MS Noun Construction Pty Ltd v Baker

Background

1. The appellant carried out work on the roof of the respondent's home which was alleged to have been defective. An amount of $25,000 was claimed. The application to the Tribunal was lodged on 6 February 2022. The matter was heard by the Tribunal on 20 April 2022 and the Tribunal's reasons for decision were published on 24 April 2022. The Tribunal relevantly found that the respondent was entitled to compensation of $18,857.30.

Scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) NCAT Act. Leave can only be granted if the provisions of cl12 sch 4 of the NCAT Act are satisfied.
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e. mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. The appellant has not raised any of the three matters which can be the subject of an appeal if leave (ie permission) to appeal is granted, namely (1) that 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) that significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
4. In Cominos v Di Rico [2016] NSWCATAP 5, the 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. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
5. From an abundance of caution, we have undertaken that exercise. However, we have been unable to discern any matters not raised by the appellant that would constitute either an error or law or a matter which would warrant a grant of leave to appeal.

Submissions and evidence

1. In deciding the appeal, we have had regard to (1) the Notice of Appeal lodged on 20 May 2022, (2) the Reply to Appeal lodged on 15 June 2022, and (3) the documents lodged by the respondent on 3 June 2022, 7 June 2022, and 13 July 2022. No documents, other than the Notice of Appeal have been submitted by the appellant. The tribunal made directions on 8 June 2022 for the parties to file evidence and submissions in support of and in opposition to the appeal. The appellant did not comply.

Notice of Appeal

1. The Notice of Appeal was lodged on 20 May 2022, which was within the 28-day period specified in cl 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules) because that period commences to run not from the date of the hearing (20 April 2022) but from the date of the decision (24 April 2022).

Grounds of Appeal

1. Under the heading "Grounds of Appeal", the appellant suggested the decision was wrong in three respects: (1) finding that the roof was not repairable, (2) not accepting that the roof was repaired after the report was prepared, and (3) finding "The applicant hasn't another report to state the damage". It is convenient to refer to those grounds as Ground 1, 2, and 3.

Appellant's oral submissions

1. Mr Noun said that he obtained a report and that repairs were carried out after that report was obtained which is why he lodged an appeal. He outlined the nature of the repairs which he claimed were carried out. As a result, the case he presented, on appeal, was that he obtained a report, and that work was done to attend to the matters raised in that report.

Respondent's oral submissions

1. Mr Baker, the respondent, said that he complained about the work which caused Mr Noun to obtain a report which he then submitted as evidence in the hearing. He suggested that Mr Noun was hiding behind a company and outlined the difficulties he had encountered in trying to enforce the money order which is the subject of this appeal.

Consideration

1. It is noted that the Tribunal's website contains a warning that an appeal is not an occasion for a second hearing of the application: an appeal should be directed to the question of whether there was an error made in the decision resulting from that hearing of the application.
2. We also observe that the respondent alleged, during his oral submissions, that his contract was with Mr Noun although the Tribunal decided that his contract was with the appellant company. The respondent has also alleged that the appellant company is not or has not been registered. However, no cross-appeal has been lodged and no supporting evidence has been provided. While it may be that the respondent has a claim against Mr Noun personally, we are unable to consider that claim.
3. Mr Noun was named as a respondent to the application and the member who conducted the hearing considered the question of whether an order should be made against him but decided that the money order should be made against the appellant company and not Mr Noun personally. If the respondent was unhappy with that decision, then he could and should have lodged an appeal either (1) on or before 22 May 2022 (ie within 28 days of the reasons being provided on 24 April 2022) as of right or (2) after 22 May 2022 if the Tribunal determines that he should be granted an extension of time for the lodgement of his appeal.
4. In the documents lodged by the respondent, he sought to revisit the rejection of his claim for $5,000 and to make an additional claim of $1,100. However, as indicated above, an appeal is not an occasion when the applicant can re-run his case in relation to his claim for $5,000. Nor is it an occasion when a fresh claim for $1,100 can be considered. There is no cross-appeal. The only issue before the Tribunal in this appeal is whether the order for the appellant to pay the respondent $18,857.30 should be confirmed or overturned.
5. Further, it is noted that the context in which this dispute arose was that the appellant sub-contracted the work on the respondent's premises and no proceedings appear to have been taken by the appellant against any sub-contractor.

Ground 1

1. Did the Tribunal err in finding that the roof was not repairable? From the reasons provided on 24 April 2022, it appears that finding was based on expert evidence, and it was open to the appellant to either challenge that evidence at the hearing or provide expert evidence to the contrary. It appears that the evidence before the Tribunal at first instance was evidence in the form of a report from an independent expert for the respondent, being a report that was obtained by the appellant and provided to the respondent.
2. In the reasons for decision that were published on 24 April 2022, at paragraph 24(c), it was said: "The Tribunal accepts the [respondent's] Expert Report which indicates that the roof is incapable of being repaired and must be replaced". The appellant having not provided any documents to the Tribunal, no error has been shown in relation to this finding which appears to have been based on expert evidence which the appellant would have difficulty contradicting since that evidence was in a report which he sought and obtained.

Ground 2

1. Did the Tribunal err in not accepting that the roof was repaired after the report was prepared? There is nothing to indicate that this point was raised during the hearing and no reference has been provided to evidence or submissions that would support this claim. Even if it be accepted that repairs were carried out after the report was obtained, such work conflicted with the report which expressed the view that the roof was incapable of being repaired and must be replaced. The respondent was free to elect to repair the roof rather than replace it even though he received a money order for the cost of replacement. This ground has not been established.

Ground 3

1. This ground was expressed as follows: "The applicant hasn't another report to state the damage." If this ground is referring to another expert report, that is not required as evidence from one expert witness is sufficient. If this is a reference to the cost of rectification, it would appear the respondent had what was referred to in the reasons as "A quote from a third party tradesperson to remove and replace [the roof]". It was open to the appellant to suggest that a second quotation be obtained or to provide a competing quotation but that does not appear to have been done. Again, the appellant has not provided any reference to documents or made any submissions in support of this ground.

Conclusion

1. As no error of law or ground requiring leave has been shown, for the reasons set out above, the following order is made: 1. The appeal is dismissed.

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: 29 July 2022