This is an application for reinstatement of an application for leave to appeal, and if reinstated, an application for leave to appeal on the basis of new evidence the appellants submitted was not reasonably available to them prior to the hearing before the Tribunal at first instance.
For the reasons set out below the application for reinstatement is granted but the application for leave to appeal is dismissed.
[2]
Background
The appellants (homeowners) brought proceedings against the respondent for damages for breach of the statutory warranties contained in s 18B of the Home Building Act 1989 (NSW) in relation to the respondent's supply and installation of a quantum quartz kitchen bench top.
The Tribunal found the respondent breached those warranties and awarded the homeowners damages in the sum of $11,760 being the proved cost of rectification of the faulty work.
Before the Tribunal the homeowners also claimed damages for the cost of renting alternative accommodation for two weeks whilst the rectification work was carried out.
Directions for the exchange and lodgement of the parties' documents prior to the hearing of the parties' dispute were made by the Tribunal at a Conciliation and Group List (Hearing) on 5 December 2022.
Mulvenna v Tuan Golden Pty Ltd [2023] NSWCATAP 108 | Case summary | Zoe
In compliance with those directions the homeowners exchanged and lodged the following documentary evidence ten days later on 15 December 2022:
1. an expert report of Mr Houm of Deep Water Group dated 14 December 2022;
2. photographs of the benchtop and kitchen area;
3. letter from ARL Building Services Pty Ltd dated 12 December 2022 supporting the opinion of Mr Houm that the defect occurred because the respondent did not install sufficient support batons for the benchtop which had caused the benchtop to drop and crack;
4. affidavit of Mr Mulvenna dated 6 December 2022;
5. letter from Quantum Quartz dated 15 November 2022;
6. quote from Architectural Stone Concepts dated 19 November 2022;
7. quote from ARL Building Services Pty Ltd dated 23 November 2022 for the cost of disconnecting and reconnecting electrical works and plumbing works whilst the benchtops/splashback were installed;
8. email from No Bull Blinds dated 14 November 2022; and
9. one advertisement form Airbnb for renting a 3-bedroom property in Malabar for 2 weeks.
The hearing before the Tribunal took place on 15 January 2023 and the Tribunal gave concise written reasons that same day.
The Tribunal accepted that the cost of renting alternative accommodation may be claimable as a loss for breach of the statutory warranties, but refused to make any award in that regard because the Tribunal considered the homeowners had failed to prove causation i.e. that they and their two young children would be required to live elsewhere whilst the rectification work was carried out, and had failed to prove the reasonable cost of alternative accommodation. The Tribunal said:
"31. However, in this matter, the applicants' evidence does not establish such loss. There is no expert evidence to support the applicants' submission that work will take a long period of time and that it will be necessary to move out. The subjective belief of Mr Mulvenna and a single Air BnB advertisement is not sufficient to persuade the Tribunal that there should be any award for damages for the cost of moving out of the premises whilst rectification work is being performed."
The homeowners filed a Notice of Appeal. In that Notice of Appeal, in the section for Grounds of Appeal, the homeowners said:
"We are seeking damages for the costs involved of moving out of our premises for 2 weeks. As per order 29 and 30, there are grounds and precedence to claim these damages. As per order 31 we were verbally advised by our builder that:
1 = the work involved would take a minimum of 2 weeks
2 = that we were advised to not be living in the property due the health risks involved with stone and silica dust
3 = there is only 1 kitchen in the property and this will be out of order for the 2 week period.
Supporting expert report attached from ARL Building advising the above.
Also please note that we have 2 young children aged 1.5 and 5 yrs old and will be unable to prepare or cook any meals in the kitchen if it is out of order."
In the section of the Notice of Appeal dealing with any application for leave to appeal, and whether significant new evidence was now available that was not reasonably available at the time of the hearing, the homeowners said:
"The significant new evidence in the form of an expert letter from the ARL Building (which) was not reasonably available at the time of the hearing due to short time constraints and the Christmas period.
We were verbally advised by ARL Building that the impacts these works would have on (our) health, and were told we should (not) be in the home whilst these works were being done. We now have this expert letter and it is the grounds for this appeal."
The expert letter from ARL referred to in the quote above was dated 18 January 2023 (three days after the Tribunal provided its written reasons for its decision) and said:
"To whom it may concern,
As per the previous report done at (address of property) regarding the cracked stone bench that needs to be replaced, I can advise the following:
- The work required by the electrician, plumber, stonemason, carpenter and blinds company will take a minimum of 2 weeks, which due to the works being in the kitchen will put them at an inconvenience while this work is being undertaken.
- Whilst the work to the stone benchtops in particular is being done at (address of property), I advise the home owners to not be living in the house due to the silica dust that will be created which will make the environment a health risk in addition to the works involved.
- (address of property) only has 1 kitchen which will be unable to be used as the kitchen will be out of order whilst the work is being completed."
In addition to that letter from ARL, the homeowners attached three Airbnb quotes for two weeks' accommodation to the Notice of Appeal and also sought to rely upon those quotes as significant new evidence that was not reasonably available at the time of the hearing.
On 8 February 2023 the appeal was dismissed because of the failure of the homeowners to appear at the directions hearing for the appeal held that day.
Within the time allowed the homeowners filed an application to reinstate the appeal. The reason given for the non-appearance on 8 March 2023 was that the first appellant temporarily lost his mobile phone.
We accept that explanation by the homeowners, no relevant prejudice was suffered by the respondent and the homeowners quickly moved to have their appeal reinstated. Therefore, the application to reinstate the appeal is granted.
On 8 March 2023 the Appeal Panel gave directions for the preparation of the hearing of the appeal. The homeowners informed the Appeal Panel that they did not wish to file anything further to that already filed (being their Notice of Appeal, letter from ARL dated 18 January 2023 and three Airbnb quotes). The application for leave to appeal was listed for hearing before us, with the application to reinstate that appeal to be considered on the same occasion.
[3]
Decision
The legislation which governs appeals in the Tribunal says that a party only has a right to appeal (that is, may appeal without seeking anyone's permission) when the Tribunal decision from which the appeal is brought contains (in layman's language) some type of legal error or mistake: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act").
In this case the homeowners do not say that the Tribunal made any sort of legal mistake giving rise to a right to appeal, and having read the Tribunal's decision, it is our opinion that no legal mistake was made.
The only other way for parties such as the homeowners to appeal is to seek leave (or permission) to appeal. A party may only seek permission to appeal if one or more of the three grounds referred to in cl 12 of Schedule 4 of the NCAT Act exists, namely if:
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).
The first two of those three grounds have not been raised by the homeowners and having read the Tribunal's decision, we do not see them as having arisen in this case.
The homeowners, as is clear from their Notice of Appeal, rely upon the third of those grounds, namely that they say that they now have significant new evidence which was not reasonably available to them at the time of the Tribunal hearing.
What the words "not reasonably available" in cl 12 of Schedule 4 of the NCAT Act mean was decided in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [19]-[24]. That decision has been applied in more than 60 appeals in the NCAT and we should follow it in this case.
The Appeal Panel decided in Al-Daouk that the test whether evidence was not reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but by applying an objective test and considering whether the evidence in question was unavailable because no person could reasonably have obtained the evidence before the Tribunal hearing.
During the appeal we attempted to describe this test to the homeowners in layman's terms as meaning "virtually impossible to obtain the evidence", but we appear to have confused the issue. At the end of the day the test is whether, objectively speaking, no person could reasonably have obtained the new evidence prior to the hearing before the Tribunal on 15 January 2023.
The history of the proceedings show that the homeowners obtained the ARL letter dated 12 December 2022 (tendered to the Tribunal) seven days after directions were made on 5 December (and presumably no more than seven days after the homeowners asked ARL to produce it), and obtained the letter dated 18 January 2023 (which they wish to tender on this appeal) three days after the Tribunal gave its decision and identified the gap in the homeowners' evidence which they now seek to fill.
No evidence was provided to support the assertion contained in the Notice of Appeal that the letter from the ARL dated 18 January 2023 and the three Airbnb quotes were not reasonably available prior to the Tribunal hearing because of short time constraints or the Christmas period. The homeowners made those assertions but did not prove them.
When this lack of evidence was raised with the first appellant during the hearing of the appeal he applied for an adjournment in order to obtain that evidence (if it existed) if we "wanted it". That application was opposed by the respondent and was refused by us with reasons to be given subsequently.
The reasons why we refused the application for an adjournment was because of the lateness of the application, the forensic decision made by the homeowners on 8 March 2023 when they informed the Appeal Panel that they did not wish to file anything further, the prejudice to the respondent in further delaying the final resolution of the proceedings and the unlikelihood that the contemplated further evidence could be produced or would assist the homeowners. That last point arises because the evidence shows that the homeowners were able to obtain letters from ARL within three and seven days of previous requests. We shall return to this point shortly.
The homeowners are not legally trained or represented and some allowance should be made for those circumstances, but the NCAT does provide guides on its website for the preparation of hearings and appeals. Those guides make clear that it is for the parties to proceedings to prepare and produce the evidence they wish to rely on. As the website advises:
"NCAT decides cases on the evidence presented at the hearing. You will need evidence to prove your case and to respond to any issues raised by the other party."
It is not for the Tribunal to ask for certain evidence to be produced and then adjourn cases until that is done. Perhaps that might be possible in a perfect world, but the Tribunal receives about 70,000 applications each year which it must deal with expeditiously. It does not have the financial and other resources to deal with cases as the homeowners asked in this case. Rather, it must leave it to the parties to prepare their cases with the assistance of the guides on the Tribunal website.
Turning to the application for leave to appeal, we do not accept the bare assertion made by the homeowners that the fresh evidence could not have been obtained prior to the hearing before the Tribunal because of "short time constraints" and the "Christmas period".
The length of the extra material now relied on (quoted at [12] above) was very brief and did not require any inspection, investigation, testing or other time-consuming task to produce. It would have taken mere minutes to write.
The first ARL letter dated 12 December 2022 was produced within seven days after directions were made by the Tribunal on 5 December 2022. There is no reason why the new material could not have been included in that letter. After all, the new letter dated 18 January 2023 was produced a mere three days after the Tribunal made its decision and presumably three days after the homeowners requested it.
True it is that the letter of 18 January 2023 was produced after the Christmas period, and we accept a builder may have been busier than usual in the lead-up to Christmas. But ARL had produced a more comprehensive letter seven days after being requested to do so in early December 2022, the new material would have taken mere minutes to write, and so there is no reason that new material could not have been included in the original ARL letter if requested.
Alternatively, there is no reason why the new material could not have been included in a fresh letter and lodged and served at some point after 12 December and some reasonable time before the Tribunal hearing on 15 January 2023.
Therefore, we are not persuaded that, objectively speaking, no person could have reasonably obtained the evidence in the ARL letter dated 18 January 2023 prior to the hearing before the Tribunal at first instance.
The same is true for the three Airbnb quotes. The homeowners tendered one such quote in the hearing before the Tribunal at first instance. There is no reason why they could not have tendered more Airbnb quotes had they wished to do so at that time. Those quotes were obtained by the homeowners by conducting an online search and printing the results for the identified properties. Those same searches could have been conducted prior to the hearing before the Tribunal.
It follows that the test for the admission of fresh evidence in cl 12 of Schedule 4 of the NCAT Act is not met, and therefore the application for leave to appeal must be refused.
[4]
Orders
We make the following orders:
1. The application to reinstate the appeal is granted.
2. The application for 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
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Decision last updated: 17 April 2023