packed out 20 to 30 millimetres with tile glue and was significantly out of plumb. The Tribunal at [76(22)] of the reasons, dismissed the alternative way of remedying the rear tiled wall because there was no evidence that the tiles could be matched. The appellant submits that this reasoning misapplied that the onus was on the homeowner to prove that the fixing of the rear wall (if the floor and other walls were otherwise not defective) was unacceptable.
2. We again find that this was a finding open to the Tribunal to make and did not shift the onus onto the builder. Mr Brincat led evidence that the tiles on all walls needed to be replaced and given the other works that were required, we find that was not a shifting of the onus and we find no error of law on that basis.

Appeal Ground 4 - Adverse Credit Findings Against Mr Higgins was in Error

1. The appellant submits that at [60]-[62] the Tribunal made adverse credit findings against Mr Higgins in relation to the installation of the underfloor heating mat, Mr Higgins' licence and testimonials. The appellant submits that those adverse credit findings about Mr Higgins infected the whole of the decision, in particular in the analysis of the competing lay evidence between Mr Higgins and the homeowner. The Tribunal did make adverse credit findings about Mr Higgins. The Tribunal at paras [60-62] of the reasons relevantly stated: 60 I do not accept that Mr Higgins was a truthful witness. It is often difficult to distinguish whether a witness is not telling the truth, or has difficulty recollecting certain facts and is attempting to reassemble an uncertain memory or is simply reacting to the reasonable stress of being cross- examined in an unfamiliar setting. The case of Mr Higgins, however, I find he has deliberately manufactured and untruths for version of crucial events in circumstances in which he could be absolutely certain that what he was saying (either in his affidavit evidence or in oral evidence) could not be the truth. 61 The most gross example of this mendacity is Mr Higgins' claim in his affidavit, in discussing one of the major items in dispute being installation of the UFH, that he was present and assisted his contractor in the installation of this device and so was in a position to give definitive evidence as to the depth of the UFH mat beneath the tiles. 62 I find that Mr Higgins was prepared to say or deny anything that he felt would assist his case and that his evidence cannot be accepted unless it is supported by the evidence of other witnesses or other independent documentary support such as photographs or similar.
2. The appellant submits that those findings were in error and were so serious that we should infer that it must have infected the Tribunal's consideration of the whole of the evidence on all issues decided, including disregarding the evidence of Mr Higgins wherever it contradicted that of the homeowner.
3. We do not accept that the findings about Mr Higgins' credit give rise to an error.
4. The appellant cites Fox v Percy (2003) 214 CLR 118 at [23] Gleeson CJ. Gummow and Kirby JJ state: Natural limitations that exist in the case of any appellate court proceeding ... these limitations include the disadvantage that the appellate court has when compared with the Trial Judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a long Interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
5. At [26] their Honours referred to: A series of cases in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial Judges and especially where their decisions might be affected by the impression about the credibility of witnesses whom the trial judge sees but the appellate court does not.
6. The High Court continued at [31]: Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
7. Mr Higgins provided affidavit evidence that he knew that the underfloor heating was installed to Australian Standards as well as supplier specifications because he was there for the entire installation process, personally laying the mat together with his tiler who was there to complete the screed works. However, in cross-examination, Mr Higgins said that on the day of installation, I installed the mat, I set up the tiler and I left site
8. Based on that it was open to the Tribunal to conclude that Mr Higgins was dishonest, and that his evidence was self-serving.
9. The appellant submits that the Tribunal erred because Mr Higgins was giving evidence that the installation process of the mat was the laying of the mat and wires on the ground and that it was not put to Mr Higgins that the screeding was part of what he referred to as the "installation process". While we accept that it was not put to him that the screening process was part of the installation process, we accept that it was open to the Tribunal to infer that Mr Higgins considered the screeding was of the installation process of the mat and that in giving evidence that he was there for the installation when he was not.
10. Further, in passing on a supplier's email, Mr Higgins had deleted the words "It really depends on the amount of the cover"'. Mr Higgins did not explain in cross examination why that had happened The appellant now submits that that "A likely explanation for the deletion was not to inflame the situation''. However, Mr Higgins answers were that he did not know and could not remember or explain why those words were deleted from the email. We accept that those matters could lead to the Tribunal's finding that Mr Higgin's evidence was self-serving.
11. We do not accept that counsel for the homeowner adopted an unfair style of advocacy by cross-examining Mr Higgins about the status of his licence and the testimonials he put into evidence. Those were questions put to a witness giving evidence in relation to defective works, including whether Mr Higgins had overstated his experience to Ms Robinson and what he had told the people who gave the testimonials to him about the purpose for which the testimonials were to be given. In any event, the Tribunal has not made any findings in respect of the licensing or testimonials and we do not find those matters have had any significance on the finding of the Tribunal .
12. Accordingly, this ground of appeal fails.

Appeal Grounds 5 -10 - Leave to Appeal

1. The appellants remaining grounds appear to be leave grounds and repeat many of the submissions raised above.
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: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. 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. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled.
4. The statutory regime referred to above has been considered and explained by an Appeal Panel in Collins v Urban [2014] NSWCATAP 17. The statutory regime involves a two-stage process. First, has the appellant satisfied the Appeal Panel that it may have suffered a substantial miscarriage of justice because the decision at first instance was not fair and equitable, or against the weight of evidence, or because new evidence has arisen which was not reasonably available at the hearing. Only if so satisfied, the Appeal Panel may proceed to the second stage to determine whether it should exercise its discretion to grant leave and that discretion should be exercised in accordance with well-established principle.
5. In Collins v Urban, the Appeal Panel went on to list at [84] that 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.
6. The Appeal Panel must also consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
7. We are of the opinion that leave to appeal should not be granted. The appellant has not demonstrated that there is a significant possibility that it was deprived of a chance that was fairly open of achieving a better outcome than occurred. Nor do we exercise the discretion to grant leave to appeal under s 80(2)(b).
8. The appellant's assertions in relation to the remaining grounds raise many of the same issues that were raised in the submissions on errors of law and which we do not accept. The appellant seeks to reagitate many of the issues that were raised in defence at the hearing and which the Tribunal did not accept. We do not find that the Tribunal did not reach a reasonable conclusion on the evidence that was before it. We are satisfied that the appellant did not suffer a substantial miscarriage of justice as a result.
9. In relation to leave, we are of the opinion that there are no issues of principle, no questions of public importance or matters of administration or policy which concern this appeal. Nor are we satisfied that the appellant has suffered a substantial miscarriage and leave to appeal is refused and we shall deal with each ground briefly in turn.

Appeal Ground 5 - Underfloor hearing

1. In essence the appellant submits that the Tribunal erred in finding the heating was laid in a defective manner. The appellants case on underfloor heating was rejected by the Tribunal and we are satisfied that on the evidence it was open to the Tribunal to find that the flooring was defective. As discussed above (above at para 20 and 21) the Tribunal made the relevant finding at para [76(22)] of the reasons for decision. The Tribunal, for the reasons it gave preferred the evidence of the homeowner's expert over the Mr Sims.

Appeal Ground 6 - Walls were out of plumb

1. This appeal grounds reagitates many of the issues raised at para 31 above. We are satisfied that it was open on the evidence for the Tribunal to accept Mr Brincat's evidence and lay evidence that the walls were visibly out of plumb.
2. The issues raised by the appellant that the evidence of the homeowner and Ms Erken (the neighbour) were not independent, was put to Ms Erken in cross-examination and denied by her. It was never put to the homeowner. On that basis it was open to the Tribunal to prefer the evidence. We find no grounds to grant leave or disturb the finding of the Tribunal in that regard. Similarly, as previously stated, it was also open to the Tribunal to find that the matching tiles could not be found and all tiles needed to be replaced (see para 32 and 33 above).

Appeal Ground 7 - Roofing

1. This ground repeats the submissions made in ground 1 and has been dealt with us in para's 28-20 above.

Appeal Ground 8 - The Bathroom Window

1. The appellant submits that the Tribunal erred in finding at [76(25)] of the reasons for decision that the bathroom window was defective. The window is dealt with in Mr Brincat's report on 19 September 2017 at pages 26 to 31.
2. At [76(25)] the Tribunal found that the homeowner: has proved this part of her case which in my opinion is glaringly obvious just in studying the photographic evidence. I find that the builder has made no real attempt to finish the subject window (as required by the contract) and the subject window has a decidedly lop-sided and makeshift appearance. I accept Mr Brincat's evidence on quantum.
3. The Tribunal proceeded to award $2,044.90 damages for this item based on Mr Brincat's costing moving the position of the window and the associated demolition, bricklaying and tiling.
4. The appellant submits that the Tribunal has not found that the contract required the window to be in a different position. Mr Sim recommended that it is only necessary to replace the window frame casings with casings half an inch larger because of the casing already sitting on top of the tile so a replacement wider casing will work. Mr Sim valued this scope of work at $295.40 as it does not involve moving the position of the window.
5. In essence, the appellant disputes the method and cost of rectification. We find that it was open to the Tribunal to find the defects and the costings on the evidence. The Tribunal accepted Mr Brincat's evidence as to the requirement to 'match' the window by a proper placement of it within an pre-existing door cavity. The Tribunal accepted that the window was required to be matched and accepted Mr Brincat's evidence of costs to make her windows match. We are not satisfied to grant leave on this basis or that a substantial miscarriage of justice has occurred.

Appeal Ground 9 -The Dimmer Switch in the Bathroom

1. This ground repeats the same issues that were dealt with in appeal ground 1 above. We have dealt with the issue at para's 24-28 above. We find no grounds on which to grant leave on this point

Appeal Ground 10 - Bulkhead

1. The appellant submits that the Tribunal erred in finding at [76(24)] of the reasons of decision that the bulkhead is a defect. The appellant had submitted in its written submissions that the bulkhead was a variation agreed by the homeowner because floor to ceiling laminate or poly doors ended up being not acceptable as these were likely to bow in a high humidity room. The appellant submits that the homeowner instructed the builder not to make the bulkhead the same height as the door opening between the laundry and bathroom bulkhead so the builder could install a standard door and that the Tribunal gave no weight to those facts and did not consider the practical matter of the humidity of the room and floor to ceiling laminate or poly doors . They submit that had the Tribunal accounted for those facts, that it is more likely that Mr Higgins' account of events was true.
2. We do not accept those submissions by the appellant. The homeowner gave affidavit and oral evidence that she did not agree to the bulkhead and that it was forced upon her without her agreement or knowledge. The Tribunal accepted the evidence of the homeowner over Mr Higgins. It was open to the Tribunal to prefer the evidence of the homeowner, given the credit findings made against Mr Higgins. On that basis, we do not accept that the Tribunal was obliged to accept Mr Higgins account of events.

Costs

1. The homeowner has indicated that she is seeking costs. The relevant costs rule appears in s 60 of the NCAT Act.
2. Rule 38 of the Rules modifies the application of s 60 in proceedings before the Consumer and Commercial Division of the Tribunal and Rule 38A modifies the position in respect of appeals. The effect of Rule 38 is that where what is claimed or in dispute in the proceedings before the Consumer and Commercial Division exceeds $30,000, an award of costs can be made in the absence of special circumstances. The effect of Rule 38A is that on appeal, the same costs provisions apply as applied in the Tribunal below. The amount claimed in this appeal exceeds $30,000 so rules 38 or 38A apply. We have made provision for the exchange of documents in relation to any cost's application.

Orders

1. In light of the above, the appropriate orders are: 1. Leave to appeal is refused 2. The appeal is dismissed 3. The stay order made 10 October 2019 is lifted 4. The Registry is directed to pay the monies held in trust to the respondent immediately. 5. The respondent is to provide to the Appeal Panel and the appellant, either in person or by post, any submissions and documents in relation to any application for costs by 20 July 2020. 6. The appellant is to provide to the Tribunal and applicant, either in person or by post, submissions and documents on costs by 3 August 2020. 7. Costs will be determined on the papers. If either party seeks to be heard in person, they should advise the Registry prior to 3 August 2020 setting out the reasons why and the Appeal Panel will advise of the decision in due course.

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

Amendments 08 July 2020 - M Sheldon added as Counsel for Respondent 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: 08 July 2020