Monument Building Group Pty Ltd v Kapila

NCAT Appeal Panel|2021-08-30

Introduction

The appellant builder appeals, and seeks leave to appeal, from a decision of the Tribunal made on 10 February 2021, which dismissed the builder's application dated 1 September 2020.
For the reasons set out below, the application for leave to appeal is refused and the appeal is otherwise dismissed.

Background

On 1 November 2019, the Tribunal made orders, with the consent of the builder and the owner, in proceedings HB 19/44148. Those orders allowed for the builder and the owner to agree a scope of works for the remediation of works previously undertaken by the builder for the owner.
On 25 March 2020, the builder rendered an invoice to the owner for $4,407.22.
On 25 August 2020, the builder rendered a second invoice to the owner for $2,567.99.
On 1 September 2020, the builder filed a home building application with the Tribunal, seeking an order that the respondent owner pay $6,975.21, being the total of the two invoices.

The Tribunal's reasoning

The Tribunal's reasoning is set out in its Statement of Reasons ("Reasons"). The essential steps in that reasoning are as follows: 1. the application was brought as a "building claim" under s 48K of the Home Building Act 1989 ("HB Act") (Reasons [2]); 2. s 48K provides jurisdiction to determine a "building claim" under the HB Act, including a claim arising from residential building work (Reasons [7]); 3. that jurisdiction has a minimum threshold for residential building work of $5,000, by reason of cl 2 of Sch 1 to the HB Act (Reasons [7]); 4. there is an exception to this minimum threshold where the work is "specialist work" within the meaning of that term in cl 1 of Sch 1 to the HB Act (Reasons [7] and [8]); 5. the builder contended that the work done under the invoices was the result of a verbal agreement between the builder and the owner by which it was agreed that the owner would pay for the additional work the subject of those invoices, and that such work was additional to the work agreed pursuant to the original building contract and the orders made by the Tribunal on 1 November 2019 (Reasons [3]-[5]); 6. however, the Tribunal was not satisfied that there was a verbal agreement between the builder and the owner which covered the work undertaken in both invoices and was thus not satisfied that minimum threshold of $5000 had been met (Reasons [1], [9]); 7. the Tribunal noted that it was possible for the individual invoices to be the subject of a building claim within the jurisdiction of the Tribunal, despite being for an amount less than $5000, if the work was "specialist work" (Reasons [7], [10]); 8. as to the claim represented by the first invoice, the Tribunal was not satisfied that the work claimed was "specialist work" and found that the Tribunal did not have jurisdiction with respect to that claim (Reasons [10]); and 9. as to the claim represented by the second invoice, the Tribunal was satisfied that the work claimed was "specialist work" and thus that the Tribunal did have jurisdiction (Reasons [11]). However, the Tribunal was not satisfied on the evidence before it that the work the subject of that invoice was performed under an agreement between the builder and the owner in which the owner was to bear the cost of the work (Reasons [1], [12] and [13]).

The nature of the appeal

This is an internal appeal. Internal appeals may be made as of right on a question of law, and otherwise with the leave of the Appeal Panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 ("NCAT Act").

Appeal as of right

The essence of the builder's Notice of Appeal, as developed in the submissions made by the builder's counsel, is that the Tribunal made two errors of law.
The first error contended for by builder is that the Tribunal erred in finding that it did not have jurisdiction to hear the matter. In circumstances where, as set out above, the Tribunal held that it did have jurisdiction with respect to the second invoice but not the first invoice, the Appeal Panel understands the contended error to be the Tribunal's finding that it was not satisfied that there was an agreement covering the work described in both invoices (see [8(5) and (6)] above).
The second error contended for by the builder is that the Tribunal erred in finding that there was no agreement for the builder to perform the works in the two invoices. The Appeal Panel understands the contended error to be that described in the previous paragraph, together with the Tribunal's finding that the work the subject of the second invoice was not the subject of an agreement between the builder and the owner (see [8(9)] above).
In view of the obvious overlap between these two contentions, it is convenient to consider them together.
The builder's submissions address the evidence in a bundle provided to the Appeal Panel and invite the Appeal Panel to conclude that the Tribunal made errors of law in reaching the conclusions described above. The Appeal Panel notes that this bundle contains material before the Tribunal and material identified in the index to the bundle as "new evidence", in respect of which no leave has been sought.
The precise nature of the contended errors of law has not been specified as is required (Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [11]) and the Appeal Panel is not satisfied that the Tribunal made an error of law. It is not an error of law to fail to be satisfied that a party has proven the existence of an alleged agreement, save in limited circumstances (for example, an absence of any evidence to support the finding, the finding being otherwise unreasonable, or a failure to accord procedural fairness) none of which have been suggested in the present case.
Where, as in the present case, the Tribunal considered the evidence of both parties and, having done so, concluded that it was not satisfied that an alleged agreement had been proven, there is no error of law. An appeal is not an opportunity for a party present the evidence to an Appeal Panel and ask the Appeal Panel to reach a different conclusion as to the effect of that evidence.

Leave to appeal

The builder's Notice of Appeal indicates that leave to appeal is sought. However, the builder's submissions addressed only the two contended errors of law discussed above and did not address the question of leave to appeal.
Nevertheless, the Appeal Panel has considered whether leave to appeal ought be granted and declines to do so for the following reasons.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division (such as the decision under appeal) are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. Clause 12(1) provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because - (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 ("Collins"), an Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered 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."
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, 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. In Collins, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; or (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; or (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."
Clause 12(1) of Sch 4 to the NCAT Act requires that the Appeal Panel be satisfied that the builder may have suffered a substantial miscarriage of justice because of one of the matters in subparagraphs (a), (b), or (c).
As to subparagraphs 12(1)(a) and (b) - whether the decision was not fair and equitable or was against the weight of evidence - the essence of the builder's submissions, as noted above, was that the Tribunal should have reached a different conclusion on the evidence before it. However, as also noted above, the Tribunal gave consideration to the evidence adduced by each of the builder and the owner and reached its conclusions taking into account such evidence. Further, for a decision to be against weight of evidence, the evidence in its totality must preponderate so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach: see Collins at [77]. The Appeal Panel has considered the evidence and is satisfied that the conclusions reached by the Tribunal were not against the weight of evidence.
In these circumstances the Appeal Panel is not satisfied that the decision of the Tribunal was not fair and equitable or against the weight of evidence.
As to subparagraph 12(1)(c), as noted above, some of the material filed by the builder with the Appeal Panel has been identified as "new evidence", however no explanation has been provided as to why such evidence, which appears to dated prior to the hearing date, was not available to the builder at the time of the hearing and the Appeal Panel does not take into account.
For the above reasons, the Appeal Panel declines to grant leave to appeal.

Orders

For the above reasons, leave to appeal is refused and the appeal is otherwise dismissed. As the owner indicated in her submissions that she wished to make submissions as to costs, the Appeal Panel will make orders for the filing of written submissions on costs.
The Orders of the Appeal Panel are: 1. Leave to appeal is refused. 2. The appeal is otherwise dismissed. 3. If the respondent wishes to make submissions as to costs of this appeal: 1. the respondent is to provide written submissions of no more than 5 pages to the Appeal Panel and the appellant within 14 days of the date of this decision and is to address in those submissions: 1. whether the respondent consents to costs being determined on the papers pursuant to section 50 of the Civil and Administrative Tribunal Act; 2. the effect of the order made by the Appeal Panel on 10 March 2021 that the respondent have leave to be legally represented on condition that no legal costs may be recovered by the respondent in the appeal; 1. the appellant is to provide written submissions of no more than 5 pages to the Appeal Panel and the respondent within 14 days of the date of receipt of the respondent's submissions and is to address in those submissions: 1. whether the appellant consents to costs being determined on the papers pursuant to section 50 of the Civil and Administrative Tribunal Act; 2. the effect of the order made by the Appeal Panel on 10 March 2021 that the respondent have leave to be legally represented on condition that no legal costs may be recovered by the respondent in the appeal; 1. the respondent is to provide any written submissions in reply of no more than 2 pages to the Appeal Panel and the appellant within 7 days of receipt of the appellant's submissions.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 30 August 2021

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